America Rebuilt the British System the Founders Fought to Escape
“An elective despotism is not the government we fought for.”
Thomas Jefferson warned about the dangers of unchecked power even in a system where the people get to choose their leaders.
But what if you were told that’s just what we ended up with? Because the system we live under today is virtually the same – in practice – as the British system the founders fought a long, bloody war to secede from.
And it all gets down to sovereignty – or final authority. To the founders, any government that gets to determine the extent of its own power is the very definition of tyranny.
America didn’t escape the British system. We rebuilt it.
POWER THAT ANSWERS TO NO ONE
To understand what the founders fought to escape and what we’ve rebuilt, start with the source. In 1764, Royal Governor Sir Francis Bernard described the British system: power that answered to no one and recognized no earthly limits.
“The King in Parliament has the sole right of legislation, and the supreme superintendency of the government; and, in this plentitude of power, is absolute, uncontrollable, and accountable to none; and therefore, in a political sense, can do no wrong.”
It was all based on sovereignty: supreme, absolute, and final power.
“The Kingdom of Great Britain is imperial; that is, sovereign, and not subordinate to or dependent upon any earthly power.”
Exercising this sovereign power, the British passed the Sugar Act in early 1764 to fund a standing army occupying the colonies after the Seven Years’ War.
Samuel Adams immediately saw what this meant: an attack on their most fundamental right, the power to govern themselves.
“For if our Trade may be taxed why not our Lands? Why not the Produce of our Lands & every thing we possess or make use of? This we apprehend annihilates our Charter Right to govern & tax ourselves.”
He then took the argument to its logical and brutal conclusion. A people taxed without even having representation are not free at all.
“If Taxes are laid upon us in any shape without our having a legal Representation where they are laid, are we not reduced from the Character of free Subjects to the miserable State of tributary Slaves?”
James Otis saw the domino effect: this precedent would topple every other right.
“The very act of taxing, exercised over those who are not represented, appears to me to be depriving them of one of their most essential rights, as freemen; and if continued, seems to be in effect an entire disfranchisement of every civil right.”
“No taxation without representation?” That meant nothing to the British. As Bernard put it: We’re sovereign. You’re subjects. What we say goes.
“The Parliament of Great Britain, as well from its rights of Sovereignty as from occasional exigencies, has a right to make laws for, and impose taxes upon, its subjects in its external dominations, although they are not represented in such Parliament.”
The British ignored the warnings and doubled down. In 1765, they escalated with the Stamp Act. Patrick Henry’s Virginia Resolves drew a constitutional line in the sand.
“Resolved, Therefore that the General Assembly of this Colony have the only and sole exclusive Right and Power to lay Taxes and Impositions upon the Inhabitants of this Colony and that every Attempt to vest such Power in any Person or Persons whatsoever other than the General Assembly aforesaid has a manifest Tendency to destroy British as well as American Freedom.”
THE FUNDAMENTAL PRINCIPLE
But the British didn’t agree. Even the notion of local self-government in the colonies was something they saw a gift they could revoke, not a right.
“A separate Legislation is not an absolute right of British subjects residing out of the seat of Empire; it may or may not be allowed, and has or has not been granted, according to the circumstances of the community.”
When the people nullified the Stamp Act with mass non-compliance and resistance, the British repealed it, but this was only a political move – they didn’t actually retreat. On the same day, they passed the Declaratory Act, claiming unlimited, centralized power “in all cases whatsoever.”
The Declaratory Act was the point of no return because it forced the question – who is in charge? The British said government. Americans, like George Mason, said the people.
“In all our associations; in all our agreements let us never lose sight of this fundamental maxim – that all power was originally lodged in, and consequently is derived from, the people. We should wear it as a breastplate, and buckle it on as our armour.”
To the colonists, the Declaratory Act wasn’t a real law. They called it the “pretended right.” Thomas Paine took that contempt a step further, calling it a claim of power so total it was an offense against God.
“Britain, with an army to enforce her tyranny, has declared that she has a right (not only to TAX) but ‘to BIND us in all cases whatsoever,’ and if being bound in that manner, is not slavery, then is there not such a thing as slavery upon earth. Even the expression is impious, for so unlimited a power can belong only to GOD.”
James Madison identified this clash over sovereignty as the “fundamental principle of the revolution.” He first explained the American view – that legislatures in the colonies were equals to Parliament. The only difference was jurisdiction.
“The Legislative power was maintained to be as complete in each American Parliament, as in the British Parliament.”
The Revolution itself arose because the British refused to accept this view.
“A denial of these principles by Great-Britain, and the assertion of them by America, produced the revolution.”
SOVEREIGNTY LIES IN THE PEOPLE
So in the British model, sovereignty lies in government. That’s a government that decides its own limits. The American constitutional system rejected that idea completely. St. George Tucker explained the blueprint.
“In the United States of America the people have retained the sovereignty in their own hands: they have in each state distributed the government, or administrative authority of the state, into two distinct branches, internal, and external; the former of these, they have confided, with some few exceptions, to the state government; the latter to the federal government.”
John Jay boiled it down even further. The Constitution is just a list of instructions from the real bosses: the people.
“The Constitution only serves to point out that part of the people’s business, which they think proper by it to refer to the management of the persons therein designated.”
The people in government weren’t a new ruling class. They were, as Jay noted, just the hired help.
“those persons are to receive that business to manage, not for themselves and as their own, but as agents and overseers for the people to whom they are constantly responsible.”
Remember that language that Governor Bernard used to describe the British system? At the Pennsylvania ratifying convention, James Wilson showed how Americans flipped it upside down.
“the truth is, that the supreme, absolute, and uncontrollable authority remains with the people.”
John Dickinson took this further: when you have a bad administration, the answer isn’t within the government at all. It’s found “before the supreme sovereignty of the people.”
“IT IS THEIR DUTY TO WATCH, AND THEIR RIGHT TO TAKE CARE, THAT THE CONSTITUTION BE PRESERVED; or in the Roman phrase on perilous occasions – TO PROVIDE, THAT THE REPUBLIC RECEIVE NO DAMAGE.”
In Virginia, George Nicholas laid out the process – courts could be a first line of defense. But the people themselves were still the final say.
“But, says he, who is to determine the extent of such powers? I say, the same power which in all well regulated communities determines the extent of Legislative powers – If they exceed these powers, the Judiciary will declare it void. If not, the people will have a right to declare it void.”
In North Carolina, Archibald Maclaine started with the core principle – the source of power.
“all power is in the people and immediately derived from them.”
Then he then he explained how a free people is supposed to deal with violations of their own constitution
“You cannot exceed the power prescribed by the Constitution. You are amendable to us for your conduct. This act is unconstitutional. We will disregard it, and punish you for the attempt.”
Even Alexander Hamilton, when discussing federal supremacy, prescribed the same treatment for constitutional violations.
“But it will not follow from this doctrine that acts of the large society which are NOT PURSUANT to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such.”
THE DEFINITION OF TYRANNY
How do you treat usurpations of power? George Nicholas gave the answer: a free people wouldn’t let them stand forever.
“What would be the consequence of passing such a law? It would be, Sir, that after the expiration of the two years, at the next election they would either choose such men as would alter the law, or they would resist the government.”
They would never let their own constitution be twisted into authorization for tyranny.
“An enlightened people will never suffer what was established for their security, to be perverted to an act of tyranny.”
As St. George Tucker explained, when government steals power never delegated to it, that’s the very definition of tyranny.
“if in a limited government the public functionaries exceed the limits which the constitution prescribes to their powers, every such act is an act of usurpation in the government, and, as such, treason against the sovereignty of the people, which is thus endeavored to be subverted, and transferred to the usurpers.”
A POPULATION ON ITS KNEES
In the British system, government was sovereign. Government had power in “all cases whatsoever.” And that meant government would do whatever it wanted until government changed its mind.
Compare that to the American system today – not how it’s supposed to be under the Constitution, but how it plays out in practice. The way that almost all Americans treat the constitution today is that government gets to determine if government is following the rules or not.
This is most prominent with federal lawsuits. Most people believe that when the federal government does something they think is unconstitutional, the best recourse is to file a lawsuit.
But the federal courts are part of the federal government.
Asking part of the federal government to tell the federal government to stop doing what the federal government wasn’t supposed to do in the first place isn’t what a free people would do. That is, declare the act void. That’s a population on its knees, begging for scraps.
You can see this play out everywhere, from the Patriot Act to the NFA and everything in between.
When you add in the common view of the supremacy clause, that federal law is always supreme until the federal government decides otherwise, there’s not much difference with the British system under the Declaratory Act. Because their law was supreme “in all cases whatsoever.”
ELECTIVE DESPOTISM
The only real difference in practice comes down to a handful of elections every few years. But Thomas Paine warned that simply choosing who holds the whip doesn’t make you free.
“It is not because a part of the government is elective, that makes it less a despotism, if the persons so elected possess afterwards, as a parliament, unlimited powers. Election, in this case, becomes separated from representation, and the candidates are candidates for despotism.”
This system of elected rulers with unlimited power is the exact nightmare Thomas Jefferson warned about, bringing us right back to where we started.
“An elective despotism was not the government we fought for; but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others.”
When those checks aren’t effective? Jefferson gave us the answer.
“where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy.”
That, right there, is the difference between subjects of the British system and a real “land of the free.”
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