Legal History Book Review 128 Harv. L. Rev. 2234

Crown and Constitution



In his first cabinet meeting of 2014, President Obama announced a strategy to bypass the Republican-controlled House of Representatives and advance his social and economic agenda through the discretionary powers of the executive:

We are not just going to be waiting for legislation in order to make sure that we’re providing Americans the kind of help that they need. I’ve got a pen, and I’ve got a phone. And I can use that pen to sign executive orders and take executive actions and administrative actions that move the ball forward . . . . I’ve got a phone that allows me to convene Americans from every walk of life . . . to try to bring more and more Americans together around what I think is a unifying theme: making sure that this is a country where, if you work hard, you can make it.

Over the course of the year, the President signed executive orders concerning minimum wage rates, climate change, gay rights, and police practices. Perhaps most controversially, he announced a series of executive actions expanding protections for undocumented immigrants and encouraging selective enforcement by the Department of Homeland Security of certain provisions of federal immigration law. The President’s immigration measures prompted eighteen states to file suit against the federal government for violating the Take Care Clause of the Constitution. “This lawsuit is not about immigration,” the states argued. “It is about the rule of law, presidential power, and the structural limits of the U.S. Constitution.” The suit represents the latest phase of a controversy over the scope of executive power that predates the Constitution of 1789 and, indeed, the American Founding itself.

Professor Eric Nelson’s provocative new work, The Royalist Revolution: Monarchy and the American Founding, represents an important contribution to our understanding of the framing of the Article II powers of the Presidency. It argues that these powers found their earliest iteration during the imperial crisis of the 1760s and 1770s, when the very people who would eventually become leaders of the Revolution sought relief from the excesses of parliamentary rule in the revival of royal authority. Nelson argues that from the Stamp Act Crisis of 1765 through the final months leading to the Declaration of Independence, “patriot royalists” such as John Adams, Alexander Hamilton, and James Wilson urged George III to revive the prerogative powers of the Stuart kings in defense of the colonies. They called upon the Hanoverian king to do as his Stuart predecessors had done — to treat the colonies as his personal dominions and exercise the royal negative to reject bills that violated their traditional rights. According to Nelson:

[T]he turn to the royal prerogative was the formative moment in the history of what would emerge as American constitutionalism. The very same principles that had underwritten the patriot campaign to rebalance the imperial constitution in favor of the Crown demanded in 1787 the creation of a recognizably Royalist constitution for the new United States. This constitution would exclude the office of king — . . . the particular brand of republican political theory that had been unleashed in the colonies in the early months of 1776 required as much — but it would assign its rechristened chief magistrate far more power than any English monarch had wielded since William of Orange landed at Torbay in 1688. (p. 7)

In this sense, President George Washington had more in common with King Charles I than with King George III, and this was by design.

This Review begins with a brief overview of the way historians have treated the ideas of the American Revolution, noting how Nelson’s thesis challenges the prevailing view, advanced most notably by Professor Bernard Bailyn, that the American Revolution was essentially republican in character. It then discusses what Nelson terms the “Neo-Stuart” account of the British constitution, which emerged in the colonies during the 1760s and 1770s. On this account, the crisis of empire could be resolved by restoring to the monarchy the discretionary powers enjoyed by the early seventeenth-century Stuart kings. The Review then considers Nelson’s arguments regarding the impact of eighteenth-century republican theory on patriot-royalist theorists. Finally, it concludes by examining the way arguments over the proper role of the King in the British constitution shaped the framing of executive power in the Constitution of 1789. It attempts throughout to do justice to Nelson’s sophisticated account while bearing in mind the particular interests of the law review readership.

* Associate Professor of Law, Syracuse University College of Law.