America's strong, medieval Constitution
Its balance of powers is designed to enforce the rule of law
This is what the LORD says: “Stand at the crossroads and look; ask for the ancient paths, ask where the good way is, and walk in it, and you will find rest for your souls. But you said, ‘We will not walk in it.’” — Jeremiah 6:16 (NIV)
Next year comes America's quarter millennial.1 Growing old isn't for cowards.
A comedian & a professor on becoming ourselves in old age
Or at least that's what my mom told me. Another of my favorite sources of growing-old wisdom is Steve Martin. Last year, Apple released its Steve! (martin) documentary in two parts, the first about young Steve and the second about old Steve. I grew up loving young Steve’s televised stand-up routines. Following him into old age, I go back to old Steve for inspiration.
Steve at 75 is driving his friend Martin Short around L.A. He says, "You know, as you get older, you either become your worst self or your best self." Short agrees.
For almost fifty years before old Steve, I had been laboring under a similar adage from one of my college professors: "As you grow older, you don't change. You become more like yourself."
Until old Steve, I’d never questioned Irby Cauthen. He was always right about Shakespeare, as far as I know. He told us on Day One that if we didn't believe that Shakespeare had written all 37 plays, we should drop his course. No one dropped. As for his aphorism to us undergrads, he also commanded the unmatched prospect of being really old.
Irby’s “more like yourself,” though, sounded like I become a kind of caricature of my younger self. My ears grow long with my years, and so do my faults. By contrast, Steve's insight gives me agency. It’s not too late. What clues can I find in my past of my more authentic self? What causes me shame; what’s holding me back?
Let's assume America, as it approaches next year's quarter millennial, has agency, too. Isn't that assumption behind our involvement in every expression of common life?
As he looks for parking at the cleaners, Steve claims to be his best self: "I've become a better driver. I've become nicer, kinder, more open."
Short agrees with this, too: "Yeah, because for about fifty years there you were a real prick."
If we have agency, what America will we choose?
The worst version of America, of course, involves the enslavement of African-Americans, the genocide and displacement of First Nations, and the disregard of all nature except as resources and recreation. We find also greed, racism, sexism, violence, and hypocrisy.
The best version of America involves public freedom.
Please don't say the American dream, a phrase that has been co-opted by material prosperity. Public freedom isn't so individualistic. Public freedom is our active participation in tending our common, public world.
Like capitalism, public freedom—at least our Constitution's version of it—has its roots in the Middle Ages. The Middle Ages understood that public freedom and sovereignty are antonyms.2 Our Constitution balances powers to achieve this medieval notion of freedom and to avoid modern sovereignty.
The Revolutionary War was about sovereignty itself
We can thank the Atlantic Ocean for our backwards-thinking Constitution, political theorist Samuel P. Huntington says.3 Sometime after the first permanent English colony on Turtle Island began in Virginia, larger European nations turned away from the balances of power that characterized the high and late Middle Ages and Tudor England. The continental powers became absolute monarchies, and England’s Glorious Revolution of 1688 went in the opposite direction, giving sovereignty to Parliament. But America did neither. As far as the concept of sovereignty is concerned, the pond froze around 1607. The colonies’ notion of sovereignty, historian A. F. Pollard writes, “was essentially medieval.”4
Four giants in political science, in fact, attribute the American Revolution in large part to the differences between medieval and modern mindsets about sovereignty. Charles Howard McIlwain says that “the breach between colonies and mother country was largely a mutual misunderstanding based, in great part, on the fact of this retention of older ideas in the colonies after parliamentary sovereignty had driven [those ideas] out in the mother country.”5 For his part, Bernard Bailyn says that the tendency of some Americans to apply “seventeenth-century doctrines to eighteenth-century issues” exposes Parliament’s sovereignty resulting from the 1688 Glorious Revolution as “the central problem of Anglo-American relations.”6
Here’s the English position. Bailyn quotes American loyalist Joseph Galloway’s 1775 defense of Parliament’s sole sovereignty over the American colonies:
[To divide American sovereignty between Parliament and the colonial legislatures was to] conceive that the supreme legislative authority, which is individual in its nature, was, like matter, divisible ad infinitum; and under this profound mistake you began with splitting and dividing it, until by one slice after another, you have hacked and pared it away to less than an atom.7
Galloway’s extended atomic metaphor unwittingly describes exactly how medieval balances of powers worked to diffuse sovereignty.
The third political theorist, John Neville Figgis, writing in 1913, says that “the claim to parliamentary omnipotence was the real cause of the American Revolution.”8 The fourth—Pollard—agrees:
It is this denial of all sovereignty which gives its profound and permanent interest to the American Revolution. . . . These are American ideas, but they were English before they were American. They were part of that medieval panoply of thought with which, including the natural equality of man, the view of taxes as grants, the laws of nature and of God, the colonists combatted the sovereignty of Parliament.9
This difference over sovereignty—not just British sovereignty, but sovereignty itself—led to the Revolutionary War.
How the Constitution strikes a medieval balance of power
America inherited a medieval and Tudor understanding of good government as the enemy of sovereignty. Huntington lists several medieval principles in this regard:
Among these principles and structures were the idea of the organic union of society and government, the harmony of authorities within government, the subordination of government to fundamental law, the intermingling of the legal and political realms, the balance of power between Crown and Parliament, the complementary representative roles of these two institutions, the vitality of local governmental authorities, and reliance on local forces for the defense of the realm.10
This inheritance was displaced in Britain as the Crown and Parliament vied for sovereignty during most of the seventeenth century, according to Huntington. In this major respect, the United States’s federal government is an anachronism, a throwback compared to its earlier, more modern European counterparts.11
Studying the Constitution’s framework is like listening to longtime residents of Virginia’s isolated Tangier Island:
The American political system of the twentieth century still bears a closer approximation to the Tudor polity of the sixteenth century than does the British political system of the twentieth century. “Americanisms in politics, like Americanisms in speech,” as Henry Jones Ford put it, “are apt to be Anglicisms which died out in England but survived in the new world.”12
The Constitution’s executive branch, for instance, demonstrates parallels between medieval and American concepts of government. Continental Europe, as noted, went the way of concentrating power in an absolute monarch, and what are called constitutional monarchies today have monarchs that merely reign but do not rule. But the American presidency is a throwback to a medieval head of state before the birth of the modern state, often marked as 1630.13 Like American presidents, Tudor monarchs had to negotiate to get their legislative agenda passed, and their only legislative power was a veto.14 As Huntington succinctly states, “In functions and power, American Presidents are Tudor kings.”15 American presidents are defined by the Constitution as executives under the rule of law and not as either the absolute monarchs or titular heads of state that have come to Europe during the modern period.
The Constitution’s Article I legislative branch was based on the “colonial representative systems,” which themselves were based on “Tudor practices,” Huntington says. The Constitution’s dual representative model—the president representing the country as a whole, and representatives and Senators representing local constituents—is based on the Tudor model of monarch and Parliament.16
The Constitution’s Article III Supreme Court retains the medieval notion of courts possessing political functions to uphold the rule of law over any assertion of sovereignty. That notion is expressed in American constitutional law as judicial review: “The [medieval] judicial power to declare what the law is became the [American] mixed judicial-legislative power to tell the legislature what the law cannot be.”17
The Constitution's separation of powers, then, is not a complete separation of functions. In medieval fashion, the Constitution “perpetuated a fusion of functions and a division of power, while Europe developed a differentiation of functions and a centralization of power.”18
The conception of the Constitution’s famous balance of powers, then, goes back to Tudor England and earlier. It walks a balanced path similar to, in political science professor Luke Bretherton’s words, the medieval balance among “popes, emperors, kings, abbots, bishops, dukes, doges, and various forms of self-governing corporations.”19
If we accept sovereignty, we reject the rule of law
For the English before King James’s 1603 ascension, Figgis says, “law is the true sovereign, and [the English] are not under the necessity of considering whether King or Lords or Commons or all three together are the ultimate authority in the state.”20 To the medieval mind, law exists outside of human sovereignty and disallows it. Bracton, Henry of Bratton, medieval England’s most renowned jurist before Edward Coke, says as much:
The King himself ought not to be subject to man, but subject to God and to the law, for the law makes the King. . . . there is no King where the will and not the law has dominion.21
Likewise for the Americans, Huntington says: “The continued supremacy of law was mated to the decisive rejection of sovereignty.”22 In America, kings—and presidents—don’t make law. Law makes presidents.
The Constitution’s sad, significant medieval omission
The main feature of Middle Ages governance that the United States Constitution lacks, however, is citizen participation in politics. Historian and sociologist Lewis Mumford characterizes the New England townships with their commons and surrounding public buildings as a fulfillment of “the medieval ideal of self government,”23 but he points out that the political freedom of medieval self-government didn’t make it into the Constitution:
. . . the failure to grasp [the political importance of the township and the failure] to continue it—indeed, to incorporate it in both the Federal and State Constitutions—was one of the tragic oversights of post-revolutionary political development. Thus the abstract political system of democracy lacked concrete organs.24
This omission is striking. Before the Constitution’s ratification, the English colonists participated in aspects of medieval government from the time of their first settlements through the American Revolution, as Mumford points out.25
Choose the ancient—or at least medieval—paths
After the 1688 Glorious Revolution and England’s turn to legislative sovereignty, the colonies rejected the modern notion of legislative supremacy and were “content for the most part with the stock of political ideas already on hand,” says Constitutional scholar Edward Corwin.26 That is, they were content with the stock of political ideas on hand from the Middle Ages.
Those medieval ideas include both the balance of powers and the practice of public freedom. The Constitution provides the former but doesn’t provide for the latter. But without the latter, the former won’t survive. That is, without a regular practice of public freedom, the country won’t long value the protection of public freedom provided by the Constitution’s balance of powers.
On the eve of our quarter millennial, like Jeremiah’s Israel, we stand at a crossroads. I hope we choose to walk the ancient paths. If we have agency to become the best version of America, we’ll need to exercise that agency through the local and daily practice of public freedom.
The above illustrations were created with Microsoft Bing Image Creator.
The short footnotes below refer to the full citations in the earlier manuscript’s and this Substack’s bibliography.
Words and phrases for the Union’s 250th anniversary on July 4, 2026 include “Semiquincentennial, Sestercentennial, Quarter Millennial, the Big Two-Five-Oh.” Visit Philadelphia. “What Is America’s Semiquincentennial?,” November 9, 2023. https://www.visitphilly.com/features/americas-semiquincentennial/.
Hannah Arendt understood that freedom and sovereignty cannot coexist: “If men wish to be free, it is precisely sovereignty they must renounce.” Arendt, Between Past and Future, 163.
Huntington, “Political Modernization,” 380-81.
Quoted in Huntington, 381.
McIlwain, High Court of Parliament, 386.
Quoted in Stoner, Common Law and Liberal Theory, 192.
Quoted in Bailyn, Idealogical Origins, 223.
Figgis, Churches in the Modern State, 82.
Quoted in Huntington, 388.
Huntington, 380-81.
Huntington, 380-82.
Huntington 382.
Huntington, 379.
Huntington, 399.
Huntington, 396.
Huntington, 390-91.
Huntington, 393-94.
Huntington, 393.
Bretherton, Christ and the Common Life, 364.
Quoted in Huntington, 383.
Corwin, “Higher Law” Background, 27.
Huntington, 382.
Mumford, City in History, 330-31.
Mumford, 332.
Mumford, 330-31.
Corwin, 74.
While Bryce’s mom’s wisdom of Growing old is not for cowards.” Has certainly been shown true by countless septuagenarians and octogenarians, Steve Martin & Martin Short are doing pretty well with it in “Only Murders in the Building”. Indeed, you could say they are killing it. So let’s just hope these troubled USA can do as well as this comedy team who so far refuse to die.
Just as long as we don’t sing “Semiquincentennial, Sestercentennial, let’s call the whole thing off.”