Asher K. Sisneros
Prof. Thomas E. Woods, Jr.
Western Civilization Since 14931
October 28, 2024
Introduction
There have been many legal disputes in the history of the United States, ranging from Schenck v. U.S., which restricted free speech during times of war; to Liebeck v. McDonald’s, which held McDonald’s liable for putting customers at risk with their absurdly hot coffee; to O’Connor v. Oakhurst Dairy, which awarded millions of dollars because of the absence of an Oxford comma in legislation. Needless to say, there have been many influential (and interesting!) legal disputes in American history. But the most important legal dispute in U.S. history did not even happen when she was a country. It was a lawsuit involving thirteen colonies, England, taxation, tariffs, Parliament, and revolution. It was the legal dispute that resulted in the American Revolution.
Legal Context
In 1215, English nobles forced the King to concede to a very influential document: the Magna Carta. In addition to establishing the legal premise that kings are also bound by the law, it also established the basic principle that taxation must be approved by a general council (i.e., representatives of the nobles). Of course, this document did not grant all Englishmen any kind of democratic rights to participate in elections, choose their representatives, and engage in referendums. But as one scholar points out, the “Magna Carta introduced a revolutionary innovation: the idea that the power to tax was in some way limited to the consent of the governed.”1 Moreover, when King Charles usurped the power to tax and bypass Parliament, England once again reaffirmed the principle of the Magna Carta by passing the Petition of Rights in 1628. Among other things, this act “provided that a monarch could not levy taxes without common consent.”2 And once again, this principle was reaffirmed a third time in 1689 through the English Bill of Rights.3 Thus throughout the history of England, it was enshrined within law and centuries of tradition that just taxation required the consent of the people via representatives in Parliament. In fact, the English Civil War was fought because King Charles neglected the rights of all Englishmen by disrespecting Parliament’s authority, as representative of the people, to have the sole authority to levy taxes.
Englishmen, with English Rights
The colonists in the New World regarded themselves as Englishmen. For example, John Winthrop routinely addressed himself as an Englishman in his journal, and this was characteristic of the colonists. Being Englishmen in English colonies, they expected to have the same rights as those in England without discrimination.
Even in their founding documents and charters, the monarchy gave them immense autonomy to govern themselves. Thus in 1619, Jamestown established the House of Burgesses, which was a representative assembly in Virginia, comprised of Englishmen in Virginia that set taxes on Englishmen in Virginia. In short, it was merely the practice of taxation with the consent of the governed.
Protective and Revenue Tariffs
Protective tariffs exist to protect a nation’s economic interests, hence the name. Its sole purpose is to govern the regulation of trade through mercantilist policies: by artificially maximizing exports and preventing imports. From the colonial perspective, Parliament could regulate trade through protective tariffs, even in the colonies.
However, problems arose when Parliament enacted revenue tariffs4 on the American colonies. The Stamp Act (1765) in particular, garnered immense resistance. It ignored any farce of being a protective tariff and openly acknowledged it was to raise revenue. But enforcing this tax was also a strategic blunder on the part of Parliament because it was a tax that targeted those most capable of resistance: lawyers and newspapers.
Although the Stamp Act was repealed two years later, this was the catalyst that caused influential colonists to rally together to resist Parliament. Despite repealing the Stamp Act, Parliament was dogmatic in its authority to legislate the American colonies in “all things whatsoever.”5 And this power was exercised in the Townsend Acts, the Tea Act, and the Coercive (“Intolerable”) Acts.
It was this issue that provoked the colonists because it questioned their sovereignty and broke the legal tradition of colonial self-governance. It broke the tradition established by a century of self-governance in America, and it broke tradition in violating the rights enjoyed by all Englishmen in the Magna Carta, the Petition of Rights, and the English Bill of Rights: no taxation without representation.
Sovereignty
From the colonial perspective, authority was derived from law and tradition. Since the right to govern internally was historically a right enjoyed by the colonists, and since English legal tradition protected all Englishmen from revenue taxes that were not voted on by their representatives, the colonists saw Parliament as the unorthodox law-breaker. In short, they placed sovereignty on natural law, written law, and tradition; sovereignty on the law, not the lawmaker.
Parliament, on the other hand, rejected this argument. From the perspective of Great Britain, Parliament exercised the sole authority to legislate all Englishmen, and any traditional “rights” enjoyed by the colonists were merely privileges that could be revoked by Parliament at any time. In short, they placed sovereignty on Parliament, not legal tradition and written law; on the lawmaker, not the law.
Conclusions
In the end, this legal dispute came to blows. Thanks largely to the help of the French, Americans were liberated from the rule of Parliament and attained their independence. Thus a country was born, all because of a legal dispute. Sure, there have been many influential legal disputes in American history, but none of them compare to the legal dispute that gave birth to this country; that gave birth to a free nation.
- Jared Walczak, Magna Carta and Tax Reform, (Washington, D.C.: Tax Foundation, June 15, 2015), par. 9 ↩︎
- Editors of the Encyclopedia Britannica, Petition of Right (1628), (Encyclopedia Britannica: September 17, 2024), par. 2 ↩︎
- NCC Staff, On this day, the English Bill of Rights makes a powerful statement, (Philadelphia, PA: National Constitution Center, February 13, 2019), par. 9 ↩︎
- These were tariffs to raise revenue (i.e., tax) ↩︎
- British Parliament, Declaratory Act, (Washington, D.C.: American Battlefield Trust) ↩︎
Asher Sisneros 