The American Revolution: A Constitutional Interpretation

The American Revolution: A Constitutional Interpretation (1923) is a short work of scholarly nonfiction by Charles Howard McIlwain. In 1924, it won the Pulitzer Prize for History. McIlwain taught at Harvard University, where he received the Eaton Professorship in 1926. When he retired in 1946, he was the world’s foremost expert on the background of the English Constitution. He also served for a time as the president of the American Historical Society.

McIlwain questions when the American Revolution started—when did the rebellion cease to be a constitutional rebellion and become a full-fledged revolution? According to McIlwain, the Revolution “was a political act, and such an act cannot be both constitutional and revolutionary; the terms are mutually exclusive. So long as American opposition to alleged grievances was constitutional, it was in no sense revolutionary.” In other words, if Americans had a legitimate grievance against the British constitution being unfairly enforced, the war began as a rebellion, or even a civil war. As soon as Americans decided to reject the entire system and authority of Parliament and King, the conflict became a revolution. The tricky part, according to McIlwain, is finding the exact moment where the one became the other.

To answer this, he looks back at the English Civil War in 1688. The outcome of the Civil War and the Restoration of Charles II meant that Parliament seized much of the traditional powers of the King of England. The king became a constitutional monarchy—a figurehead with an advisory role instead of direct influence—while the Prime Minister and Parliament held most of the political and legislative power. McIlwain supports Samuel Adams’s contention that a government may be considered legitimate only if all the people under its rule accept it. Since the English Civil War and subsequent Restoration was settled on English soil by the English people, and the Americans were given no say in the new regime or power structure, Americans had every right to view Parliament as a usurping power that overstepped its own Constitution, and the laws of the land in America. Hence, as McIlwain argues, the American Revolution did not really involve a grievance against the Crown until 1776; until then, the conflict was mainly the Americans versus Parliament. Simply put, the Americans clung to the older Constitution, while England and Parliament followed the updated version. When Parliament attempted to bind the American governments as a dominion or part of a Commonwealth, Americans denied their authority. Parliament retorted that nothing was beyond their power, be it in the immediate realm or in outlying dominions.



McIlwain examines the precedents of the realm and dominions. He focuses on the argument of representation. The Americans, relying on their rights as Englishmen, “contended that the competence of Parliament to make law was strictly limited to such laws only as affected those parts of the King’s dominions from which parliamentary representatives were summoned.” In other words, representation was key; how could Parliament make laws for and about the American colonies, if none of the colonies had representatives in Parliament? Without outside representation from the dominions, they held that Parliament was only qualified to rule the realm of Britain.

One important and relevant precedent comes from Ireland about a century before the American Revolution. The Irish resented the encroachment of the English Parliament upon their own local laws and governance. They argued that the English had no right to make laws in Ireland, nor did they have any right to interfere with any Irish laws or statutes. Even in terms of judgment, Ireland contended that if an Irish case were to be heard or appealed in an English court, the English judge should act according to Irish laws, not English—and in no way should the English courts seek to overturn, repeal, or make judiciary laws for the Irish. Furthermore, the Irish pointed out the double standard that the English Parliament could create binding laws for Ireland, yet Ireland had no reciprocating power. This idea of limiting Parliamentary power to their immediate realm would later take root in the American Revolution. McIlwain writes: “Both Ireland and America conceded their connection with the English king, but both denied the authority of England’s Parliament to bind them.” Simply put, the dominions of England professed loyalty and respect for the king but resented what they considered political overreaching by Parliament.

In his Conclusion, McIlwain notes that the Americans were not taxed oppressively or unfairly, despite the common narrative, but that Americans were legitimately concerned that their legal rights were being infringed upon by Parliament, and that their quiet acquiescence would lead to tyranny, leaving Americans at the mercy of whichever political party was in power. Parliament disagreed, believing that taxation was a right of sovereignty and that as citizens, Americans had a duty to accept it—yet still, there was no American representative seated in Parliament. Parliament resolutely maintained its power to alter and establish laws in America, maintaining limitless power and omniscience. This made Americans nervous to the point where the only solution appeared to be a complete rebellion in order to safeguard their political rights and constitutional integrity. Consequently, the Declaration of Independence is a strategic retreat from constitutional arguments and refuge in political theory. It is a public airing of grievances, this time not against Parliament but against the Crown. In other words, all attempts at parley for a successful resolution failed, and the Declaration provides an explanation of the reasons behind the Revolution in terms that continental Europe, as potential enemies or allies, would understand. In his final pages, McIlwain also points out a weakness in the American argument—if they rejected Parliament’s power and only accepted the Crown’s, then they would be subject to a power with no actual limits except the agreements negotiated between king and colonies in charters, which is hardly better than limitless Parliamentary rule.