De-sanctifying Written Constitutions

Review of Linda Colley, The Gun, the Ship, and the Pen: Warfare, Constitutions, and the Making of the Modern World (New York: Liveright Publishing Company, 2021) 502 pp. $35.00.

Elizabeth Mancke and Adam Nadeau[1]

In the conventional metanarrative of modernity, written constitutions symbolize progressive trends, political events that were considered “benevolent and normally acted as a liberating force (p. 277).” In The Gun, the Ship, and the Pen: Warfare, Constitutions, and the Making of the Modern World, Linda Colley seriously qualifies this characterization, arguing that written constitutions emerged as a “political technology” in the mid-18th century, were often associated with warfare, and “can appear to offer, the prospect of benign and exciting transformations (p. 9).” In Colley’s assessment, however, for individuals seeking governmental power, they could also provide “valuable performative and presentational opportunities” that could cause exploitation and chaos as often as deliver political stability. They can be a technology of exclusion and marginalization, particularly “in regard to Indigenous peoples. . . [and] less lethally with women (p. 277).”

Rather than assuring political stability and rights, written constitutions, Colley argues, can be “protean and volatile,” a characterization that she reinforces with the unsettling statistic that in 1991, of the 167 single document written constitutions in existence, “only about twenty . . . were more than forty years old (p. 412).” For historians who have held up the 235 year-old United States Constitution as a model of political modernity, it is far from historically normative.

Colley builds her analysis with case studies of constitution writing over two centuries, and which she positions within broad historical contexts, particularly their connection to warfare. The constitution written by the eighteenth-century Corsican, Pasquale Paoli, is her first case study. After years of exile in Naples, Paoli returned to Corsica, joined the resistance to Genoese rule, rose to power, served as both a rebel commander and a civilian leader, and wrote and implemented a constitution for Corsica. Catherine the Great, another early case study, wrote the Nazak, a kind of constitution, in the mid-1760s after deposing her husband. It promised a rule of laws, albeit not laws that constrained the czarina’s power. Colley’s discussion of the constitutions of the United States and France are positioned within a chapter on the impact of printed constitutions, which dramatically accelerated the dissemination of this new political technology. Its reach was a far as tiny Pitcairn Island in the Pacific. In 1838, a British naval officer, Russell Elliott, wrote a constitution for the island’s residents that enfranchised all adult men and women; it remained in place for a century.

Pitcairn Island’s progressive constitution receives more coverage than virtually any other part of the post-1783 British Empire until 1949 and India’s independence. Captain Elliott could write a constitution for Pitcairn Island and recognize women’s political rights precisely because it was so territorially tiny and the population so small that it had no system of imperial governance. Elliott was aware that in writing a constitution for Pitcairners and circulating news of its existence, he was creating a layer of international protection against the arrival of imperially-minded invaders, who might lay claim to the island and its people. A written and subsequently printed constitution gave Pitcairn Island a recognized international status. Pitcairners were among many Pacific Islanders who would use written constitutions in attempts to protect themselves from invaders, with Hawaiians being among the most striking because they were annexed by the United States, which postured globally as having one of the first written constitutions, but which it used to alienate Indigenous peoples, including Hawaiians, from their own lands and governing practices.

While the British Empire did not have a culture of single-document written constitutions, it had a long and internationally esteemed tradition of imperial constitutionalism that was defined by letters patent, gubernatorial instructions, royal proclamations, capitulations and treaties, and parliamentary legislation, many of which had been printed and widely disseminated at the time they were written. British subjects residing in overseas jurisdictions were confident that they had constitutions that extended rights, limited monarchical and executive powers, and included deliberative participatory government.  Indeed, the transatlantic debates leading up to the War for Independence (1775-1783) turned on the extent to which the Ministry and Parliament were violating the constitutions of the rebelling colonies, all of which dated from the 17th century, except for that of Georgia, which was founded in the 18th century. Colley limits her discussion of British settler constitutionalism to the debates that preceded the Revolution and how those colonial constitutional practices informed the writing of the first state constitutions in the United States.  She says nothing, however, about post-1783 British colonial constitutionalism, and how that constitutional tradition might have been informed by the explosion in written constitutions. Even more significantly, Colley gives no consideration to how colonial constitutionalism in places like British North America, later Canada, might have informed her argument.

British North Americans were keenly aware that they had colonial constitutions, that there were commonalities among them, but that they also differed from colony to colony. Constitutional variations shaped the structure and exercise of power in each colony.  In 1840, for example, the Nova Scotia assembly remonstrated to Lt. Gov. Colin Campbell that constitutionally, “the People of Nova Scotia are to be treated worse than the people of New Brunswick” when it came to “administer[ing] the Government of these Provinces in accordance with the well understood wishes and Interests of the People, and to pay their feelings, as expressed through their Representatives, the deference that is justly due to them.”[2]

The attractions of written constitutions were not lost on British North Americans in negotiations for Confederation. The Canadian delegation, dominated by John A. Macdonald, wanted a single jurisdiction, but the delegates from Nova Scotia and New Brunswick were wary of this idea, in part because it would summarily abrogate all parts of their colonial constitutions. As it was, the British North America Act (the Constitution Act of 1867), which brought the Dominion of Canada into existence on July 1, 1867, modified parts of their constitutions, such as relinquishing jurisdiction over coastal waters and marine fishery policies to the federal government, but they retained other parts such as health care. Maritimers were not the only British North Americans wary of the idea that long-standing constitutional practices and rights might be summarily erased by the BNA Act or subsequent legislation. In Quebec, French Canadians retained language and religious rights, as well as French civil law, despite a long-standing anglophone desire to eliminate those constitutionally protected rights. When the Dominion of Canada incorporated Rupert’s Land in 1870, the Anishinaabe in Northern Ontario stopped federal employees from surveying a road from Port Williams to Winnipeg, informing them that it was not their land.  In Red River, the Metis led by Louis Riel insisted that they had rights, including a right of self-government, that long predated Canada’s acquisition of Rupert’s Land. The transfer of territory from the Hudson’s Bay Company to the British government to the Dominion of Canada did not erase those rights, the desires of the Dominion government notwithstanding. 

Maritimers, the Quebecois, the Anishinaabe, and the Metis, among many groups, understood that elite-brokered deals with constitutional pretenses were a political technology that was indeed volatile, and that its protean quality in imperial contexts was more likely to eliminate long-standing constitutional rights than protect them. The erasing and winnowing of existing constitutional rights in the name of constitutional modernization, whether in the guise of the Constitution Act of 1867 or the transfer of Rupert’s Land to the Dominion of Canada so that those lands could be settled by immigrants and Dominion governance extended over them, were constitutionally problematic for Indigenous nations, the Metis, and other marginalized peoples.

Constitutional rights in British North America and then Canada were diverse, layered, and derived from international agreements, such as the 1760 Capitulation of Montreal and the subsequent Treaty of Paris, as well as from British precedents. For Indigenous peoples in the Maritimes, the Peace and Friendship Treaties beginning in 1725 are important parts of their constitutional relationship to settler Canada. The Proclamation of 1763 contained protections for Indigenous peoples that the Governor General of New France the Marquis de Vaudreuil had included in the Capitulation of Montreal during his surrender of Canada to General Jeffrey Amherst in 1760, and which contained many of the French conditions that were included in the subsequent treaty negotiations. In 1764, William Johnson, Indian Commissioner for the Northern Department convened a meeting of Indigenous nations to confirm the Proclamation of 1763, which also contained elements derived from French practices and terms that Vaudreuil had negotiated.

Little in The Gun, the Ship, and the Pen addresses the relationship of the new political technology of written constitutions to international agreements, despite the acknowledged relationship between warfare and written constitutions. The transfer of French territorial claims in the 1763 Treaty of Paris also transferred obligations to the British that committed them to honouring many existing French Canadian rights. In contrast, the 1783 transfer of territory from the British to the United States had little that was similar. The latter treaty was far more a transfer of property than a transfer of sovereign obligations and responsibility. The American Revolution allowed a constitutional line in the sand to be drawn, a constitutional reset, not just for citizens, but for other peoples within the territory of the United States who might not be included in the new constitutional arrangements, most particularly Indigenous nations.

Colley shows how rulers used the technology of written constitutions to promise political rights to men who were willing to fight. But if ethnic groups demurred on adopting a new constitution or were excluded, as were Indigenous peoples in North America, they stood outside the constitutional state and effectively became stateless people, neither within the state nor with standing to negotiate with states. There is a reason why Indigenous peoples in Canada appealed to the Proclamation of 1763, or in the Maritime provinces to the Peace and Friendship Treaties; those were the documents that gave them standing to negotiate. And because the Constitution Act of 1867 did not sever the relationship to the Crown, the settler state could not summarily erase the rights of Indigenous peoples. It is also what Indigenous peoples understood to be the dangers of Pierre Trudeau’s White Paper and his vision for repatriating the constitution; they were explicit attempts to use the political technology of a written constitution to eliminate constitutional rights Trudeau deemed inconvenient or inappropriate to the modern constitutional state.

By de-sanctifying written constitutions, Linda Colley makes a remarkable contribution to the metanarrative of modernity. But she falls short in establishing the talking points we need for a serious conversation about their dangers. Over the centuries, Canada has dodged many of the worst dangers of written constitutions, but not for lack of elite attempts, most particularly in the negotiations around Confederation and the acquisition of Rupert’s Land, and then later with the “repatriation” of the constitution under Pierre Trudeau. In both eras, Indigenous people and Quebecois raised concerns about the dangers of how a major constitutional initiative in the name of modernity and progress would eliminate long-standing and constitutionally protected minority rights. With both Indigenous peoples and Quebecois, those rights had legacies in international agreements.

In the 20th and 21st centuries, replacing one written constitution with another too often became a way to centralize power and strip people of long-standing rights, while at the same time presenting the change as progressive.  Historians have contributed to the myth that written constitutions are intrinsically progressive. Colley’s book should be a warning that we need to continue the de-mythologizing and de-sanctifying of written constitutions that can too easily and summarily replace prior ones. We need to provide a historical contextualization of constitutionalism that includes constitutions of accretion in places such as Canadas. Queen Elizabeth’s death elicited considerable discussion about countries breaking the monarchical tie. Ironically, the monarchical legacies in Canada’s constitution, including 18th-century international agreements, have saved rights threatened by constitutional refinements in the name of constitutional progress. As we write this review, former United States Senator Russ Feingold and constitutional scholar Peter Prindiville are raising concerns about a movement to call a constitutional convention in the United States that could gut existing constitutional rights in the name of constitutional reform.[3]  

Linda Colley’s serious qualifications about written constitutions in The Gun, the Ship, and the Pen: Warfare, Constitutions, and the Making of the Modern World allows us to recognize how much written constitutions have been used to strip rights as well as extend rights, even here in Canada. It is a critical intervention on constitutional scholarship that is now more important than ever and deserves more critical engagement.

Elizabeth Mancke is Professor of History and Canada Research Chair in Atlantic Canada at the University of New Brunswick. Adam Nadeau is a PhD Candidate in History at the University of New Brunswick, where his research examines British imperial governance in eighteenth-century North America and India. They share a firm opinion that the history of the Canadian constitution is seriously under-appreciated as a window into understanding the global history of constitutionalism in the modern era.

[1] This review reflects not just a consideration of Linda Colley’s book, but also our years of discussion about constitutions in the British Empire, particularly Canada’s, and why a wider understanding of Canada’s constitution and its legacies matters in the world. Our thoughts on Colley’s important intervention on written constitutions draws heavily on ideas that we have discussed in conjunction with Adam’s dissertation, “Inheriting Empire: Royal Proclamations, Parliamentary Legislation and Imperial Integration in British North America and India, 1760–1793,” which he plans to defend in Fall 2022.

[2] “The Humble Address of the House of Representatives in General Assembly,” February 14, 1840, Journal and Proceedings of the House of Assembly of the Province of Nova- Scotia, Sess. 1839-40 [Halifax, N.S.: Queen’s Printer, 1840], 718.

[3] Russ Feingold and Peter Prindiville, The Constitution in Jeopardy: An Unprecedented Effort to Rewrite Our Fundamental Law and What We Can Do About It (New York: Public Affairs, 2022).

Featured Image: First three of 69 resolutions sent to Parliament. From: Journal of the House of Assembly of the province of New Brunswick, from the 11th May to the 17th June 1867, being the second session of the twenty first General Assembly (Fredericton, NB: G. E. Fenety, 1867), 62.

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