Madrid, Spain
You know how learning about ancient cultures can give you insights into the mysterious habits of contemporary humans? Well, the same goes for learning about complex modern institutions. Pondering their pre-modern origins can help bring their fundamental mechanics to light.
It was in this spirit that I boarded a train to visit a medieval sandstone cloister in the northwestern Spanish city of León. Believe it or not, I was hoping my quick trip to the Basílica de San Isidoro would teach me a few things, about, well, modern democracy.
Americans tend to sanctify their Constitution in ways that obscure its real value and purpose. I suppose this sanctification is a way of symbolically embracing a country that lacks as firm an ethnic or cultural anchor as, say, any European nation. When it was ratified, America’s Constitution was indeed the opposite of an anchor. In 1787, Francis Hopkinson, the Pennsylvania lawyer who attended the Constitutional Convention in addition to signing the Declaration of Independence and designing the American flag, called it a “roof” that united “the strength of 13 rafters.”1 In other words, the Framers created an overarching legal structure–a roof–long before a unifying cultural foundation developed on the ground. Similarly, historian Daniel Boorstin has written that Americans view the Constitution as an “exoskelton,” something akin to a lobster’s shell that we filled out over time.2 Through the generations, it was the human interaction created by commerce and migration that forged the cultural ties that bound a heterogenous people together into a nation.
The sanctification of the Constitution has also involved no small amount of ethnic chauvinism. The blessings of American democracy, we’ve been taught, are inherited exclusively from England, where the very first written constitution, the Magna Carta, was issued in 1215 and the first parliament was called fifty years later.
By the mid-19th century, many white Americans were so convinced that they were the sole inheritors of the love of liberty and the habits of self-governance that they imagined it to be an almost racial trait that was passed down from one generation to the next. In January of 1845, Democratic Representative Alexander Duncan of Ohio told his colleagues that he thought “there seems to be something in our laws and institutions peculiarly adapted to our Anglo-Saxon-American race, under which they will thrive and prosper, but under which all others wilt and die.”3 In the early 20th century, a prominent Oxford historian proudly proclaimed that “parliamentary institutions” were “incomparably the greatest gift of the English people to the civilization of the world.”4
Now, I realize that this type of sanctification of the Constitution has had its purposes. Racial aspects aside, it fosters the reverence sometimes required to abide by its more absurd and out-dated elements. But treating America’s legal framework as some sort of mystical tablet also obscures our understanding of its critical role as social contract and source of our rights. The other problem, of course, is that the myth is based on a false premise.
In 2009, in his book The Life and Death of Democracy, Australian political theorist John Keane “politely questioned”—in his words—“this English prejudice.”5 His research had led him to conclude that in 1188, a generation before the Magna Carta, Alfonso IX, the newly-crowned seventeen-year-old monarch of the Kingdom of León, had convened Europe’s very first parliament, or cortes in Spanish, within the cloisters of León’s Romanesque Basílica de San Isidoro.
Of course, it had not been unusual for Europe’s kings to gather with lords and bishops. But Alfonso did something entirely new for European royalty, which was to invite representatives from the towns. This was the first recorded gathering of all three estates—nobility, the Church, and burghers. The most basic definition of a parliament is an assembly involving various social groups of the realm, including representatives of towns.
But why would a king whose power was said to be granted directly by God seek to hold discussions with townsmen? For one, he needed money to fight back the encroaching Muslim armies and plenty of Leonese were unhappy with the imposition of new taxes. Secondly, Alfonso may have feared that an alliance between angry nobles and townsfolk might form against him. In any case, according to Keane, the king was determined “to defend and expand his kingdom, even if that meant making political compromises that might dilute his kingly powers.”6
Operating in the spirit of compromise, the king secured the backing of the three estates in exchange for his promise to “not wage war nor make peace or make any agreement without the counsel of bishops, nobles and good men,” which referred to leading citizens of the towns.7 In a series of what may have been up to 15 documents collectively called the Decreta, the king agreed that private property and personal domiciles were inviolable, that justice would be upheld in a routine, predictable manner including that any charges against a person must be backed by evidence and that detainees had the right to be defended by a third party.
What’s even more significant here, to me at least, is that the citizens of León did not secure new liberties out of some abstract reverence for rights. The social gains they made were the byproduct of a monarch’s inability to raise taxes, maintain peace in the realm, and otherwise rule his kingdom without the cooperation of the three estates.
As John Keane has eloquently put it, it was out of self-interest that Alfonso IX invented “a new mechanism for resolving disputes and striking bargains among interested parties who felt they had a common interest in reaching compromise.”8 The king’s baseline understanding of his kingdom, then, was not of a society requiring indivisible political community, but one comprised of competing and sometimes conflicting interests. To resolve inevitable conflicts, the Decreta contained an agreement that there would be future assemblies of the king involving representatives from the three estates. A regular parliament offered “the possibility of turning disagreements about reality into binding agreements in support of a common good.”9
Even more amazing is that the representatives of the towns who attended the cortes in the cloister of San Isidoro had been elected by the citizens of their towns. While it isn’t known by what method they were elected nor exactly how many were present, historian Joseph F. O’Callaghan concluded that their “numbers in attendance must have been quite large.”10
The Reconquista placed pressures on other monarchs in the Iberian Peninsula. As they sought to strip people and territory from Muslim control, Christian kings had to “compete with the more advanced Muslim kingdoms in the south for the favours of the merchants and farmers,” and thus were “prepared to respect their property rights and grant them … privileges.”11 In 1126, sixty-two years before the first cortes in León, King Alfonso I of Aragon granted a charter of liberties to “Christians whom I brought, with the help of God out of the power of the Saracens and led into the lands of the Christians. . . . Because you left your homes and your estates for the name of Christ and out of love for me and came with me to populate my lands, I grant you good customs throughout your realm.”12
It would, of course, be naive to draw too straight a line between the medieval origins of the parliament and the spread of modern written constitutions in the mid-18th century. As representative assemblies—and the societies from which they emerged—became more complex, so too did the theories of governance and philosophical worldviews that came to animate western politics.
At the same time, however, as Spanish legal historian Aniceto Masferrer has argued, the enormous differences between the two eras notwithstanding, it is important to make connections between the medieval documents like the Decreta and the emergence of liberal governance six centuries later. If nothing else, Alfonso IX’s savvy political bargaining shows “how medieval Europe started to be aware of the convenience of limiting political power through law.”13
By the time the Framers sat down in 1787 to hammer out the U.S. Constitution, the English House of Commons had long since invented the idea of popular sovereignty as a way to challenge monarchical power. The ideology was developed, as historian Edmund Morgan wrote, to “justify a government in which the authority of kings stood below that of the people.”14 Of course, shifting the locus of sovereignty from the king to the people was not actually designed to put power in the hands of the people, but rather in those of the members of parliament.
For their part, America’s Federalists—who could better be described as nationalists—embraced the idea of popular sovereignty as a way to weaken the power of individual states. Why? Because legislative majorities in most states had passed debt relief laws that the Framers felt threatened the property rights of creditors. (The minority the Framers sought to protect, then, was the wealthy, a class to which most belonged.) The idea–put forth by James Madison—was that the authority granted to the new national government would rest on the power of “the people” at large rather than on the collective authority of the states themselves. In short, he had invented “a sovereign American people to overcome the sovereign states.”15
Popular sovereignty, of course, was as much a “fiction” as was the divine right of kings.16 Indeed, the way it was “publicly presented” in America, political scientist Stephen Holmes has written, bore “a striking resemblance to proclamations in which absolute monarchs [once declared] their sovereign will.” What this meant was that rather than being perceived as an exchange of promises “between classes or factions or territorial subunits,” the U.S. Constitution was portrayed as a charter that “‘we the people’ [gave] ourselves.”17
Paradoxically perhaps, it was this fiction that led the Federalists to argue against the inclusion of a Bill of Rights to the Constitution. When Antifederalists, those who opposed the ratification of the new Constitution for fear that it would give the national government too much power, first demanded that the document include a list of protected rights, Federalists called the request a quaint throwback to the time when kings granted concessions to their subjects.
If the government derived its power directly from the people, they argued, then what sense would it make to have the people make concessions to themselves? Because America’s constitution could not be considered an agreement between or among parties, “neither concession nor contract was possible because people and government were one and the same.”18
Conversely, since it was “We the People” who conveyed specific powers to the national government, Federalists could argue, as one did, that the Constitution itself was “nothing more than a bill of rights—a declaration of the people in what manner they choose to be governed.”19
Evidently offended by the idea that a convention had been convened to hash out a mere compact, North Carolina’s James Iredell, a leading Federalist who would become one of the first justices of the U.S. Supreme Court, proclaimed that America’s government was “founded on much nobler principles.” 20
Fortunately for Americans, the Antifederalists were not swayed by those nobler principles and did not give up on the idea that the Constitution was, as one delegate at a state ratifying convention put it, “a compact, agreement, covenant, bargain,” that required the government to put concessions in writing.21 James Madison, of course, ultimately relented to these demands out of political expediency. While he was himself a believer in rights, he nonetheless saw the addition of constitutional guarantees as a political rather than an ideological act. His reason for drafting the Bill of Rights, historian Pauline Maier has concluded, was “less to secure rights,” than to subdue opposition to the Constitution.22 If, as the Framers believed, one of the primary goals of the new Constitution was to protect the property rights of the wealthy minority, then adding amendments to safeguard such popular rights as speech, religion, press, and assembly, was a worthwhile compromise.
Still, the Federalists’ fiction of popular sovereignty—and a unified American people—lived on in the way Americans think about their country. Each school day, American school children pledge allegiance to their “indivisible” nation. Even when we know that ugly, divisive presidential elections can be won by mere percentage points, we continue to refer reverently to the the voice of “the people.” When we ask a restaurant waiter what’s good on the menu, they’re likely to tell you what sells most as if majority opinion is the voice of good taste and wisdom.
If Medieval “Standestaat”—a state of estates—were thought to be divisible into three separate groups, then contemporary Americans tend to see the primary division in our national political community as being between the few and the many, the majority versus the minority, which they sometimes translate as the strong and the weak.23 So even as we herald the wisdom of the majority, we hail the genius of a Constitution that protects the minority. Indeed, Columbia University political scientist Giovanni Sartori once argued that the only reason to believe in constitutions at all is if “we think that somebody needs protection from somebody else.”24
This insight helps explain why Americans tend to think of rights in moral terms, sacred protections that are heroically demanded and/or benevolently bestowed. This weak/strong dynamic injects no small amount of paternalism into a political process we otherwise think of in terms of bargaining, sausage-making, and horse-trading. Rather than being perceived as a political compromise made to maintain social tranquility, the granting of rights is often portrayed as if it were a morality tale. Which brings me back to Alfonso IX, who clearly saw it as a necessary element of a mutually beneficial exchange.
In his 2012 essay, “Constitutions and Constitutionalism,” NYU’s Stephen Holmes urged Americans to start thinking about rights more through the lens of realism than idealism. Claiming this his observations should be interpreted as instructive rather than cynical, he argued the “democratic constitutions emerge and survive” when society’s “most powerful social forces find that they can promote their own interests most effectively by simultaneously promoting the interests of, and sharing political influence with, less powerful but not utterly powerless swaths of the population.”25
Why? Because it is only “when the powerful discover the advantages they can reap from making their own behavior predictable,” do they “voluntarily submit to constitutional constraints.” Put even more bluntly, when non-elites bring incentives to the bargaining table, “elites respond opportunistically by granting legal protections and participatory rights in exchange for cooperation indispensable to elite projects.”26
Holmes wasn’t the first theorist to make this argument. In 1919, Max Weber, one of the founders of modern sociology, argued that much of modern western democracy was itself a product of national elites’ need for disciplined soldiers to fight wars. It was military necessity, then, that compelled them “to secure the cooperation of the non-aristocratic masses and hence put arms, and along with arms political power, into their arms.”27 While Weber was not referring to the U.S. Constitution, he was nonetheless recognizing the existence of political bargaining as the essence of constitutionalism in general.
Historian Linda Colley concurs with—and expands on–Weber in her remarkable 2021 book, The Gun, the Ship, and The Pen: Warfare, Constitutions, and the Making of the Modern World. The rash of new constitutions in the 18th century was, in part, a product of the rise in the number of bloody and expensive imperial, transcontinental wars. The new countries that emerged from this warfare “progressively elected to experiment with written constitutions as a means to reorder government, mark out and lay claim to contested boundaries” as well as to “legitimize their systems of government anew.” These new constitutions—including that of the United States–helped to “rally wider support and justify expanding fiscal and manpower demands.” These documents sometimes “functioned in effect and in part as bargains on paper. Male inhabitants of a state might be offered certain rights, including admission to the franchise, as a quid pro quo for accepting higher taxes and/or military conscription.”28
This description is not pretty. It’s not mystical. Nor does it pretend that all parties to the negotiation are equal. But it does provide a framework with which we can think about rights in terms of compromise and mutual benefit rather than merely in sacred principles and abstractions. This doesn’t mean that the Framers didn’t infuse the document with a desire for reform or utopian hopes, just that the harsh realities of geopolitics—particularly threats from Britain to the north, Spain on the Mississippi, and Native Americans throughout the inland frontier—were never far from their minds. The Constitution that was drafted in Philadelphia during the summer of 1787, writes Colley, “was often approached at the time less as a ‘blueprint of a liberal democratic society,’ . . . than as a grimly necessary plan for a more effective and defendable union.”29
So what did I learn in León? I learned that from the very beginning constitutions are practical political documents that formalize the results of bargaining between competing sectors of a given political community; that they are amoral rule books that set the boundaries of future debate, establish the obligations each sector owes to the other, and constrain the actions of members of signatory groups long after the signers of the parchment are dead. Most importantly, I learned that if they are to survive, all parties must continue to persuade the other that they can more effectively get what they want if they agree to support each other. And finally, that, while inspiring, America’s universalist language of rights can be deceiving; that our civil rights—liberties derived from membership in a particular polity—are a far more powerful source of freedom than human rights–liberties that all persons should theoretically enjoy.
- Paul M. Zall, ed., Comical Spirit of Seventy-Six: The Humor of Francis Hopkinson (San Marino: The Huntington Library, 1976), 191. ↩︎
- Daniel J. Boorstin, The Genius of American Politics (Chicago: The University of Chicago Press, 1953, 191. ↩︎
- Reginald Horsman, Race and Manifest Destiny: The Origins of American Racial Anglo-Saxonism (Cambridge: Harvard University Press, 1981), 227. ↩︎
- A.F. Pollard, The Evolution of Parliament (London: Longmans, Green & Company, 1920), 3. ↩︎
- John Keane, “The Future of Parliaments,” (keynote address, EU Global Project to Strengthen the Capacity of Parliaments, León, Spain, June 30, 2023). ↩︎
- John Keane, The Shortest History of Democracy: 4,000 Years of Self-Government—A Retelling for Our Times (New York: The Experiment, 2022). 79. ↩︎
- María Esther Seijas Villadangos, “Origin of Parliamentarism: An Historical Review of its Crisis: León (Spain) as Cradle of Parliamentarism,” Revista Acadêmica da Faculdade de Direito do Recife 88, no. 2., (July/December 2016): 22. ↩︎
- John Keane, The Life and Death of Democracy (London: Simon & Schuster, 2009), 176. ↩︎
- Keane, “The Future of Parliaments”. ↩︎
- Joseph F. O’Callaghan, “The Beginnings of the Cortes of León-Castile,” The American Historical Review 74, no. 5 (June 1969): 1514. ↩︎
- Jan Luiten van Zanden, Eltjo Buringh, and Maarten Bosker, “The Rise and Decline of European Parliaments, 1188-1789,” The Economic History Review 65, no. 3 (August 2012): 839. ↩︎
- Joseph F. O’Callaghan, History of Medieval Spain (Ithaca,NY: Cornell University Press, 1975), 285. ↩︎
- Aniceto Masferrer, “The Spanish Origins of Limiting Royal Power in the Medieval Western World: The Córtes of León and Their Decreta (1188),” in Golden Bulls and Chartas: European Medieval Documents of Liberties, ed. Elemér Balogh (Budapest: Central European Academic Publishing, 2023), 31. ↩︎
- Edmund S. Morgan, Inventing the People: The Rise of Popular Sovereignty in England and America (New York: W.W. Norton, 1989), 56. ↩︎
- Morgan, Inventing the People, 267. ↩︎
- Morgan, Inventing the People, 13. ↩︎
- Stephen Holmes, “Precommitment and the Paradox of Democracy,” in Passions and Constraint: On the Theory of Liberal Democracy (Chicago: The University of Chicago Press, 1995,) 146. ↩︎
- Morgan, Inventing the People, 283. ↩︎
- Morgan, Inventing the People, 283. ↩︎
- Gordon S. Wood, The Creation of the American Republic, 1776-1787 (Chapel Hill: The University of North Carolina Press, 1969), 541-542. ↩︎
- Wood, The Creation of the American Republic, 541. ↩︎
- Pauline Maier, Ratification: The People Debate the Constitution, 1787-1788 (New York: Simon & Schuster, 2010), 446. ↩︎
- Daniel Chirot, “The Rise of the West,” American Sociological Review 50, no. 2 (April 1985): 185. ↩︎
- Giovanni Sartori, “Constitutionalism: A Preliminary Discussion,” The American Political Science Review 56, no. 4 (December 1962): 855. ↩︎
- Stephen Holmes, “Constitutions and Constitutionalism,” in The Oxford Handbook of Comparative Constitutional Law, ed. Michel Rosenfeld and András Sajó (Oxford, UK: Oxford University Press, 2012), 215. ↩︎
- Holmes, “Constitutions and Constitutionalism,” 214-215. ↩︎
- Max Weber, General Economic History, trans. Frank H. Knight (Glencoe, IL: The Free Press, 1950), 325. ↩︎
- Linda Colley, The Gun, The Ship, and The Pen: Warfare, Constitutions, and the Making of the Modern World (New York: Liveright Publishing Corporation, 2021), 7. ↩︎
- Colley, The Gun, The Ship, and The Pen, 121. ↩︎
