Section 2: That all power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants and at all times amenable to them.

– Virginia Declaration of Rights (author: George Mason)

The Mises Institute, looking forward to July 4th, has an excellent article today on the influence of George Mason on American constitutional documents. This reading fits nicely into the constitutional musings that have occupied my thoughts this year as our Brexit turmoil continues.

Recently, I have also watched some videos discussing the Glorious Revolution, which produced the English Bill of Rights. The English invited William III to take the crown in order to prevent tyranny, more specifically: Catholic tyranny. Few would dispute the claim that James II’s reign was disastrous – but it does not follow that we can draw the general from the particular. The bad rule of one Catholic does not entail that Catholic rule is malum per se.

Parliament, in suppressing the Crown, placed itself at the head of the nation. However, in our present constitutional crisis, many citizens of the UK long for reform. In R (on the application of Jackson) v Attorney General [2005] UKHL 56 (which can be read here), Lord Steyn said:

But the implications are much wider. If the Attorney General is right the 1949 Act could also be used to introduce oppressive and wholly undemocratic legislation. For example, it could theoretically be used to abolish judicial review of flagrant abuse of power by a government or even the role of the ordinary courts in standing between the executive and citizens. This is where we may have to come back to the point about the supremacy of Parliament. We do not in the United Kingdom have an uncontrolled constitution as the Attorney General implausibly asserts. In the European context the second Factortame decision made that clear: [1991] 1 AC 603. The settlement contained in the Scotland Act 1998 also point [sic] to a divided sovereignty. Moreover, the European Convention on Human Rights as incorporated into our law by the Human Rights Act, 1998, created a new legal order. One must not assimilate the ECHR with multilateral treaties of the traditional type. Instead it is a legal order in which the United Kingdom assumes obligations to protect fundamental rights, not in relation to other states, but towards all individuals within its jurisdiction. The classic account given by Dicey of the doctrine of the supremacy of Parliament, pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom. Nevertheless, the supremacy of Parliament is still the general principle of our constitution. It is a construct of the common law. The judges created this principle. If that is so, it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism. In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the Appellate Committee of the House of Lords or a new Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish. It is not necessary to explore the ramifications of this question in this opinion. No such issues arise on the present appeal.

Much of that paragraph is obiter; nevertheless, as a House of Lords case, it is persuasive. The reasoning apparently is that there are certain constitutional principles so fundamental to the healthy and orderly functioning of our nation, that they must take priority over the power of Parliament. A Parliament that sought to override these principles would be acting illegitimately. It follows, then, that Parliament is instituted in order to safeguard these principles. When it breaks with its fundamental mandate, it ceases to be legitimate.

For some time now, I have thought of the members of the executive, legislature, and judiciary as the People’s trustees. That is why I was delighted to read George Mason’s words reproduced above. The term “trustee” is seldom used in ordinary conversation. Added to this fact is the problem of language between the UK and the USA. Trust law, pertaining to trustees and fiduciaries, being a product of equity, is not to be confused with anti-trust law, the latter which I, along with many others in the UK, prefer to call competition law, so as to avoid confusion.

Trustees hold property on trust for beneficiaries. Trustees hold legal title to the property, while beneficiaries have an equitable interest in the property. A person who holds both the legal title and equitable interest owns the property outright; he is said to hold it absolutely.

So, many of us conceive of our governors as holding their power on trust. They are the formal holders of power, but they are to exercise it in the People’s interest. Just as one would bring a claim in equity against a trustee who acted in contravention of a trust instrument in a manner causing loss to the beneficiary, so one can conceive of removing governors who do not act in the interests of the People – by voting them out, applying for disqualification, or other means as necessitated by the times.

That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. — Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

-Declaration of Independence, United States of America