From English Declarations to American Freedoms: The Evolution of Rights

Dr. Beienberg explores how the English Bill of Rights shaped American rights philosophy more indirectly than commonly believed, revealing fundamentally different understandings between British and American views on rights protection.

• Americans and British took different lessons from the Glorious Revolution – British focused on parliamentary supremacy while Americans emphasized fundamental rights
• English Bill of Rights primarily restricted the monarch rather than all government institutions
• British view assumes Parliament will protect rights; American system is skeptical of all government power
• Similar language appears in both documents (cruel and unusual punishment, quartering soldiers, bearing arms)
• Key difference: English speech protections only applied within Parliament, while American version was universal
• American founders were uniquely concerned that even elected majorities could violate individual rights
• British system views elections themselves as the fundamental protection of liberty

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Episode Transcript

Speaker 1 (00:00):
talking again about the English Bill of Rights and
how they helped shape the USBill of Rights, and once again
we have one of our favorites, drBeienberg, here.
To kind of help us understand,dr Beienberg, how did it shape
the US Bill of Rights?

Speaker 2 (00:15):
So it shaped the Bill of Rights, I would actually say
, more indirectly than manypeople think.
So one of the themes that we'vetalked about in other parts of
the podcast is that theAmericans and the British took
very, very different lessonsfrom the English Bill or, excuse
me, from the GloriousRevolution in 1688 and 1689.
So two of the products of thatare obviously John Locke's

(00:36):
writings and the English Bill ofRights is another.
And as we talk, just as a briefsort of kind of connection to
that, remember, the Americansunderstand the Glorious
Revolution to be fundamentally aguarantee of both substantive
sets of rights as well as a sortof establishment of local
government.
And the British understand thelegacy of the Glorious

(00:58):
Revolution to be one about astrong parliament.
And that really plays out asyou look through the English
Bill of Rights.
Now, when we think of the USBill of Rights today, it's very
much a focus on the first eightand the idea of this as a set of
individual rights.
But in many ways the EnglishBill of Rights is actually
closer to a separation of powersdocument and that's clear from

(01:20):
the very beginning.
If you look at the first sortsof protests that it makes, which
then the English Bill of Rightsis sort of redundant where it
has a list of count one, counttwo, count three, count four
things that James II has beendoing and therefore, and then
there's a list of sort of rightsor guarantees that the new
English monarchs, william andMary, agree to, mary being again

(01:41):
the daughter of the deposedBritish king and her husband,
william, who is effectively he'sgot a strange title but it's
effectively a sort ofquasi-hereditary governor of the
Netherlands.
But they basically take over inEngland and as a condition of
that they agree to this EnglishBill of Rights that has been
given to them by Parliament.
So some of the objections thatare raised very early on is and

(02:06):
this will play out not in the USBill of Rights but in the US
Constitution is a protestagainst the British King
dispensing with law or failingto enforce law passed by
Parliament.
And so this is where you see inthe US Constitution the
guarantee that the presidentshall take care that the laws be
faithfully executed, and yousee the same language in the

(02:27):
state constitutions with thegovernors right.
So we think of this very muchas a separation of powers claim.
But the English and theAmericans both understood that
effectively, fair execution ofthe law is itself a kind of a
civil liberty or a kind of aright.
So that doesn't translate intothe US Constitution.
It does translate into lots ofSConstitution.
It does translate into lots ofthe state declarations of rights

(02:47):
, particularly the ones that arewritten at the time of the
founding.
They'll include this sort of alanguage.
So that's one thing that Ithink is worth emphasizing.
Relatedly, the English Bill ofRights is a guarantee, basically
against the king and notagainst parliament, whereas
today, right, it doesn't matter,the president can't violate the

(03:09):
First Amendment, congress can'tviolate the First Amendment.
Eventually, through the 14thAmendment, the states can't
violate the First Amendment.
But the English Bill of Rightsis fundamentally a set of
guarantees that are agreed to bythe king and that parliament
can modify.
Right Again, remember, there isno formal English constitution
in the same sense of, like youwalk over there and you stare at

(03:31):
the document with the glowinglight, right, like there are,
where everybody is sort ofagreeing to be bound by it.
In the same way, the Englishconstitution, so to speak, is a
set of super important agreementand parliamentary statutes, but
they're not binding, they'renot unchangeable in the same
sense.
So, just as a clear example ofthis.
England obviously has veryaggressive gun control laws.

(03:52):
I'm not interested indiscussing the merits of gun
control laws one way or theother, but they would be
probably pretty clearly intension with the language of the
English Bill of Rights if italso applied to Parliament.
So Charles III can't go door todoor and impose gun control
regimes, but under the Englishunderstanding of the English
Bill of Rights Parliamentcertainly can, and so this sort

(04:15):
of foreshadows a little bit ofthe way that psychologically the
Americans and the Englishunderstand this revolution
differently.
That, yes, the Americans aren'tstupid.
They understand that officiallythis is guarantees against
parliament or, excuse me,against the king, but
functionally they understandthese as increasingly sort of
substantive, fundamental,foundational rights that ought
to be held and guaranteedregardless of the government

(04:37):
institution that's imposing it.
So again, we sort of lose thatin the way that we think of the
US Bill of Rights, as this isjust a set of individual rights
guarantees, because we have tobasically decide and say these
are actually individual rights.
This isn't basically somethingwe're just concerned about the
king overreaching on.
So some of the language interms of what's guaranteed is
pretty similar the languageagainst cruel and unusual

(05:00):
punishment in the EighthAmendment and in the state
constitutions is more or lessword for word from the English
Declarations of Rights.
There's a protest againstquartering soldiers, which
obviously becomes a big deal inthe American Revolution,
although, strikingly, thequartering soldiers language is
not as explicit as theprohibition.
In the same way, in the sort of, and therefore section of it,

(05:24):
there is a protest against andagain this goes back to
separation of powers raising astanding army but importantly,
without the consent ofparliament, so parliament can do
this, which then that actuallytranslates to standing armies in
the US Constitution with thetwo-year congressional
appropriation, and one that Ithink is really striking.

(05:47):
And then there's again some ofthe others.
There's a restriction on theability of the king to restrict.
There's a restriction on theability of the king to restrict
arms, which is to say there'sbasically sort of restriction
you know gun rights provisionsof sorts.
There's basically sort ofrestriction you know gun rights
provisions of sorts, but they'rerestricted only to Protestants
being applicable and they alsohave the caveat saying accept

(06:14):
the such restrictions as allowedby law, basically, which again
leaves a lot of leeway forparliaments to do it in a way
that, you know, the Americanshave Americans in their both
their state and their federalconstitution have held this to
be a more individual right.
But I think one thing that'sreally really striking and
illustrates just thisfundamental difference in some
ways there is no sort offreestanding right of freedom of
speech in the English Bill ofRights.

(06:35):
There is a freedom of speech andsort of debate within
parliament, so in some senseit's a protection of parliament
basically talking and critiquingthe king, and there is a
protection of the rights topetition the king.
So there's a protection of theright to basically protest hey
king, fix this.
Hey king, work on this, heydon't do this but strictly

(06:56):
speaking, that doesn't havequite the same sort of and a
protection of the right to speakin general, or even necessarily
to speak against Parliamentpotentially, if you want to be
really strict about it.
So really, the English Bill ofRights sets up the strong
prohibition against sort of anautocratic monarch and it
creates the idea of a set ofrights that are held to be

(07:18):
really important, that they sortof assume Parliament will
protect, but that the rights inthe English Bill of Rights
themselves don't actually applyagainst parliament, which again
you can see how this, as we'veseen it again and again, is part
of why sort of the logic of theAmerican Revolution very much
is this are these sort offoundational rights that are
sort of always applying and themain thing is that we want to

(07:41):
protect sort of local anddivided and decentralized
government, or is this reallybasically specifically just
against a monarch?
And the English Bill of Rightsvery much tilts in the latter
direction of being reallyskeptical of monarchical power,
much more comfortable withparliamentary power, and that
just fundamentally doesn'ttranslate over to the American
context, even as the list ofrights that they think are

(08:03):
important has a lot ofcontinuity.

Speaker 1 (08:07):
So in the English Bill of Rights they're looking
at protecting themselves fromthe king, whereas, like when you
look at, you know the FirstAmendment, congress shall make
no law, but it doesn't talkabout the president.
Does that matter?
That it's not specificallynaming a president no-transcript

(08:59):
is going to be doing basically.

Speaker 2 (09:01):
I mean, we've again lost the sense of this in the
days we're not nearly as strictabout separation of powers as
they were.
But yeah, they're much morefundamentally concerned that the
legislature can do wrong.
They think that in fact andthis is, you know, we're going
to have a lot of sessions onMadison, right Madison is
concerned that majorities ofeven elected people whether

(09:23):
that's because of passions ofthe voters or temporary panic or
sort of you know log rollingcabals of one group against
another, or sort of log rollingcabals of one group against
another.
The American system is muchmore skeptical that the
government itself, especiallythe federal government, but the
state's governments as well,that the government itself, if

(09:43):
elected, that the elected peoplewill themselves make violations
of civil liberties.
The British understanding is alittle bit more that as long as
we have elections, that is thefundamental civil liberty, that
if we elect the peopleParliament will not break our
civil liberties.
The Americans are not quite sooptimistic about that.

Speaker 1 (10:05):
Awesome.
Well, thank you.
I think that that is a veryconcise answer to.
I mean, there are definitelyways that the English Bill of
Rights has influenced our Billof Rights, but then there's also
some really key differences, DrBeinberg, as always, thank you
so much.
Yep, my pleasure.