The United States constitution is commended as an example of Hayekian discovery procedure, but is itself an example of rational constructivism and intellectualism. Of course the colonists took things from English legal and political precedents, but the Constitution of the United States attempts to create a perfect republic on federal grounds which has no precedent in Britain. There is an evident element of fantasy in thinking that everything in the constitutional arrangements of the United States stems of Medieval England.
Continuing my follow up comments to a post of 1st June. I was partly replying to two claims about the US Constitutiın
1. It’s the continuation of Medieval English law, and the kind of liberties mentioned in Magna Carta, as imported to North America by British settlers in the 13 colonies.
2. It’s an example of discovery procedure in the sense of Hayek’s ideal of how law works through the way judges interpret existing laws in news cases.
It’s just absurd to argue that a Constitutional document can be equated with the development of law through judge made case law. The US Constitution was constructed through a complicated political discussion. In the end it draws on the following: English legal and political tradition; views about European republics, ancient and modern; Enlightenment political and legal theory (most of which is not rooted in English legal tradition); the experience of colonists in north American over hundreds of years with limited interference from Britain; the example of American Indian alliances and confederations; experience of self-government in radical Protestant communities in the colonies.
The United States constitution is extremely innovatory in establishing a clearly structured federation. Federation and confederation had already been discussed, for example in Montesquieu, referring to the Ancient alliances of Greek city states, Switzerland and Germany in more recent times. All of these were alliances, confederations of federations which worked in very loose, inconsistent ways completely lacking the attempt at clear allocation of different powers to states and federal government, under federal legal and political institutions apparent in the United States.
Some aspects of the US Constitution can be traced back to Medieval English ideas, but the continuity is very weak, otherwise we would see a very similar political and legal structure in Britain as the United States. Some aspects is not all. Habeas corpus is maybe the most significant continuity, that is the idea that the state cannot detain you for more than two days without bringing charges. Jury trial is another major area of continuity. However, nothing about British tradition equates with the absolute free speech rights of the First Amendment, or the separation of church and state. Britain has now, then and laws has had a state church. Practice varied widely in the 13 colonies on this matter. There is some very general sense in which could call all these changes and variations a ‘discovery procedure’, but only by stretching the term to the point of meaninglessness. Judicial tradition mixes with political struggle and theoretical constructions to give us the United States, its Constitution, and its Bill of Rights.