Chapter 18: No Taxation Without Representation? Most Americans come away from their American history classes with the notion that the overriding slogan of the colonists at the time of the Stamp Act and the American Revolution was "No Taxation Without Representation." Actually, it wasn't. To be sure, some colonists used that slogan. For example, after the Stamp Act was passed, the colonial lawyer James Otis argued that the colonies should have representation in Parliament if they were going to be taxed by it.
But neither he nor any of the colonies presented any concrete proposals to Parliament to provide representation for the colonists. The reason is obvious. At the time of the Stamp Act, the free population of colonial America was over one and a half million free persons. In contrast, the population of Great Britain was well over six million free persons.
Even if Parliament had granted the thirteen colonies proportional representation in Parliament, the Stamp Act and other laws affecting the colonies still would have passed with ease. But then the colonists would have had no excuse to object to such laws. So the last thing the colonists wanted was representation in Parliament. Were those taxes unconstitutional?
The slogan the colonists voiced most often was, "As British subjects, we cannot be taxed without our consent." Many of them also claimed that the Stamp Act and other taxes passed by Parliament on the colonies were unconstitutional. Unlike the United States, Britain has no single written constitution.
When the British refer to their constitution, they are speaking about the fundamental laws of Great Britain that give certain rights and protections to British citizens and that place certain restrictions on the English government. One British law textbook explains their constitution in this way: "The rules that lay down how the state's institutions of government and administration are to be organized and operated are collectively called the Constitution.
Every person in the country is directly affected by the Constitution because it is the basis of certain important factors in our national life. The British Constitution is said to be unwritten because there is no single document that contains all its rules.
One important turning point was the Bill of Rights in 1689, whereby the power of the king to pass laws without consulting Parliament was lost." At the time of the American Revolution, three of the key documents that spelled out the rights of English citizens were the Magna Carta of 1215, the aforementioned 1689 English Bill of Rights, and the Act of Settlement of 1700. These documents limited the power of the English monarchy and established the supremacy of Parliament.
Every act passed by Parliament and accepted by the king was automatically constitutional. This was strikingly different from the nature of constitutional law in the United States today. I have pored through numerous letters, petitions, speeches, legislative declarations, and other documents prepared by the colonists in objection to the Stamp Act and later Townshend Acts. The colonists boldly pronounced these acts as unconstitutional or as a denial of their rights.
Yet in none of those instruments do any of the colonists ever quote from a single English statute, charter, or judicial decision to back up their pronouncements. Isn't that strange? The reason the colonists never pointed to any specific laws to back up their claims is because no such laws existed. In 1775, there were absolutely no statutes or judicial decisions that said Englishmen couldn't be taxed without their consent or that they couldn't be taxed without direct representation in Parliament.
The British Constitution says no such thing. The claim the colonists were making: What the colonists really wanted was for their colonial legislators to stand on the same level as Parliament, at least for matters of taxation. That was a novel and brash claim. Not even the people of Scotland and Wales had the benefit of such a situation. Furthermore, most of the colonial legislators were established under the terms of their charters, and the charters never gave the colonial legislators that kind of authority.
Nor did anyone dream of such a thing when the colonies were founded. In other words, the colonies had no legal basis for their claim. If the colonists had been legitimately seeking representation in Parliament and if Britain had refused them such representation, then the colonists would have had a justifiable complaint. To be sure, none of the other English colonies had direct representation in Parliament. So the American colonists would have been asking for something very new.
Nothing in their charters, nothing in any English statutes, and nothing in English legal history gave them such a right. But it was at least something they could plead as a matter of equity. But as I've said, they were arguing that with regard to taxation, their colonial legislators stood on par with Parliament. They were declaring that Parliament had no power to tax them at all. So in the end, it wasn't Parliament that was making unconstitutional claims; it was the colonists.
The Act of 1689, often referred to as the English Bill of Rights, does not guarantee anyone representation in Parliament or the right to vote. What it does declare is this: "The pretended power of suspending the laws or the execution of laws by regal authority without consent of Parliament is illegal." The king himself did not have power to suspend the laws of England without consent of Parliament. Yet the colonists were claiming such a right.
The American inconsistency: Ironically, the relationship that England had with its American colonies was almost identical to the relationship that the United States has today with its territories. Take Puerto Rico, for instance. Although it is a U.S. territory, not a state, all persons born in Puerto Rico are automatically U.S. citizens. The same was true of American colonies with regard to English citizenship.
Puerto Ricans have the right to move to the United States anytime without having to go through the immigration process. It was exactly the same way with the thirteen colonies regarding their right to move to Great Britain. Although residents of Puerto Rico have all of the fundamental constitutional protections enjoyed by residents of the United States, they are not allowed to vote in U.S. elections. Yet they are subject to all the taxes and laws passed by Congress.
In other words, they have taxation without representation, the very thing the colonists proclaimed was so unjust. But the men of Puerto Rico have something even worse than taxation without representation. They are subject to all conscription laws passed by Congress, even though they have no voice in Congress. Tens of thousands of Puerto Rican men have been drafted, and thousands have died in America's foreign wars in Europe, the Pacific, Korea, and Vietnam, all without the right to vote.
Parliament appeases the colonists. Parliament was shocked by the violent reaction of the Americans to the Stamp Act. They invited Benjamin Franklin to appear before Parliament and help them find a way out of the impasse. Franklin explained that the colonists didn't question Parliament's right to levy external taxes, for example, tariffs, but they questioned its right to levy internal taxes, such as the Stamp Tax.
Upon hearing this, one member of Parliament responded to Franklin: "You say the colonies have always submitted to external taxes and object to the right of Parliament only in laying internal taxes. Now, can you show that there is any kind of difference between the two taxes to the colony on which they may be laid?" Franklin answered: "I think the difference is very great. An external tax is a duty laid on commodities imported.
That duty is added to the first cost and other charges on the commodity, and when it is offered for sale, it makes up part of the price. If the people do not like it at that price, they refuse it. They are not obliged to pay it. But an internal tax is forced from the people without their consent unless it is laid by their own representatives." Parliament had no desire to start a quarrel with the American colonies.
The members believed what Benjamin Franklin told them about how the colonists looked at things, so they decided to repeal the Stamp Act. Parliament made it clear that it was not accepting the argument that Parliament had no right to levy internal taxes on the colonies. Nevertheless, they wanted to work with the colonies and not against them. So Parliament turned to external taxes as Franklin had suggested. That's when the colonists suddenly changed their tune.