by Noah Feldman
A group of House conservatives have been discussing an “America First Caucus” that would aim to protect and advance what they call “Anglo-Saxon political traditions.”
On the surface, the words “Anglo-Saxon” seem like a euphemism for “white.” Read this way, the words aren’t a racist dog-whistle that can be heard only by some. They’re just a plain old whistle, obviously racist to anyone who has ears.
But as it turns out, the idea of specifically Saxon political traditions also has a deeper history. This one is connected to an enduring myth about the American constitutional tradition: that it ultimately traces its roots to an ancient Saxon — that is, German — tradition of hardy self-government by unruly tribes. In the 19th century, the idea of the Saxon constitution acquired a shameful association not only with so-called scientific racism but also with anti-Catholic and anti-immigrant xenophobia.
It is true that English constitutional development after the Norman conquest of England in 1066 had some continuity with what came before. For centuries, scholars have debated how much of medieval constitutional thought survived the major political changes that accompanied Norman rule by French speakers. And in the 17th and 18th centuries, the supposed Saxon origins of the English constitution were emphasized by thinkers who wanted to argue in favor of the “preservation” of what they called England’s “ancient Constitution” against the rising tide of monarchic absolutism. According to this theory, England’s laws before the Conquest were derived from Germanic, Saxon tribes (sometimes also called Goths) who themselves were imagined as small bands of hardy fighters who had resisted Roman imperial rule.
This theory rested on pretty shaky factual grounds. Nevertheless, constitutionalists in the 1600s and 1700s deployed the myth of the Saxon constitution in a mostly attractive way, namely arguing that ordinary people had rights even in a monarchy. The basic thrust was to depict the German tribes as favoring self-government and rights, over and against the Roman idea of an emperor possessing nearly absolute authority.
America’s Founding Fathers were well aware of the Saxon theory — Thomas Jefferson studied the subject — but they didn’t emphasize it publicly. When it came to writing a new constitution, they were more influenced by natural law: the idea that they had an “inalienable right” to start from scratch and form their own political community.
The Saxon theory got revived about 100 years after the American founding. Its most prominent advocate was Henry Adams, son and grandson of presidents and a historian as well as a comic novelist. In the hands of Adams and friends like his neighbor, Secretary of State John Hay, the theory of Saxon constitutionalism took on a new, racialized cast. Now the German-origin Saxon tribes were associated with northern European “racial” qualities. The strong implication — sometimes made explicit — was that people from southern or eastern Europe lacked the comparable cultural commitment to democracy. The same sort of racial pseudoscience categorized the Irish as “Celts” rather than as Saxons, therefore rendering them, too, as questionable with respect to their ability to adopt democratic values.
Alongside this racialized conception of Saxon constitutionalism came the idea that Catholicism was fundamentally incompatible with democracy. According to this idea, it was not a coincidence that southern or eastern European countries weren’t democratic. (This idea can be fruitfully compared to the more contemporary canard that democracy and Islam are incompatible.)
The upshot, for Adams and his circle, was that the U.S. should be skeptical of immigration, which would bring hordes of non-Anglo-Saxons and would undermine republican values. Saxon constitutionalists also opposed U.S. colonialism abroad, mainly because it would require ruling multiracial areas like Puerto Rico.
Today’s congressional bigots probably don’t know much of this history, or maybe any of it. But they nevertheless belong to the tradition of using the myth of “Anglo-Saxon political traditions” to resist pluralism and openness and embrace xenophobia.
It’s time to let the myth of the Saxon constitution die its final death. We can defend our constitutional rights on the ground that they belong to all humans — not because they reflect some specious “tradition” that was always more myth than reality.
Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter.
