IN 1792, in a short essay called ‘Charters,’ James Madison succinctly explained what he thought was the essential difference between the United States Constitution and the constitutions of every other nation in history. ‘In Europe,’ he wrote, ‘charters of liberty have been granted by power. America has set the example … of charters of power granted by liberty. This revolution in the practice of the world may, with an honest praise, be pronounced the most triumphant epoch of its history.’ The ‘charters of liberty … granted by power’ that Madison had in mind were the celebrated documents of freedom that kings and parliaments had issued throughout the ages, many still honored today: Magna Carta of 1215, the English Petition of Right of 1628, the English Bill of Rights of 1689. Documents like these had made the British constitution – unwritten though it was – the freest in the world prior to the American Revolution. A British subject enjoyed more room to express his opinions, more liberty to do as he liked with his property, more security against government intrusion, and greater religious toleration than the subject of any other monarchy in the known world. Yet for Madison and his contemporaries, that was not enough. He and his fellow patriots considered “charters of liberty … granted by power” a poor substitute for actual freedom because however noble their words, such charters were still nothing more than pledges by those in power not to invade a subject’s freedom. And because those pledges were ‘granted by power,’ they could also be revoked by the same power. If freedom was only a privilege the king gave subjects out of his own magnanimity, then freedom could also be taken away whenever the king saw fit.
— Timothy Sandefeur, The Permission Society: How the Ruling Class Turns Our Freedoms into Privileges and What We Can Do About It