Leonard E. Levy writes, "They [America] resorted to arms in 1775, the Continental Congress believed, not to establish new liberties, but to defend old ones. In fact, they did establish many new liberties but convinced themselves that those liberties were old."

Levy argues that this philosophical approach to progress was an English custom:

That was an English custom: marching forward into the future facing backward to the past, while adapting old law to changing values.

Thus, Magna Carta had come to mean indictment by grand jury, trial by jury, and a cluster of related rights of the criminally accused, and Englishmen believed, or made believe, that it was ever so.

The habit crossed the Atlantic.

Levy writes that the Americans romanticised 17thC English political struggles between the parliament and monarch as one where the government irrevocably limited itself through legislation such as the Magna Carta, Petition of Right Act, Habeas Corpus, Bill of Rights and the Toleration Act.

Consequently American constitutionalism embodied social compact theory, natural right theory and explicitly limited government. This went beyond the English enunciation of rights as the Acts above limited the crown, not parliament. American constitutionalism was less nuanced and limited both executive and legislative.

All the colonies of America had innovated constitutionalism beyond English constitutional practice even before the Revolutionary War. They had either written constitutions (Rhode Island had a statutory charter) and/or explicit rights that prohibited government action. Virginia is celebrated as having the run-up to the US Bill of Rights, but other colonies had freedom of press clauses and establishment clauses in their constitutions.

Levy writes:

The American colonial experience, climaxed by the controversy with England leading to the Revolution, honed American sensitivity to the need for written constitutions that protected rights grounded in the "immutable laws of nature" as well as in the British constitution and colonial charters.

To the English, the Americans had the wrong ideas about the British constitution. English and American ideas did differ radically, because the Americans had a novel concept of constitution.

The word signified to them a supreme law creating government, limiting it, unalterable by it, and paramount to it.

Emphasis is Levy's. American political philosophy requires a constitution to include a Bill of Rights otherwise it is an incomplete and imperfect one.

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