Month: October 2018

How the U.S. Constitution was born

Welcome to part the last of our series on Bernard Bailyn’s masterful description of the transformation of American political thought in the decade before 1775. Here we look at how the idea of a Constitution of principle took off once it was properly presented. As Bailyn puts it:

The transition to more advanced group was forced forward by the continuing need, after 1764, to distinguish fundamentals from institutions and from the actions of government so that they might serve as limits and controls. Once its utility was perceived and demonstrated, this process of disengaging principles from institutions and from the positive actions of government and then of conceiving of them as fixed sets of rules and boundaries, when on swiftly. [181]

Americans, as Bailyn spends a long early chapter explaining, seemed to fear nothing more than unlimited government that became tyrannical. Abuse of power was the worst possible abuse. That’s why most Americans had resisted a government based on theory–theory could infinitely expand and be used to justify any abuse of power. Better to send reps to the legislature with a few concrete demands than to have them while away their hours coming up with “ideas” to guide them.

But it became clear to these Americans that Principle did not have to be used for evil expansion of power. Principles could be used to limit government. The U.S. Constitution is a tribute to where this thinking quickly led–it can definitely read sometimes like it’s primarily a list of what the federal government cannot do rather than what it can. Principles can be used to curb government by giving natural rights to the individual citizen, and institutions like the free public press.

If politicians drew their power to act from a set of written principles that the voters had agreed upon, then those principles–the Constitution–began to seem like it had a lot in common with those written rules and requirements towns used to send their reps to the legislature with. One knew that one’s reps were bound by the principles of the Constitution, and, if that constitution was properly written, it would curb the power of the government.

This helped Americans to separate bodies of law from actual bodies of government. Parliament, or the colonial legislature, were not the constitution. They were not the law. They did not write laws by their own authority. Americans quickly adopted the idea that legislatures were authorized to write laws by authority of the constitution they were governed by. They could not create laws that violated that constitution. Legislatures were not synonymous with the law, and they were not above it.

This flew in the face of the established English legal tradition that the body of laws Parliament had created over the centuries was the English constitution, and therefore Parliament itself was the ultimate authority. As Zubly put it, the Americans were diverging into the belief that

Parliament derives its authority and power from the constitution, and not the constitution from Parliament… the constitution is permanent and ever the same, [and Parliament] can no more make laws which are against the constitution or the unalterable privileges of the British subjects than it can alter the constitution itself… The power of Parliament, and of every branch of it, has its bounds assigned by the constitution. [181-2]

This leads fairly naturally to the idea that a people and their legislature must have a written constitution to operate by. The English tradition that the entire great body of law and precedent created over the centuries was the constitution was unacceptable. That great body of law had no guiding principles–it contained laws that contradicted each other, laws that were written on the spur of the moment, laws that were the brainchild of individual men. And it put the cart before the horse: a legislature doesn’t make a constitution possible; a constitution makes legislation possible.

Bailyn goes on to the end of this chapter to describe how different colonies began to implement this idea, and it’s good reading. But we’ll close our series with a final quote from this great historian:

These changes in the view–of what a constitution was and of the proper emphasis in the understanding of rights–were momentous; they would shape the entire future development of American constitutional thought and practice.

It’s great to really study the intellectual history of our revolution, and to remind ourselves that it was not all about “Americans didn’t want to pay taxes”.

How America developed its Constitution

Here in part 5 of our series on Bernard Bailyn’s masterful description of American political thinking in the transitional decade of the 1760s, we come to the second revolution in political thinking that occurred in a very short period: the idea of a constitution of principles.

English legal tradition had defined the “constitution” as the legislature itself–“a legal constitution, that is, a legislature”, as Richard Bland put it. Bailyn describes how the work of the American lawyer James Otis began to articulate a new definition of a constitution as a moral foundation for the work of a legislature, a set of principles that informed and put boundaries on what a legislature could do. Bailyn sums this up as “a set of fixed principles and rules distinguishable from, antecedent to, more fundamental than, and controlling the operating institutions of government” (176).

In this understanding, a constitution authorized and limited the legislature’s actions. Since all of this thinking was going on in the context of English law, the question of whether a constitution authorized and limited the monarch’s actions did not come into play. And as we know, after the Revolution there was still substantial support in the new United States for a monarch-like president who stood above the law. But the idea that Congress, House and Senate, had to abide by a constitution of principles was firmly established–so much so that the American people famously demanded a Bill of their rights be added to the Constitution that they, the people, ratified, so that Congress would be clearly bound to protect principles of personal liberty, and, even more important to people at the time, restrained, constrained, and prevented from expanding its powers and becoming tyrannical.

But that’s leaping ahead. During the period 1765-1775, Americans were working out the first step, which was how to define the principles a constitution should uphold. Were they simply the recognized legal principles handed down from legislature to legislature over the centuries of English practice? Were they religious principles of Anglican Christianity? Were they the new and radical tenets of natural law? It was easier to use the term “fundamental law” and “formal principles” than to define them, especially in America, where there had been so much steely and deliberate resistance to the idea of men in a legislature serving any other principle than “I will follow the orders my townspeople gave me.”

Otis wrote that Parliament could not be allowed to violate natural laws “which are immutably true,” because that would violate “eternal truth, equity, and justice,” and therefore any act of Parliament that violated natural law would be “void.” But how do we define what is “immutably true”? How do we come to agree on what is eternally true, fair, and just? What we discover is that the foundation of any constitution is a shared agreement on, and belief in, some powerful concepts of truth, fairness, and justice.

We see this shared agreement stated elegantly in the opening words of our Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.”

We hold these truths–it took years of debate, ten thousand letters and editorial essays printed in newspapers, tens of thousands of sheets of paper, a million letters between Americans, and countless millions of conversations in taverns, family homes, business offices, and farm fields to define who “We” were and what the “truth” was. That all this intellectual activity was compressed into about 10 years–1765-1776–is remarkable, and shows how important those definitions were to Americans at all levels of society. The same debate went on for another ten years, until our Constitution was drafted in 1787.

Even Otis did not go as far as his fellow Revolutionaries would. He did not believe that a constitution would “furnish judges with grounds for declaring [laws] nonexistent because they conflicted with the ‘constitution,’ but only[provide] judges with principles of interpretation by which to modify gross inequities in ways that would allow traditional [definitions] of justice to prevail.” [180] The idea that inherited laws and legal procedures, inherited concepts of law that were centuries-old, should still stand as the test of whether an act of Parliament was valid would be vehemently discarded by the men who wrote our Declaration and, eventually, our Constitution. Longevity was not truth, tradition was not equity.

We’ll finish next time with the path to concretizing the new American idea(l) of a modern constitution of principle.

Government for the people’s sake in Colonial America

Hello and welcome to part 4 in our series on Bernard Bailyn’s masterful description of American political thinking in the transitional decade of the 1760s.

We left off describing the common American conception of government as a purely practical delivery system in which their representatives to the colonial seat of government, meeting in a general assembly once or twice a year, followed their written instructions by asking for things their towns wanted, then came home. There was no sense of government as something larger than the sum of its parts. Government was not something that expressed certain ideals. It didn’t inspire people, it wasn’t generally seen as an instrument that could be used to expand the common good.

Government for most American colonials was, in fact, an ever-present danger. Bailyn spends the first part of his book illustrating that the deepest fear Americans had about government was that it would abuse its power–that it would become tyrannical. If you were to tell representatives that they were politicians, that meant their job was being in the government, working in government, and soon they would do anything to preserve and extend their power. Better to keep reps firmly in place as the dispensable, dependent servants of their constituents, sent to the assembly to do a short-term job for someone else.

This served to restrict the power of government by preventing it, as much as possible, from taking on a life and meaning of its own. As Bailyn puts it,

In effect the people were present through their representatives, and were themselves, step by step and point by point, acting in the conduct of public affairs, No longer merely an ultimate check on government, they were in some sense the government. Government had no separate existence apart from them; it was by the people as well as for the people; it gained its authority from their continuous consent. [173]

That’s why most colonial assemblies only met once a year. The idea of a standing government, like a standing army, always around, always acting, was unnatural and repellent to most Americans. It was the norm in Europe for all national legislatures to meet for short periods only–Parliament met briefly then disbanded. It did not stay in session all year. Government came into being, into existence, when the people came together to make their demands. Then it disappeared again when they left. The people were the government.

We begin to see in this alien state of affairs the seeds of our own familiar American conception of government. The people would accept a colonial assembly coming into being because they made it come into being by sending their reps to the capital. The people controlled their reps, and so controlled the government. Thus the people felt safe consenting to the decrees of the temporary assembly. If their representatives stayed in the capital all year, and talked amongst themselves, and came up with laws on their own,  based on their reading or some other source than their direct voters, then those voters–the people–would not accept those laws or consent to them.

Electing reps each year was a way to ensure that no one stayed in politics so long that they began to pursue their own, or someone else’s, agenda. In this way, short terms in brief assemblies secured consent. Voters had to feel that their positions were represented   in their assemblies, or they would not consent to the laws the assemblies passed. This was government by the people, as much as possible, and for the people (who could vote), not government for government’s sake. Government for the sake of promoting and protecting a leader (a monarch or governor), for the sake of providing people with government jobs, for the sake of enriching politicians and capital cities–this was anathema to Americans.

Of course, some men were elected as reps over and over by their towns, for decades. But even these men could be suddenly and swiftly unseated if they crossed their constituents. Men who represented their town for years on end were men who did their town’s bidding.

Underlying this state of affairs, and making it possible, was the lack of a king in America. Yes, the American colonists were servants of the king, just as people in England were. But they did not participate in Parliament, and so their experience of their own government passing laws to please the king, or enrich him, or reflect his religious beliefs, etc., was extremely limited. A series of English monarchs declared war on France, and Americans fought the French in Canada many times. This was the most directly felt impact of having a king for most American subjects. Otherwise, Americans governed themselves to serve themselves.

Bailyn quotes the Tory Anglican minister Samuel Seabury apprehending in 1774 how differently  the American perception was from the British, and anticipating the trouble it must cause:

The position that we are bound by no laws to which we have not consented either by ourselves or our representatives is a novel position unsupported by any authoritative record of  the British constitution, ancient or modern. It is republican in its very nature, and tends to the utter subversion of the English monarchy.

Next time: constitutions and rights