How America developed its Constitution

Posted on October 14, 2018. Filed under: Bill of Rights, Colonial America, Politics, three branches of government, U.S. Constitution | Tags: , , , , , |

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.

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Were Puritan laws harsh? A look at individual rights

Posted on August 15, 2012. Filed under: 17th century America, American history, Puritans, Truth v. Myth | Tags: , , , , , |

Hello and welcome to part 2 of our series on Puritan law—specifically  the 1641 Body of Liberties created by the Massachusetts Bay Colony. Last time we looked at the proto-democratic process by which these laws were created; here we focus on the first section of this body of 100 laws, which covers individual rights. We won’t look at each of the 17 laws in this section, for time’s sake, but pull out the laws that are most indicative of the nature or gist of the Body. If you’d like to read the whole Body of Liberties, and the codes of law that followed it and incorporated it, you can find it in libraries or for sale online under the title The Colonial Laws of Massachusetts: reprinted from the edition of 1660, with the supplements to 1672, containing also the Body of Liberties of 1641.

We should note here that “man” is used pretty consistently, except in the short section devoted to the liberties of women. That section, which we’ll cover later in this series, specifies a woman’s treatment by her husband, disallowing abuse and mandating that a wife be fairly treated in her husband’s will. Otherwise, it’s all about “men” in the Body. This does not mean that the laws that follow did not apply to women. It means two things: “man” was used to mean people; and some of the laws were about men only (such as the laws about military service). Women could be banished and fined just like men, so laws about those things applied equally to both sexes.

(All spelling has been modernized in the following excerpts.)

1. “No man’s life shall be taken away, no man’s honor or good name shall be stained, no man’s person shall be arrested, restrained, banished, dismembered, nor any ways punished, no man shall be deprived of his wife or children, no man’s goods or estate shall be taken away from him, nor any way indemnified under color of law or countenance of authority, unless it be by virtue or equity of some express law of the country warranting the same, established by a General Court and sufficiently published, or in the case of the defect of a law in any particular case by the word of God. And in capital cases, or in cases concerning dismembering or banishment, according to that word to be judged by the General Court.”

—This is the heart of the Body of Liberties; as discussed in part 1 of this series, the whole purpose of creating the Body was to have a set of laws to go by. No one is going to be sentenced to anything unless he has broken an actual law that has been made publicly known. Judgments will not be made according to some magistrate’s whim or personal feelings. People will know what the law is, and what the penalties are for breaking laws. The last part, regarding “the defect of a law in any particular case”, means that if there is some problem for which no law has been written as yet, the magistrates will turn to the Bible for guidance; however, if someone does something that seems to call for capital punishment in the Bible, the General Court will step in and “that word [of God] will be judged”. Here we see that when push comes to shove, human reason ranks above the word of God for the Puritans.

2. “Every person within this Jurisdiction, whether inhabitant or foreigner, shall enjoy the same justice and law that is general for the plantation [the colony], which we constitute and execute one towards another without particularity or delay.”

—One law for all, no one above the law, and an early expression of the idea that justice delayed is justice deferred.

…12. “Every man whether inhabitant or foreigner, free or not free, shall have liberty to come to any public court, council, or town meeting, and either by speech or writing to move any lawful, seasonable, and material question, or to present any necessary motion, complaint, petition, bill, or information, whereof that meeting has proper cognizance, so it be done in convenient time, due order, and respective manner.”

—The law is open to all, no matter their status, and all men have the right to attend public meetings and participate in them, so long as their participation is respectful and the ideas or complaints they have are relevant to the body they’re addressing—that is, if you are in town meeting, you bring up town business and not colony-level business, and vice-versa.

14. “Any conveyance or alienation of land or other estate whatsoever, made by any woman that is married, any child under age, idiot or distracted person, shall be good if it be passed and ratified by the consent of a General Court.”

—While it is distressing to see women, children, and “idiots” lumped together as one category, this law actually states that it is not only men who may buy and sell land or goods (“estate”), and that is crucially important in a colony where land is the chief source of wealth. A woman may do what she sees fit with land she is left by her husband. (Women can also make their own wills, as guaranteed in liberty 11.) Underage children may make decisions about land left to them. The clause on “idiot or distracted persons” likely refers to people who made out wills when they were of sound mind but did not die of sound mind; those wills and the decisions in them will be upheld. All this is contingent on the General Court looking the decisions over and confirming them, but looking through the records of the colony shows that in most cases decisions made by this group were upheld.

We skipped laws in this section that prevent people from being fined for not responding to a court summons if they are incapable of getting to court, outlaw mandatory military service, ensure that no one can be forced to work on a government project, ban estate taxes, keep the government from seizing goods, and give people the right to move out of the colony whenever they like. Basically section 1 limits the power of the colonial government and secures individual liberties, that among these are life, liberty, and the pursuit of happiness. Yes, that line comes from a later document and another time, but we see here in section 1 of the Body of Liberties of Massachusetts early forerunners of those guarantees in our Declaration of Independence.

In section 2, we’ll look at Rights, Rules, and Liberties concerning Judicial Proceedings.

Next time: the longest section

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Slavery and the Declaration

Posted on April 7, 2008. Filed under: Truth v. Myth | Tags: , , , , |

Let’s look at the underpinnings of the system of government the Founders created. First, one more look at the Declaration (see Truth v. Myth: The Declaration of Independence), because I said we’d come back to Locke and the line we changed to “life, liberty, and the pursuit of happiness.” Locke (1632-1704) was the person who really formulated a theory of government based on natural rights (emphasis on theory—he never thought it could be put into practice).


In 1689 and 1690, he published two treatises on government. In them, he stated that “Reason…teaches all Mankind…that being all equal and independent, no one ought to harm another in his Life, Health, Liberty, or Possessions.” You can see the “life, liberty, and pursuit of happiness” kernel here.


Of all the possessions that a person could have, property was most important to Locke. Now, property meant something different to Locke than it does to us. It didn’t mean things or land that were owned. For Locke, property basically meant the work a person is able to do. Your body is your own property, and the work you are able to do belongs to you and you alone. The only reason to accept government is if that government pledges to protect your right to do the work you want to do, and your right to the profits from that labor. If your government won’t do that, you have the right to rebel against it.


[You’d think Locke was anti-slavery, right? No. Unbelievably, he was not. That’s because his thinking about property extended only to educated, non-poor people. Like many educated people at the time, Locke believed that the poor and uneducated were dangerous, and could never be turned into thinking, free people. The best thing for them was to be put to work serving those who were actually free, thinking people. Locke proposed that poor children should be put to work at the age of three, basically in conditions of slavery. There were calls by Enlightenment thinkers to enslave 200,000 poor English and Scots people in Britain—the same number of people who were at that time enslaved in Virginia. See Edmund Morgan’s great book American Slavery, American Freedom for more on this.]


So Locke’s principles were summed up as Life, Liberty, and Property. And the Founders were basing their declaration of independence from Britain on Locke’s principle, that a government that did not allow those natural rights could be overthrown. So why doesn’t the Declaration say “that among these are, Life, Liberty, and Property”?


Because of slavery. Anti-slavery Founders did not want to write “Property” into the foundation of the new nation because they knew that Locke’s definition of property as the right to work was unique to him. No one else thought of property that way. They thought of property as things you buy and sell and own. Slaveholding Americans included human beings in this definition of property. So if the Declaration stated that property was a natural right, then slaveholders would be able to say that slavery was not only protected by the Declaration, but was one of the very foundation stones of the United States.


But the anti-slavery Founders couldn’t come out and say this, or slaveholding delegates would leave Philadelphia, and there would be no Declaration, no United States. So they cleverly chose to focus on a different Lockeian idea: happiness.


To Locke, happiness was not pleasure, but being free to pursue an ideal as you see fit. For example, an athlete who devotes her life to training and competition, always striving for perfect form and high achievement, breaking and setting new records, is pursuing an ideal, and therefore to Locke, she is experiencing happiness. Everyone has the right to pursue whatever ideal appeals to them. They should not be prevented from doing so, by being forced to do meaningless work where perfection means nothing, and they should not be forced into pursuing an ideal they don’t care about. Happiness is a commitment to a passionate perfection of being.


So the anti-slavery Founders put in happiness instead of property, thus avoiding sanctioning slavery as a natural and inalienable right. Because Americans did care about slavery, and there were many who wanted to get rid of it, and enough Founders who either wanted to get rid of slavery or who were too ashamed of their pro-slavery stance to allow for the substitution of happiness for property. There’s the first blow to the idea that “no one cared” about slavery, and that the Founders betrayed all revolutionary principles by allowing slavery.


The basic problem Americans faced for the next 85 years is made plain here. Anti-slavery Americans could not fight the war or create the nation without pro-slavery Americans. Of course Americans, including the Founders, saw that slavery was a violation of natural rights. And that did matter to them. But here was the catch: if you insisted on banning slavery, there would be no United States; if you allowed slavery, there wouldn’t be the United States you really wanted.


Why didn’t non-slaveholding Americans just say screw it, if I can’t have the United States I really want, I don’t want any United States at all? First, because that was a lot to throw away, especially after a devastating war for independence that seemed to have been won only by the will of God. Second, because many antislavery Americans felt that slavery would soon be a non-issue.


So many slaveholding Americans were inspired by the ideals of the Declaration—the Spirit of ’76—that they talked openly of getting rid of slavery. There was real momentum during the war to get rid of slavery, even amongst slaveholders, that lasted until after the Constitution was written. Even slaveholders were inspired by what the new nation was trying to do. They admitted that slavery was morally wrong, and out of keeping with the ideals of the Revolution. “Slavery is a Moral, and political Evil,” wrote James Madison in 1790; “and …Whoever brings forward …some [plan] for the Gradual Emancipation of Slaves, will deserve Well of his Country.” [Ellis 114]  In 1782, the Virginia legislature passed a law allowing slaveholders to free the people they were enslaving if the slaveholders wished to do so. By 1790, over 12,000 enslaved Americans had been freed. [Ellis 90]


It was really only a progressive segment of slaveholders, mostly in Virginia, who held these views. But as Virginia went, so went the South, and it seemed feasible to hope that slaveholders were almost ready to let go of slavery on their own. Therefore, anti-slavery Founders believed there was no point pushing hard for abolition. That would just cause friction and get slaveholders angry. It would sabotage the cause. If anti-slavery Americans just waited, in a very short time slaveholders would end slavery on their own, peacefully. The whole slave system was dying of cancer; there was no need to shoot it.


So the Founders put in Happiness and left out Property and looked forward to a time, just a few years away, when slavery would disappear, dying under the weight of its own shame.

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