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 continue next time with the path to concretizing the new American idea(l) of a modern constitution of principle.

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Is representative federal government possible? American colonists said no

Posted on September 27, 2018. Filed under: Colonial America, Politics, The Founders | Tags: , , , , , , , |

Hello and welcome to part 3 in our series on Bernard Bailyn’s masterful description of the transformation of American political understanding in the 13 colonies in the 1760s and 70s. We left off in part 2 talking about the impossibility of 1:1 political representation and Americans’ growing discomfort with the idea that the ever-increasing size and diversity (read new immigrants) of their population meant that the old days of towns being peopled by four generations of a dozen families, and governed pretty representationally by representatives of those families, were over. As we say in one post in our earlier series on the Federalist Papers:

The idea of equal numbers of Senators for all states, and proportional representation in the House did not pit Federalists and Anti-Federalists against each other. But the reality of defining “proportional representation” did. Anti-Federalists pointed out the impossibility of one person capably and honestly representing the wants and needs of 30,000 people. The Federalists replied that lowering the number (1 Rep for every 1,000 people, for example) would not solve the problem of one person representing multiple constituents—any time one person represents a group there is no way that person can fully represent their wants and needs unless that group is fully united. Since it is very rare for any group to be fully united, no representative can ever do justice to that group. But as usual, the Federalists used this flaw of human nature as a strength: the one thing that can give a Representative some authority to say that he accurately represents his many constituents is elections themselves. In elections, the people are forced to choose someone they think will do the best possible job representing their basic wants and needs. Not everyone will be happy, but the majority of the people will be satisfied, and if too many people are not satisfied, then they elect someone new. Elections will also force the people to focus their wants and needs into a few main issues, on which candidates will campaign. What the people really want most will come out during election campaigns, and the person who best represents what the people think is most important will go to the House.

The Federalists also pointed out, yet again, that the growing nation would soon have so many millions of citizens that it would be impossible to have 1:1 or even 1:1,000 or 1:100,000 representation in the House. The House had to be a figurative representation of the nation; it could not be a literal one.

This kind of thinking was over a decade away in the 1760s. It was the cauldron of political crisis that boiled through the 1760s and 1770s, and the Revolution it led to, that melted down traditional colonial thinking about government and reshaped it into virtual representation to Congress.

Part of that cauldron of crisis was the ever-stronger reaction against the wholesale rejection of virtual representation. This came mostly from Tories in America. Bailyn quotes one who complained that

…by the patriots’ reasoning, “every man, woman, boy, girl, child, infant, cow, horse, hog, dog, and cat who now live, or ever did live, or ever shall live in this province [must be] fully, freely, and sufficiently represented in this present glorious and august Provincial Congress.”

Traditionalists responded vigorously, insisting that the old American way of giving explicit, limited instructions to local reps in writing was the only way to avoid the trap of federal corruption. It’s really interesting to read how very, very strongly the majority of American colonists were against giving a federal government power. It could be Parliament in London, it could be Boston in Massachusetts, it could be Williamsburg in Virginia. Give a legislative body in one town a general mandate to make laws and it became suspect. (It’s also interesting to note that Americans did not feel this way about courts, and spent a great deal of time in their courts, persistently pursuing and appealing to higher and higher courts whenever possible.) Bailyn spends the earlier part of his book dissecting this fear of federal corruption in colonial America, and it’s fascinating to see him locate it ultimately in a fear of unchecked power that remained strong in America for centuries. It’s worth noting that it lives on today in a common hatred or disdain for the federal government in Washington, while the unchecked power of Wall Street is celebrated and protected by the same people who would dismantle Congress. Some unchecked powers are better, it seems, than others.

Giving reps explicit instructions from which they could not vary also underlined that politics was a job. Representatives were not young idealists who wanted to make a better nation. They were men chosen to get something specific–that bridge or mill–from an outside source and that was it. Politics were remorselessly practical. The idea that men in a legislature sought “the general good, resulting from the general reason of the whole”, as Edmund Burke put it, was nonsense. Because it’s such a part of our Constitution and our political tradition as the United States, it’s hard for us to realize today that colonial Americans had very little sense of “common good”. A sense of politics serving humanity as a whole, of existing to provide liberty and justice for all, was hard-won from the cauldron of crisis. Until then, most American colonists agreed with Arthur Lee’s assessment that elected reps were “trustees for their constituents to transact for them the business of government… and for this service only the, like all other agents, were paid by their constituents”; Lee complained bitterly that these paid employees had come to find it “more advantageous to sell their voices in Parliament and [become] independent of the People.” [Bailyn 171]

So we have most Americans firm in the belief that reps are basically hired to do a specific job obtaining concrete items for their constituents in the colonial legislature, after which they return home as soon as possible. Reps were not to make decisions about philosophical issues concerning the greater good or the American colonies as a whole. They were not to make decisions about other towns, let alone other colonies. They were not “the representatives fo the whole kingdom” but of “a particular part.” They were not to know better than the people who elected them, but to be an invisible delivery system through which their electors’ voices were heard. They were, as James Wilson said, the “creatures” of their constituents”. [171]

Bailyn goes into the practical effects of this belief next, and we will go with him.


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Why did Americans protest taxation without representation?

Posted on September 19, 2018. Filed under: Colonial America, Politics, Revolutionary War | Tags: , , , , , , , |

Welcome to part 2 of our series on Bernard Bailyn’s masterful description of the sea change that American colonists’s ideas about representative government went through in the decades before the Revolutionary War.

(We’re in the middle of a series here; if you’re looking for a stand-alone, quick answer to the question, see Revolutionary War Myth #2: Americans didn’t want to pay taxes.)

We left off last time with Americans living happily with a medieval concept of local representation to colonial legislative bodies: we send our representative with a few, specific, brass-tacks practical requests and the concessions that we authorize him to offer in return for those requests being granted. We want a mill, and we’re willing to help build a local bridge in return.

England, on the other hand, had evolved its political system to include the concept of virtual representation: districts composed of multiple towns and counties, or a populous city borough, elect a representative to the House of Commons who will vote on issues of national importance in a way that he believes best represents his constituents’ views on said issues. This is very abstract. This English rep is not going to Parliament with a piece of paper listing the 1-3 concrete things his town wants to have that he is supposed to ask for. He is not going to Parliament representing a single town. He represents many towns, or, if he represents a city borough, the various inhabitants of that borough. He represents hundreds or (as the 18th century wore on) thousands of people, and he represents their thoughts and feelings about issues, not their physical wants and needs. He can’t leave Parliament once he’s requested the 1-3 things his town want. He sits in on all debates, touching towns he is not part of, and issues that may not immediately impact his constituents. In short, he is a modern representative to a national governing body.

Two other modern conditions applied: first, very few people could vote, so any rep necessarily represented the interests of those who could, and this meant that most people were not truly represented. If someone represented a town, he represented the dozen male landowners who could vote and who chose him. Next, even if someone could vote, there was no obligation on their representative to express that constituent’s individual thoughts, desires, or demands. Think of it this way: does your current Senator or Representative in Congress ensure that all your individual demands are satisfied? Of course not. it’s not possible to do that if you are representing more than one person. A rep has to try to represent the majority, and even that is difficult. If your rep does vote the way you want, English authors of the 1760s would have described that as “accidental and not necessary” representation.

Thus, when England began to claim in the 1760s that it had a right to tax the American colonies because they had virtual representation to Parliament, that made sense to English people.

…the principal English argument put forward in defense of Parliament’s right to pass laws taxing the colonies was that the colonies, like the “nine tenths of the people of Britain” who do not choose representatives to Parliament, were in fact represented there. The power of actually voting for representatives, it was claimed, was an accidental and not a necessary attribute of representation, “for the right of election is annexed to certain species of property, to peculiar franchises, and to inhabitancy in certain places.” In what really counted there was no difference between those who happened to live in England and those in America: “none are actually, all are virtually represented in Parliament…” [p. 166]

This worked in England, Bailyn says, because “the practice of ‘virtual’ representation provided reasonably well for the actual representation of the major interests of the society, and it raised no widespread objection.” [p. 167]  People in the city of Bath, for instance, felt that Parliament did a good job steering the nation, even if Bath itself never came up inside its walls. Bath didn’t have to insert its particular, individual, local needs into national legislation because people in Bath believed that those local needs would be met by general legislation—all towns would benefit from good laws, all would suffer under bad laws. If all towns suffered, the laws would change.

Americans, however, did not have this faith in centralized government. Americans in the 1760s  believed they needed to elect men to represent them in Parliament because they still operated in a direct-representation system where

  1. reps represented their single town,
  2. many people in that town could vote (in many American colonies, all adult males could vote; there was no property-owning restriction),
  3. those people had concrete demands they expected their rep to voice, and
  4. they expected their rep to keep all his business local to their town. He was not at the legislature to conduct colony-wide business.

When Americans were told that men from Birmingham or Leeds or Coventry, London or Bath or Norwich, “virtually” represented them because those men were working for the common good of Britain, which would be the common good of the British colonies, they did not buy it. At all. What did these English men know about life in America, let alone in Massachusetts, let alone in the town of Ipswich? A Norfolk landowner knew nothing about the town of Ipswich’s need for a new bridge. A Norfolk man’s vote on a European trade bill would do nothing to get Ipswich that bridge. Even a Norfolk man’s vote to build more bridges in Britain and her colonies would not guarantee that a bridge was built in Ipswich.

Americans believed in local government because it was immediately accountable for its actions. If your town rep did not do your town’s bidding, he was not re-elected. Any distance from the voters, the constituents, was dangerous. Bailyn records a statement by the American Daniel Dulany in 1765 with which “almost every writer in America agreed, was the extent to which representation worked to protect the interest of the people against the encroachments of government.” This is telling: in America, “government” was  a double-edged sword: necessary, but needing to be tightly controlled lest it free itself from its commitments to specific, local needs and rage out of control.

Next, the problem was that maybe English reps really could provide virtual representation to other English people. But as Bailyn sums up Dulany’s argument,

…”no such intimate and inseparable relation” existed between the electors of Great Britain and the inhabitants of the colonies. The two groups were by no means involved in the same consequences of taxation: “not a single actual elector in England might be immediately affected by a  taxation in American imposed by a statute which would have a general operation and effect upon the properties of the inhabitants of the colonies.”

Once a lack of natural identity of interests between representatives and the populace was conceded, the idea of virtual representation lost any force it might have had; for by such a notion, James Otis wrote, you could “as well prove that the British House of Commons in fact represent all the people of the close as those in America.” [Arthur Lee wrote that’ “our privileges are all virtual, our sufferings are real… We might have flattered ourselves that a virtual obedience would have exactly corresponded with a virtual representation…” [The question was] who, precisely, is the American freeman’s virtual representative in England? [168]

So often we’re told that Americans rebelled in 1775 because they didn’t want to pay taxes. This is so crude and so untrue and so much less interesting than the truth, which is that Americans rebelled in 1775 partly because they believed in actual representative government, despite the impossibility that already existed, at that time, of anyone, even a local town rep, truly representing his local constituents. Even small towns in America had populations in the thousands by 1760. Americans were trying to come to grips with that change on their own, in their own back yards, when suddenly England claimed virtual representation and began taxing them.

This claim would drive American colonists to grapple with, and come up with solutions for, the impossibility of 1:1 local government. But they would have to struggle first—and millions of trees would die to provide the paper needed to argue that struggle out from the 1760s through the 1780s.

Next up: struggling to see politics as more than a job

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