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.

The Ninth Amendment: (all unallocated) power to the people!

In part ten of our series on what’s in the Bill of Rights, we land on the Ninth Amendment, which is a harbinger of the Tenth and final amendment in that it is a portmanteau amendment: a short sentence packed with meaning.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

That is, any right not listed in the previous eight Amendments of the Bill of Rights, or in the Constitution, is granted to the people. A right has to be explicitly withheld by the Constitution for it to be unlawful. You can see why this was necessary to state: all the rights citizens have can’t be listed in any document; it could get to a thousand pages and still be incomplete. The Ninth Amendment is sort of like “innocent until proven guilty”: an action is protected until it is specifically outlawed in the Constitution. It keeps the federal government from getting tyrannical and withholding rights just because they are not specifically protected in the Constitution. The main, big, fundamental rights are all in there; the many smaller rights are not, but they are indeed our rights until legislation and/or judicial decision makes them unconstitutional.

This puts a burden on the courts, of course, to decide cases where it’s not certain whether something should be made unconstitutional. But that’s how our system is supposed to work, through trial and error and case-by-case precedent and reinterpretation of precedent. Usually the Ninth Amendment is called into play to expand an existing Amendment right: for example, 1973’s Roe v Wade decision said that the right to choose to have an abortion is protected under the right to privacy: “the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”

When it’s not assisting interpretation of other amendments, the Ninth Amendment is sometimes called into fundamental question. Harvard law professor Laurence Tribe has stated that “The ninth amendment is not a source of rights as such; it is simply a rule about how to read the Constitution.”

That seems to be logical, but then again, a) it’s  important to know how to read the Constitution, and b), it’s even more important to remember that a democracy must assume that rights outnumber prohibitions. If citizens have to prove they are not breaking the law at every turn, if they are “guilty until proven innocent”, the power of the law is not with them. This idea will be reinforced by our next, and final, amendment.

Next time: the end of the road

The real “Greatest Generation”

I was going to say that it would have to be the Founding generation. But then I changed my mind.

TV news anchor Tom Brokaw put out a book a few years ago called The Greatest Generation, in which he identified Americans who grew up during the Great Depression of the 1930s, then fought the Second World War in the 1940s, as the greatest generation of Americans.

Great as the difficulties were for this generation of Americans, they must pale in comparison to those facing the Founding generation. If you were 20 years old in 1780, you would have trouble remembering a time before the crises of the 1770s, and then the Revolutionary War. As you lived on, you would experience a failed U.S. government (that operating under the Articles of Confederation) that was dismantled in 1787, a referendum to vote on the new and radical Constitution, desperate poverty and inflation, two armed citizen rebellions (Whiskey and Shays), and then when you were 52, the British would invade the U.S. and burn down the White House.

That’s a lot to face, especially with no history, really no inkling of experience with a democratic government. You would be building democratic government with your own hands and brain. There were no guideposts to reassure you, and several times the whole experiment of your new nation seemed on the brink of failure.

People growing up in the 1930s had a long history of being American, long experience of our form of government, and generally clear and well-established standards of American/democratic behavior to guide them.  If they were tempted to abandon these, that might be understandable, but the fact that they did not simply speaks to their historical advantages over the Founding Americans.

Well, that’s the case for calling the Founders the greatest generation. But after all, I did change my mind about the whole idea of choosing one group to be the greatest Americans.

The real Greatest Generation of Americans is each and every one that lives up to the principles this nation was founded on, the principles of promoting and protecting natural rights and equality of opportunity for all Americans. Every generation that does this is truly the greatest, simply because it’s very hard to do. Our founding principles demand that we rise above human nature in many ways, and offer justice and freedom to all. Any generation that does this deserves our praise.

That opens up the opportunity to those of us living in America right now to be the next greatest generation. Rather than thinking we missed the boat and cannot partake of the glory of any past generation of our ancestors, we must see that they simply carried the baton for a while, and have now passed it to us. It can’t go out on our watch, lest we fail the next greatest generation coming after us.

Slavery and the Declaration

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.