How the U.S. Constitution was born

Posted on October 18, 2018. Filed under: Bill of Rights, Colonial America, Politics, Truth v. Myth, U.S. Constitution | Tags: , , , |

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”.

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Government for the people’s sake in Colonial America

Posted on October 5, 2018. Filed under: Colonial America, Politics, Revolutionary War | Tags: , , , , , , |

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


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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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Are our politicians supposed represent “we, the people”?

Posted on September 9, 2018. Filed under: American history, Colonial America, Politics, Revolutionary War | Tags: , , , , , , , |

We’ve been re-reading that classic, magnificent, super-charged, and piercingly relevant masterpiece of discovery about the real roots and goals of the American Revolution called The Ideological Origins of the American Revolution, by Bernard Bailyn. It was republished last year for its fiftieth anniversary, but there is nothing stuffy, boring, or outdated about this electric book.

That being the case, we’re going to devote a few series to this book, beginning here, with Bailyn’s masterful description of how radically… old-fashioned the American revolutionaries’ ideas about representative government were in the 1770s. In fact, they were positively medieval. This is the heart of Chapter Five: Transformation.

We all learn that the Americans (our shorthand going forward for revolution-minded American colonists in the mid-1700s) demanded representative government—government consented to by the governed. But that gloss is tragically incomplete, for it describes where we landed—with difficulty, just barely—by the Constitutional Convention in 1787, and where we as a nation only fully rested after the Civil War.

Bailyn takes us back to the pre-Revolution mindset by comparing the American colonies to medieval England, before the 1400s. At that time, representatives of the common people to Parliament in London were “local men, locally minded, whose business began and ended with the interests of the constituency”. They were given explicit, written instructions about what they were to ask for and what they were allowed to promise in return. For instance, did the constituents want access to a waterway? That’s what their representative would ask for. The was the only reason he was sent to London to sit in Parliament. It was the only thing he would discuss in Parliament. He would not get involved in any other representative’s requests, which were all hyper-local as well. There would be no point. There were no grand debates about larger issues, no votes on items that impacted the whole kingdom—that was restricted to the House of Lords. (From 1341 on the Commons met separately from the Lords. Throughout the 14th century the Commons only acted as a single body twice, to complain about taxes in 1376 and to depose Richard II, with the House of Lords, in 1399).

In return, the local representative to the Commons might be allowed to promise that men from his locality would serve on a work crew elsewhere, or patrol the coast, or something else. The representative was sent to Parliament for that single purpose–to get the new mill–and was not authorized or expected to participate in any other discussion. If he got the mill but promised something he had not been authorized to promise, he would not be sent to Parliament again. Government was pinpoint specific and local, an amalgam of individual grants and favors repaid individually. [Bailyn 162-3]

Over the 1400s and 1500s, this slowly changed. It became something we recognize today as “right” and much more inspiring. Members of Parliament were not “merely parochial representatives, but delegates of all the commons of the land”; as Edmund Burke, the great political theorist (1730-1797) summed it up, members of Parliament stood for the interest of the entire kingdom of England. They were not

…a congress of ambassadors from different and hostile interests, which [they] must maintain against other agents, [but] Parliament is a deliberative assembly of one nation, with one interest, that of the whole, where, not local purposes, not local prejudices ought to guide, but the general good, resulting from the general reason of the whole. [Bailyn 163]

This sounds right to us. That’s the American political philosophy we know and love. We are one nation, indivisible, with liberty and justice for all. We’re greater than the sum of our parts. Our members of Congress are in Washington not just to get our individual states things they want, like new roads. They’re not there to write laws that only benefit their individual states. They’re in Washington to write laws that preserve the national trust, that promote democracy for all citizens. They’re supposed to work together for the common good. That’s how we define government of the people, by the people, and for the people.

Well, that’s how we define it now. But in the American colonies, the polar opposite was true.

Bailyn points out that this new, universal definition of political representation developed in England as it became more modern. The population grew, and towns and counties were less isolated and less independent, less like small kingdoms unto themselves. There was more of a sense of Parliament representing the English people, not this town and that town.

Just as this concept was settling into place in England, the Thirteen Colonies were being formed, and the situation in America was entirely different. It was a throwback to medieval times: a small population lived in tiny towns that were separated by long distances and therefore basically governed themselves. They were technically bound to follow laws made by the general court of the colony they were in, but those laws were few and not far-reaching. Local town government was much more important and vital and apparent to the vast majority of American colonists than the central, colonial government in the capital city. Each town sent representatives to the general court in the capital, usually once a year, and each town gave their representatives explicit, written instructions about what benefits to ask for and what concrete items they could give in return for the benefits. If a representative violated these written instructions they would not be re-elected by their town.

So as England was finalizing the concept of the representative as politician, of men skilled in general principles of law who worked with other politicians to create general laws that would benefit the kingdom as a whole, America remained firmly rooted in and dedicated to the concept of the non-professional representative, the local man bound to local interests. Americans preferred their representatives to be local businessmen, which at that time meant most representatives were farmers representing farmers, whose concerns were often minutely focused. As Bailyn notes, “disgruntled contemporaries felt justified in condemning Assemblies composed of ‘plain, illiterate husbandmen, whose views seldom extended farther than to the regulation of highways, the destruction of wolves, wildcats, and foxes, and the advancement of the other little interests of the particular counties which they were chosen to represent.'” [Bailyn 165]

It’s ironic, then, that as the revolutionary age began in America, it was England, not America, that had the attitude of “ask not what your country can do for you, ask what you can do for your country”.

How did America move from this medieval concept of government to the vision of democracy and justice for all? We’ll move closer next time.


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