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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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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Trump and Lincoln’s Cooper Union speech

Posted on July 5, 2016. Filed under: Civil War, Lincoln, Racism, and Slavery, Politics, U.S. Constitution, What History is For | Tags: , , , , , , , , , , , , |

Welcome to part four of our series on the serious and striking comparisons between the U.S. in the months (and years) before the 1860 presidential campaign and the 2016 presidential campaign. Here we take a look at Abraham Lincoln’s speech at the Cooper Institute in New York City (now Cooper Union) on February 28, 1860 and compare one part of it with the rhetoric coming from Trump supporters in 2016.

Again, our point of comparison between the 1860 and the 2016 presidential campaigns is sectionalism. In 1860, slavery drove sectional division north and south. In 2016, as we say in our first post,

Today’s sectionalism, then, represents a divide between liberals and conservatives that seems as strong as the divide between North and South ever did. Liberals and conservatives are found in every geographic region of the country, which means there is no region that serves as a safe haven for either…

Sub out “slavery” for “gun control”, “immigration”, or “war on Christianity”and you find that the language used in the 1860 campaign is strangely similar to the language used so far in the 2016 campaign.

In the Cooper Union address, Lincoln represented the new Republican Party, in only its second presidential election season. He was in 1860 still walking the fine line of saying that while the Republican Party was dedicated to stopping the spread of slavery into the west, it would not try to abolish slavery in the south. In most of his speeches on the campaign trail, Lincoln tried to do two things at once: force southerners to accept a Republican victory, if it came, by emphasizing that winning the popular vote would mean that most Americans wanted to stop the spread of slavery and therefore southerners could not claim that the election had been hijacked by a radical minority; and convince southerners that this antislavery majority did not mean that the south would have to get on board with the rest of the nation and abolish slavery.

This is the context for the statement we’re about to quote from the Cooper Union address, in which Lincoln addresses proslaveryites and debunks their claim that they have a Constitutional right to enslave other people and, therefore, an implied right to secede from the Union if slavery is abolished or even limited to the south. Here is the candidate:

…But you will break up the Union, rather than submit to a denial of your Constitutional rights.

That has a somewhat reckless sound: but it would be palliated, if not fully justified, were we proposing, by the mere force of numbers, to deprive you of some right plainly written down in the Constitution. But we are proposing no such thing.

When you make these declarations, you have a specific and well-understood allusion to an assumed Constitutional right of yours to take slaves into the Federal Territories, and to hold them there as property. But no such right is specifically written in the Constitution. That instrument is literally silent about any such right. We, on the contrary, deny that such  right has any existence in the Constitution, even by implication.

Your purpose, then, plainly stated, is, that you will destroy the Government, unless you be allowed to construe the Constitution as you please, on all points in dispute between you and us. You will rule or ruin in all events.

Sub out “slaves” and the right to enslave for the right of anyone and everyone to buy and openly carry guns anywhere in public, even schools, or the right of self-professed Christians to deny public services to people who they feel offend Christianity, or the right of anti-choice legislatures to deny women access to health care from providers that also perform abortions, and you have a Democratic speech right out of 2016.

Many people today who self-identify as conservative in our new sectionalism of conservative v. liberal consistently claim a constitutional right to deprive others of their personal liberties. Yet the Constitution, as Lincoln points out, is “literally silent about any such right”. The Second Amendment does not protect private gun ownership for private use; it protects the right of American citizens to own guns so they can fight in local militias sanctioned and controlled by local governments. The Constitution does not mention Christianity in any way, and the Founders officially denied any Christian basis for the United States. Abortion or the rights of fetuses are not in the Constitution.

Too often an American’s right to freedom of speech, which actually is in the Constitution, is construed to protect “rights” that are not in the Constitution. Ever since the Supreme Court decided that actions could be identified as speech, this has happened. If it’s constitutional to protest outside an abortion clinic, clinics must be unconstitutional. If religious freedom is protected in the Constitution, then all of my religious beliefs must also be constitutionally protected (nope—see Gay Marriage, Religious Freedom, and the First Amendment for a rundown of the difference between religious worship and religious belief).

But conservatives who believe that all their beliefs are enshrined in the Constitution are often deaf to these arguments. As Lincoln put it, they will destroy the Government, unless they be allowed to construe the Constitution as they please, on all points in dispute between them and liberals. They will rule or ruin in all events. The eagerness of Trump’s supporters to destroy the federal government that they see as denying them their constitutional rights is a harvest sown by neoconservative Republicans for over thirty years now. This anti-government, Constitution-bending activist section may likely dispute the outcome of the presidential election if Clinton wins. And so we find ourselves, like Lincoln, facing a possible contested election over chimerical Constitutional rights. Secession seems slightly less likely today than in 1860… but it seemed unlikely to most observers in 1860.

Next time: on with the 1860 campaigns

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A Holiday Gift: Religious Tolerance

Posted on December 22, 2015. Filed under: American history, Bill of Rights, Civil Rights, U.S. Constitution | Tags: , , , , , |

Here’s a sharp video from Dr. Larry Schweikart, University of Dayton, on the PragerU site that explains the origins of religious tolerance in the English colonies of North America, and the astounding breakthrough that was the First Amendment of the U.S. Constitution. He even gets the Puritans right! Since WordPress won’t let us import the video, we just have to give you the link:

Religious Tolerance: Made in America

Enjoy, and enjoy watching a short video rather than reading reams of text from the HP crew. That’s our gift to you!

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Saying the Pledge of Allegiance: A Test of Citizenship?

Posted on July 2, 2010. Filed under: Civil Rights, Politics, The Founders, U.S. Constitution | Tags: , , , |

Every so often a public debate occurs over the question of whether saying the Pledge of Allegiance aloud in public school classrooms should be mandated or abolished. As it stands, each school district is free to decide whether to require the Pledge to be recited aloud or not.

Those who want it to be recited usually do so because they feel that such recitation at once compels and displays patriotism. Students who say the Pledge in school will be more patriotic, in part because they are part of a town or city or district that demands public shows of patriotism, thus prioritizing them.

It’s unclear that reciting the Pledge each school morning really creates patriotism; anything performed by rote, without being explained and discussed and thought over, becomes just one more task to perform in the minds of the children saying it. The lack of explanation or discussion of the Pledge is bound out in the myriad examples of the misunderstandings children have of the words, such as “I pledge allegiance to the flag and the United States of America, and to the republic of Richard Stands…”.

But even above and beyond whether the Pledge recitals are thoughtful and thought-provoking is the issue of turning the Pledge into a test of citizenship. The Founders were against setting up tests of citizenship, such as those in Europe; having to swear loyalty to the monarch and/or the state church was anathema to them. They set up a republic in which citizenship was easy to get—if you’re born in the U.S., or naturalized, you’re a citizen. You don’t have to prove it in any way. Look at the Constitution: there is nothing in it defining citizenship beyond birth and naturalization, and even the naturalization process is not defined. The important thing is how to use your citizenship, not proving it through any kind of statement or oath.

In fact, you have to wait for the Fourteenth Amendment, in 1868, to get a reiteration of the definition of citizenship, and again it is straightforward: “All persons born or naturalized in the United States, and subject to the jurisdiction  thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Citizenship tests are “laws which abridge the privileges and immunities of citizenship”, and can lead to depriving citizens of life, liberty, and property. Requiring proofs of patriotism to justify one’s citizenship is un-American. Demanding that the Pledge be mandated on the basis that anyone who doesn’t agree is unpatriotic and doesn’t love their country is un-American. It is precisely the fact that Americans are not required to prove their patriotism through statements, oaths, or any act beyond upholding democracy by voting and obeying the Constitution, that makes Americans truly free.

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The Constitution: harder than it looks

Posted on April 7, 2008. Filed under: U.S. Constitution | Tags: , , |

We kind of hate the Constitution today. We wish it wasn’t so elastic. It allows for so many interpretations; we wish it would just tell us what to do. But of course the only reason it’s a viable document is that it doesn’t tell us what to do.  It gives us a framework of justice to apply to specific instances, and it’s not the document’s fault if we sometimes use its safe space for evil. That’s our fault. We make that choice.

 

“We the People, in order to form a more perfect union, establish justice, ensure domestic tranquility, provide for the common defense, promote the general welfare and secure the blessings of this liberty to ourselves, and to our posterity do ordain and establish this Constitution, of the United States of America.”

Most of us are familiar with this long sentence. Perhaps you, like me,  learned it on Schoolhouse Rock, and prefer to sing it. But by now, you may see the revolutionary principles and ground-breaking ideals in it more clearly.

 

After years of trying not to have a real centralized government, and years of trying to put state interests below national interests while keeping individual interests above national and state interests, we get this line. We, the people (not the states) of America, realize that if we want to make this experiment work, and if we want to experience the best government ever attempted in human history, we have to create and honor a binding legal document that establishes a unified, federal government.

 

The year is 1787. The Articles of Confederation have been in place for 10 years. The Revolutionary War ended in 1783, so we have been an independent nation for just four years. All in all, Americans have been in turmoil for 12 years. This is the point at which most new governments fall apart and the descent into civil war and terror begins. But we fulfilled the principles of our revolution, and peacefully assembled delegates to work together to write a new Constitution.

 

Even that majority of Americans who did not want a powerful central government were persuaded that it was necessary to keep the states from dissolving the union. They sent delegates to Philadelphia to figure out how to create a government strong enough to protect its people, but bound enough by principles of natural rights not to turn to tyranny.

 

These delegates were not the famous men who signed the Declaration. Adams was not there; Jefferson was not there. The delegates were mostly unknowns; lawyers, farmers, businessmen. They were not professional politicians. But they were those well-read, revolutionary Americans the rest of the world marveled at. Those men produced a great document because they put themselves second to the ideal of America. They had their moment of absolute power and used it to enshrine natural rights.

 

We all remember learning about the debates over how to make sure big and small states were equally represented in Congress, the federal government. We feel bored, again because we know how it ended, and the solution is so obvious, it just seems stupid to waste time reading about how they took so long to figure it out.

 

But the point of those debates about representation is not what ideas were tossed around, and which idea finally won out. It’s that the debates happened at all. We’ve already established that most revolutionary governments quickly implode. Here, faced with a real problem, with no clear answer (despite all our hindsight insisting it was clear), delegates to the convention insisted on figuring out what the best solution was,  on coming up with a solution that really lived up to the principles of the revolution. Instead of saying “We can’t fix this; there’s no solution that everyone will agree on”, and getting out their guns and starting a civil war, these delegates put themselves through hours of philosophical debate in a stiflingly hot room until they fulfilled the trust put in them.

 

The Founders didn’t “know” that the average American had to consent to this government for it to work; they decided that the average American had to do so, and they subordinated themselves to that purpose. And so they created, as delegate Peirce Butler said, “not the best government they could devise, but the best the people would receive.”

 

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