Module 1
America’s Constitutional Roots
A. Colonial Governments
The seeds of liberty were planted on American soil in 1607, when the first
English settlers landed in Virginia and founded Jamestown. They were not the first
Englishmen to attempt to establish a colony in Virginia, but they were the first to win a
permanent foothold. Lured by tales of great wealth, they were destined to suffer months
and even years of hunger, fever, and death in a hostile wilderness. It was the destiny of
their children and succeeding generations to develop the richest and most powerful
colony in British America.
The plan to colonize Virginia was not a part of any government scheme but an
effort by London merchants to discover gold and silver, as the Spanish had done a
century before in Mexico and farther south, and to explore for a northwest passage. The
Virginia colony was thus established under the auspices of a private corporation known
as the London Company, by virtue of a charter granted by James I. In the charter the
King guaranteed that the colonists and any children born to them ‘‘shall have and enjoy
all Liberties, Franchises, and Immunities . . . as if they had been abiding and born within
this, our Realm of England.’’ In other words, Englishmen in the colonies were to enjoy
the same rights granted to Englishmen at home—such as trial by jury and the right to be
taxed by representatives of their own choosing. Freedom was actually planted in Virginia,
then, even before the forebears of today’s Virginians first saw their land. Before long
Virginians were not only defending their freedom but enlarging it to the point that they
actually enjoyed more liberty than their British cousins in the mother country.
Despite the hardships of the early years, Virginia became increasingly attractive
to Englishmen at home because of the opportunities it presented for private ownership of
land. Corporate ownership gave way to individual ownerships in the colony after 1618,
when the London Company began paying dividends and increasing incentives by giving
away land to its stockholders, to colonists who had served the company, and to
individuals who would pay for an immigrant’s fare across the Atlantic. Even the poverty-
stricken immigrants, who often came as indentured servants, had a powerful incentive to
come to Virginia. An indentured servant was a person who signed an indenture, or
contract, by which he agreed to sell his services in the colony for three to five years as a
way of paying for the voyage from Europe. Having satisfied the terms of the agreement,
he was then free to strike out on his own and become an independent landowner himself.
During the years 1634–1704, about 1,500 to 2,000 indentured servants arrived
annually. Governor William Berkeley reported in 1671 that there were some 13,000 in
the colony, about thirteen percent of the population. Many became great landholders and
leaders in Virginia government. Seven of the forty-four members of the colonial
legislature in 1629 had been indentured servants just five years earlier. To a great extent,
the aristocracy of colonial Virginia was composed of self-made men. Thomas Jefferson
would later boast that Virginia had a ‘‘natural’’ aristocracy, which he viewed as superior
to an aristocracy based on hereditary entitlement and special privilege. But Virginia
denied no Englishman the opportunity to acquire property—and with it a substantial
degree of individual freedom. In sharp contrast to Great Britain, landowners constituted
the large majority of Virginia’s colonial population—eighty percent or more.
Two hundred years would pass before slavery was abolished in North America.
The Negro was thus the last of the founding generation of Americans—our first
immigrants—to taste the fruits of liberty that were originally cultivated in Tidewater
Virginia. Slavery, of course, had existed since ancient times and was not limited to the
American colonies or to the black race. It flourished in Greece and Rome and throughout
medieval Europe and the Middle East. The Spanish introduced human bondage into the
West Indies in 1502. The discovery of the New World created a heavy demand for labor,
stimulating the slave trade. European traders and African chieftains developed a vast
commercial system for the capture, sale, and transportation of slaves, and it is estimated
that during the sixteenth, seventeenth, and eighteenth centuries at least fifteen million
Africans were brought to the New World by the maritime powers of Europe. Although
slavery was eradicated in the United States more than a century ago, it persists today, in
other parts of the world—but in a far more brutal form and on an even larger scale. This
is the system of forced labor that is characteristic of the modern totalitarian state. It
consists not of individual ownership of human beings as a species of private property, but
of government ownership by the state, usually in the form of the slave labor camp—what
Alexander Solzhenitsyn, the Russian writer, has described as the Gulag Archipelago. It is
estimated that during the reign of Joseph Stalin (1929–1956) there were twelve to twenty
million people housed in Soviet camps during any one year.
Before leaving ship, they entered into a solemn agreement for the formation of a
government upon reaching land. This became the famous Mayflower Compact, by which
‘‘in the presence of God and one another’’ they agreed to ‘‘covenant and combine
ourselves together into a civil Body Politick, for our better Ordering and Preservation’’
and to ‘‘enact, constitute, and frame such just and equal Laws, Ordinances, Acts,
Constitutions, and Offices, from time to time, as shall be thought most meet and
convenient for the general Good of the Colony; into which we promise all due
Submission and Obedience.’’ What the founders of the Massachusetts Bay Colony agreed
to, in other words, was to form a government for self-rule based on popular consent and
rule of law. The Mayflower Compact was like the church covenant by which Separatists
formed congregations, except that it bound its signers to observe the ordinances of a civil
rather than a religious society, and professed allegiance to the King as well as God. It
marks the introduction into the American colonies of a compact theory of government
which would later serve as the basis for both popularly based State constitutions and the
United States Constitution, the latter being viewed as a compact among the States as well
as the people in the States.
Although the Catholics in Maryland, the Quakers in Delaware and Pennsylvania,
and the Dutch Reformed in New York and New Jersey introduced even more religious
diversity into North America, they nevertheless followed the same path of political
development as the New England and Southern Colonies. The middle colonies were more
of a melting pot of religious and national groups than any other part of America. From
the standpoint of their evolving political institutions in the colonial era, however, all of
the colonies, despite their ethnic and religious and socioeconomic differences, tended to
carry on the constitutional and legal customs of Great Britain, the absence of an
hereditary aristocracy being one of the few conspicuous departures from the British
model.
In all of the colonies, whether royal, proprietary, or corporate, the colonial
governments exhibited the same general pattern. In each colony there was eventually a
governor and a bicameral legislature, as in England there was a king and a two-house
Parliament. In all of the colonies except Rhode Island and Connecticut, the governor was
appointed rather than elected. The upper chamber of the legislature consisted of the
Governor’s Council, whose members, except in Massachusetts, Rhode Island, and
Connecticut, were also appointed; and in the lower chamber the members were elected by
the people. As in England, executive, legislative, and judicial functions were somewhat
mixed, mainly because the Governor and his Council sat as the Supreme Court. There
was nevertheless a rudimentary separation of powers between the governor and the
assembly. The American colonists were familiar with the idea of a written constitution as
a result of their experience with colonial charters, the Fundamental Orders of Connecticut
(1639) being the most famous. Though the Mayflower Compact was the first political
covenant, the Fundamental Orders were for all practical purposes the first modern written
constitution.
The idea behind this principle of representation is the belief that a local resident or
‘‘home town boy,’’ as the Americans say, is more likely to have a sympathetic
understanding of the wants, needs, and interests of the people in a given community than
an outsider. In sharp contrast to England, where the population is homogeneous and
concentrated, the United States has always been more culturally diverse, even within a
single State, with a population that is partly urban but is also significantly rural, scattered
across vast expanses of territory that dwarf the British Isles. In such a society, the
residency requirement helps to satisfy the need for familiarity and shared values between
the representative and his constituents.
An important feature of the English theory of representation that was continued in
the colonies and in the Constitution of 1787 was the principle of geographical
representation, which asserts the view that a legislator does not represent just people as
such, but people in a broader cultural sense, including their localities and their way of
life. It is reflected not only in the residency requirement that grew out of our colonial
experience but also in the representational basis of Congress designed by the Framers.
Thus the theory of representation embodied in the Constitution rejects absolute political
equality and seeks instead to balance the population and geographical principles. The
system of representation in the Senate, for example, gives each State the same number of
Senators, irrespective of the size of the State’s population. Likewise, the House of
Representatives, though apportioned on the basis of population, includes at least one
Congressman from each State, irrespective of population.
Whatever the merits of the Supreme Court’s view of the matter, it seems clear that
the principle of republicanism which the English settlers brought with them to North
America was only modestly changed during the next century and a half of colonial
government. In every colony, local units of government, whether townships and villages
or cities and counties, were accorded representation, thereby perpetuating the English
system of geographical representation. The only deviation was the addition of the
residency requirement, which actually strengthened and reaffirmed the principle of
geographical representation. The ‘‘one person, one vote’’ principle is of recent origin,
and there is no evidence that it was adopted in any of the colonies—or indeed in any of
the States that joined the Union after the Constitution was adopted.
Political power thus rested in all of the colonies in the hands of the ‘‘freemen’’ or
‘‘freeholders,’’ that is, adult white males of some means. Because of the ready
availability of cheap land everywhere, the suffrage was actually much broader than one
might think, and it would be erroneous to assume that a small elite governed the colonies
to the exclusion of the general population. Thus, the landed gentry of Virginia dominated
public affairs, but it was open to any enterprising young man of diligence, ability, and
good character. Men of education and wealth naturally played a leading role, however, as
they do today. In the early period the great landowners and members of the clergy tended
to be the leaders of colonial society and government; but as we approach the American
Revolution, members of the legal profession, physicians, educators, merchants, and
military leaders became increasingly conspicuous in representative assemblies.
As a result of these amendments and various decisions of the Supreme Court, the
principle of republicanism that originated in England and was carried across the Atlantic
to the American colonies has changed substantially over the years, and representative
government today is considerably different from what it was two hundred years ago. The
basis of representation in State and Federal legislative assemblies has changed as a result
of the ‘‘one person, one vote’’ decisions of the Supreme Court, and the main standards
for voter qualification in elections, whether Federal, State, or local, are now set by the
Federal government instead of the States. The degree to which these changes have
contributed to the growth of liberty, order, and justice is a complex question. Although
there is more political freedom in the United States than possibly any other country in the
world, at least a third of the American electorate—and often as much as half—refuses to
participate in the political process or exercise the right to vote. Ironically, political apathy
seems to have increased with the expansion of the suffrage.
The price of liberty, it has been said, is eternal vigilance. Can democratic
government promote and protect liberty, order, and justice if half the population is failing
to hold public officials accountable for their actions? Is there a lesson to be learned from
the history of ancient Rome? Once a thriving republic, it fell to tyranny because the
people had become more interested in ‘‘bread and circuses’’ than in safeguarding their
political institutions. And how informed is the American electorate? Polls taken in recent
years reveal an alarming degree of ignorance among the American people about the
Constitution, national and international affairs, the record and achievements of their
representatives, and of the political and economic forces that are actually controlling their
lives and the destiny of the country. The greatest threat to liberty may well be when the
people take liberty for granted and allow others to do their thinking and make their
decisions for them. There are some who seem to prefer security to liberty. What is the
solution? The establishment of voter qualification tests to determine an individual’s
knowledge of the system, in the hope of encouraging a better informed electorate?
Improved teaching of civics in the schools?
B. Relations with Great Britain
In retrospect, it would seem that the American colonies were destined to gain
independence at some point in time; and in many ways they were already independent
before the Revolution. From the day the first settlers landed, the colonies governed
themselves in most matters. They had their own charters of government, which served as
written constitutions of a sort, and their own provincial assemblies, which exercised a
considerable degree of autonomy.
The colonies were part of Britain’s vastly expanding empire, but the British
empire was commercial in nature, not imperial. The King’s ministers were not interested
in political control of the colonies for its own sake, for military purposes, or as a tax base.
They viewed the colonies instead as a great commercial reservoir that contributed to the
economic prosperity of the mother country by supplying England with raw materials and
by providing markets for the sale of English-made goods. Consequently, neither
Parliament nor the King’s ministers troubled themselves much with American affairs.
They were content if the Thirteen Colonies continued to ship to Britain their tobacco,
furs, dried fish, grain, and lumber, and the colonies were content to be ruled from
Westminster so long as British regiments and British fleets defended America when wars
arose with the French or the Spaniards, and so long as the colonies held the real political
power in provincial assemblies. Thus the colonies enjoyed what Edmund Burke called
the ‘‘salutary neglect’’ of London officialdom. The more the colonies were neglected
politically by England, the more the colonists prospered.
Because England had no real political interest in the colonies, especially in the
seventeenth and early eighteenth centuries, colonial administration of the colonies was
unplanned and haphazard. No single agency was ever given primary responsibility for the
colonies until the very eve of the Revolution. By the early 1700s, there were six agencies
of the British government, all located in London and out of touch with America, sharing
responsibility for administering the colonies: the Board of Trade, The Privy Council, the
Treasury and Customs Office, the Admiralty, the Secretary of State for the Southern
Department, and, of course, Parliament. But the colonies were never overrun with
meddlesome bureaucrats. Even though the Americans were subjects of George III in
1776, few of them saw many outward signs of British sovereignty. Only nine of the
colonies had royal governors, and these grand figures stayed close to the colonial
capitals, or else spent much of their time in England. Judges, though appointed by the
Crown, were usually American-born. Uniformed British troops were at the frontiers, but
not regularly in the settlements. The only fairly numerous body of officials of the British
government were the revenue officers who collected port duties under the Navigation
Acts, and they too were mostly American-born.
Acting upon these assumptions, British officials repeatedly rejected requests from
the colonies to create new legislative districts or to pass ‘‘triennial acts’’ providing for
automatic meetings of the legislatures at regular intervals. They also refused to accept
speakers chosen by the assemblies on an automatic basis. These were rights that
Parliament had long enjoyed. The principal check on the colonial assemblies was the
Board of Trade, which instructed the royal governors, controlled colonial patronage,
assisted the Privy Council in appeals from the colonial courts, advised Parliament and the
Crown on matters of colonial policy, and, most significantly, had the power to
recommend approval or disallowance of colonial legislation, much like a court exercising
judicial review. Between 1696 and 1774, some 400 acts of colonial legislatures were
recommended for disallowance by the Board. Although this led to disputes from time to
time, the colonists cheerfully acknowledged the right of the Board, as an agency of the
King-in-Parliament, to carry out its advisory functions, and its legitimacy was never
seriously questioned. Nor, for that matter, was the authority of the other agencies. The
conflict between England and the colonies, as we shall see, centered mainly on
Parliament and the scope of its powers.
It was in the sphere of finance that the assemblies won their most important and
decisive victory, and this proved to be the undoing of the British. Despite all of the theory
repudiating the legal sovereignty of the colonial assemblies, these bodies in reality
controlled the purse strings and in effect exercised a considerable amount of political
sovereignty. The power to tax and spend rested in the hands of the colonial legislatures.
Acting upon instructions from London, Royal governors repeatedly, but without success,
demanded that the assemblies pass permanent revenue acts instead of annual
appropriations. In New York, for example, the colonial assembly, patterning itself after
the House of Commons, limited its appropriations to one year, stipulated in great detail
how the money was to be spent, and refused to accept amendments to revenue bills.
When Governor George Clinton tried to claim some authority over fiscal matters by the
veto power, the assembly simply blocked all legislation and brought the Governor to his
knees. Through the clever technique of appropriating the salaries of public officials by
name and not by office, the colonial assemblies also effectively limited the governor’s
power of appointment and removal. Even the local militia were under the control of the
assemblies. Similar incidents occurred in Pennsylvania, Massachusetts, and the
Carolinas.
In 1763, Patrick Henry defended the dominion of Virginia in an action at law
called the Parson’s Cause. The case arose when clergymen of the Church of England—
which was Virginia’s established church—brought suit against the commonwealth
because Virginia’s Assembly in 1758 had passed a statute that temporarily reduced the
salaries paid to clergymen. In England, the Privy Council had declared the law to be
unconstitutional; a parson therefore had to file suit to obtain the funds he had been
denied. Although the jury in the Parson’s Cause trial gave a verdict for the plaintiff, it
awarded him only one penny in damages. The verdict was actually a victory, then, for the
Assembly that had reduced the parsons’ salaries. Patrick Henry, whose eloquence had
won over the jury, argued in the case that the British Crown, as represented by the Privy
Council in England, had no power to set aside an act of the Virginia Assembly. This
argument was clearly close to declaring that Virginia was politically independent of
Britain. Twelve years later, of course, Henry ended his famous speech to the Virginia
Assembly with the cry, ‘‘Give me liberty, or give me death!’’ It was by such audacious
men that colonial assemblies were persuaded by 1775 to cast off the authority of Crown
and Parliament.
C. Local Government in the Colonies
If the representative assemblies in every colony were the most powerful feature of
the colonial constitutions, the American institutions of local government still had nearly
as much influence on the development of the American political system that culminated
in 1787. English local government was far more vigorous and popular than local
government in France or in most of the rest of Europe during the eighteenth century; but
American local government was still more active than the British forms, and attracted
heartier public support. By 1763, the forms of American local government varied
considerably from province to province, and even within provinces—or colonies. Along
the wild western frontier, local government was democratic and informal, but highly
effective—as it had need to be because of the frontier’s perils and the need for prompt
cooperation among neighbors. At the other extreme, some towns along the Atlantic
seaboard held charters of incorporation that conferred great powers upon municipal
governments, much like the privileges held by venerable European cities.
There were forms of county government throughout British North America, but
the county system of local government was strongest in the South, and the ‘‘middle
colonies’’ of New York and Pennsylvania. In Virginia, the political powers of the county
were greater than they are today in any American county. Each Virginia county was
controlled by a county court composed of the county’s several Justices of the Peace. Even
the colony’s Assembly did not venture to interfere with the Justices’ authority. New
Justices of the Peace were selected by the Governor from a list submitted by the county
court itself, so that the court became selfperpetuating. These Justices of the Peace were
appointed from the class of landowners that was still specified in law as gentlemen. They
were paid neither salaries nor fees, but served at their own expense. Virtually
independent of both Williamsburg (then Virginia’s capital) and London, these county
courts amounted to a kind of federal system within Virginia, and also within other
southern States that allocated large powers to counties. Thus county government became
a preparation for the concept of federalism that triumphed in the Constitutional
Convention of 1787.
Both county and township were political structures inherited from centuries of
English experience. Yet in America these institutions took on a renewed vigor or were
adapted to American circumstances. By the 1830s, for example, the French traveler
Alexis de Tocqueville found the system of American local government—especially the
township—a major reason for the successes of the American democracy. Earlier it was
noted that representative government was Britain’s most important contribution to
America’s Constitution. The British succeeded in conferring upon the colonies a truly
representative system of provincial and local government. This made possible the
establishment of liberty, order, and justice in the new nation. As Benjamin Franklin, John
Dickinson, and a good many other leading men at the Constitutional Convention would
recognize sadly even in 1787, it was a melancholy irony that the political patrimony
bequeathed to America by Britain should itself be a major cause of Britain’s loss of her
North American empire.
D. Civil Liberties in the Colonies
Among the civil liberties that are enumerated in the Bill of Rights of the
American Constitution, those providing for the free exercise of religion, freedom of
speech, and freedom of the press are noteworthy. It is instructive to examine the status of
these freedoms in the Thirteen Colonies on the eve of the American Revolution. First, the
free exercise of religion. In the seventeenth century, America was a refuge for fugitives
from religious persecution, including Puritans, Quakers, and Catholics. But the
persecuted, when they have opportunity, sometimes persecute in turn, and so it was in
North America until religious hostilities diminished in the eighteenth century on both
sides of the Atlantic.
By 1763 the congeries of religious sects and denominations had learned tolerably
well how to get along peaceably with one another. The Congregationalists of
Massachusetts, for example, had found it necessary to permit Anglicans to settle among
them in large numbers; the Quakers of Pennsylvania had come to terms with the Scotch-
Irish Presbyterians of the western regions; Methodist preachers were evangelizing the
backwoods and the frontier; the feeble Catholic minority in Maryland and New Jersey
was tolerated; the handful of Jews were not even noticed; and the Deists, though as few
in number as the Jews, had won over some eminent men, including Thomas Jefferson,
Benjamin Franklin, and John Adams. Nine of the Thirteen Colonies had established
churches in 1763: the Church of England in Virginia, Maryland, the Carolinas, Georgia,
and the southern counties of New York; the Congregational Church in Connecticut, New
Hampshire, and Massachusetts and its dependencies.
All in all, though, Americans enjoyed the benefits of religious liberties—although
some American leaders feared that fierce intolerance lay just beneath the surface of the
religious calm. Nearly all Americans professed to be Christians, even if they sometimes
were rather eccentric Christians. But not all Christians always observe the doctrine of
brotherly love. Had it not been for the British Toleration Act of 1689, religious minorities
in several of the Thirteen Colonies might have been driven away. Second, what of ‘‘the
freedom of speech, or of the press’’? By 1763, a score of newspapers were published in
the Thirteen Colonies, though sometimes eleven of a paper’s twelve columns might be
filled with advertisements. Two years after the British took Quebec from the French,
there was little controversy within British North America. The only alarming news came
from the region of the Great Lakes, where Chief Pontiac’s Indians were attacking British
garrisons. Freedom of the press and of speech seemed well established.
Only two years later, however, in 1765, this era of good feeling came to a most
abrupt and disastrous end. The cause of disruption was the Stamp Act that the British
imposed upon the colonies as a means of raising sixty thousand pounds in annual taxes to
help defray the costs of the war with Pontiac’s Indians on the northwestern frontier. (The
British government expected to have to pay 350,000 pounds a year to maintain troops in
North America.) Soon the famous cry ‘‘No taxation without representation’’ was heard
from the Patriots. That the Stamp Act taxed newspapers and legal documents infuriated
America’s newspaper publishers and lawyers—and these were powerful classes to
offend. One consequence was a concerted attack by most of the American newspapers
upon both Parliament and King George III—and attacks by mobs upon the printing
houses of the few Tory (or pro-British) newspapers.
Civil rights are sorely battered in time of war. Until the fighting ended in 1783,
little freedom of speech or of the press was allowed, from New Hampshire to Georgia—
except freedom of a sort for whichever side, Patriot or Loyalist, happened to be in control
of a town or a region. Those two decades of violent interference with publication and
public speaking were not forgotten when the first State constitutions were drafted.
E. The Movement Toward Independence
The Americans prospered, as we have seen, under more than a century of British
rule. They enjoyed a great deal of personal freedom and independence. It would therefore
be a gross mistake to view the colonists as living in a repressive state or to suggest they
were brutalized by English tyrants. There were disagreements, to be sure, but none so
fundamental as to provoke a public uprising threatening the existence of government.
Precisely how long this peaceful state of affairs might have lasted had the British
continued to follow their ‘‘hands-off’’ policy toward the colonies is uncertain. In any
event, 1763 marks an important turning point in Anglo-American relations, for this is the
year when the mother country embarked upon a bold new course of action to increase
revenue, tighten restrictions on colonial commerce, and require the Americans to assume
a greater share of the imperial tax burden. In response to Parliament’s abrupt change of
colonial policy, the Americans began to question the constitutional basis of parliamentary
statutes designed to impose a new economic relationship between the colonies and
England. Reaffirming and at the same time reinterpreting their ancient rights and
privileges, they turned in the final stages of resistance to thoughts about the nature of free
government. In the end, they came reluctantly to the conclusion that secession was their
only recourse.
laced in the hands of George Grenville, who became Prime Minister in the spring
of 1763. Although the menace of the French and Indians on the western frontier had
abated, Grenville persuaded Parliament to pass the Sugar Act (1764) and the Stamp Act
(1765) for the announced purpose of ‘‘defending, protecting, and securing’’ the colonies.
Complaints against the increased duties on sugar shipped to the colonies were mild
compared to the commotion stirred up by the Stamp Act; for one of the underlying
purposes of the Stamp Act was to establish the right of Parliament to tax the colonies.
The actual revenue accruing from the purchase of stamps on newspapers, playing cards,
legal documents, and various business instruments was relatively insignificant. What
aroused the ire of the Americans was the imposition of a new and mischievous principle:
that of raising a tax in the colonies for the treasury of England.
Parliament wisely repealed the Stamp Act on March 17, 1766; but it refused to
disavow its new claim to power, and with the repeal it appended a Declaratory Act
affirming its right to legislate for the colonies in all matters. The Americans were so
overjoyed by repeal that they overlooked the objectionable principle embodied in the Act.
The British, as Americans soon realized, had changed their stance but not their position.
In 1767, upon the recommendation of Charles Townshend, the new Chancellor of the
Exchequer, a stubborn Parliament counterattacked with another series of statutes
designed to implement the new colonial policy. Relying upon the transparent argument
that Parliament, by repealing the Stamp Act, had renounced a direct taxation on the
colonies but had reserved the right of indirect taxation, the supporters of the new plan
imposed a duty on glass, tea, lead, and paper imported into the colonies. The American
response was predictably hostile. No less objectionable to many colonials was a provision
of the act authorizing courts to grant writs of assistance to enable British officials to
search any house or ship suspected of harboring smuggled goods (James Otis had
publicly opposed such writs as early as 1761, contending that they were unconstitutional).
Other objectionable Townshend Acts included the establishment of a board of custom
officials and an act suspending the New York assembly because it had failed to make
satisfactory arrangements for the quartering of British troops stationed in the colony.
Confronted with the fact that the Townshend Acts were a failure, both politically
and economically, the ministry in London once again made a strategic withdrawal from
the field of contention. The Townshend Duty Act was repealed in April 1770, except that
the duty on tea was retained to save the principle that Parliament had the authority to tax
the colonies. From that moment it was clear that the ministry, despite the folly of
continuing the contest, was determined to subdue the colonies. Lord North, in fact,
formally declared in Parliament that repeal of all the new taxes could not occur until the
Americans were brought to the feet of Great Britain. By now the disposition to resistance
had struck deep roots in every American colony. At first the Americans had only denied
the right of Parliament to tax them; but the scope of their rebuttal had increased, by
degrees. They began to question the authority of Parliament altogether.
In support of the Bostonians, the Virginia House of Burgesses passed a resolution
designating June 1, 1774 (the day the Boston Port Act was scheduled to take effect) as a
day of fasting and prayer. Governor John Dunmore viewed this as an act of defiance
against the authority of the Crown and promptly dissolved the assembly. Earlier, in 1773,
Virginia had taken the lead as the first colony to establish committees of correspondence
on an intercolonial basis. These promoted cooperation among the colonies in a more
continuous manner than had the Stamp Act Congress. The Virginia legislators now took
the greatest step of all the colonies toward united action. Meeting on May 27, 1774, in a
rump session at Raleigh Tavern in Williamsburg, the dismissed Burgesses issued a call to
the other colonies to send delegates to a continental congress in order to consult upon the
common grievance.
A congress of some fifty-five deputies, representing every colony except Georgia,
met in September and October of 1774 at Philadelphia and devised a plan of united action
against the English government. In essence, the delegates reaffirmed the longstanding
principle that each colony was substantially autonomous within the British empire; and to
achieve that end they declared economic war on the mother country. The delegates
unanimously resolved that Congress request all merchants in the several colonies to
withhold the shipment of goods to Great Britain, and further agreed that after December
1, 1774, there would be no importation of goods from Great Britain, Ireland, or the West
Indies unless American grievances were redressed. To enforce the ban on all commerce
with the mother country, the Congress established a continental association of local
communities; but a proposal to establish a central government of united colonies was
rejected.
There were other fundamental issues, equally important in connection with
American political and constitutional development, dividing the delegates. Adams
recalled that a second point of major disagreement in the committee ‘‘was what authority
we should concede to Parliament: Whether we should deny the Authority of Parliament
in all Cases: Whether we should allow any Authority to it, in our internal Affairs: or
whether we should allow it to regulate the trade of the Empire, with or without any
restrictions.’’ Rejecting the principle of legislative supremacy, they declared that the
legislative authority of Parliament was limited by the higher law of the Constitution. The
Intolerable Acts, the law establishing the board of commissioners, and the exercise of
legislative power in the colonies by appointed councils, in violation of the principle ‘‘that
the constituent branches of the legislature be independent of each other,’’ were, said the
delegates, ‘‘dangerous’’ and ‘‘unconstitutional.’’ Proclaiming the ‘‘right of the people to
participate in their legislative councils,’’ the delegates finally agreed that Parliament
could regulate the external commerce of the colonies but could not levy a tax on them.
The First Continental Congress, we may now observe, stands as an important
milestone in American constitutional development. Here, for the first time, political
leaders from throughout the colonies—many of whom would later serve in the
Constitutional Convention of 1787—met for an extended period of time to discuss basic
principles of constitutional government. For many, it was the first time they had met face-
toface, and it was the beginning of a long and close relationship among the Founding
Fathers. In 1787 there were forty-one surviving members of the First Continental
Congress. Ten were elected to the Constitutional Convention. Richard Henry Lee, Patrick
Henry, and Richard Caswell refused to serve, but the remaining seven—John Dickinson,
William Livingston, Thomas Mifflin, George Read, John Rutledge, Roger Sherman, and
George Washington—signed the Constitution and supported its ratification. In addition,
twenty of the surviving members of the First Congress were elected to the State ratifying
conventions of 1787–1788; most of them supported adoption.
On May 10, 1775, three weeks after the battles of Lexington and Concord, the
Second Continental Congress met in Philadelphia to consider ‘‘the state of America’’ and
prepare the nation for armed rebellion. One of the first orders of business was the
selection of a commander-in-chief for the Continental army. A number of New
Englanders favored Artemus Ward, who was in command of troops around Boston, but
the southerners, fearful of New England’s imperial ambitions, successfully urged the
unanimous election of George Washington. The Virginian reluctantly accepted, confiding
to a friend that the ‘‘partiality of the Congress, added to some political motives, left me
without choice.’’
The committee, consisting of Benjamin Franklin, John Jay, Robert Livingston,
Thomas Jefferson, John Dickinson, and Thomas Johnson of Maryland, reflected these
differing attitudes. Two versions of the declaration were considered, one offered by
Jefferson and the other, more conciliatory in tone, by Dickinson. Largely the work of
these two men, the final draft served as a compromise between these factions of the
Congress, while at the same time pointing the way toward the Declaration of
Independence. Considering the nature and extent of this protracted struggle for liberty,
with American blood already spilled on the battlefield and a large-scale military conflict
in the offing, the Declaration of the Causes and Necessity of Taking up Arms is a tribute
to American moderation and restraint in the revolutionary period.
Their quarrel was with Parliament, which, as they rightly complained, had ignored
their earlier petitions. And instead of acting in a conciliatory manner, the Lords and
Commoners seemed bent on ‘‘enslaving the colonies.’’ Appealing to world opinion, the
Americans listed their grievances, which included unlawful usurpations of power
rightfully belonging to the colonial assemblies, violations of such basic liberties as trial
by jury, and invasions by British troops who ‘‘have butchered our countrymen,’’
committed arson, and ‘‘seized our ships.’’ They denied, however, any intention ‘‘of
separating from Great Britain and establishing separate States.’’ In words written by
Jefferson, they eloquently declared, ‘‘before God and the world,’’ that ‘‘the arms we have
been compelled by our enemies to assume, we will, in defiance of every hazard, with
unabating firmness and perseverance, employ for the preservation of our liberties; being
with one mind resolved to die freemen rather than to live slaves.’’ As a stubborn
Parliament was quick to learn, the Americans meant what they said.
F. The Declaration of Independence
Prodded by Thomas Paine’s widely circulated pamphlet Common Sense, which
passionately stated the case for permanent separation and convinced Americans at last
that British officials were determined to subdue the colonies at any cost, the American
people advanced step by step toward a final break. On July 4, 1776, they announced their
decision to leave the empire. Although John Adams and Benjamin Franklin served on the
committee that was charged with the responsibility of drafting a statement, the principal
author of the Declaration of Independence was Thomas Jefferson.
The Declaration of Independence is one of the most famous documents in the
history of the world and from its inception has exerted a powerful influence on mankind.
It has inspired revolutionary leaders abroad and has become such a basic ingredient of the
American political tradition as to be regarded by some as almost part of the Constitution
itself. Yet it has also been a source of profound disagreement, an object of continuing
interest and debate, and in some respects an enigma. This may be attributed in large
measure to the fact that the first part of the Declaration, the preamble, which has been the
cause of these disputes, is obscured by vague and ambiguous language that is susceptible
to different interpretations. As a result, there has always been some uncertainty about the
exact origin and nature of the rights proclaimed. It is no small irony that Jefferson Davis,
the President of the Confederacy, and Abraham Lincoln, President of the United States,
both found support for their positions in the Declaration of Independence, Davis claiming
that the Confederate States had a right to secede and declare their independence, and
Lincoln asserting that slavery was incompatible with the principles of the Declaration.
As we noted in our examination of the Declaration and Resolves of 1774, the
colonists experienced difficulty and disagreement in deciding whether to base their rights
on the laws of nature, the common law and the English constitution, or their colonial
charters. In the end, they opted to muddle their way through the problem by claiming that
Parliament had abridged their natural rights, their common law rights, and their chartered
or prescriptive rights. This confusion or inability to agree among themselves was carried
over to the Declaration of Independence two years later. Thus in the preamble of the
document Jefferson presented an argument for the right of revolution and secession based
on the philosophy of natural rights; but when he turned to an enumeration of rights that
had been abridged, he mentioned only constitutional, common law, and charter rights.
But this explanation serves only to increase the confusion. Modern natural rights
philosophy, as represented in the writings of Locke, is a rejection of classical political
thought and the traditional natural law philosophy. Neither Aristotle nor Cicero
subscribed to a natural rights theory, and Aristotle’s teaching on the origin of government
is contrary to Locke’s Second Treatise. To understand the natural rights philosophy of the
Declaration of Independence, it is essential that we pause to compare and contrast it with
the natural law philosophy. We begin with Aristotle. According to Aristotle, man is by
nature a political animal. It is his nature to live with others and to establish the family
unit. This gives rise to groups of families and household communities, which unite for
mutual protection and to satisfy human wants and needs. These in turn join together to
create the city-state. This is the origin of civil society. Government, then, is natural to
man. The study of history and anthropology, we should note, confirms Aristotle’s view.
There is no evidence that mankind has ever lived in complete isolation. ‘‘A man alone,’’
it is said, ‘‘is either a saint or a devil,’’ and not of this world.
But if there is such a thing as a natural law of justice, what explains the fact that
the meaning of justice is not exactly the same in all societies? Since the idea of liberty
varies, in one degree or another, from one civilization to the next, how can there be only
one objective standard of liberty? When the institution of slavery was debated in the
United States in the early nineteenth century, some Americans argued that slavery was
just and others insisted that it was unjust. Which view is correct? Philosophers have
pondered these cultural diversities and differences of opinion for many years. Some have
contended that such concepts as liberty and justice are illusory and mean whatever each
society chooses to call them. A school of thought known as positivism, founded in the
nineteenth century by a French philosopher named Auguste Comte, contended, for
example, that the only truths were scientific truths, as determined by the scientific or
empirical method. Since we cannot prove in a laboratory what liberty or justice means,
suggested Comte, they have no meaning. Applying such assumptions to laws, the legal
positivists asserted that the whole idea of natural law was a myth. A law is a law if it has
passed the legislature, they said, because we can prove that it did or did not pass. But we
cannot scientifically prove that the law protects liberty or justice because we don’t have
any way of knowing what these terms mean. Judges, therefore, should treat all laws the
same, the only test of legitimacy being whether the law was formally enacted by the rules
prescribed. ‘‘Who is to say,’’ said the positivist, ‘‘whether a law is good or bad? Who is
to say what is right or wrong? One man’s opinion is as good as the next man’s.”
The idea that individuals uniformly possess certain ‘‘rights’’ against the state did
not form a part of the natural law philosophy. There are certain aspects of human nature
that are common to all; but no two individuals are exactly the same, and the differences
among them are often considerable. It was Aristotle’s view, for example, that
entitlements differ from one individual to the next, according to each person’s nature.
Aristotle even maintained that slavery for some individuals is natural because some
people are, by nature, incapable of being educated to virtue and are not suited to be
masters. The notion that all men have ‘‘natural’’ or equal rights to life, liberty, and
property (or to the pursuit of happiness) is foreign to Aristotle’s teachings. The whole
emphasis of traditional natural law, in fact, is not on rights, but on man’s natural duties
and obligations—to God and to his family, community, and country.
Nor could Jefferson have possibly had in mind the type of ‘‘egalite´’’ proclaimed
by the French revolutionaries a decade later—that is, a radical leveling of society to a
common stratum through government imposition of political, social, and economic
equality. By the word ‘‘equal,’’ the gentlemen freeholders who signed the Declaration of
Independence did not mean a massive redistribution of the wealth, the eradication of all
social distinctions, or universal suffrage. Moreover, the Americans could hardly boast
that they had extended equal treatment to their fellow American Loyalists. ‘‘If the right
of pursuing happiness be unalienable (not transferable),’’ argued John Lind, a London
barrister, ‘‘how is it that so many others of their fellow-citizens are by the same injustice
and violence made miserable, their fortunes ruined, their persons banished and driven
from their friends and families?’’
The Preamble of the Declaration of Independence, it would seem, embodies a
theory of government that does not withstand the test of modern analysis. There is no
denying that it contains sweeping propositions of doubtful validity. It must ever be
remembered, however, that in politics what may seem true in theory is false in fact, and
that the reverse is equally valid: political doctrines, though philosophically suspect,
sometimes have a life of their own. A more generous reading of the Declaration of
Independence would be to look upon it for what it was, what it became, and what its
authors may or may not have intended: as a political manifesto, an impassional plea, or
an overstatement, we might say, in defense of certain ideals. Had the colonists rested
their case on the English Constitution, the common law, and their colonial charters alone,
they would have made essentially the same claims in the preamble that they made in the
body of the document. The weakness of their philosophical argument, in other words,
should not be allowed to obscure or detract from the strength of their political and legal
case against the British. They did not need to prove the validity of the natural rights
theory in order to validate their claim that they were entitled to certain prescriptive rights
they had inherited from their ancestors.
Lincoln did not deny these facts. But he insisted nevertheless that all of the
slaveholding communities ‘‘greatly deplored the evil.’’ This is why ‘‘they placed a
provision in the Constitution which they supposed would gradually remove the disease by
cutting off its source. This was the abolition of the slave trade.’’ Thus, said Lincoln, it
may be asked: ‘‘if slavery had been a good thing, would the Fathers of the Republic have
taken a step calculated to diminish its beneficent influences among themselves?’’ The
Declaration, he contended, stands for the principle of equal justice, and if exceptions are
made, ‘‘where will it stop?’’ It was meant by the Founders to serve as ‘‘a beacon to guide
their children and their children’s children’’ in the interminable struggle against special
interests and privilege, in the hope that ‘‘their posterity might look up again to the
Declaration of Independence and take courage to renew the battle which their fathers
began—so that truth, and justice, and mercy, and all the humane and Christian virtues
might not be extinguished from the land.’’ In large measure, the commitment to equality
that Lincoln found in the Declaration of Independence was essentially a moral equality,
or the Christian doctrine that everyone is equal in the eyes of God. Lincoln’s
interpretation prevailed, and it was the preamble of the Declaration of Independence
which elected him to the presidency and produced the Thirteenth Amendment.
In 1776, the slave trade was universally accepted by civilized as well as barbarous
nations. Looking back, we see that the Americans, like their European counterparts, only
gradually came to appreciate the evils of slavery. Despite the great outpouring of
philosophical tracts in defense of liberty, few Enlightenment thinkers called for an
immediate end to slavery, and some ignored it altogether. The name of John Locke and
the doctrine of natural rights are commonly associated with the Declaration of
Independence, as we have seen, and some have argued that his imprint is evident in the
preamble of that great document. Yet it is a melancholy fact that Locke was an investor
in the Royal African Company and clearly regarded Negro slavery as a justifiable
institution. In his Second Treatise, he spoke of slavery as ‘‘vile and miserable,’’ but as
the author of the Fundamental Constitutions of Carolina, which were promulgated in
1669 for the governance of the Carolina colonies, Locke stipulated that ‘‘every freeman
of Carolina shall have absolute power and authority over his negro slaves.’’ Montesquieu
attacked the traditional justifications for slavery, however, and Burke drafted an elaborate
code to make both the African trade and colonial slavery more humane. The Quakers,
followed by other Christian sects, came to the view that slaveholding was a sin against
God, no matter how benevolent or charitable. Many leaders of both the American
Revolution and the Abolitionist Movement, it is worthy of remarking, were members of
the clergy.
There are different kinds of equality, as we have observed, however, and it is
important to understand the distinctions among them from a constitutional standpoint.
Some forms of equality are clearly compatible with individual liberty, equality before the
law or equal rights being the most obvious. In this category we would also want to
include equality of opportunity and the Judeo-Christian concept of moral equality based
on the doctrine of original sin. These forms of equality are generally consistent with the
ideal of individual liberty because they may be attained without coercion. No one is
forced to act against his will, and no one is deprived of his earthly possessions, his
earnings, his job and occupation, or his status in society, if the law is applied equally to
all, and if all are given an opportunity to make their own way and carry out their own
plans. Nor do these forms of equality conflict with any of the basic principles of the
Constitution.
If an individual is free to participate in the political process by voting in an
election or running for office, he possesses political liberty. If this freedom is exercised
by all or most of the adult population, there is also political equality. This form of
equality does not entail the use of government coercion. No one is forced to vote and the
act of voting does not force others to act against their will. Political equality is therefore
another form of equality that is compatible with individual liberty. Political liberty, to put
it another way, is an important means to individual liberty, and the broader the franchise
the greater the degree of political equality. There does not seem to be much support for
political equality in the Declaration of Independence, however, in view of the widespread
acceptance of a limited suffrage in 1776.
Certainly less than half of the adult population enjoyed political liberty when the
Declaration of Independence was written, and it would be inaccurate to interpret the
document as a call for an expanded suffrage. The Americans demanded the same rights
as Englishmen, not the right to vote. Between 1800 and 1860, virtually every State
constitution adopted in 1776 was amended or revised to allow for an expanded electorate.
The only exception to this general trend toward democratization was the abolition of
voting privileges for free Negroes in Maryland, North Carolina, and Virginia as a result
of increasing unrest over the slavery issue. This push for more democracy in the
American political process, however, was largely independent of the anti-slavery
movement that sprang from the Declaration of Independence. To the extent the
Declaration affirmed the principle of political equality, it was a demand by the American
people that they be given the same political rights collectively as other British citizens,
not that each American be granted political liberty individually.
As reinterpreted by the descendants of the Founding Fathers, the preamble of the
Declaration became a two-edged sword. In the North it came to embody the ideal of
equality before the law or equal rights for all Americans, whatever their race or color, and
thus served as a springboard for the anti-slavery movement. In the South, however, the
preamble was invoked to support secession, the theory being that the States in 1861, as in
1776, had a fundamental or natural right ‘‘to change their form of government and
institute a new government, whenever necessary for their safety and happiness.’’ With
the military defeat of the confederacy, this ceased to play an important role in
constitutional development.
Beginning with the Thirteenth Amendment, the rhetoric of the preamble, seeming
to affirm the principle of equal rights, became the dominant force, and over the years the
Declaration of Independence has come to symbolize opposition to both slavery and racial
discrimination. Beyond this, however, the influence of the Declaration from a
constitutional standpoint is more difficult to ascertain. The Declaration offers little
guidance on how or in what ways governments ought to be built and provides little
insight into the workings of the American constitutional system. The Declaration, after
all, was a proclamation calling for independence, stating the grounds for separation, not a
manual or design for a new political system.
G. The Rights Proclaimed
The common theme of the various declarations issued by the Continental
Congress between 1774 and 1776 was the claim of equal rights, the argument being that
Americans were entitled to the same rights as Englishmen. These rights, the Americans
argued, were basically inherited rights, derived from the English Constitution and the
great charters of liberty, the English common law, and colonial charters. Nature was
another source of rights—‘‘the right to life, liberty, and property’’—but to suggest that
Americans were motivated principally by a natural right theory is to overstate the
importance of John Locke and natural rights doctrines. The controversy with Great
Britain centered mainly on legally established constitutional rights, not abstract
philosophical rights. As an authoritative source of rights, nature was mentioned either as
an alternative source or as a rhetorical device.
The first official list of claimed rights appeared in Patrick Henry’s famous
Resolves, which the Virginia House of Burgesses adopted in 1765. They were passed in
response to the Stamp Act and were repeated again and again in other State assemblies
and in the Continental Congress down to the outbreak of the Revolution. Henry argued
that the English had violated three rights. The first was the right of equality between the
American and European subjects of George III. The colonists, said the Virginia Resolves,
were entitled to ‘‘all the liberties, privileges, franchises, and immunities that have at any
time been held, enjoyed, and possessed by the people of Great Britain.’’ The second
English right asserted was the right to be taxed only by representatives of one’s choosing.
And the third, closely related to the second, was government by consent: ‘‘the
inestimable right of being governed by such laws, respecting their internal polity and
taxation, as are derived from their own consent.’’
If Parliament was supreme, and free to revise the Constitution at will, how were
American rights to be protected? Incredibly, only one member of Parliament ventured a
solution during this great upheaval. ‘‘It was for liberty they fought, for liberty they died,’’
said James Luttrell, a member of the House of Commons, in 1777. ‘‘An American Magna
Charta is what they wisely contend for; not a Magna Charta to be taxed by strangers, a
thousand leagues distant . . . but if constitutional freedom was secured to America every
victory might then gain over some worthy friends to our cause.’’ But Luttrell’s proposal
went unnoticed and was never debated. Perhaps it would not have resolved the problem
anyway. Assuming that Parliament passed an American Magna Charta, what would have
prevented a future Parliament from repealing it? Only fundamental law could guarantee
the security of American rights; but a fundamental law is little more than an ordinary
statute where a constitution is subject to parliamentary supremacy. As one constitutional
historian put it, ‘‘American whigs began their resistance in 1765 in the belief that
Parliament was acting unconstitutionally. They went to war in 1775 in the belief that they
were fighting to defend the British Constitution, not rebelling against it; they were in fact
doing both. They were defending the Constitution of limited government and of property
in rights that had been the English Constitution. They were rebelling against the
Constitution of arbitrary power that the British Constitution was about to become.’’ In
sum, the colonies had no choice but to declare independence and establish their own
constitutions if they wished to secure the rights they had enjoyed under the old
constitution they loved and cherished.
H. The First State Constitutions, 1776–1783
The year 1776 marks the birth of the American nation. It also signals the birth of
constitutional government in the United States and in the world at large. For this was the
first time in the world’s history that a large group of communities—now thirteen
independent and sovereign States—had begun the formation of their own governments
under written constitutions. This was also the year in which the Articles of
Confederation, our first national constitution of sorts, was written. Many of the colonial
leaders who participated in the creation of these first constitutions—James Madison,
George Mason, John Rutledge, Charles Pinckney, John Dickinson, Robert Morris,
Benjamin Franklin, Gouverneur Morris, and others— would later meet together in
Philadelphia to draft the Constitution of the United States. In these respects, the writing
of these constitutions was a dress rehearsal for the Federal Convention of 1787 and a
valuable experience in the art of constitution-making.
To a large extent, the main pillars of the new governments were adaptations of the
old colonial forms. Yet the task of writing the State constitutions was formidable. The
participants were novices at drafting a body of fundamental laws, and most were
unfamiliar with the mechanics of constitutional government. Added to this, the nation
was at war, and many of the best minds were absorbed in the affairs of the Continental
Congress and the war effort. Many of the State constitutions that emerged from the first
phase of this endeavor (1776–1777) were thus seriously flawed, and all contained
structural imperfections and awkward phraseology requiring subsequent revision. On the
whole, however, it was a remarkable achievement, and a number of constitutions lasted
longer than even their authors expected. No doubt the most important factor leading to
the surprising success of this first effort was the rejection in all of the States of radical
and visionary schemes of government and the general acceptance of established
constitutional principles and inherited rights. There was little about these constitutions
that was truly revolutionary, other than the fact they were written.
In general, our first constitutions contained three major weaknesses, all of which
were known and avoided in the Philadelphia Convention of 1787. First, they all failed to
provide for an adequate system of separation of powers. Most of them established three
separate and distinct branches of government, with no overlapping personnel; but the
men who drafted them thought in terms of a ‘‘pure’’ separation and did not understand
the need for checks and balances. As a result, political power tended to concentrate in the
legislatures, which in turn often ruled in an arbitrary manner, tyrannizing over the other
branches and oppressing the people, particularly disfavored minority groups. Jefferson
addressed the problem in his own State in his Notes on Virginia (1784). This
concentration of government power in the popular assembly, he charged, ‘‘is precisely
the definition of despotic government. It will be no alleviation that these powers will be
exercised by a plurality of hands, and not a single one. One hundred and seventy-three
despots [the number of the Virginia legislators] would surely be as oppressive as one. Let
those who doubt it turn their eyes on the republic of Venice—as little will it avail us that
they are chosen by ourselves. An elective despotism was not the government we fought
for, but one which should not only be founded on free principles, but in which the powers
of the government should be so divided and balanced among several bodies of
magistracy, as that no one could transcend their legal limits, without being effectually
checked and restrained by the others.’’
Not all of the earliest constitutions contained bills of rights, but the examples set
by such States as Virginia, Pennsylvania, and Massachusetts set the trend for future
constitutions. The Virginia Declaration of Rights, drafted by George Mason, was the
most widely hailed and served as the favored model for the rest of the nation. The
provisions of this Declaration (and the other bills of rights) may be traced to Magna
Charta, the Petition of Right, and the English Bill of Rights. It set forth the usual
requirements regarding trial by jury, cruel and unusual punishments, search warrants,
freedom of the press, and the subordination of the military to civil government.
Separation of Powers was also listed as a right of the people, and it was further stipulated
that all men who could demonstrate that they had a permanent common interest with the
community—that is, were property owners—should be given access to the ballot.
Another important provision guaranteed freedom of religion. This was added at the
insistence of Patrick Henry and James Madison.
Certainly the antidemocratic sentiments expressed by many of the Founding
Fathers strike the modern student of government as unenlightened. Perhaps they were. It
must be remembered, however, that they were sailing on uncharted seas. They were not
familiar with universal suffrage and mass democracy. Nor were many of their
countrymen prepared for the duties that accompany political liberty. Besides, there was
an abundance of historical evidence indicating that democracies tend toward mediocrity
and tyranny of the majority. Cautiously but deliberately they nevertheless inched their
way toward a more broadly based democracy, and with each passing decade their faith in
the people grew stronger. There were many factors which propelled the nation in this
direction, but none more important, as we shall see, than the establishment of a
democratic republic under the Constitution of 1787.
I. The Articles of Confederation
The Articles of Confederation were written almost simultaneously with the
Declaration of Independence. When Richard Henry Lee of Virginia introduced his
resolution on June 7, 1776, proposing a formal dissolution of the colonial relationship
with England, there was an accompanying resolution calling upon Congress to draft a
constitution for the ‘‘united colonies.’’ A committee was formed for this purpose under
the chairmanship of John Dickinson, and on July 12 it reported a plan for a new
government. The Dickinson draft was later revised in favor of strengthening the power of
the States, however, and the Articles of Confederation were not agreed upon by Congress
until November 15, 1777. Two days later they were submitted to the State legislatures for
ratification, and every State except Maryland ratified within the next two years.
The peaceful settlement of this protracted dispute permanently influenced the
nature of the union and helped to lay the foundation for the federal system of
government. Virginia contended that, under her sea-tosea charter of 1609, her territory
extended all the way to the ‘‘South Seas’’ (the Pacific Ocean). Had Virginia and the other
States claiming western land refused to surrender their claims, it is doubtful whether the
Articles of Confederation or any other scheme for a union of all the States would have
succeeded. With virtually half of the continent under her sovereign jurisdiction, Virginia
might well have become a nation unto herself, and North America might have become
many countries instead of one. Ironically, it was Richard Henry Lee, a States’ Rights man
and a stalwart foe of centralization, who, more than any other Virginia leader, persuaded
the State legislature to voluntarily limit the size of the State. Lee doubted the validity of
Virginia’s claim and believed that republican government would not succeed in a country
so large as that contemplated by some Virginians. The cession of western territory by
Virginia and other States thus served to unify the thirteen original States. It also made
possible the creation of many new States in the future, resulting in the formation of a
single federal union, under one flag, from the Atlantic to the Pacific.
Article II further provided, however, that Congress was limited to those powers
‘‘expressly’’ delegated by the States. The intended effect of this wording was to prevent
Congress from usurping the reserved powers of the States by claiming that it possessed
not only delegated powers, but also certain additional powers that might be implied from
those specifically granted. Significantly, no explicit references to State sovereignty were
included in the Constitution of 1787. The word ‘‘expressly’’ was also omitted from the
Tenth Amendment to the Constitution, which stated simply that, ‘‘The powers not
delegated to the United States by the Constitution, nor prohibited by it to the States, are
reserved to the States respectively, or to the people.’’ Underscoring the principle of State
sovereignty, Article III described the confederacy formed under the Articles of
Confederation as a ‘‘league of friendship.’’ In essence, therefore, the Articles were
ostensibly little more than a treaty among sovereign republics, comparable in this century
to the League of Nations or its successor, the United Nations. The ‘‘league’’ was declared
to be ‘‘perpetual,’’ and like an international agreement, the Articles contained various
provisions for mutual friendship and cooperation among the signatories.
Finally, Article IV provided that ‘‘Full faith and credit shall be given in each of
these States to the records, acts and judicial proceedings of the courts and magistrates of
every other State.’’ This meant that each State court was legally obligated to recognize
the statutes and judicial decisions of other States, as is customary under what is called
private international law or the ‘‘conflict of laws.’’ Thus, in a case of contracts, the laws
of a foreign country where the contract was made must govern. Article IV simply applied
this principle of international law to the States of the confederacy. All of these provisions,
it should be noted, were carried over, in slightly different wording, to the Constitution of
1787. They were deemed essential because the several States were not legally obligated
to recognize or enforce the rights protected. They assumed, in other words, that the
States, in their quasi-international relationship with each other, were sovereign entities,
and that it would be necessary, therefore, to establish these rights by agreement.
Maryland agreed, and in September 1786 a convention met in Annapolis. Only
five States were represented, however, and no delegates from New England, the
Carolinas, or Georgia made an appearance. Two important delegates to the Annapolis
Convention were Alexander Hamilton and James Madison. Seizing an opportunity to
organize a constitutional reform effort, they persuaded the delegates unanimously to
adopt an address to the States, calling upon them to send delegates to a constitutional
convention in Philadelphia the following May. But Congress refused to give its approval,
and the proposal seemed headed for defeat.
