Chapter 4: American Democratic Theory: The Practical Framing of a Constitution Upon Notions of Natural Law

At the time of the American Revolution, Puritanism was on the wane in the Colonies, confronted by continental rationalism. The fresh breath of Unitarianism intoxicated the Colonies and challenged the authoritarian atmosphere of a puritanical society and the predestination of Calvinism.

Through their industry the colonists’ wealth increased, and with it private property. With an increase in wealth, King George levied taxes, which the colonists increasingly resented, because they had no representation in the government which imposed the taxes. Locke’s Two Treatises of Civil Government became for the Colonies a justification for revolt against Britain, as those same treatises earlier were a justification for a short-lived revolution in England. And so arose the cry for “Liberty and Property.”

When war broke out, the Continental Congress met in Philadelphia. Following two days of intense debate, it passed the following resolution:

RESOLVED, That it be recommended to the respective Assemblies and Conventions of the United Colonies, where no government sufficient to the exigencies of their affairs have hitherto been established, to adopt such governments as shall, in the opinion of the representatives of the people, best conduce to the happiness and safety of the constituents in particular, and America in general.

A committee of three was named to prepare a Preamble. Two of the members deferred to the third, John Adams. John Adams, influenced by the writings of John Locke of a century before, went straight to the issue of King George, himself, when he read his Preamble to the Congress on May 15, 1776:

WHEREAS his Britannic Majesty, in conjunction with the lords and commons of Great Britain, has, by a late act of Parliament, excluded the inhabitants of these United Colonies from the protection of his crown; . . . and it is necessary that the exercise of every kind of authority under the said crown should be totally suppressed, and all the powers of government exerted, under the authority of the people of the colonies, for the preservation of internal peace, virtue and good order, as well as for the defense of their lives, liberties, and properties, against the hostile invasions and cruel depredations of their enemies . . .

The Preamble was a direct invitation to the colonies to make a Social Contract, not as Hobbes envisioned it, but as Locke described it: a social contract to form a civil government that was representative and that would protect the property of the governed, and would be accountable to the governed. That property included their lives and liberties. After much further debate the Preamble and Resolve passed by a vote of seven colonies to five. Maryland refused to vote.

Richard Henry Lee offered the following proposed resolution to the Congress on June 7:

RESOLVED, That these United Colonies are, and of a right ought to be, free and independent States: that they are absolved from all allegiance to the British Crown; and that all political connection between them and the State of Great Britain is, and ought to be, totally dissolved.
The resolution was debated and agreement was impossible. A committee of five was named to draft a Declaration of Independence for consideration by the body: Jefferson, Adams, Franklin, Sherman, and Livingston. Jefferson, a proponent of Natural Rights, prepared the draft, with a few minor alterations by Adams and Franklin. Its final form was proclaimed on July 8:

When in the Course of human events, it becomes necessary for one people to dissolve the political bonds which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation. – 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. – That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. – That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object, evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. – Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world. . . .

The act of declaring independence was the act of individual men, who took personal risks in the service of a higher principle. They nonetheless acted.

It took some time to give structure to this democratic commitment based upon Natural Rights. The Articles of Confederation were adopted in 1777 by Congress and were ratified by the States in March, 1781. The British were defeated in October 1781 at Yorktown, and the new Confederation continued as a loosely cooperative government.

During the Confederation the independence of the individual states was generally maintained. But with the defeat of the British, economic conflicts between the states increased and the English, French, and Spanish surrounded the new nation. Many leaders, especially in New York, Virginia, Massachusetts, and Pennsylvania, advocated a strong central government as a means of meeting these threats to the nation, of settling conflicts within, and of raising revenues in the interest of the nation. Representatives of that group met at Annapolis, Maryland in August 1786. Lead by Alexander Hamilton, it called for a “plenipotentiary Convention” at which representatives of the states would have authority to consider basic amendments to the Articles of Confederation. It proposed a meeting of representatives of the states at Philadelphia in May, 1787 for that purpose.

The need for such a convention was further demonstrated by the Shays Rebellion of farmers in Western Massachusetts in late 1786. In that rebellion a group of farmers forcibly restrained the Massachusetts courts from foreclosing their mortgages. Washington was alarmed at the lack of governmental authority to meet such disorder. If government could not control such conduct, “what security has a man for life, liberty, or property.” On the other hand, Jefferson responded, “I like a little rebellion now and then.” Later he added, “The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is its natural manure.” The rebellion died out after the farmers attacked an arsenal and many were killed by cannon fire.

The early patriots had a vision of a government in which life, liberty and property of the individual were protected by a representative government which ruled with the consent of the governed and was accountable to it; but its fine tuning took time to accomplish. And so the Constitutional Convention met at Philadelphia in May, 1787.

At the outset of the Convention, most respected the remark of Elbridge Gerry from Massachusetts that “The evils we experience flow from the excess of democracy. The people do not want virtue, but are dupes of pretended patriots.” There was also general agreement with Gouverneur Morris of Pennsylvania that property was the “principal object of government.” On that issue of property, although Benjamin Franklin favored the right to vote among all white males, under the leadership of Madison it was limited to those who owned property. If the principal object of government was to protect property, to give the right to vote to non-propertied persons would defeat that object, he reasoned. However, as a compromise, each state was left to determine the qualifications to vote for members of the House of Representatives.

The Virginia Plan called for a strong central government of three branches: legislative, executive, and judiciary. This would have changed the government from a cooperative agreement among states to a national government. The delegates generally agreed on the tripartite plan. As to the legislature, Franklin favored a single house, but most of the states had operated under a bicameral structure since colonial times, and many believed that it would contribute to a more balanced government. The House of Representatives, elected by direct vote and therefore most democratic, would be balanced by the Senate which would represent the aristocracy.

The primary conflict revolved upon the issue of strong central government supported by the large states, and that of states rights supported by small states. That was resolved with the Connecticut Compromise in which in one house, the Senate, representation of the various states would be equal, and in the other, the House of Representatives, representation would be based upon population of each state. Bills for appropriations would originate in the House.

For a long time the Convention considered that the President would be elected by the Congress, but for the purpose of promoting the separation and balance between the branches of government, they finally settled upon the electoral college system. That accomplished, on September 17, 1787, the Convention approved the Constitution and it was submitted to the nation for ratification.

The Federalists, who argued for adoption of the Constitution, were supported by a series of essays known as the Federalist, written by Alexander Hamilton, James Madison, and John Jay. They were addressed to the New York voters to support ratification of the Constitution. The Antifederalists opposed the Constitution because it failed to contain a bill of rights.

The lack of a bill of rights was no mere oversight on the part of the framers. Indeed the issue of whether to provide one came before the body five days before the end of the Convention, but it was defeated by a vote of ten to none. The Convention concluded that a bill of rights was unnecessary because the federal government was one of limited powers. The Constitution did not grant the federal government the authority to interfere with the fundamental liberties of the citizen.

The Constitution was ratified upon the condition that the new Congress would prepare a bill of rights. Congressman James Madison introduced a bill of rights for consideration. The House sent to the Senate seventeen amendments, Congress passed and sent to President Washington twelve amendments which would have to be ratified by the states. Of those, ten were adopted.

And so, through deep insight, and practical compromise, the colonies made concrete the philosophical principles of Locke. This was no mere pragmatism, although pragmatism played its role; nor was it unrestrained grand philosophizing. Rather, it was a communal act of faith by courageous and creative minds that saw the possible in the actual. They gave the ideal practical application.

Because the Declaration of Independence and the Constitution were firmly rooted in the ground but not bound there, the law has grown with the development of American Society. In truth, our law has made that social development possible, and has participated in it. But that development was not achieved because it was practical in the short term. It was achieved because some with a vision were willing to do the impractical in the short term for future possibilities. We are the beneficiaries.

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