This book encourages me to investigate the standing of the Mayflower Compact, the Fundamental Orders of Connecticut, and other early attempts to found government on explicit compacts.
As good Calvinists should, they covenanted together in order to have governmental authority in their new village of Plymouth, and in so doing gave enduring fame to the Mayflower Compact. (30)
In 1639 Puritan migrants to Connecticut adopted their Fundamental Orders, an intentional rather than an adventitious compact of government, and at least a good candidate for the first written and popular governmental compact in the modern world. (30)
In 1641 Massachusetts adopted a Body of Liberties composed by Nathaniel Ward, which was a cross between a bill of rights and a code of laws, and thus in no sense a compact of government. But, in a significant precedent, the General Court submitted it to the towns for discussion and amendment, an early form of popular ratification. In 1648 Massachusetts adopted The Laws and Liberties of Massachusetts, which combined the Liberties with a codification of laws already enacted by the General Court. (30)
In Pennsylvania William Penn wrote a series of imaginative constitutions for his colony, but unlike the New England documents they were clearly paternal, even feudal, grants and not compacts of a people. The same is was true for the abortive frame of government in the Carolinas and for the two British constitutions promulgated by Cromwell. (30—31)
The claim of the British government that it is based on the consent of the governed, like the claims of other European countries, is tainted by the fact that its history can be traced back to military conquest and subjugation rather than voluntary agreement. Another handicap in analyzing the origin of old regimes is that we don't have as much written evidence about them as we would like. In contrast to the European states, the British colonies in American are outstanding examples, perhaps the best examples that history offers, of attempts to found new governments with explicit social contracts. They are as close as we can get to well documented state-of-nature situations. They are not complicated by pre-existing regimes. The colonists did not establish their local governments by conquering or overthrowing established societies. (To some extent they dislocated aborigine tribes, but they did not initially try to subjugate them or to bring them under the jurisdiction of the new governments.) Instead, the founders believed that legitimate government rests on the consent of the governed and, in some cases, they believed in expressing this consent by means of explicit contracts. Paul Conkin explained how the early colonists found themselves in a state of nature:
Nothing in the British constitution, in the ancient laws of the kingdom, or in legal precedents governed mother-colony relationships. The absence of a governing compact meant a constitutional lag at the very least. It also meant that colonists reverted to a state of nature and retained the rights that pertain to it. (36)One hundred and fifty years or so after their local governments were established the British colonists in America found themselves in a war for their independence from the British king. This put the legitimacy of their local governments into question and put them into a state of nature again.
The first Americans took advantage of a natural right of emigration, by choice settled a new country, and there, in a state of nature, established a new society and chose institutions to promote their happiness. They settled America at their own expense, shed their own blood, and gained land and possessions by their own labor. They gained their rights from nature, not from any bequest or grant. (41)
... the lack of any identifiable constitutional process in England and the absence of a written compact made all "constitutional" arguments slippery at best. (44)
Historically, the most fervent advocates of popular sovereignty had not related consent to popular elections or to any type of voting. (49)
In the only clear English precedent for overt compacting, the Convention Parliament, the Lords and Commoners had acted for all Englishmen without specific authority to do so and with a sense of the nonlegal and inferior nature of their assembly. (49)
As early as 1768 in Boston, and almost universally by 1775, Americans gathered in informal conventions or assemblies, usually to seek redress of grievances or to petition governor or king. These assemblies lacked any authority to legislate or to appoint administrative and judicial officials, let alone the authority to draft constitutions. But now they had to assume the tasks of government or face anarchy. Their only appeal was to the Continental Congress, which also existed in a constitutional limbo, and only gained legitimacy with state ratification of the Articles of Confederation. But in 1775 it was the most authoritative government available. Most of the colonial governments turned to it not only for advice but also for some assurance of their own legitimacy. (49)
From 1776 to 1800, fourteen American states (Vermont, Kentucky, and Tennessee included) drafted approximately twenty-five constitutions. The combined states also drafted the federal constitution. Out of this unprecedented frenzy of compacting came a well-nigh ritualized constitutional process, loyally followed all the way to the present. This process, the flesh and blood of popular sovereignty, remains as the most distinctive innovation by American governments. The process includes special, popularly authorized drafting conventions, some form of popular ratification, and either easily accessible amending procedures or convenient ways of reconvening conventions. (50—51)
As newly independent states formed governments, the doctrine always received lip service, but in states without internal conflict and effective claims by minority factions the ruling elites rarely followed the full logic of popular sovereignty. In all probability, they never perceived that logic. They were able to retain governmental power, draft constitutions either without specific popular authority or without popular ratification, and in most cases use the constitution to legitimize their continued power. Only the losing and disgraced loyalists vainly protested that they were part of that always nebulous entity—the people.
New Hampshire adopted the first constitution. In compliance with recommendations from the Continental Congress, in 1775 the towns of New Hampshire elected a special congress to serve as a temporary government as well as to establish a new form of government. ... the congress framed a brief, interim constitution in January 1776. Only the popular authorization revealed any zealous concern for popular sovereignty. The same congress that created the constitution (there was no ratification procedure) became the legal Assembly by its terms. It, in effect, legitimized itself. (52) ... The towns authorized a second convention in 1781, and then spent three years discussing, amending, and finally ratifying the constitution. (52)
South Carolina was next and, of all the states, adhered least to the mandate of popular sovereignty... The Provincial Congress, without popular authorization but on recommendation of the Continental Congress, simply enacted a constitution in March 1776 which in effect continued the Provincial Congress in power under a new name and allowed it to choose a legislative council and president (governor). ... Only in 1790 did South Carolina elect delegates to a "proper" convention, and finally attain a "real" constitution. (53)
Virginia drafted the first meticulous and enduring constitution. But the people neither authorized nor ratified it, leaving a question as to its legitimacy. (53) ... Only in 1830, after long efforts, did Virginia fulfill this principle by electing a convention to draft a new constitution. (54)
Virginia was the last state to draft a constitution without some specific authority from the people. (54)
A New Jersey convention, elected to frame a constitution as well as carry on the normal processes of government, finished its work on July 3, too late to incorporate the language of independence. (54)
Delaware and Pennsylvania made the first dramatic progress toward realized popular sovereignty. (54)
In Pennsylvania, unlike almost every other state, the successful demand for a convention accompanied a major shift in political power. Without any formal redefinition of franchise rules, local committees not only excluded suspected loyalists but also permitted unpropertied militiamen to vote. (55)
A popularly elected Maryland convention completed a declaration of rights (modeled on Virginia's) and a constitution in November 1776. In recognition of the logic of popular sovereignty, several local districts informally relaxed the normal franchise requirements, thus permitting almost all adult males a voice in the delegate selection. (56)
... the North Carolina Assembly, by the terms of a popular mandate, established a constitution in December 1776. (57) It was not offered for popular ratification.
Georgia and New York completed constitutions in 1777 (57) In Georgia, a new convention met in 1789 to draft a new constitution and a second met to ratify it and a third met to review it in 1797. (57)
In the eyes of many citizens, Massachusetts in 1776 had no legal government and by the well-accepted canons of popular sovereignty could not have one without a new convention. Since the congress governed without rightful authority, some recalcitrant western counties threatened secession. (58) ... The congress submitted its draft in December 1777. The towns, with all adult males voting for the first time in American history, rejected it. (58) The people approved a convention in 1779. "Only by tricky tabulation was the convention able to declare the constitution adopted by the two-thirds of the towns." (59) Massachusetts met every procedural requirement remotely implied by popular sovereignty. It elected a special convention, by universal suffrage, to draft a preliminary covenant for submission to, and approval by, the people in the towns. It recognized their continuing sovereignty by a requirement of periodic review (changed in 1820 to amendment procedures). (59)
Of all the states, only Massachusetts recognized that the different between constitutional and legislative process demanded separate suffrage requirements. Thus, in Massachusetts, all adult males ratified a constitution which excluded many of them from the subsequent franchise by property requirements. (60) ... But in each state except Massachusetts the existing franchise also governed the constitutional process. However mild the franchise limitations, however few people excluded, the resulting constitutions did not rest on the "whole" people. (60)
The Constitutional Convention of 1787 claimed the authority of the people even though they never authorized the convention.
It is ironic that the "nationalists" within the convention later assumed the title of "federalists," and the convention "federalists" gained the misleading title of "antifederalists." (62)
Plato and Aristotle affirmed not only a formal logical order in the world but also an inherent purposefulness in all things. (77)
Greek concepts ... reflected an anthropormorphization of reality.
The Jews did not have a theory of natural law. They perceived their law, not as inherent in nature and open to right reason, but as the direct command of Jehovah.
Medieval theorists gave to tradition, to the cherished habits of a people, almost as much sanction as universal principles of right. (80)
Aquinas believed in qualified individual rights to land and goods, but not to exclusive control. A hungry man can "steal" food without fault. (83)
John Winthrop used a labor theory of value to justify taking Indian lands in North America. The Indians forfeited land by not applying labor to it, or improving it, or finding their vocation on it. (84)
Machiavelli had a realistic view of the origin of states. "A civil society does not originate in a compact of moral philosophers but from the arts of often unscrupulous princes. Men accept authority and obey it, not because of its congruence with moral abstractions but out of self-interest, including fear of punishment. One who is trying to understand political behavior or to become a successful politician can gain little from natural-law theories except possibly appealing rationalizations." (86)
By denying abstract rationality, and any private right to determine moral obligations, Hobbes could define law in a positive way only. ... By someone's private judgment, almost any act of the sovereign will seem ungodly, and to allow resistance on the basis of private conscience seemed an invitation to anarchy. (88) Instead of covenanting to enforce or preserve law, they covenant to have law. Instead of covenanting according to moral standards, they covenant to have moral order. (90) Hobbes said might makes right, which is undeniable if right means an operative privilege that one can actually exercise. Sidney said right gives legitimacy to power. This claim is undeniable if legitimacy denotes a psychological stance toward power, a willing complaisance, a feeling of rightness, a balm of conscience. (93) Hobbes ... tried vainly to absorb the moral into the descriptive, and thus denied any validity to old paths of moral philosophy. (94)
Locke's view on resistance to tyranny: "Since they resist tyranny in behalf of law and moral order they are in no sense rebels. The oppressive government alone is guilty of rebellion and treason." (95) Locke and the founding fathers in general did not believe in a natural-law justification of profit on investments (because labor was not involved). This gave a strong moral weapon to Marxists. Locke would however have voted to make usury a protected form of property for economic reasons.
In 1776 the colonists declared independence from the king, not from the Parliament. (The felt they were never subject to Parliament.) (103) Not much suppression was being done to the colonists. "In fact, the patriots were in almost all cases the effective suppressors and the loyalists the suppressed." (104)
The right of conscience is inalienable and inseparable from our nature. (105)
The Stamp Act moved ideas of natural rights from the pulpit to the marketplace. (105)
John Adams said many rights "are inherent and essential, agreed on as maxims and established as preliminaries even before a parliament existed." He suggested that the ultimate place to search for the foundations of British laws was in "human nature, in the constitution of the intellectual and moral world." (106)
New Englanders had a greater penchant for ultimate sources of law. (107)
Since the American insistence on consent was irrefutable on principle, the British had to shift the controversy to the prosaic problem of representation. Perhaps their insistence on vicarious representation made sense in England, where examples of absurd underrepresentation, at least on a geographical basis, abounded, but the same arguments seemed devious and hypocritical to Americans, since here almost all owners of real property had the vote and some sense of participation in tax legislation. (108)
If, in principle, a distant Britain could tax the colonies at will, then America was already an inferior dependency and Americans were already in some sense slaves, without full control of their destiny. Viewed from this perspective, the reasonableness of British taxes was not important. A well-treated slave remains a slave, always subject to his master's will (110)
The alleged inferiority of Negroes, for example, could not excuse slavery. From the perspective of natural rights, extreme inequalities of ability did not justify one person's controlling the destiny of another, for in nature all are equally free and only consent can legitimize any form of rule even by the able over the less capable. (111)
Since natural rights are, by definition, unalienable and themselves the reason for having government, they are not properly a product of any covenant or compact. They are the reason for covenanting, and properly shape the content of any compact. (124)
"Equally free and independent" expressed much better the traditional meaning of liberty than "all men are born equal." (126)
... for some individuals, the most valued freedom of all may be the freedom to become part of a secure and very sectarian community, safe from external controls over the internal regimen and free to expel all subversive elements within. In practical terms, this freedom includes the right of Amish parents not to send their children to public schools, of bishops to censor church publications, of youthful communes to expel ideological revisionists, of purely private clubs to use any arbitrary criterion they wish to limit membership. (138)
But in an empire of liberty, in a federation of quite diverse communities, the saving grace was the right to move on. The Baptists could move to Pennsylvania, admittedly not without great personal sacrifice, but move they could, and with full federal protection for their right to enter another state without fee and for their right to move their property without special assessments. Somewhere, in the states and territories, almost any group could find an isolated haven even for the most daring social experiments, always with the consoling assurance that, at the least, no threats to their local autonomy originated at the imperial center. (138—139)
With federal power dominant, with vast federal government responsive to so many powerful constituencies, including embittered minorities with virtually unlimited demands, the federal government is now the most likely source of major abuses of power, of unintentional or deliberate efforts to coerce and control citizens, to reduce their sphere of private choice. (142)
... a libertarian social order, in direct contrast to an equalitarian one, not only does not eliminate all forms of nobility but continuously replenishes a class of able and powerful men. (147)
Thomas Paine attacked the mixed form of government. Benjamin Franklin was one of the few leaders who agreed with Paine. John Adams became the symbol of mixed government. Montesquieu was the leading writer for separation of powers.
The essential fallacy of statism is the idea that government receives its power by consent of the people. (RH)
... in America, as in no place else in the world, the idea of government balance would prevail. We would have governments that were mixed and balanced in form, separate and balanced in function, and divided and balanced in areas of jurisdiction. (159)
With a few exceptions such as in Delaware, the loyalists did not participate in drafting the state constitutions, so the ones most likely to favor a strong executive were not represented. (160)
John Adams tried to persuade people that in pushing for popular sovereignty they were building an unbalanced democracy that no be able to stop the ascendancy of an oligarchy who would use its economic and political power to dominate the masses.
If the old idea of property has any contemporary currency, it takes a strangely inverted form—the right to work, and not the right to own and manage the means of production. In a sense, we now proclaim the right of servility, for work usually denotes employment, a job, taking orders, and finding satisfaction in wages and not in the work experience. In a highly collectivized America, the image of a fulfilling life has shifted from proximate ownership and artful management of property to a college education, high-status employment, investment success, and a high level of consumption. (192)
Year Read: 1997
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