An Originalist point of view on Constitution Interpretation, and what influenced the Founding Fathers. Formerly www.discoveringthefoundingprinciples.com
Besides declaring, “That these United Colonies are, and of right ought to be, FREE AND INDEPENDENT STATES” dissolving the bonds between the United States and Great Britain, the Declaration states so much more, on the nature or power, the role of government and rights of the people. These declared principles in regards to each, will have a direct influence on the structure and power in the Articles of Confederation and Constitution (Declaration of Independence influence on the Constitution).
July 4th is the day Americans celebrate the Declaration of Independence, but it was two days earlier on July 2, 1776 that the Second Continental Congress actually voted to declare Independence.
Independence had been debated in June 1776, and June 11th it was decided to postpone a vote until July 2, 1776 in order for states to ensure they favored such a vote. Also on June 11, 1776 the Committee of Five was formed, consisting of Thomas Jefferson, John Adams, Benjamin Franklin, Roger Sherman, and Robert R. Livingston, to draft up a Declaration of Independence.
On July 2, 1776 debate proceeded and a vote for independence took place. The Continental Journal recorded the following in that day's session of the Continental Congress1 (emphasis added).
The Congress resumed the consideration of the resolution agreed to by and reported from the committee of the whole; and the same being read, was agreed to as follows:
Resolved, That these United Colonies are, and, of right, ought to be, Free and Independent States; that they are absolved from all allegiance to the British crown, and that all political connexion between them, and the state of Great Britain, is, and ought to be, totally dissolved.
Agreeable to the order of the day, the Congress resolved itself into a committee of the whole; ∥and, after some time,∥ the president resumed the chair. Mr. [Benjamin] Harrison reported, that the committee have had under consideration the declaration to them referred; but, not having had time to go through ∥the same,∥ desired leave to sit again:
The Committee of Five had yet to finish a final draft, and requested leave to sit and finish their work, but the decision was made, Independence from Great Britain had been decided. No fanfare or celebration followed, only the orderly business of the rest of the day. However, it was not lost on these men what they had done, they became traitors to the crown punishable by death, but they knew they sewed the seeds for an entirely new way of government, self government man would not rule man, man would rule himself.
On July 3, 1776 John Adams wrote to his wife Abigail a letter and wrote the following;
Yesterday the greatest question was decided, which ever was debated in America, and a greater, perhaps, never was or will be decided among Men. A resolution was passed without one dissenting colony "that these United Colonies are, and of right ought to be, free and independent states, and as such they have, and of right ought to have, full power to make war, conclude peace, establish commerce, and to do all the other acts and things which other states may rightfully do." You will see in a few days a declaration setting forth the causes which have impelled us to this mighty revolution and the reasons which will justify it in the sight of God and man. (morning letter)2
The second day of July, 1776, will be memorable epocha in the history of America. I am apt to believe that it will be celebrated by succeeding generations, as the great Anniversary Festival. It ought to be commemorated, as the day of deliverance by solemn acts of devotion to God Almighty. It ought to be solemnized with pomp, shews, games, sports, guns, bells, bonfires and illuminations, from one end of the continent to the other, from this time forward forever. (evening letter)2
But make no mistake, it was this day July 2, 1776 the Founding Fathers in the Continental Congress decided to Declare Independence, the die was set. The United States was born, as it decided to cut off it bonds with Great Britain and set their own path and future for themselves.
1: http://memory.loc.gov/cgi-bin/query/r?ammem/hlaw:@field(DOCID+@lit(jc00523))
2: http://www.founding.com/founders_library/pageID.2145/default.asp
Earlier on May 15 Virginia voted to declare itself Independent of Great Britain. This ultimately set the stage for a similar vote in the Second Continental Congress which was seated in Philadelphia, Pennsylvania. On June 7, 1776 Richard Henry Lee of Virginia submitted the following resolution to the Congress.
"Resolved, That these United Colonies are, and of 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.
That it is expedient forthwith to take the most effectual measures for forming foreign Alliances.
That a plan of confederation be prepared and transmitted to the respective Colonies for their consideration and approbation."
The Declaration of Independence was more than just the title proclaims in declaring Independence from the United Kingdom it was an indictment against tyrannical rule and what the role of a government should be. The Declaration went beyond merely stating the Colonies would no longer have any ties with Britain, the Founders also stated what the rights of the people are, and that government operates at the beckon of the people, not the other way around.
In the first writing of Influencing the Founding Fathers I discussed John Locke, and his Two Treatises of Government. Where John Locke defined what natural rights are, the source of power of a government is the people, a government of a Constitution that must abide by Law, and the separation of powers, Charles de Secondat Baron de Montesquieu, defined the details of how to do this, with some significant changes of his own, with his publication, “The Spirit of Laws”. “God is related to the Universe, as a creator and preserver; the laws by which He created all things are those by which He preserves them”,
John Locke 1632-1704
If you watch the nightly news or cable news, you have most assuredly have heard more then one person point to "what they believed" the Founding Fathers wanted, desired, believed or were opposed too. Some are right, some are wrong, while others simply state that they "believed" the Founder would want something simply to justify their own position even though the facts of the "belief" are either contrary to their position or non existent at all.
So, how does one know what the Founder really believed in? Something had to influence their own philosophy into what it became, and eventually influenced the drafting of the US Constitution. It is at these sources we will find what the Founders true core principles are, helping us determine how they did [in addition to their other writings] or may feel on various subjects.
Though I will not go into great detail, this will offer some insight. The first place or person to look at would be John Locke, the author of The Two Treatises of a Civil Government [1689] (though started in 1760). John Locke (1632-1704) was a 17th Century English Philosopher, penning this eventual revolutionary inspiring work. The Second of these Treatises is perhaps of the most significance, in the philosophy of Government he described and how it would eventually effect the likes of Thomas Jefferson.
The First Treatises focuses more on the Monarch and heredity [in response to a publishing by Sir Robert Filmer; Patriarcha]. The Second Treatises dives deeper into Political Philosophies that Americans would be more familiar with, if not by name by concept at least. He asserts the notion of Natural Rights, that man inherently has certain rights without regards to station or position in society. These include being secure in your person and property without undue influence from your neighbor or government itself. He also discusses Slavery [which he justifies], Representative Government, and the Right to Revolution. Locke is a proponent of majority rule in regards to the people in a Republican Government, that may be in a contract with a monarch or ruling group [oligarchy] The people should have a stake in those who govern them, though not ruling out a monarchy or Oligarchy in entirety provided the people still have a stake. He also is a proponent of the right of the people to revolt against a corrupt or unjust government. The governed are the source of power, and any power ceded to the government was done so in a contract, and was to protect the rights of the people. What these last two ideas ascribe to, is the overall concept of the Rule of Law, not the Rule of Man.
It is the Second Treatises [Book II] “Of Civil Government” I will focus on here. Chapter II Locke discusses what many may call “Natural Rights” today, those rights that are inherent to all people by natural being. Later on in the Declaration of Independence, Thomas Jefferson pens these Natural Rights as the “certain inalienable rights”. Locke describes these rights as,
“a state of perfect freedom to order their actions, and dispose of their possessions and persons, as they think fit, within the bounds of the law of nature, without asking leave, or depending upon the will of any other man”.
You may also recall another part of the Declaration of Independence, “that all men are created equal”.Locke describes a similar ideal,
“A state also of equality, wherein all the power and jurisdiction is reciprocal, no one having more than another; there being nothing more evident, than that creatures of the same species and rank, promiscuously born to all the same advantages of nature, and the use of the same faculties”,
Though Locke goes on to describe that the rightful Lord or Master, may adjust this equality based on station. This concept of Lord or Master may seem to not carry to the Founders, but in part does with Slavery, Property and Land Owner preference [though in the Constitution this is finally abandoned] , and the lack of universal suffrage. He also states,
“The state of nature has a law of nature to govern it, which obliges every one: and reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions”.
We can again see the correlation to Thomas Jefferson and the Declaration of Independence, as well as how one should conduct themselves in regards to another. Nothing is more important to individual Freedom than one being secure in their Life, Security, Liberty, and Property. These were the things that nature gave you, and are at the essence of the “inalienable rights”, Life, Liberty and the Pursuit of Happiness. We see all of these reflected not only in the Declaration of Independence, but also the Constitution as well, your Liberty is guaranteed by the Constitution, your Life and Security by the application of its laws, your property by the 5th Amendment.
Locke also argues about the power of one over another,
“but yet no absolute or arbitrary power”.
This is the concept of limited power, to which the “contract” [Constitution] is designed to limit. The purpose of this power is to ensure,
“that we call punishment. In transgressing the law of nature, the offender declares himself to live by another rule than that of reason and common equity, which is that measure God has set to the actions of men, for their mutual security; and so he becomes dangerous to mankind, the tye, which is to secure them from injury and violence”.
This is as it says in the Preamble to the Constitution, “insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity”. Once again this is not just the Rule of Law, but the Rule of written of Law, not man, he prescribes to, and we see in our own Constitution. Locke continues with the Laws of Nature, and how it relates to the individual, people, and government, in the his writings.
Following these, Locke describes the rule of majority [a democratic principle],
“the act of the majority passes for the act of the whole, and of course determines, as having, by the law of nature and reason, the power of the whole”.
This is a concept we see in how we elect members of the House of Representatives [Senate was originally chosen by State legislatures], and how both the Houses of Congress conduct business [less veto override, Amendments, and impeachment], but this is also done in a “contract” to prevent abuse,
“which is all the compact that is, or needs be, between the individuals, that enter into, or make up a common-wealth. And thus that, which begins and actually constitutes any political society, is nothing but the consent of any number of freemen capable of a majority to unite and incorporate into such a society.”
The rule of majority is the power to govern, but that governance must abide by the written law [constitution] itself. This is limiting what the Supreme authority of making law can or cannot do, same as we do with our own Congress and Government as a whole in our Constitution. The rule of majority [either directly in some states, on certain measures or using a Republic in both the State and National Levels] in our society is what decides law, but those laws must conform to our Constitution. This is done in part to protect the rights of all, to prevent to oppression of the majority on the minority.
Locke continues on, with liberty, freedom, and the consent of the governed. and its role in government. He explains how Monarchs and heredity come into working with this, and that the only legitimate government, that being the one chosen by the people. He questions whether a Monarchy is legitimate if it is not chosen by the people, and is a despot,
“every man being, as has been shewed[should], naturally free, and nothing being able to put him into subjection to any earthly power, but only his own consent”,
Much as the Colonists did in the years leading to and through the American revolution. This context appears in the Declaration of Independence again regarding the people, “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”. This among the most basic of American beliefs, that all of us are equal to one another, and that governments are in place to protect our rights, not enable the few to power.
Locke than goes on to society and the Government relationship. Here he writes about the purpose of government, and what it does,
“There wants an established, settled, known law, received and allowed by common consent to be the standard of right and wrong, and the common measure to decide all controversies between them”.
This is to say to protect one from their neighbor [or from outside threats], according to a fix law system, the Rule of Law, not the Rule of Man, as is mentioned in the Preamble of the Constitution. A couple of other premises follow, along with this one, ultimately lead to,
“the original right and rise of both the legislative and executive power, as well as of the governments and societies themselves”.
This is his argument for the bases of power to make law, and another to carry out its execution. We see this today, and it was also present under the Articles of Confederation, and Continental Congress [Though Congress made the Laws, the States executed them, if they chose to]. Today it is the jobs of the Congress to make Law, and the President to carry it out.
This leads Locke into,
“THE majority having, as has been shewed, upon men’s first uniting into society, the whole power of the community naturally in them, may employ all that power in making laws for the community from time to time, and executing those laws by officers of their own appointing; and then the form of the government is a perfect democracy: or else may put the power of making laws into the hands of a few select men”.
Locke has now laid the concept of a legitimate power base for a democratic Government. Following the laying of the concept of enacting, and executing laws, Locke argues for separating the two from one another, Legislative from the Executive. The separation of powers is nothing new to us, but in his time was not common. We would see this even before the Constitution, or the Articles of Confederation in individualStates Charters and Constitutions, which themselves separated power. The power to make law, the power to enforce law, and the power to interpret law [though not all states had the judicial separation as clear as others, and would come to be].
The Legislature is,
“the first and fundamental positive law of all common-wealths is the establishing of the legislative power; as the first and fundamental naturallaw, which is to govern even the legislative itself, is the preservation of the society, and (as far as will consist with the public good) of every person in it”.
He holds that the Legislature is the Supreme Power [we still do the same in making laws with Congress], and that the body is sacred and unalterable, and,
“have the force and obligation of a law, which has not its sanction from that legislative which the public has chosen and appointed”.
He does not however content that the Legislature have ABSOLUTE power, only SUPREME power. The difference being, in Absolute power it chooses what law is law without bounds or consequence, whereas Supreme power being it can act only within the limits of a contract [constitution], either by written law, or the people,
“First, It is not, nor can possibly be absolutely arbitrary over the lives and fortunes of the people”.
This is a similar concept as we see placed on both the Congress under the Articles of Confederation, and the Congress of the Constitution of 1787, which bounds and limits our law makers. He also contends,
“Secondly, The legislative, or supreme authority, cannot assume to its self a power to rule by extemporary arbitrary decrees, but is bound to dispense justice, and decide the rights of the subject by promulgated standing laws, and known authorized judges”.
This is placing a limit on the powers of the Legislature, once again the same we see with the US Congress under both the Articles of Confederation and Constitution. This is to prevent,
“Absolute arbitrary power, or governing without settled standing laws, can neither of them consist with the ends of society and government, which men would not quit the freedom of the state of nature for, and tie themselves up under, were it not to preserve their lives, liberties and fortunes”.
Locke next talks about the right of Property, that it cannot be taken without consent. similar to what we have in the Fourth and Fifth Amendments. Finally in regards to the Legislature [and the nature o government],
“Fourthly, The legislative cannot transfer the power of making laws to any other hands: for it being but a delegated power from the people, they who have it cannot pass it over to others”.
This is yet another concept we see in our own Constitution, powers are defined to each branch, and in our Federal System to each level [National and State]. One Branch cannot assume the power of another branch, nor can one branch delegate its power to another branch, this is the basis of our Checks and Balances system of Government.
Locke ends his discussion on the Legislature with the following
Locke follows the Legislature with the Executive,
“[the]need a perpetual execution, or an attendance thereunto; therefore it is necessary there should be a power always in being, which should see to the execution of the laws that are made, and remain in force. And thus the legislative and executive power come often to be separated”.
Locke does not talk very much about the executive, only a few paragraphs compared to the many in regards to the Legislature. His contention is the powers are separate, each with its own function. One being the make law, the other to enforce law [as well as foreign matters], same as the President would do in the Constitution.
Locke will also go onto speak of Usurpation and Tyranny,
“AS usurpation is the exercise of power, which another hath a right to; so tyranny is the exercise of power beyond right, which no body can have a right to”.
This was among some of the Claims against King George in the Declaration of Independence, for example.
· He has dissolved representative houses repeatedly, for opposing, with manly firmness, his invasions on the rights of the people.
· He has obstructed the administration of justice, by refusing his assent to laws for establishing judiciary powers.
· For imposing taxes on us without our consent;
· For abolishing the free system of English laws in a neighboring province, establishing therein an arbitrary government, and enlarging its boundaries, so as to render it at once an example and fit instrument for introducing the same absolute rule into these colonies;
· For taking away our charters, abolishing our most valuable laws, and altering fundamentally the forms of our governments;
· For suspending our own legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.
Though the King of England may have possessed at least some of these powers, in the eyes of the Founders, they were at the very least Tyrannical,
“Where-ever law ends, tyranny begins, if the law be transgressed to another’s harm; and whosoever in authority exceeds the power given him by the law, and makes use of the force he has under his command, to compass that upon the subject, which the law allows not, ceases in that to be a magistrate”.
The Colonies had been mainly self-sufficient in Market and Law, though not in Defense, from Britain, and had what they felt was the legitimate power usurped. This is when the United States decided to, “they are absolved from all allegiance to the British crown and that all political connection between them and the state of Great Britain”, because, “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”, or as Locke said, “In these and the like cases,
when the government is dissolved,
the people are at liberty to provide for themselves, by erecting a new legislative, differing from the other, by the change of persons, or form, or both, as they shall find it most for their safety and good”.
This is only a sample of Locke and how it influenced the Founders. Thomas Jefferson wrote, “"Bacon,Locke and Newton ... I consider them as the three greatest men that have ever lived, without any exception, and as having laid the foundation of those superstructures which have been raised in the Physical and Moral sciences”. I encourage you to read The Two Treatises of a Civil Government, the Constitution,Articles of Confederation, and Declaration of Independence, you will appreciate just what the influence was of Locke is to United States History, and how his ideals of:
“that the governments of the world, that were begun in peace, had their beginning laid on that foundation, and were made by the consent of the people”,
influenced those who influence us today.
Next time I will talk about Charles de Secondant de Baron Montesquieu, and his writing “The Spirit of Laws”, and how Montesquieu took the ideas of some, including Locke, matured them and provided the ground work for a Constitutional Democratic Republic. (Any comments or suggestion on how these type of articles can be improved, or what you would like to see, please leave in the comments box and check if you do or do not like this post)
