Origins of the First Amendment, Freedom of Religion: Early writings to 1787 (Part 7)

As discussed in part one of the origins of the Bill of Rights British tyranny had a lot of influence on what would eventually become the First Amendment in the Bill of Rights. Partially out of this tyranny and partially out of philosophy. Many writings occurred in the decades, even centuries before the American Revolution that expressed opinions which are found in the First Amendment.

A sample of these will be discussed since are well too many to going to depth on all of them, but a sample across decades and centuries will be explored here into the American Revolution.

We will look at the First Amendment in four different areas, freedom of religion, freedom of speech and the press, freedom of Association and freedom to petition. The reason for this is these can be distinctly referenced to in their specific areas though in all writings they may not be combined together.

British Tyranny, the Ninth and Tenth Amendments, The Origins of the Bill of Rights (Part 6:)

The ninth and 10th amendment to the Constitution of the United States have very deep roots. Roots that go back to the principal of what the structure of power is. The belief of the founders was a structure power went from the creator, to the people, to government in that order. A lot of world history and specifically Western history influence founding fathers, from the Greek and Roman empires Socrates and Aristotle, to John Locke and Charles Montesquieu. Though British tyranny did have influence in the development of the ninth and 10th amendments you have to go back to philosophy to understand the meaning behind the motivation of the ninth and 10th amendments. It can be summed up with natural rights and the proper order power. These basic values are the principal motivators behind the ninth and 10th amendments.

Here we will look at specifically natural rights and the order of power, without going through the entire genesis of human history, this will start with John Locke and his Second Treatises of government, and also Spirit of Laws by Montesquieu. Both authors and philosophers influence can be seen on founding fathers pre-revolutionary colonial history and writings, revolutionary history writings, early state governments, early charters, the Articles of Confederation, and the Constitution of the United States. These philosophers had a profound impact on the founding fathers just in themselves, and British tyranny and oppression only made these beliefs stronger.

More than just a Declaration of Independence

July 4 is a day of celebration in the United States, it is the anniversary of the Declaration of Independence, even though the actual vote for Independence took place two days before (July 2, 1776: The United States decides to Declare Independence). It is noted as the day the United States declared it will decide its own course, make its own rules, govern itself and would no longer hold or honor any allegiances to Britain or its crown. This was done with a magnificent piece of work written primarily by Thomas Jefferson with the assistance of  Benjamin Franklin, John Adams, Robert Livingston and Roger Sherman (June 11, 1776 the Committee of Five), the Declaration of Independence.

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).

British Tyranny, the Fifth and Sixth Amendments, The Origins of the Bill of Rights (Part 4:)

Unlike the first four amendments, the Fifth and Sixth Amendment is constructed of numerous parts. The First Amendment also contained several aspects, but is centered on protecting freedom of expression, and government interference in the right of conscience. Both the Fifth and Sixth Amendments are designed to protect the rights of a person accused of committing a crime, however the Fifth Amendment includes a clause concerning eminent domain.

Many of the aspects of both Fifth and Sixth Amendments have direct ties to tyrannical practices of the British during Colonial rule, just as the other amendments in the Bill of Rights. The lack of due process in Colonial times has a long history and affects more than just the Fifth and Sixth Amendments. The lack of due process also is apparent in the Fourth Amendment as a result of the Writ of Assistance to broad unspecific search warrants (The Origins of the Bill of Rights (Part 3: British Tyranny, the Fourth Amendment)).

British Tyranny, the Fourth Amendment The Origins of the Bill of Rights (Part 3:)

Much like the first three Amendments, the Fourth Amendment can be directly related to the conduct of the British during Colonial Rule. Through much of the Colonial time warrants from a judge were required to search a person or their property, similar to today. But this was not always the case, at times a broad warrant would be issued not specifying a person, place or even subject matter for the reason of a search or seizure. The Fourth Amendment was designed to prevent this.

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures , shall not be violated, and no Warrants shall issue , but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

British Tyranny, the Second and Third Amendments, The Origins of the Bill of Rights (Part 2:)

The Origins of the Bill of Rights (Part 1: British Tyranny, the First Amendment)

During Colonial rule, the British Crown and Colonial Governors were not shy about using the British Army or Navy against the Americans. The British Army was used to intimidate, seize property, enter homes or be quartered among the populace to present a posing threat. It was not only the Army that was used against the Colonists, but other Government forces or powers that were used against the Colonists, but Police, Tax Collectors, Justice of the Peace and on. The British Army or the other British Government Forces use against the populace is not short or limited even if not by direct force, just intimidation, and eventually led to the fighting to begin in 1775. This use of the Armed Forces directly led to two Amendments to the Constitution, the Second and Third.

Second Amendment

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

No one instance can be pin pointed as the need or desire for the Second Amendment, rather it is the entire scope of the American Revolution itself. The abuse of power by government against the people, the use of the military against the people, and the desire and unalienable right of the people to control their own destiny are at the root of the Second Amendment. This view is expressed in the Declaration of Independence;

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.

British Tyranny, the First Amendment, The Origins of the Bill of Rights (Part 1:)

The Bill of Rights when submitted to the States in 1789 contained 12 approved Articles by Congress, 10 of which would be ratified by the required States on December 17, 1791, and an additional one would eventually be ratified in 1992 and is now the 27^th Amendment. But it is the first 10 Amendments that will be explored here.

Why where these specifics things chosen to be protected? What caused them to be so important? Who and what where the driving factors in having a Bill of Rights at all? These things and more will be explored through the course of this discussion.

The first thing to look at is the root motivation of the clauses. What happened in the past that caused it to be so important to specifically protect these rights? What lessons in history were learned leading to the inclusion of these Rights. To answer these questions we need to go back to even before the American Revolution even started, to when the British Ruled the continent.

Each amendment will be broken up into individual components for analysis.

THE FIRST AMENDMENT

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Natural (unalienable) Rights

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.

These are words every American is probably familiar with and something every child reads in school. But what are “unalienable rights”?  The Declaration of Independence provides some insight to them in the text that follows, that among them are “life, liberty and the pursuit of happiness”, but if these are only part among others, what are the rest?

Perhaps the first best place to look is the primary author of the Declaration of Independence itself, Thomas Jefferson. Thomas Jefferson said, “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”¹. Francis Bacon influenced on separating religion and philosophy, Isaac Newton influenced him in science, but it was John Locke who influenced Thomas Jefferson on the Natural rights most.

So what is “Unalienable”? It simply means it cannot be alienated, or separated. These Rights can not be taken or separated from a person. They always belong to the individual, and never to anybody else. So what rights cannot separated from a person?

John Locke: Two Treatises of Government

John Locke discussed Natural Rights most predominantly in his books Two Treatises of Government, with the second treatises on Civil government in particular discussing Natural rights. It was Chapter II of Book II, the State of Nature that Locke talks about Natural Rights in 11 parts, this what Thomas Jefferson would later call the unalienable rights in the Declaration of Independence. Locke starts off with this statement,

Declaration of Independence influence on the Constitution

I have heard more than a few people say the Declaration of Independence has no impact on the Constitution. While from an absolute government can do and government can’t do aspect this is not false, it does undermine the fact the Declaration of Independence does in fact have significant relevance to the Constitution.

 

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.

 

So how does this relate to the Constitution? The comparisons between the Declaration of Independence and the Constitution, go beyond the most famous words of the Declaration that most of us learn in grade school, “We hold these truths to be self evident…”. It is almost a cause and effect between the two, with the Declaration being the cause or stating the purpose of government and the Constitution being the effect of those beliefs in creating a government. Though the Constitution does have many influences, the direct impact of what the Declaration states is clearly evident.

The first place we will look is the second paragraph of the Declaration.

Proceedings of Commissioners to remedy defects of the Federal Government, Annapolis in the State of Maryland

PROCEEDINGS OF COMMISSIONERS TO REMEDY DEFECTS OF THE FEDERAL GOVERNMENT, ANNAPOLIS IN THE STATE OF MARYLAND, SEPTEMBER 11th 1786

Why the Articles of Confederation failed.

The first attempt for the United States at a Constitution was the Articles of Confederation. The Articles of Confederation first came up for discussion on June 12, 1776¹. Knowing the inevitability that Independence would soon be a reality, a committee was formed to discuss and draft a Constitution for all the United States. It would not be until November 15, 1777² that they would be approved by the Congress, and not until March 1, 1781³ that they were finally ratified by all 13 States. Just a few days over eight years later, the Articles of Confederation would be part of history, being replaced by the Constitution on March 4, 1789⁴.

So why did the Articles of Confederation fail? Why did this first attempt at government not succeed? What in the Articles was wrong, or insufficient, or cumbersome that needed to be corrected? There were many reason the Articles of Confederation failed, many things happened in the United States and the government that exposed significant flaws. Perhaps you are one of the many that have heard it was because the Articles were not strong enough, that is part of the reason, but not the only reason. What the Articles of Confederation where is discussed here (The Articles of Confederation explained; What are they?).

The major problems of the Articles of confederation that will be addressed here are:

• Each State had One Vote in Congress.
• Nine States required to pass most Legislation
• Congress could not regulate Trade
• The United States could not raise its own revenue 
• The Congress could not enforce its laws
• The Government of the United States was a Single body
• The Congress could not suppress insurrection or rebellion, or protect the Nation from foreign threat.
• Amendments required a Unanimous Vote

The Articles of Confederation explained; What are they?

On July 2, 1776 the Second Continental Congress first voted to declare independence from the United Kingdom¹. Two days later, the final draft of the Declaration of Independence was accepted², and the United States of America was born. It was not until March 4, 1789³ that the current Constitution of the United States took effect, so what governed the United States from 1776-1789? For the most part, but for a very short time in 1776-1777⁴, it was the first Constitution of the United States, the Articles of Confederation Though shorter than the present Constitution (~3,400 words to ~4,500 words), the Articles of Confederation bridged the time from Independence and War to our current Federal Republic.

 

Even before the Congress voted to declare Independence from Great Britain in 1776, the fact it would happen was not much in doubt, it was only a matter of when. With a committee having been formed to draft up a Declaration of Independence on June 11, 1776⁵, the inevitability of self-government required action. The following day on June 12 a committee was also formed to, "prepare and digest the form of a confederation to be entered into between these colonies"⁶. This Committee consisted of (sic)

 

237 Anniversary of the Boston Tea Party, December 16, 1773

 

DECEMBER 16, 1773
The North American Colonies of the United Kingdom by the mid 1760 consumed over 1 Million Pounds of Tea annually, most of which was produced in another British territory, India. The main supplier of Tea to the colonies was the East India Company. But the East India Company was not allowed to sell its tea directly to the Colonies rather it had to sell its tea in London auction houses, before it was shipped to North America, this drove up prices of the imported product in the Colonies. This increase in the cost resulted in a very prolific smuggling market for tea which could be acquired at much lower costs.

This smuggling took a heavy toll on the East India Company in terms of revenue from Tea. By 1772 the East India company owed the British Government of 1 Million Sterling Pounds from loans, yet it still could not turn a profit over the smuggling market and the inflated costs of their own tea having to go through London Auction first.

General Welfare (Part 5) Final thoughts on the Constitution Convention

I think it is something of note that very little was debated in the Convention on the term General Welfare throughout the entire Convention of 1787 (that was discussed in Part 2, Part 3 and Part 4). This point I believe is amplified when one looks at how much other aspects of power debated feverishly. When one looks at how it may be contended to how much power General Welfare carries to how little debate revolved around it, when related to other comparatively smaller powers dealing with power at the Federal Level this must speak to what the true intention of what it was felt it meant.

But maybe the most telling non-debate of “General Welfare” was the total lack of it in the Slavery issue. As contended by some, general welfare was meant to give the Congress the power to make laws for the overall general welfare of the people or the Union. By using this clause by this meaning, would this not then give the power to Congress to outlaw Slavery or Indentured Service outright for the general welfare of those bound by it? But this possibility was never addressed once in the Convention by the accounts of the notes we have available to us today.

General Welfare (Part 4) Final Drafts and Debates of the Convention

After the Committee of Detail presented its final draft of a Constitution to the Convention on August 6th (as discussed in Part 3), debates began on the various aspects, provisions and clauses. The Constitution presented contained 23 Articles, with Article VII representing what would become Article I Sections 8, the Section that contains “general welfare”. Article VII of the proposed Constitution contains the enumerated powers as well as prohibitive powers similar to what would end up being Article I Section 9, among others.

Article VII Section Clause 1 reads:

• The legislature of the United States shall have the power to lay and collect taxes, duties, imposts, and excises.

Just as with the following 17 clauses after this clause, general welfare or any similar variant does not appear anywhere within these 18 clauses.

It would not be until the next day a reference to General welfare in some would appear, but it would be tied to Article III of the proposed Constitution. Article III concerned establishing the Legislature to consist of two bodies, each having a negative on the other [not giving assent to the others bills], and when it should meet.

What influenced the Founding Fathers: Charles de Secondat Baron de Montesquieu, and "The Spirit of Laws"

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”.

Charles Montesquieu was a 18th Century French Philosopher. Perhaps his most notable work was “The Spirit of Laws”, finished in 1748, translated into English in 1752. Much like Locke, he breaks his book into sub books, like chapters today. He covers a wide variety of topics from the Law of Nature, to the types of governments, Liberty and Slavery, Republics, money and constitutions. These are topics similar to Locke, but for the most part Montesquieu goes into much more detail on the topics in hand, and can more easily be seen on how they influence the Founding Fathers, and Drafters.

 

Much like Locke, one of the first items Montesquieu discusses is Natural Law, what rights one possess naturally by virtue. Here we can immediately see influences on the Declaration of Independence,

“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: What influenced the Founding Fathers: The Two Treatises of Government

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

• “First, They are to govern by promulgated established laws, not to be varied in particular cases, but to have one rule for rich and poor, for the favourite at court, and the country man at plough.

• · Secondly, These laws also ought to be designed for no other end ultimately, but the good of the people.

• · Thirdly, They must not raise taxes on the property of the people, without the consent of the people, given by themselves, or their deputies. And this properly concerns only such governments where the legislative is always in being, or at least where the people have not reserved any part of the legislative to deputies, to be from time to time chosen by themselves.

• · Fourthly, The legislative neither must nor can transfer the power of making laws to any body else, or place it any where, but where the people have.

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)