by W.B. Allen
©
W. B. Allen 1987
The First Continental Congress, the Suffolk Resolves
Congress, assembled fifty-five delegates from twelve colonies in Philadelphia
in the fall of 1774. Little did anyone suspect, at that hour, that a like
convention of fifty-five delegates from twelve states would assemble in Philadelphia thirteen years later to apply the
capstone to the work they had begun. Nevertheless, that is what happened in
1787, when the Constitution became the capstone of the Revolution.
That capstone was carved out of a quarry of mixed
elements—the considerations, the adaptations, the carefulness, and the
frustrations—which eventually yielded an aspect of unity and permanence for the
world’s first new nation. It would be a mistake, however, to derive the meaning
of the Revolution from the events of that thirteen-year period alone. The
Revolution did not spring suddenly, and spontaneously upon the world. It did
not even begin in 1760, as the prevailing strain of historical interpretation
would incline us to believe.
The best method for grasping the meaning of the
American Revolution is to apply a tool heretofore eschewed by scholars: to
wit, unitary interpretation. What that means is, rather than seeking to force
the events of that happy era to fit paradigmatic frames imported from later
criticism (whether “country versus court parties,” “republican ideology,”
“Lockean individualism,” “Scottish benevolence,” or anything else), one should
first try to master the expression of the meaning of the Revolution in terms
and explanations derived directly from the events themselves.
Pursuing that approach, one learns that the movement
toward the Revolution began well in advance of the struggles with Britain in
the 1760s and not merely as an imperial struggle. Indeed, its earliest
manifestations took the form of criticism of colonial abuses of liberty.
It was in the context of seeking out limitations on the colonial
exercise of power that Americans so frequently invoked their ancient rights
under the British Constitution. This process reached its peak in the use made
of the work, English Liberties, by
Henry Care. It was no accident, to be sure, that Care was probably the most
radical of post-Settlement Whigs. Yet, he did not go far enough for the Americans.
In the case of men like Sam Adams, his virulent anti-popery survived far better
than his scholarly reliance on English law.
Contemporary scholarship errs in asserting that
Americans did not meaningfully divide over questions of rights and liberties
prior to the Revolution. They are also wrong to minimize the influence of
modern political philosophy in the direction that debate ultimately took. Not
only was it the case that the British constitution ceased to offer adequate
authority from the moment the imperial power itself came into question (the
evidence for which may be gleaned from the Massachusetts General Court’s
instructions to its British agent, Jasper Mauduit, in 1762, which instructions
elevated John Locke above immemorial usage).
Well before this Americans (in small groups to be
sure) began to search for a more express articulation of the foundations of
liberty. In the late 1740s, a small group in Massachusetts, Sam Adams at its
center, had already opened the quest. They published a short-lived but frankly
political journal, taking North America and Americans, not just Massachusetts,
as the object and subjects of their attentions. One member of this group,
Daniel Fowle, provides the most dramatic evidence of the direction in which
their thoughts turned. His A Total
Eclipse of Liberty bridged the old and new worlds; aimed at exposing abuses
of power in Massachusetts; it celebrated the English constitution and English
liberties. At the same time, however, Fowle explicitly introduced reason and
the “poor dim light of nature” as the standards of political judgment. It is
therefore no accident that his short essay contains all the essential forms and
objectives of Revolutionary rhetoric, including the robust version of the
consent of the governed and an express assertion of the right of revolution.
Fowle derived his principles from the broad tradition
of defenses of liberty in the west, including the work of Montesquieu. The
latter is significant because of the fact that Fowle quotes from Montesquieu
within less than two years of the appearance of that philosopher’s work in an
English translation in London. He used those passages in the Spirit of the Laws which defined liberty
(the famous sixth chapter of Book XI), the same passages which recur throughout
the founding era, culminating in Federalist 47 in 1788. Fowle brought out the
apocalyptic and revolutionary nature of Montesquieu’s teaching: Where liberty
(Montesquieu had said “political” liberty, but Fowle altered it) is not
assured, man must fear man; without the separation of powers, laws will be
tyrannically framed and executed; without the separation of powers, judges act
with all the violence of an oppressor (he corrected the translator’s “violence
and oppression”); and, everything would collapse if the different powers were
exercised by the same man or men.
What is of great interest in this story is the fact
that Montesquieu was also the last Enlightenment thinker on the continent who
could have left such a legacy. American liberty alone preserves historical
evidence of the path not taken by Europe. Fowle’s approach brought the light of
nature to the support of law. Following the citations from Montesquieu a
lengthy citation from Henry Care entered, and in which Fowle fastened on those
“Rights that from age to age have been deliver’d down to us from our Renown’d
ForeFathers...” (Let us not forget that the “national” holiday before Fourth of
July was “Forefathers Day”). Needless to insist, it would be a miracle if the
“poor dim light of nature” concurred in every bequest from the past. Still, the
singular freedoms enumerated by Care all eventuated in “this Truth, that when
Liberty is once gone, even Life itself
grows insipid, and loses all its Relish.”
A Total
Eclipse divides into four parts,
after the “Preface.” The last part is an appendix, entitled, “The Original of
Civil Government, the Rights of the People, etc.” In the final section Fowle
recurred to the ultimate foundation of government, the right of consent, rather
than to immemorial usage. He took as his authoritative model, Roman Liberty,
and the subjection of the “chief rulers” to the will of the people. This
democratic sentiment flew in the face of British tradition, which entertained a
notion of an original contract only as a point of departure and to which no
return was conceivable. Under English principles, as Blackstone was later to
codify, the people’s original authority, once alienated, was alienated for
good.
Fowle was forced to go beyond
English traditions; he was forced to argue for enforceable limits on all
delegated authority. In the course of his argument he adduced all of the
principles which were later to coalesce in the ideas expressed in the
Declaration of Independence. He envisioned two contracts, an original and an
operational or ongoing contract, identifying the people as the true sovereign.
He did not overthrow the divine right of kings; he added to it a superior
divine right of the people. He plainly conceived a written constitution as the
organic tie between rulers and communities. And he sought some form of election
of rulers by the whole society, albeit unspecified.
At the heart of Fowle’s view
of the origin of civil government, then,
is a view of representation which itself reposes on a principle of right
conceived as deriving from the nature of things—human equality (“there is no
middle state betwixt Slavery and Freedom”). That is precisely the point which Fowle drew from his reading of
the Spirit of the Laws. What seems to
have prevented Montesquieu’s plunge into the European abyss was a view of
government as conditional, not total, itself deriving from a view of the
individual man, of human equality as the fundamental datum.
Montesquieu made liberty rather than virtue the
fundamental organizing principle of political life and completely altered the
modern conception of politics. As virtue required a comprehensive, all-powerful
state, so liberty called into being the idea of a state limited by the superior
prerogatives of citizens. That teaching inspired on the North American
continent a new English constitution, one in which the roles of the people and
their parliament had been reversed. The people became for the first time in
history the exclusive guardians of their constitution, conformably to the
vision of Daniel Fowle. The new theory of representation had become the
concrete form of the idea of liberty in the modern world.
Given the immensity of the transition required, it is
not to be wondered at that it took a long time, nor that it could not be consummated
merely by declaring the Revolution. What the Federalist Papers called the establishment of good government by
“reflection and choice” required two conditions to be fulfilled.: first, the
right to reflection and choice (assured by success in the Revolutionary War)
and, second, the opportunity for reflection and choice. George Washington led
the way toward the second when, in 1783, he sent forth his call to the nation
to fulfill the Revolution by the deliberate construction of adequate governing
institutions. The ultimate Constitutional Convention formally responded to
Washington’s calls. It also responded substantively, as a review of its
deliberations will disclose.
No one apart from the delegates and their secretary
listened to the debates of the Constitutional Convention. They resolved upon
secrecy for their proceedings in order to foster a spirit of openness and
accommodation—a willingness to change opinions (and votes) without fear of public embarrassment. Although some hints
leaked from the Independence Hall conclave, in the main the secrecy succeeded.
We, however, are fortunate to possess the scrupulously preserved notes of James
Madison, which unlock the doors of the Convention. It was half a century after
the event before Madison’s notes were made public. We now stand at two
centuries remove—able to peer in and marvel at the work that was wrought. In
1787, no one else listened in, but we know from the ratification of the
Constitution that the people ultimately heard what was urged upon them.
In addition to the personalities of the framers, all
of the essential themes are found there: natural rights, national power,
federalism versus nationalism, separation of powers, representation, electoral
mechanisms, the idea of a. written constitution, virtue versus self-interest,
presidential powers, the power to tax and to regulate commerce, judicial
review, and the idea of republicanism—among others.
In sum, the Constitutional Convention stands as an
event of urgent importance and also provides means for each of us to ponder
those enduring questions about the American constitutional order which are
rooted in our lives yet. Of these last, none are more important than the
question, Does the Constitution fulfill or derail the promises of the
Declaration of Independence, that organic symbol and expression of the spirit
of the American Revolution.
To constitute a genuine capstone of the American
founding, the Constitution must fulfill the promises of the Declaration. James
Madison and Alexander Hamilton claim within the pages of The Federalist Papers that it does so. Essayists from Georgia to
Massachusetts, debating ratification, said it had to do so. Benjamin Rush
urged:
PATRIOTS of 1774, 1775, 1776—HEROES of 1778, 1779,
1780 come forward! your country demands your services!—Philosophers and friends
to mankind, come forward! your country demands your studies and speculations!
Lovers of peace and order, who declined taking part in the late war, your
country forgives your timidity, and demands your influence and advice! Hear her
proclaiming, in sighs and groans, in her governments, in her finances, in her
trade, in her manufactures, in her morals, and in her manners, ‘THE REVOLUTION
IS NOT OVER!’
The
Declaration required the Constitution. If the Revolution was not over in
February, 1787, it lacked the capstone of a Constitution and lasting government
to ensure its promises.
The problem, however, was whether the Declaration’s
standard of equality and consent was preserved in the Constitution. To that end
what was necessary was a Constitution truly reposing on the consent of the
governed—one which recognized in the acknowledgment of equality that no human
being had a title to rule over any other human being without his consent. The
Constitution’s response to this challenge was a limited government, operating
by just majority rule fashioned out of the restraints of separation of powers
and checks and balances, an extensive territory, and a Constitution placed
beyond the capacity of mere representatives (including justices) to alter.
What made such
qualifications of governmental power necessary was nothing less than the determination to fulfill the
promises of the Declaration. In that way alone can we see the Constitution as
the capstone of the founding. Did the founders succeed? Every careful reader
must consider that question—and judge. Abraham Lincoln read carefully, which
led him to conclude,
The Union is much older than
the Constitution. It was formed in fact, by the Articles of Association in
1774. It was matured and continued by the Declaration of Independence in 1776.
It was further matured ... by the Articles of Confederation in 1778. And
finally, in 1787 ... the Constitution was ‘to form a more perfect union.’
The Constitution a capstone,
set in place by fifty-five men from twelve states, meeting in Independence
Hall, in Philadelphia, declares the modern story of liberty.