Introduction: The document that changed everything in America …
When the Constitution was written, there was a lot going on at that time! The questions of this series. My aims in this series.
Interior of Independence Hall
Influences on the Constitution
Hobbes and Locke: Anarchy, social contract theory, and unalienable rights
The Founding Fathers never tried to “reinvent the wheel.” They used the good ideas of those that came before, and then added their own improvements. Thomas Hobbes. Without the rule of law, all is chaos. Laws are a necessity. John Locke. Alienable rights. Unalienable rights. Social contract theory protects our most important rights; as the Declaration of Independence well knew. Conclusion: The legacy of Hobbes and Locke is important.
Thomas Hobbes
Public and private property: When can you take away someone's private property as taxes?
Communists believe in “abolition of private property,” and Locke debunked this claim before Karl Marx was even born. Food must belong to us as soon as we obtain it; and if we have no private property in this food, we starve. No one else can eat this food after we've chewed it or swallowed it, and our lives depend on the property claims that we make when we eat food. Marx made no exceptions to this “abolition of private property” (or at least didn't admit any). Although he supports private property, Locke is not against having public property. When is taxation legitimate? Locke's answer: One cannot take away someone's property without the owner's “consent.” Paying taxes can still be voluntary, if we have a say in the government that is taxing us. Thus, compulsory taxing power can be all right. The consent of the majority is required for any legitimate taxation. “No taxation without representation”: The American Revolution. Property rights are not “unalienable,” I should acknowledge; but they are still “rights” that can be transferred only voluntarily (with the owner's consent). Even Marxists recognize some private property rights. The Declaration of Independence enshrines private property rights in America. Conclusion: “Thou shalt not steal” is as relevant today as ever.
John Locke
Criticisms of social contract theory: Did all governments begin by a "social contract"?
What is social contract theory, and why is it important? Like Hobbes, John Locke believed in the “state of nature,” and in social contract theory. This idea influenced James Madison (as quotations from the Federalist Papers show). Locke believed that “all peaceful beginnings of government” came from consent of the people. David Hume was a critic of this historical account, and of social contract theory in general. He believed that governments can be legitimate even without the beneficial “consent of the people” (although this would be the ultimate ideal for him). Regardless of the historical origins of government, the Constitution is itself a social contract, as our next post will show.
David Hume
Responses to the criticisms: Maybe not, but the Constitution is itself a SOCIAL CONTRACT
A replica of Independence Hall, which is not surrounded by
high-rise buildings (that don't belong in the period) the way the real one is today
I now turn to some hypothesized “influences” upon the United States Constitution. The Founding Fathers admired some of Plato’s work, but slammed his book “Republic.” John Adams also slammed Rousseau, for making the French people into “slaves.” Did the Native American tribes called the “Iroquois Confederacy” influence the Constitution? John Adams recognized some degree of separation of powers among the “modern Indians,” but also said that their dignities were “more often hereditary,” and did not mention the Iroquois specifically. Defenders of this theory also point to a Thomas Jefferson letter and a Benjamin Franklin letter, neither of which really supports their case. Conclusion: None of these things actually influenced the United States Constitution. Would criticizing the Constitution make you an anti-Iroquois (that is, anti-Native-American) “racist”?
Iroquois painting of Tadodaho receiving two Mohawk chiefs
Magna Carta (1215): The creation of Parliament, and the limits upon the power of the King
What do the Robin Hood legends have to do with the Magna Carta? The beginnings of Parliament – or at least, the House of Lords – can be traced to this. Influence on the Due Process Clauses of the United States Constitution. Influence on the Habeas Corpus Clause of the United States Constitution. The Magna Carta had more influence on our Bill of Rights than on our original Constitution, as can be shown by a quotation from Alexander Hamilton in the Federalist Papers. It would fall to other Founding Fathers to ensure that a federal Bill of Rights was passed. The Magna Carta's influence was felt throughout the English-speaking world later on.
Magna Carta
Sir Edward Coke: The Petition of Right (1628) and other important writings
Some Founding Fathers were against having a “bill of rights” in the Constitution, while others were for it. Sir Edward Coke wrote the famous “Petition of Right” (which was adopted in 1628). In the United States Constitution, the Petition of Right influenced the Third Amendment, the Fifth Amendment, and the Sixth and Seventh Amendments. Mr. Coke's doctrine that “a man's home is his castle” also influenced the Fourth Amendment. Conclusion: The “Petition of Right” was a major influence on the Constitution.
Sir Edward Coke
Fundamental Orders of Connecticut (1639): The first written constitution in the world
Some consider this document to be the world's first written constitution. It was only twenty years earlier that the Mayflower Compact had been signed in 1620, which was a social contract for the Colony of Plymouth. The “Fundamental Orders of Connecticut” (passed 1639) were likewise a social contract. They specified procedures for the election of a Governor (and other magistrates). If the magistrates don't call a court, the freemen shall “petition” them to do so. In the said general courts shall consist the “supreme power of the Commonwealth.” Procedures for taxation, and the decisions about how these burdens are to be distributed. Conclusion: State constitutions (including this one) had a great influence for good.
John Winthrop, who delivered the Fundamental Orders of Connecticut to London (later Governor of the Connecticut Colony)
Massachusetts Body of Liberties (1641): A major influence on the United States Bill of Rights
This document is called “Liberties of the Massachusets Collonie in New England” (1641). Some degree of freedom of speech and petition (influenced First Amendment). No man can be sentenced twice for “the same crime” (influenced Fifth Amendment). No man shall be forced by torture to “confesse” (influenced Fifth Amendment). Protections of life and property (influenced Fifth Amendment). Restrictions on eminent domain (influenced Fifth Amendment). Right to trial in criminal cases (influenced Sixth Amendment). Right to counsel in a trial (influenced Sixth Amendment). Right to challenge jurors (influenced Sixth Amendment). Right to reasonable bail (influenced Eighth Amendment). Restrictions on “cruel” bodily punishments (influenced Eighth Amendment). Conclusion: The Massachusetts Body of Liberties influenced the federal Bill of Rights.
Oldest wooden jail in America, built in 1690 and operated until 1820 - Barnstable, Massachusetts
Sir William Blackstone: Comments on the Habeas Corpus Act (1679), and Bill of Rights (1689)
When people talk about the “Habeas Corpus Act,” they usually mean the one passed in 1679. To praise the Habeas Corpus Act, Alexander Hamilton quoted from Sir William Blackstone, who had once referred to the Habeas Corpus Act as a “second magna carta.” A “trenchant reference to Blackstone” could quickly end an argument at this time. The English Bill of Rights (passed in 1689) had a major influence on our own Bill of Rights. Specifically, it influenced the First, Second, and Eighth Amendments to the Constitution. Conclusion: These were both foundational documents, for Britain and America.
Sir William Blackstone
Virginia Declaration of Rights (1776): Another influence on the United States Bill of Rights
George Mason actually refused to sign the Constitution of the United States. He wrote the Virginia Declaration of Rights in May 1776 (ratified June 1776). It influenced our federal Bill of Rights in many ways, as I will show with some relevant quotes. Freedom of the press is “one of the greatest bulwarks of liberty” (influenced First Amendment). A well-regulated militia is composed of “the body of the people” (influenced Second Amendment). Restrictions on search and seizure, and on general warrants (influenced Fourth Amendment). No compelling man to give evidence against himself, or be deprived of liberty (influenced Fifth Amendment). Right to speedy and fair trial by “impartial jury” (influenced Sixth Amendment). Right to “trial by jury” in various kinds of lawsuits (influenced Seventh Amendment). No excessive bail or fines, or “cruel and unusual punishments” (influenced Eighth Amendment). Free exercise of religion, according to “dictates of conscience” (influenced First Amendment). Thomas Jefferson authored the Virginia Statute for Religious Freedom (ratified 1786), and said that the rights hereby asserted were “of the natural rights of mankind.” Jefferson mentioned this authorship on his gravestone, where he did not mention his presidency. Conclusion: The Virginia Declaration of Rights was also a major influence on the Bill of Rights.
George Mason
The Declaration of Independence (July 4, 1776): Philosophically important
The Declaration of Independence is remembered as a dramatic moment; but it was also something else, which may have been even more important. Its ideas drew on prior philosophers (specifically John Locke), and here are the quotes to prove it. “Life, Liberty, and the pursuit of Happiness.” “Life, liberty, and estate.” “Most likely to effect their Safety and Happiness.” “Most for their safety and good.” “More disposed to suffer … than to right themselves.” “More disposed to suffer than right themselves.” “A long train of abuses.” “A long train of abuses” (repeated). My conclusions from the comparison. Jefferson responded to accusations of plagiarism, but never denied being influenced by John Locke. Nor did he think he ever had to come up with something new here. Conclusion: Locke did indeed influence Jefferson.
United States Declaration of Independence - July 4, 1776
The Constitution of Massachusetts was originally written by John Adams, and remained unchanged until the 1820s – long after the founding era. The Massachusetts Constitution has a section entitled “The Frame of Government.” James Madison admiringly quoted the document’s philosophy on separation of powers. A two-house legislature, elections, an executive veto, and an impeachment process. Some degree of prohibitions on titles of nobility. albeit with one possible exception). Prohibitions on bills of attainder and ex post facto laws, using other phrases besides these. The privilege of the “writ of habeas corpus.” Limited support for religious freedom, with exceptions passed over Adams’ objections. Influence on other amendments in the federal Bill of Rights, as described in next post.
The title page of the first published edition of the original 1780 Massachusetts Constitution
“A Declaration of the Rights of the Inhabitants … of Massachusetts.” “Liberty of the press” (influenced First Amendment). Right of peaceable assembly, and right to petition the government (influenced First Amendment). A right “to keep and to bear arms” (influenced Second Amendment). Restrictions on quartering soldiers in people’s homes (influenced Third Amendment). Protections against unreasonable searches and seizures (influenced Fourth Amendment). No one to be illegally deprived of life, liberty, or property (influenced Fifth Amendment). Restrictions on eminent domain (influenced Fifth Amendment). Right to trial by jury in criminal prosecutions (influenced Sixth Amendment). Other rights of the accused (influenced Fifth and Sixth Amendments). Right to trial by jury in lawsuits (influenced Seventh Amendment). No excessive bail or fines, or cruel or unusual punishments (influenced Eighth Amendment). The state retains every right not delegated to federal government (influenced Tenth Amendment). Conclusion: The Massachusetts Constitution influenced the federal Bill of Rights.
The first part of the Massachusetts Constitution, entitled “A Declaration of the Rights of the Inhabitants of the Commonwealth of Massachusetts”
Is there a difference between a “democracy” and a “republic”? The Founding Fathers thought there was … They believed that direct democracy was a dangerous thing, which led to tyranny of the majority. The concepts “democracy” and “republic” come from the Ancient Greeks and Romans. A faction has interests “adversed to the rights of other citizens.” Direct democracy offers no cure for these “mischiefs of faction,” but a republic does. A larger republic actually makes it harder for factions to gain power. Majority rule vs. minority rights.
James Madison
Polybius: A commentator on the “mixed constitution” of the Roman Republic
Polybius was present at the Fall of Carthage in 146 BC. Aristotle had once discussed the theoretical possibility of a “mixed government,” but Polybius may have been the first one who recognized its advantages. James Madison would later use Polybius as a source in the Federalist Papers, and Montesquieu had already used Polybius as a source in “The Spirit of Laws.” Who gets the credit for this theory? (In a way, all of them do … )
Polybius
Baron de Montesquieu: Theory of separation of powers and checks & balances
The influence of Montesquieu on the Constitution. How to prevent bad government: Keep any one group from getting too much power. Concentrated power is inherently dangerous, and leads to disastrous tyranny and oppression. The oracle on this subject is “the celebrated Montesquieu.” The British government was the model for Montesquieu, which he used as evidence for his theory. The need for checks & balances to make this work. Saying that this leads to “gridlock” misunderstands the entire purpose of checks & balances. The disagreements involved here do not so much produce conflict as reflect it, and give it a voice. Separation of powers makes it so that “one man need not be afraid of another.”
Baron de Montesquieu
Articles of Confederation (1781): The immediate predecessor of the Constitution
First of all, what is a “Confederation”; and how does it differ from the “Confederacy”? The Declaration of Independence created thirteen “independent states,” which were only united into a “perpetual Union” under the Articles of Confederation. Under the Articles of Confederation, the Congress consisted of only one house (just as before). The federal government had a judicial branch on paper, but not a real one in practice. There was also no executive branch to enforce laws (even on paper), and no real power to tax! No power to regulate trade, either; and states retained every power not “expressly” delegated. Secession from the Union would have been illegal (even under the Articles of Confederation), as the following clauses from the Articles show. Did James Madison contradict himself in the Federalist Papers about the Articles? Perhaps not … They had many good provisions that influenced the final Constitution, and many bad provisions that needed to be replaced.
Articles of Confederation and Perpetual Union
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