The American Declaration Commentary at www.jeromehuyler.com
Author of Locke In America: The Moral Philosophy of the Foundiing Era
In 1787, America's founders established a government they judged most likely to satisfy the ends set out in John Locke's Second Treatise and Thomas Jefferson's 1776 Declaration.
Every Article, Section and clause of the Constitution confirms the founders commitment to the "self-evident truths" Jefferson had proclaimed eleven years earlier. However,
Because those sacred truths were not clearly spelled out in the Constitution, the founding principles would not survive the founding era.
When did we first go amiss? How did we get from that day to this?
Men's natural and unalienable rights and all they imply for the organization of government, was never incorporated into the Constitution. The language is simply missing. Beyond that, the particular issues hammered out at the Constitutional Convention bore little relation to the issues the Patriots of '76 debated. The framers felt no need to justify to a candid world anything they were doing. They just had to do it, i.e., hammer out a new plan of Union.
Nonetheless, every Article, Section and clause of the Constitution testifies to the founders' abiding commitment to the full range of rights the Patriots declared eleven years earlier, "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."
That last pursuit introduced men's invaluable economic freedoms, the right to gain, keep, use, trade, or otherwise dispose of their freely-acquired possessions and grow as rich as they may.
Did that mean allowing for vast inequalities in the distribution of wealth and inviting striking disparities between rich and poor? Yes, without a doubt. And without objection. Locke had no problem addressing the common sense of the matter.
Though I have said....that all Men by Nature are equal, I cannot be supposed to understand all sorts of Equality: Age or Virtue may give Men a just Precedency: Excellency of Parts and Merit may place others above the Common Level;...and yet all this consists with the Equality, which all Men are in, in respect of Jurisdiction or Dominion one over another....being that equal Right that every Man hath, to his Natural Freedom, without being subjected to the Will or Authority of any other Man. (LIA p. 153)
While the connection between the founding acts of 1776 and 1787 is not readily apparent. there are some obvious continuities. The new frame of Union formed a bona fide social contract which the men chosen to represent "We the people" were free to accept or reject. Locke would have applauded the move. Well that unprecedented plan of Union was adopted by men who a short 11 years earlier turned the world upside down so as to secure the rights which all men naturally possess and to which they were sure they were entitled.
But there is a more profound reason to believe that the Constitution's framers were out to secure for themselves and their posterity those blessed rights. The Constitution is but a complex web of checks and balances. What had to be checked was government's power. What power had to be balanced with is Liberty - exactly as Jefferson and the other learned patriots of the Revolution understood it.. Now, to vindicate this view, a number of historical dots must be carefully connected.
First, it must be pointed out that Locke was not alone in transmitting his ideas to 13 troubled North American colonies. He had lots of help. A long line of intellectual intermediaries - British and American authors, essayists, pamphleteers, learned historians, lawyers and other public figures transmitted Locke's history-making message to every part of the English-speaking world.
Colonial Americans who never read a page or paragraph of Locke's Second Treatise were fully apprised of Liberty's irresistible appeal and wider implications for the organizing of political relations. What Americans came in contact with, in particular, was Britain's "Opposition Press." This Opposition Press carried Locke's ideas to colonial America.
In The Ideological Origins of the American Revolution, Bernard Bailyn, the preeminent historian of the period, described the influence of the 18th century Opposition press. Participants were also known as Commonwealthmen for their interest in the history of republics, ancient and modern. Whereas monarchies treated native populations as the personal property of a king who derived his power by God's Divine Right, republics or commonwealths were of the people, by the people and for the people. Bailyn wrote
What gave the ideology of the American Revolution its distinctive character,
what dominated the colonists' miscellaneous learning and shaped it into a coherent whole was the influence of the eighteenth-century Commonwealthmen . . . From the earliest years of the [18th]century, this Opposition thought...was devoured by the colonists.... It nourished their political thought and sensibilities...[so that] there seems never to have been a time after the Hanoverian succession when these writings were...absent from polemical politics.
No production played a larger role in shaping the colonial outlook than did Cato's Letters. Between 1720 and 1723 two Englishmen, John Trenchard and Thomas Gordon, published 144 Essays on Liberty, Civil and Religious. Collected and released in four volumes, Cato's Letters were immediately snapped up by the American colonists. It became the most widely read work the founders consulted as the Imperial crisis ran its course.
The themes developed by "Cato," were promoted by a long line of Opposition writers across the remainder of the 18th century. For the most part, these were the Dissenters, Britons who stood outside the established Anglican church. As such they couldn't vote, attend Oxford or Cambridge Universities or hold a wide assortment of public offices, including as educators in the public schools. Yet, being scientists, inventors, enlightened intellectuals and the fathers of their respective industries (men like Isaac Watt, Bolton, Richard Price, Joseph Priestly, etc.), they were among the most public-spirited citizens of their day. There was a lot for them to oppose.
In language virtually indistinguishable from Locke's, Trenchard and Gordon hammered out the natural and indispensable rights to which all men are entitled. But they captured other currents of thought, as well. They examined the history of republics ancient and modern. It drove them to form a somber assessment of human nature. It was this integrated package of intellectual currents that the American colonists would absorb by the fourth quarter of the 18th century.
Colonial Americans were among the most educated and well-read citizens of their day, or any other, for that matter. They studied the lessons of history and let those lessons light their path. They simply appreciated that whatever will happen already has. Only by attending to the critical lessons history could they avoid future calamity.
Trenchard and Gordon mastered those lessons and could transmit them in clear and compelling prose. No lesson mattered more than recognition of the awful influence of Power on human affairs. Nothing could be more important than suspiciously eyeing those who sought or exercised power over their societies. That is why, as Jefferson warned, the price of liberty is eternal vigilance
Informing "Cato's views were, first, a dark and disturbing portrait of human nature and, second, a series of reports that could not help but confirm that distressing portrait. Alluding to Thomas Hobbes' Leviathan (1651), Trenchard and Gordon write
"A great philosopher call[s] the State of Nature, a State of War; which Definition is true. . . . . Were all Men left to the boundless Liberty which they claim from Nature . . . every Man would be plundering the Acquisitions of another; the Labour of one Man would be the Property of another; Weakness would be the Prey of Force; and one Man's Industry would be the cause of another Man's Idleness.
This could be inferred not merely from the experience of all human societies, which experience "Cato" could ably recite, but from the very motor of human conduct.
"The World is governed by Men, and Men by their Passions; which being boundless and insatiable, are always terrible when they are not controuled: Who was ever satiated with Riches, or surfeited with Power, or tired with Honours?"
"There is nothing so terrible or mischievous, but human Nature is capable of it....[Men] seldom or never stop at certain Degrees of Mischief, when they have Power to go further; but hurry on from Wickedness to Wickedness, as far and as fast as human Malice can prompt human Power."
Cato thus warned all who would listen of the timeless conflict between Liberty and Power.
Power is naturally active, vigilant and distrustful;....It would do what it pleases and have no Check. Now, because Liberty chastises and shortens Power, therefore Power would extinguish Liberty; and consequently Liberty [has] too much cause to be exceeding [sic] jealous, and always upon her Defence.[ii]
"Cato" dwells endlessly on the loss of liberty in lands near and far. Much like Machiavelli, he discusses in endless detail, the cunning practices of corrupt princes and ministers. The effects of power were readily apparent, as they are to us today
Lut us look round this Great World, and behold what an immense Majority of the whole Race of Men crouch under the Yoke of a few Tyrants, naturally as low as the meanest of themselves, and by being Tyrants, worse than the worst...."[iii]
Cato concludes for his own times - and ours:
"Let us therefore grow wise by the Misfortunes of others," Let their Virtues and their Vices, and the Punishment of them, too, be an example to us; and so prevent our Miseries from being an Example to other Nations....In fine, let us examine and look narrowly into every Part of our Constitution, and see if any Corruptions or Abuses have crept or galloped into it.[
This wasn't idle chatter. What prompted Trenchard and Gordon to publish their 144 essays on "Liberty Civil and Religious" was the bursting of the South Sea bubble in 1720. They reported on the economic calamity the busted bubble left in its wake.
"What ruin...[and] Devastation of Estates!" cried "Cato." "What Publick Misery, and Destruction of Thousands, I may say Millions have we seen by the Establishment and wicked Intrigues of the present South Sea Company."[i] Nine of the first ten Letters "Cato" authored were devoted to exposing the principals and directors of the Company.
But it was not merely economic misfortune that these great monopolies invited. There was also the "Influence and Violence that they bring upon our Constitution." "Exclusive companies," "Cato" stormed, "alter the Ballance of our Government, too much influence our Legislature, and are ever the Confederates or Tools of ambitious and designing Statesmen."[ii] The process had been gathering momentum for some time, for by March 11, 1720, Trenchard and Gordon, in characteristic tones, desperately warned:
Public Corruptions and Abuses have grown upon us: Fees in most, if not in all Offices, are immediately increased: Places and Employments, which ought not to be sold at all, are sold for treble Values: The necessities of the Publick have made greater Impositions unavoidable, and yet the Publick has run very much in Debt; and as those Debts have been encreasing, and the People growing poor, Salaries have been augmented, and Pensions multiplied:...[iii]
Hysterical hyperbole? Of the South Sea disaster, the economic historians, Clough and Cole, write: "The crash rocked London with scandal and dismay. It was found that in its dealings with the government the company had resorted to corruption and had bribed most of the ruling Whigs, including thirty members of Parliament, the chancellor of the exchequer, and the postmaster-general, not to mention two of the King's mistresses."[iv]
Sir Robert Walpole, from his position as Chancellor of the Exchequer, pretty much engineered the fiasco. He was able to award lucrative government places, posts, pensions and powers to members of parliament who would promote his policies. All who succumbed to Walpole's wiles and participated had much to gain, over and above the rapidly rising value of the South Sea stock and public debt they snapped up - at least for a time. Critical checks and balances between independent departments of government went by the boards. Further corruption, consolidation and ruin had to follow. All that, along with John Locke's natural rights principles, was what "Cato" passionately conveyed to his countrymen, including to 13 North American colonies.
[i]. Cato's Letters, Vol. III, N0. 91 (August 25, 1722) p. 206: "How Exclusive Companies influence and hurt our Government."
[ii]. Ibid., Vol III, No. 91 (August 25, 1722) pp. 203, 206.
[iii]. Ibid., Vol. I, No. 20 (March 11, 1720) pp. 140-41:
[iv]. Clough and Cole, Economic History of Europe, p. 301.
The American colonists knew their history. Time and again, free societies succumbed to Power's alluring veneer. Corruption, once underway, invariably spread until human freedom became a fading memory of bygone days. It is from this perspective that Americans interpreted colonial relations with an Imperial motherland, fought a brutal War of Independence, then assembled in 1787 to compose the U. S. Constitution. With "Cato," Bernard Bailyn reports,
the colonists: studied the processes of decay and dwelt endlessly on the evidence of corruption they saw about them ...Everywhere, they agreed there was corruption---corruption technically in the adroit manipulation of Parliament by a power-hungry ministry, and corruption generally, in the self-indulgence, effeminizing luxury, and gluttonous pursuit of gain....
If that was the problem, what could be the solution? How could America avoid falling victim to what nearly 15 centuries earlier Aristotle called an endless cycle of corruption and decay? What would it take to restrain power and keep it from steadily expanding at liberty's expense?
It would be great if citizens remained virtuous, respectful of one another's rights and liberties. Even better if they remained politically engaged, i.e,. ever watchful of those who fill public offices and wield power. Being realistic, it was expected that most citizens would lose interest in public affairs, choosing to concern themselves with their private affairs.
The founders understood that what they called "civic virtue," i.e., patriotic participation in public life, rarely endured over time. In attending to their private affairs people grow insensitive to the slow, gradual loss of the precious blessings of liberty they for so long were able to take for granted.
In founding political societies, those concerned with preserving liberty would have to count on something other than eternal vigilance to stave off power's awful influence. Several arrangements recommended themselves
For one thing, specific guarantees could be incorporated into the legal frame. Hence a 'Bill of Rights would shortly be appended to plan mandating an absolute allowance for free speech, a free press, religious freedom, the right to petition government for a redress of grievances, and for the accused, a presumption of innocence, prohibition on self-incrimination and freedom from "cruel and unusual punishments."
In the end, however, many founders feared a mere reliance on "parchment barriers" would not guarantee them long-term protection. A guarantee of free, fair and frequent elections could offer some assurance. What was then known as a "Rotation of Magistracy," (i.e., term limits) was essential. Why? Because even the most honest of men entrusted with great power, will succumb to its devilish temptation if permitted to hold office for indefinite periods. Like power, itself, terms of public service had to be strictly limited. In the one full-length book Jefferson published, he cautioned:
The views of the present members are perfectly upright . . . . And this will be the case for some time to come. But it will not be a very long time. Mankind soon learn to make [self-]interested uses of every right and power which they possess, or may assume. The public money and public liberty, intended to have been deposited with three branches of magistracy, but found inadvertently to be in the hands of one only, will soon be discovered to be sources of wealth and dominion to those who hold them . . . . With money we will get men . . . and with men we will get money . . . .
Jefferson and his generation had studied the lessons of history. They knew that whatever will happen, already has happened. And, like the ever vigilant sentinel, they intended to stand guard against power's inevitable encroachments.
They should look forward to a time, and that not a distant one, when corruption in this . . . country will have seized the heads of government, and be spread by them through the body of the people. When they will purchase the voices of the people and make them pay the price. Human nature is the same on every side of the Atlantic, and will be alike influenced by the same causes. The time to guard against corruption and tyranny, is before they have gotten hold on us. (Notes on Virginia, pp. 120-21).
For those sharing Locke's commitment but also acquainted with Montesquieu, one other arrangement would be deemed absolutely essential. To preserve liberty, power would have to be separated into different departments and made a check on power, itself.
It is only by making power a check on power that liberty could withstand the ravages of time. In The Federalist Papers, written to persuade American to ratify the proposed plan of Union, James Madison explained the idea:
...To preserve Liberty, power must be placed against power in order that Ambition must be made to counteract ambition . . . It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. What is government itself but the greatest of all reflections of human nature?”
The U. S. Constitution is little more than a complex web of checks and balances, bestowing power on separate and independent political offices. This was accomplished vertically with the creation of three semi-sovereign branches of government - legislative, executive and judicial - as well as horizontally, via what is known as federalism. Thus every state retained its sovereignty with regard to internal law-making and regulation.
The lengths to which the Constitution goes to thwart the designs of ambitious and corrupt office-holders, those who would subvert the liberties of the people in the pursuit of power and riches, is abundant proof that the "more perfect union" the framers' labored to bring into the world was meant to be a land where the full complement of individual liberties the Patriots of '76 had fought for would be preserved.
Power, the corrupt propensity of governments to grow ever-more expensive and despotic, had to be carefully circumscribed. Montesquieu's towering study of The Spirit of the Laws (1748) became the founders' guiding inspiration. Building on the ideas of earlier writers in the classical republican tradition, Montesquieu taught that to prevent the triumph of power over liberty, three separate and largely independent departments of government had to be established, a legislative, executive and judicial branch. In this way each of the three centers of power could check the others.
One thoroughly obvious advantage stood out. That arrangement would allow a wall of separation between purse and sword. The legislature would hold the power of the purse. Only it could raise and appropriate revenue for legitimate national purposes. Without a means of raising revenue to support his untoward ambitions, the executive could do what it is his to do, wield the power of the sword and defend the nation from all enemies foreign and domestic. Steeped in ancient and modern history, the founders understood that should the power to raise revenue and deploy troops be granted to one-in-the-same authority, liberty's days would be numbered.
Dozens of additional provisions incorporated to thwart Power's awful influence testify to the founder abiding suspicion of power and fervent desire to secure the blessings of individual liberty across time.
Not surprisingly, given "Cato's" exposure of British corruption earlier in the century, Article 1, Section 6 of the Constitution stipulates that "No senator or representative shall, during the time for which he was elected, by appointed to any civil office under the authority of the United States . . . and no person holding any office under the United States, shall be a member of either house during his continuance in office." The prohibition of dual office holding speaks directly to the corruption occasioned by the South Sea scandalB of yore.
But nothing so dramatized the founders abiding fear of power as the delegates' reaction, to the plan of Union Alexander Hamilton introduced at on June 18, 1787. It was unlike anything previously discussed. Once entered into the record, the plan attracted nary a comment, criticism or snide remark. It was dead on arrival.
Hamilton did not fear political power, he was its greatest booster. The propensity would stretch into his time as George Washington's Secretary of Treasury. While members of Hamilton's lower, legislative bodywould be elected by the people and serve a single 3 year term, U. S Senators would be elected for life (i.e., serve on "good behavior"). Judges would be granted lifetime tensure, as well. And the executive who, too, would serve for life would be empowered to veto laws passed by Congress and state legislatures, alike The general government would also pick the governors of the states who would also be empowered to veto all enactments deemed to violate the provisions of the U.S. Constitution. Finally, land and naval forces, as well as state militias would be under the command of the general government. Here was a blueprint for consolidated, national supremacy. Hamilton concluded his remarks, and the matter was rendered moot.
The lengths to which the Constitution goes to defeat the ill-founded designs of dangerous ambition is abundant proof that the "more perfect union" the framers' labored to bring into the world was meant to be a land where the full range of individual liberties flourished. From all this it is hardly a stretch to conclude that the U. S. Constitution, every bit as much as Jefferson's Declaration, was intended, as it says, "to secure the blessings of liberty to ourselves and our posterity?
Unfortunately, the Constitution did not explicitly say that's what it was meant to do. It really took for granted the underlying truths commonly regarded as self-evident at the time. Unwilling to take those precious principles for granted, several state Constitutions were not so careless. The federal Constituion could have said, as the 1776 Virginia State Constitution written by George Mason did say:
That all men are by nature equally free and independent and have certain inherent rights, of which when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.
It could have said, as the Massachusetts Constitution written by John Adams in 1780 said:
All men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing and protecting property; in fine, that of seeking and obtaining their safety and happiness
Because the fundamental principles enshrined in Jefferson's July 4th Declaration never found their way into the U. S. Constitution, the founding principles would not survive the founding era.
When did the country first go amiss?
The violation of "equal protection," aka the origins of the American welfare state, can be traced to the second bill signed into law by our first president. The Tariff Act of 1789 allowed something never mentioned in the Constitution, itself, It allowed Congress to promote the "encouragement and protection of manufactures." Protective tariff walls could enrich domestic manufactures, but only at the expense of farmers, planters, ship-builders, seaport merchants, thousands employed in the maritime trades and every American who had to sell their wares in an "unprotected," competitive market but pay higher prices for the tools, textiles, utensils, weaons, furniture, textiles, etc. they bought,
All men might be created equal, but they would no longer be treated as such by Congress. For when Congress confers special benefits on SOME, it denies equal protection under law to ALL.
Under the direction of Treasury Secretary, Alexander Hamilton, additional public policies conducive to manufactures and the nation's "moneyed" interest followed. Some speculated in the public debt, buying federal and state certificates for pennies on the dollar. More than a few politically-connected players knew their notes would be redeemed at par, Debt certificates would be repaid the full face value. Original debt holders, the men who fought and bled for their country, desperate to pay their own debts, could keep the pennies the speculators had paid them. Land speculators, stock speculators and men seeking public subsidies also capitalized on the policies Hamilton would initiate.
How did we get from that day to this?
Once the nation decided that some of its citizens had a right not to go out and get, but to lobby Congress and be given, it confronted two irrepressible questions: Who else should be given, and how much should everybody get? There was only one answer: Politics. Cronyism and corruption had to follow; and it did. And American government grew and grew and grew and is still growing in power to this day.
Today, American politics is where counterfeit capitalists and entitlement enthusiasts go to get special benefits at their neighbor's expense. It's a common pass time practially no one cares to question. It comprises government's daily distribution of pork, bacon, earmarks, member items, constituent services, protective tariffs, farm and business subsidies, bank bailouts, pay-to-play, and "too-big-to-fail." And there is no end in sight. What, Americans apparently feel, is there to fear?