Schedule

Now we read the Constitution, as it is the next selection in The Founders' Constitution. We will only take a cursory overview of the document on this blog, with posts on the Congress, the Executive, and so forth. Afterwards, we will move on to a selection from Locke.

The Northwest Ordinance of 1787 (I.1.8)

Coming upon the heels of previous ordinances of 1784 and '85, the 1787 ordinance set up a system of government and of the creation of new states in the territory that would be Ohio, Illinois, Michigan, Indiana, Wisconsin, and part of Minnesota. The settlers in the territory needed government and there needed to be a system of dividing and purchasing the land. Whereas Jefferson's 1784 ordinance allowed for the rapid creation of many small states, the Confederate states of the east wanted to slow this proliferation down in order to maintain their relative power longer. So, the ordinance of 1787 stipulates that normally 60,000 settlers would be required for a region within the territory to become a state, whereas Jefferson's ordinance had allowed for statehood with fewer settlers.

the 1787 ordinance made provisions for the inheritance of estates and for a governor of the territory appointed by Congress, a secretary, and a court of three judges. The governor and judges were to decide which laws of the original states to enforce in the territory. The governor was to be the commander in chief of the territorial militia. The general assembly was to consist, in addition to the governor, of representatives from counties of at least 5000 free adult male inhabitants. These were to be elected by the landowners who had been citizens of any of the original states. Congress would choose five representatives from ten nominated by the territorial house of representatives to sit in the legislative council. Hence we have a bicameral legislature with a house and a senate.

The document includes articles resembling a bill of rights:

1. The settlers' freedom of religion was protected.

2. The territory was subject to rule of law: habeas corpus, trial by jury, proportional representation, etc.

3. Schools were 'encouraged' because 'religion, morality, and knowledge' were of value. Indian property rights were to be respected and Indian friendship was to be valued.

4. The territory was to be part of the U.S. and subject to the Articles of Confederation, to federal taxation, and to a share in the liability for the national debt.

5. Three to five states would be formed. When any state had 60,000 inhabitants, it would be admitted in full standing into the confederacy of states. (Admission with fewer than 60,000 was countenanced in the case of regions with republican government.)

6. Slavery was made illegal in the territory. However, slaves escaping to the territory from any of the states may be returned to their masters.

Schedule

We'll next be moving on to The Northwest Ordinance and The Constitution. Then, we'll take in some Locke, Montesquieu, Thomas Gordon, and Hume.

Articles of Confederation, March, 1781 (I.1.7)

Finished in 1777 by a committee led by John Dickinson, the articles would establish a United States of America without as strongly centralized a government as the one that later took form. "Each state retains its sovereignty," save for a few powers specified in the document as retained by the Congress. The states would come to each other's defense. They would allow a citizen of each free passage in and out of the others. The states' criminal justice and court systems would cooperate with one another.

Each state would send from two to seven Congressmen to Congress, and each state would have one vote in Congress. In Congress they would have freedom of speech and debate.

No state would have the right to make treaties, alliances, or trade agreements without the consent of Congress.

The states would pay the cost of their common security by contributing money proportionately to the value of their land. There would be no direct taxation of the individual by the central government. This seems to me to be the key sense in which power was less decentralized under this document than it eventually came to be. Without national individual taxation, central power would be stunted. The indirect route by which it would be raised would be more deliberative and therefore less confiscatory. Without sufficient money, there is no great power. I don't mean to imply that the Constitution of the United States that was ratified a few years later was any less anti-centralization in this sense. But it established a larger centralized government; such a thing requires money.

In any event, the document says that Congress would retain authority to set foreign policy, including war, to settle disputes between states, to set currency values, to regulate trade, to establish a post office, to borrow money on the credit of the United States, and to establish a military. But only if nine states assented to it could any policy be set in any of these areas.

Also, Canada was offered admission into the union; other states could be admitted if at least nine states consented.

Massachusetts Constitution, March, 1780 (I.1.6)

This is a lengthy document and a close reading of it lies beyond the purposes of this blog. A few observations will suffice.

Striking, but not surprising, given Massachusetts history (the Puritans having left England for reasons of religious intolerance, wishing to find a place where there was more of it), is the salience of religion in this document. The second and third articles of the first part of it state that there is a duty to worship God, a right to worship him according to one's conscience, a duty of the state to require local governments to fund and provide for public Protestant worship, and a right of the state government to require all subjects of the state to attend these services. Each subject may earmark his taxes to go for whichever Protestant service he prefers, all such sects being equal before the law.

Much of the rest of the document resembles the U.S. Constitution and the Virginia Constitution, with the three branches of government and so forth. The text also requires the state to promote civil society, literature and morals - including punctuality and generosity!

Declaration of Independence, July 1776 (I.1.5)

It is self-evident that all men are created equal and have rights to life liberty and the pursuit of happiness. This idea is momentous. The rest of the text is a familiar list of complaints about the tyrannical interference by the English government, and a formal breaking of the bond with England. We will take a look only at the famous line.

The term "self-evident" refers to the property a truth has of being obviously true to anyone who understands it. For instance, it is self-evident that orange is more like red than it is like blue, and that scotch whiskey is not the best bowling ball in the world (because it is not a bowling ball.) No proof need be given for these things, in order for their truth to be grasped just by understanding them.

Similarly, to one who understands morality and human beings, the equality of human beings and their basic rights to life, liberty and the pursuit of happiness are obvious. As for equality, the Founders did discuss the rough equality in strength and wits of human beings, which would prevent any one of them from subjecting all the others. But the equality of the Declaration is that of moral desert, a wholly different concept. This is not the equal desert of material goods, which we find in leftist dogma. It can only be the equality of consideration in moral deliberation. That is, in making moral judgments of a man, all irrelevant particularities about his identity are to be ignored: his hair color, the rank of his father, his location in a colony, rather than in England, etc. The morally relevant features of his person are those he can share with anyone else. Equality here is equality before the moral law. That moral deliberation requires taking its objects to be equal before the moral law is a self-evident truth. If you understand it, you see that it is true. Equality before the moral law is the basis for equality before political law.

The three rights enumerated are similarly obvious to anyone who understands morality. Morality certainly has to do with taking into consideration the interests of all people in its scope. It has to do with judging whether these interests ought to be protected, ignored or violated. Morality has to do with more than that, but apart from that we cannot conceive of morality but only of various cults and fetishes which have only the fact of their supposed normativity in common with morality. Now, the most fundamental interests of people are life, liberty, and the pursuit of happiness. It is obvious to anyone who understands what morality is and what these claims to rights are that these claims are valid and the rights real.

It perhaps cannot be overemphasized that there is no trace here of the economic egalitarianism of leftist dogma mentioned above. Only the right to the pursuit of happiness is admitted. There is no right to happiness, let alone a guarantee to such by the state.

Virginia Constitution, May 1776 (I.1.4)

The list of authors of the document includes Jefferson, Madison, and Mason. A long list of complaints, angrily expressed at the beginning of it, lay out the injustices done by the Crown to the colonies: obstruction of Americans' giving themselves the law, quartering troops in American towns and making the military superior to the civil powers, taxing without consent, violently "destroying the lives of our people," etc. Virginia will be ruined unless an "adequate mode of civil polity is speedily adopted."

The document sets up independent executive, legislative and judiciary branches of government. The legislative was to be bicameral, with a house of delegates and a senate. The legislators would elect a governor. There was to be an eight-member administrative Council of State elected by the members of the legislature. The Governor would command the military, with advice from the Council. Judges would be appointed by the legislature and commissioned by the governor, who, with advice from the Council, would appoint justices of the peace for the counties. The House of Delegates may impeach the governor or the judges for crimes endangering the state.

Virginia Declaration of Rights, June, 1776 (I.1.3)

Penned by George Mason, the document declares that certain rights are the "basis and foundation of Government." He says, "all men are by nature equally free and independent" and have inherent rights to "the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety." "Equally free and independent" is a more fortunate turn of phrase than the famous "all men are created equal." The latter leaves itself open to being misinterpreted as supporting economic egalitarianism: the position that all are entitled to a share of the country's wealth equal to that of anyone else. Mason's phrase is more pointedly inconsistent than that of the Declaration of Independence with the servitude of some to others entailed by economic egalitarianism.

The text also says that no one shall have special "emoluments and privileges from the community" except in return for public service in non-hereditary offices.

Governmental power is vested in the people and amenable to them, their representatives being their servants. The people have a right to reform or abolish the government if it does not perform its function of "producing the greatest degree of happiness and safety."

The document sanctions elected legislative and executive branches for Virginia, as well as an additional judicial branch. All men with sufficient interest in the community have a right to vote and cannot be taxed without their consent or the consent of their representatives.

Law-enforcement decisions shall be made only at the consent of the representatives of the people. The text affirms the right to a fair trial by a jury of one's peers and right to freedom of the press. There should be a well-regulated militia, not a standing army, and the military should be subordinated to civil authority.

Freedom can be maintained only by a society that adheres to the virtues (justice, moderation, temperance, frugality) and keeps a hold of fundamental moral principles. All men have a right to practice religion according to their conscience and a duty "to practice Christian forbearance, love, and charity."

Edmund Burke, Speech on Conciliation with the Colonies, March 1775 (I.1.2)

America is aggrieved by the English government's having deprived it of its self-government, its right to conduct trade, and right to representative and just taxation. Burke, noted for cherishing ordered liberty, understands this and the possibility of violence it implies. He speaks to parliament in effort to mend the rift. It is just a month before the hostilities at Lexington and Concord.

"In this character of Americans, a love of freedom is the predominating factor...," he says. Its English origins account for this predominance, as well as for its being particularly bound up with the issue of taxation rather than other issues germane to freedom. The fact that American government is deeply representative of the populous also accounts for the American penchant for freedom, as do the Protestant religion in the north which loathes government control, and the slavery-based society in the south which harbors a palpable contempt for unfree people. Americans' high level of legal education make them zealous and able advocates of their rights. And the remoteness of America from the English government has also contributed its spirit of freedom.

Burke argues that the English government's position that America may be deprived of its liberty is inconsistent with the English principles of liberty to which it is committed. He points out that, given the vehemence of American's devotion to their liberties, the alternative to reconciliation is likely to be the far less appealing one of violence.

Continental Congress, Declaration and Resolves, 1774 (I.1.1)

Deputies from all of the colonies, except for Georgia, met in Philadelphia in the fall of 1774, issuing a declaration of their resistance to the "intolerable" Coercive Acts. These were essentially a usurpation of the Massachusetts government, a deprivation of criminal justice authority there, and a harsh economic punishment of Boston for the Tea Party. A centralization of the Quebec government and land-grab of the northwestern frontier also was resented by Americans.

This first Continental Congress resolves that the colonists have rights to "life, liberty, and property," and have always had these, since the time of colonization. (It's still "English liberty," not human liberty in this text.) The right to give oneself law is necessary to the other rights, and the colonists therefore resented the Crown's intrusions. The text maintains rights to trial by one's peers and to peaceable assembly and petition of grievances. Infringement of these rights by the Crown is slavery. The Crown's arbitrary imposition of unreasonable taxes (as a means of collecting revenue to satisfy its enormous debt) is intolerable.

The Continental Congress resolved not to import or consume English goods, or to export to England. A Continental Association implemented the enforcement of these resolves at the local level, getting under way by December. The first Continental Congress: a sort of first U.S. government, yet still true to the Crown, the English constitution, and English liberty.

The Books

Here they are. Let's read them.

Liberty Fund is an extraordinary organization. One of the things they do is to publish beautiful editions of books with exemplary treatments of liberty and to sell them at (what I assume to be) cost. Browse the catalog.