|
|
|
The
Constitutional Convention and the Meaning of Liberty
by Timothy B. Lewis* of the Constitutional Freedom Foundation -
4/21/04
Before considering specific aspects of the Constitution, perhaps
we should establish its underlying philosophical base by
reviewing a little American history and some basic principles.
That is what the first several articles in our series will do.
Before the American Revolution, the colonists felt they had too
little say in the laws that governed them and that the British
Crown had too much say. They protested in several ways, but
perhaps the most famous was the Boston Tea Party.
After the Boston Tea Party, Parliament passed a series of bills
known in the colonies as the "Intolerable Acts." They closed the
Boston harbor, changed the government of the Massachusetts Bay
Colony, changed the judicial system in that colony and allowed
the quartering of troops in private homes without paying
compensation.
Lord North was the leading proponent of these acts in Parliament
on behalf of the King. In arguing his case for a stronger
exercise of authority over the colonies he said: "If we exert
ourselves now with firmness and intrepidity, it is the more
likely they [the colonists] will submit to our authority." Mr.
Montague agreed and maintained that the disorders in America
resulted from England being too lenient and that the situation
called for the exercise of power. Mr. Jenkins observed that if
England did not take a strong position and make an example out
of the Bostonians, they will "become a precedent to the rest of
the Colonies."
As a minority in Parliament opposed to those bills, Mr. Byng
predicted that the bills would only produce more of the very
conduct by the Americans that Lord North and his friends
detested and wished to control. Captain Phipps added: "Let
America alone, and it will return of itself to obedience...."
Lord G. Cavendish said: "...that country which is kept by power,
is in danger of being lost every day." And Edmund Burke
observed: "The spirit of English legislation...must execute
itself, or no power under Heaven will be able to effect it." In
other words, the law must be moral enough and respectable enough
that people, in general, can see on their own, the wisdom of
self-compliance and do so voluntarily without the necessity of
external force.
Ultimately, the latter group proved to be the better prophets.
The “intolerable acts” tended to unite the colonies against the
Crown – public sentiment in the colonies turned revolutionary.
Life Under the Articles of Confederation
When they finally decided to revolt from the mother country, the
colonists organized under a very weak type of central government
called the Articles of Confederation. Under this arrangement,
the federal government had little power to force the states to
do anything. For example, near the end of the war, when the
federal government would order certain amounts of manpower and
financing from the various states, the states started to refuse
those orders. The states claimed they had already committed more
than their fair share of money and blood to the war effort and,
under the Articles of Confederation, there wasn’t much the
federal government could do about it.
So we went from a situation of very little colonial rights
before the Revolution to ultimate states’ rights during and
after the Revolution.
After winning the Revolutionary war, however, the thirteen
states started exercising their state sovereignty in somewhat
extreme ways. They were very uncooperative with one another and
started acting almost like independent countries. They had their
own money systems, many of which printed worthless paper money
at the behest of the debtor class against the interests of their
creditors. Shays Rebellion, which had to be forcibly subdued,
was an attempt by insurrectionists to force the same thing in
Massachusetts.2
Border fights erupted over contested territory. For example, New
York, New Hampshire and Massachusetts all claimed the territory
which now comprises the state of Vermont. George Washington had
to personally intervene to avert war concerning the matter.3
Maryland claimed ownership to the far bank of the Potomac river
and charged all Virginian traffic a fee to use the river. In
response, Virginia charged all Maryland traffic a fee to use the
portion of the Chesapeake Bay which it controlled further on
down the river.4
Connecticut was the major supplier of firewood for New York and
New Jersey was New York's major supplier of food. When New York
levied a tax on firewood and food, Connecticut cut off all trade
with New York. In similar fashion, New Jersey attempted to get
even by imposing a property tax on the lighthouse at Sandy Hook
which was on the New Jersey side of the New York Harbor. 5
The various states imposed tariffs whenever commodities would
pass through them to some other state.6 These were attempts by
the various states to push the burden of taxation onto the
shoulders of out-of-staters who couldn’t vote within the various
states in question. All of this conduct cumulatively created
artificial barriers to free trade among the states.
The federal government could not effectively make any treaties
with foreign countries since the states had the power to
circumvent them at every turn. Foreign powers saw no point in
trying to negotiate with an entity which had no effective power
to bind its constituent parts.7
People could see that they would have to change things or we
would just break up into thirteen different countries and in
effect, construct a miniature Europe over here with all of its
long tradition of uncooperation, political infighting, and
wars.8 Consequently, the Constitutional Convention was convened
in Philadelphia to consider how to strengthen the federal
government so that we could seriously call ourselves one unified
country without laughing in the next breath.
Principal Fear in Changing Their Form of Government: They Didn’t
Want To Make Too Strong Of A Central Government
As the people considered the prospect of changing the federal
government, they knew they had to give it more central power but
their principal fear was going too far and creating too strong
of a central government.9 People generally prized the notion of
individual state sovereignty and didn't want to give up too much
of it. They wanted to find a happy medium between the two
extremes which they had recently experienced – i.e. too strong
of a central government in the British Crown and too weak of a
central government under the Articles of Confederation.
The Federal Government Was Viewed As Only Being A Government
Of Limited Delegated Powers
As the constitutional convention proceeded and the new
constitution was debated, it became clear that the new federal
government was viewed by most as a government of specifically
"delegated powers." Whatever power it had, came from below by
delegation and common consent and it held no powers by itself
absent that bottom-up delegation. To illustrate this point,
consider the following examples of sentiment.
About three months into the constitutional debate in
Philadelphia, George Mason rose to his feet and proposed that
the new constitution contain certain delineations of rights like
freedom of speech to protect the people from the federal
government. The basic upshot of the response was effectively
this: "Don't worry Mr. Mason, we didn't delegate any power to
the federal government to regulate speech -- so it would be
superfluous to even talk about it in the text of the
constitution." Hence, Mason's proposal failed.10
When the Constitution was sent to the states for adoption
without a Bill of Rights attached, many people agreed with Mason
and criticized this as a major deficiency.11 In response,
Alexander Hamilton in Federalist #84 echoed the sentiments of
Mason’s opponents by saying:
“For why declare that things shall not be done which there is no
power to do? Why, for instance, should it be said that the
liberty of the press shall not be restrained, when no power is
given by which restrictions may be imposed?”12
Hamilton wanted to make sure that no faulty implications were
drawn regarding the notion of the federal government having only
limited delegated powers. He worried about the implications of
total silence regarding a particular governmental power. On the
one hand, he argued in several of the Federalist Papers that
unless a particular power were specifically delegated in a
positive way to the federal government, it did not reside with
the federal government.13 But on the other hand, later some
people with an expansionist federal mind-set could argue that
unless that particular power were specifically denied to the
federal government, it held that power by implication. Hamilton
worried that attaching a Bill of Rights with specific
prohibitions would bolster the latter erroneous argument made by
those desirous of expanding federal authority.
Nevertheless, many were not persuaded by his argument and did
not want to take any chances that this new federal government
would trample on their rights. Consequently, several states
voted to adopt the new constitution but only after getting
assurances that after adoption, the federalists would support
amending the Constitution with a Bill of Rights.14 Hence, the
first ten amendments were added to it four years later.
The Final Draft of the Constitution was Completed
After about 4 months of debate and drafting, the final version
of the Constitution was complete. It was then transmitted to the
national congress and the states for adoption. Under the
signature of George Washington, a letter of transmittal
accompanied the document. It said in part:
"Sir, We have now the honor to submit to the consideration of
the United States in Congress assembled, that Constitution which
has appeared to us the most advisable....Individuals entering
into society must give up a share of liberty to preserve the
rest. The magnitude of the sacrifice must depend as well on
situation and circumstance, as on the object to be obtained. It
is at all times difficult to draw with precision the line
between those rights which must be surrendered, and those which
may be reserved; and on the present occasion this difficulty was
increased by a difference among the several States as to their
situation, extent, habits, and particular interest.
"In all our deliberations on this subject we kept steadily in
our view, that which appears to us the greatest interest of
every true American, the consolidation of our union, in which is
involved our prosperity, felicity, safety, perhaps our national
existence. This important consideration, seriously and deeply
impressed on our minds, led each State in the Convention to be
less rigid on points of inferior magnitude, than might have been
otherwise expected; and thus the Constitution, which we now
present, is the result of a spirit of amity, and of that mutual
deference and concession which the peculiarity of our political
situation rendered indispensable."15
The Issue of Slavery
During the convention, the divisive issue of slavery was
debated.16 Many wanted to abolish the practice, but the southern
states refused to go along with anything that would do that.
Since that issue threatened the goal of national unity, which
Washington observed to be their primary goal, it would have to
wait for another day before it could finally be resolved. In
order to secure the necessary southern votes, the Constitution
specifically prohibited any amendment until 1808 of its sections
which effectively protected the institution of slavery.17 In
effect, the drafters promised the south twenty years of a
“hands-off” policy concerning slavery. The implication of this
was that after twenty years, the issue would finally be
addressed at the national level. It wasn’t until the Civil War
that the issue would finally be resolved, but everyone was on
notice from the outset, that the status quo regarding that issue
was only temporary. Henry Jaffa cautions us not to think of
slavery as a “constitutional principle” but rather, a
“constitutional compromise” dictated by the demands of prudence.
It is easy for us to morally criticize our history of slavery,
but just try to imagine what would have happened had those
opposed to slavery imprudently taken an unyielding and
categorically absolute moral stance on that issue and demanded
that the Constitution, then and there, abolish the practice. We
might very well have split into two different countries – a
United States of Northern America and a United States of
Southern America. And who knows, like other countries around the
world, perhaps that southern nation would still practice slavery
even today.
We Call Ourselves a “Free People,” but What Does It Mean To Be
“Free?”
In the above quotation, Washington astutely observed that there
will always be a tension balance between liberty and law. In
order to create and maintain civil society, we cannot retain
unlimited individual liberties – we have to give up certain
freedoms in order to gain and/or protect others and to achieve
other worthy societal goals and objectives. As important as any
particular right or societal goal might be, we cannot afford to
look at any in terms of categorical absolutes.
For example, if we looked at freedom as some sort of categorical
absolute that would always trump every other worthy societal
goal or objective, we could never incarcerate a convicted
criminal for the sake of promoting justice; we would sacrifice
the public safety on our roads if we imposed no legal restraints
against the freedom to drive on the left-hand side or the
freedom to personally interpret a red light as meaning “go”
instead of “stop”; etc. Thus, in structuring and organizing
civil society, we are continually forced to make trade-offs
between competing goals and objectives – freedom being but one
of them, albeit a very important one.
William Blackstone, the preeminent English legal scholar,
recognized this long ago when he distinguished between "natural
liberty"--part of which "every man who enters society gives
up"--and "civil liberty" which he defined as "no other than
natural liberty, so far restrained by human laws (and no
farther) as is necessary and expedient for the general
advantages of the public."18
J. Reuben Clark, Jr. once reflected on the principle of liberty
as he compared our form of government to others around the
world:
“I have often put the situation thus: we look into our laws to
see what we may not do, for we may do anything we have not given
away, for the whole residuum is ours. They look into their laws
to see what they may do, for they may do only the things the
Emperor has said they may do for all the residuum of power is in
him. This makes us free men; it makes them subjects.”19
In other words, for a people to call themselves “free” does not
mean that they are subject to no laws, but rather, that they are
subject only to those laws they themselves have given their
government the power to make. In a republic such as ours, at any
time the people can withdraw previously granted powers or grant
more. Thus, ultimately, from the bottom-up rather than the
top-down, the people are free to choose the limits and extents
of their individual liberties on the one hand and, on the other,
their collective legal regulations for the sake of creating and
preserving the type of civil society they desire.
Is It Possible To Have Too Much Liberty?
Today some people seem to believe that the more unbridled
individual liberty, the better. But in addressing the issue of
balancing liberty and law, James Madison warned us that too much
liberty can be as dangerous as too much law:
“[L]iberty may be endangered by the abuses of liberty as well as
by the abuses of power; that there are numerous instances of the
former as well as of the latter; and that the former [abuses of
liberty], rather than the latter [abuses of power], are
apparently most to be apprehended [anticipated; dreaded] by the
United States.”20
The notion that abuses of liberty threaten its very existence
has been well expressed by many people. The following represent
but a small sample:
George Washington:
“...arbitrary power is most easily established on the ruins of
liberty abused to licentiousness.”21
Robert P. George:
“True freedom, the freedom that liberates, is grounded in truth
and ordered to truth and, therefore, to virtue. A free person is
enslaved neither to the sheer will of another nor to his own
appetites and passions....The counterfeit of freedom consists in
the idea of personal and communal liberation from morality,
responsibility and truth. It is what our nation’s founders
expressly distinguished from liberty and condemned as
‘license.’”22
John Milton:
“None can love freedom heartily, but good men; the rest love not
freedom, but license.”23
Daniel Webster:
“Liberty exists in proportion to wholesome restraint.”24
James V. Schall:
“The classical writers...used to relate self-discipline to
liberty. The person who was most free was the one who had the
most control over himself. The person who was most unfree was
the one who was ruled by pleasures, money, or power.
Self-discipline does not, however, solve the problem of what is
knowledge or truth or good; self-discipline is a means, not an
end in itself.”25
There Can Be No Liberty Without Law
The idea that virtue is a necessary pre-requisite to liberty,
will be the subject of a future article, but to conclude this
article, let us consider a quotation from John Locke, a
philosopher on whom our founders greatly relied. He observed
there can be no lasting liberty without law:
“[T]he end of law is not to abolish or restrain, but to preserve
and enlarge freedom. For in all the states of created beings,
capable of laws, where there is no law there is no freedom. For
liberty is to be free from restraint and violence from others,
which cannot be where there is no law; and is not, as we are
told, ‘a liberty for every man to do what he lists.’ For who
could be free, when every other man’s humour might domineer over
him? But [“liberty” means] a liberty to dispose and order freely
as he lists his person, actions, possessions, and his whole
property within the allowance of those laws under which he is,
and therein not to be subject to the arbitrary will of another,
but freely follow his own.” (emphasis added.)26
Recognizing this dynamic, in America The Beautiful, part of the
second verse reads: “Confirm thy soul in self control, thy
liberty in law.”
Conclusion
So if there can be no liberty without law and if we must
sacrifice some of our liberties in order to preserve the rest,
how do we decide which individual liberties to give up and which
to retain? As discussed earlier, we, as a free people, do it
bottom-up through representative republican government built
upon a constitutional foundation. But a very important aspect of
our original constitutional framework for making such decisions
has largely been destroyed by the judiciary. That aspect --
federalism -- will be the focus of our next article, and the
judiciary’s role in its demise will be addressed in subsequent
articles.
* Professor Lewis teaches Business Law at Southern Utah
University
_____________________________________________________________________________
To print - click
here
|
|
|
