Sandoz – Foundations Of American Liberty And Rule Of Law
Foundations
Of American Liberty And Rule Of Law [1]
By
Ellis Sandoz
Professor of Political Science & Director
Eric Voegelin Institute for American Renaissance Studies
Louisiana State University, Baton Rouge, Louisiana 70803-5466
They
constantly try to escape
From the darkness outside and within
By dreaming of systems so perfect that no one will need to be good.
But the man that is will shadow
The man that pretends to be.
Choruses
from ‘The Rock’ (VI), T. S. Eliot
The argument I wish to offer
regarding the foundations of American liberty and rule of law (or constitutionalism,
a word invented by Americans at the time) stresses the debt of the founders to
their civilizational past.[ii]
Whether, or to what degree, the Anglo-American constitutional and
philosophical past was and is unique is largely a matter for another day.
And I must confess my prejudice in favor of American exceptionalism,
as the historians call it: i.e., for all the debts to the general legacy of
Western civilization, and to Graeco-Roman civilization and to Israel, American
constitutional democracy is unique.[iii]
So, I will have it both ways: it
is a product of a common European, even Mediterranean, past; and it is something
startlingly different from anything else that has ever happened in the history
of the world.
Critics will doubtless take pleasure in exploiting the contradiction.
For how can one and the same thing be both profoundly old and profoundly
new at one and the same time? Elementary
logic has something forceful to say about that.
I shall seek to find some answers to this most reasonable question in the
next few minutes. But at the outset
it should be noticed that our subject involves complex series of events and
arrays of symbolisms scattered over millennia, and not merely a discrete entity
nor even a single series. Rather,
it forms a texture of polyphonic intricacy.
Moreover, I am shamelessly ready if truth demands it and when all else
fails, to take refuge behind Ralph Waldo Emerson’s defiant maxim, heedless of
the prescribed stature: "A
foolish consistency is the hobgoblin of little minds, adored by little statesmen
and philosophers and divines. With
consistency a great soul has simply nothing to do.
He may as well concern himself with his shadow on the wall.
Speak what you think now in hard words and tomorrow speak
what tomorrow thinks in hard words again, though it contradict every thing you
said today."[iv]
But perhaps a synthesis will emerge as the discussion proceeds.
My remarks address
three principal questions: what is old, what new, about American liberty and
constitutionalism? What
maladies most threaten liberty and aspirations to rule of law regimes, in
America and elsewhere?[v]
I.
The radical break with the past characteristic of the French Revolution
was not overtly part of the American Revolution and its rhetorical
justification. The contrasts can
most forcefully be seen from a brilliant page in Edmund Burke’s 1796 Letters
on a Regicide Peace where he identifies Regicide, Jacobinism and Atheism
as the hallmarks of the former. By
this he meant: (1) sanctioning the murder of the king merely because kingship is
by definition usurpation, this being done with impunity in the name of Democracy
as the sole legitimate form of government; (2) wholesale confiscation of private
property from its owners who might freely be killed whether they struggled
against the taking or not, in the name of Liberty; and
(3) rejection and unrelenting persecution of Christianity and its
ministers, along with the defacement and destruction of its churches, as matters
of public policy done in the name of Reason.[vi] However
one might wish to qualify Burke’s analysis, the intent of the French
revolutionaries of 1789 to wipe the slate clean and effect a total destruction
of the hated ancien régime of their country so as to establish a new
order of their own devising seems beyond debate.
In short, then, neither in spirit nor substance was American Whig liberty
at all the same as French Jacobin liberty.
The American founding generation’s resistance to tyranny and claim to
liberty as free men echoed themes as old as the civilization itself and
constantly recurred to that tradition. Coming
during the Golden Age of the classics, the American appeal was grounded in
philosophy as expressed in Aristotle, Cicero, Aquinas, Harrington, Locke, and
Thomas Reid; in Protestant Christianity in the form of a political theology that
mingled religious revival, keeping the faith and fighting the good fight,
providential purpose, and a palpable sense of special favor or choseness; and in
a constitutionalism that recapitulated all of the arguments seventeenth-century
Englishmen had thought valid in resisting the tyranny of Stuart kings by
invoking common law liberty back to Magna Carta and the ancient constitution,
especially as this tradition had been authoritatively propounded by Sir Edward
Coke (d. 1634) in his eleven volumes of Reports (1601-1615) and four
volumes of Institutes (1628-1644). Coke’s
books formed the legal and constitutional mind of America down to the 1770s when
Sir William Blackstone’s Commentaries (four volumes, 1765-1769)
supplanted them as the basis of legal education on both sides of the Atlantic.
As Thomas Jefferson wrote James Madison in one of his last letters:
You will recollect that
before the Revolution, Coke Littleton was the universal elementary book of law
students, and a sounder Whig never wrote, nor of profounder learning in the
orthodox doctrines of the British constitution, or in what were called English
liberties. You remember also that
our lawyers were then all Whigs. But
when his black-letter text, and uncouth but cunning learning got out of fashion,
and the honeyed Mansfieldism of Blackstone became the students’ hornbook, from
that moment, that profession (the nursery of our Congress) began to slide into
toryism, and nearly all of the young brood of lawyers now are of that hue.
They suppose themselves, indeed, to be Whigs, because they no longer know
what Whigism or republicanism means.[vii]
In
sum, John Locke (read as a Christian philosopher, even as an Aristotelian in his
political theory), the Bible, and Coke’s version of the Lancastrian constitution
of England formed the heart of the political, theological, and constitutional
theory pervasive in America during the founding era.
What does this come down to? The
brief answer is that American founders–revolutionaries and constitution-makers
alike–laid claim to their heritage out of a profound veneration for it
instilled from many quarters. "In
a sentence, the founding was the rearticulation of Western civilization in its
Anglo-American mode."[viii]
Emphases shifted, to be sure, even gyrated wildly, as the several stages
of the founding unfolded from the Declaration of Independence (1776), to the
Articles of Confederation (1781), the conclusion of the war (1783), the framing
of the Constitution (1787), and the ratification of the Bill of Rights
(1791)–to mention some of the principal landmarks.
Undergirding all of the "events" lay a concerted education of
the general populace of America in the political theory and jurisprudence of
liberty and rule of law that created the civic consciousness of
citizenship essential to the formation of civil community or society and to the
foundation of the nation.
It seems likely to me that the origins of a national American
community with a special destiny in world history lay in the work of George
Whitefield and other itinerant preachers who crisscrossed the country for
decades, bringing the Great Awakening to America from 1739 onward, sporadically
right into the Revolutionary and constitutional periods.
Religious and political corruption were readily viewed as two sides of
the same coin, whether decried as sin and apostasy or as corruption and
Robinarchy. By 1783, in the flush
of triumph over Britain, President Ezra Stiles of Yale College could preach a
nearly apocalyptic election sermon entitled The United States Elevated to
Glory and Honor proclaiming the rise of American Zion.
"We have reason to hope," Stiles said, "that God has still
greater blessings in store for this vine which his own right hand hath planted,
to make us high among the nations in praise, and in name, and in honor."[ix]
A historical jurisprudence as well as a natural law jurisprudence were
basic in America, unlike England. The
political and constitutional preoccupation had begun in earnest in the early
1760s soon after the succession of George III to the throne.
It reached fever-pitch with enactment of the Declaratory Act
of 1766 by which parliament laid claim to a power over the colonies "to
bind [them] in all matters whatsoever."
The contrast between rule of law–and rule by law,
announced by Hobbes and basic to the legal positivism of the modern Rechtsstaat–comes
to view in this connection.[x]
By the former, there is an appeal to a higher standard of law and justice
than the merely mortal or, at the least, than the enacted law of merely
contemporary rulers.
It is tempting to summarize by saying that the constitutional
split between Britain and America at the time of the Revolution is explainable
in considerable degree in terms of a preposition.
Law must be just and reasonable as arising from a source superior to the
state.[xi]
Thus, law does not rest merely on will, even if the will of a duly
constituted authority or sovereign, whether it be a sovereign king or a
sovereign parliament; as Coke had said earlier, sovereignty is no
parliamentary word. From the common
law perspective of Coke and his American disciples, the argument is from
immemorial usage of the prescriptive ancient constitution, and the liberties of
free men. In the words of Magna
Carta of 1225 (c. 1), which became through Edward I’s statutory confirmation in
1297 the first English statute, "all the free-men of our realm [omnibus
liberis hominibus regni nostri]" are granted "forever, all of the
underwritten liberties." According
to Coke’s famous dictum in Doctor Bonham’s Case (1610), "when an act
of parliament is against common right and reason, or repugnant, or impossible to
be performed, the common law will controul it and adjudge such act to be
void."[xii]
Herein lies the root of judicial review and the remarkable empowerment of
the federal judiciary in the United States after Marbury v. Madison (1803).
But in the America of the founding period, the appeal went equally to
higher law, to the "Laws of Nature and of Nature’s God" as the
Declaration of Independence averred. The
classical and medieval conceptions endured as commonplace: human law must
conform with higher law, for as Augustine had written over a millennium before
(and Aristotle had implied still earlier), an unjust law is no law at all.
While English jurisprudence shied away from entangling common law and
natural law, it was a legitimate inheritance from Fortescue and Coke
nonetheless, as can be seen from the latter’s report of Calvin’s Case
(1610) where he wrote in summary: "[The]
law of nature is part of the laws of England…the law of nature was before any
judicial or municipal law in the world…the law of nature is immutable, and
cannot be changed…." Coke
then quaintly explained that the law of nature is that
which God at the time of creation of the nature of man infused into his heart,
for his preservation and direction; and this is Lex aeterna, the moral
law, called also the law of nature. And
by this law, written with the finger of God in the heart of man, were the people
of God a long time governed before the law was written by Moses, who was the
first reporter or writer of law in the world…. And Aristotle, nature’s
Secretary Lib. 5. Aethic. [7. 1. 1334b20] saith that jus naturale est,
quod apud omnes homines eandem habet potentiam [natural justice is that
which everywhere has the same force and does not exist by people’s thinking this
or that.] And herewith doth agree
Bracton lib. 1. cap. 5. and Fortescue cap. 8. 12. 13. and 16. Doctor and
Student cap. 2. and 4.[xiii]
Americans
of the time would readily have embraced Aquinas’ teaching that, if positive or
human law departs from the law of nature, it is no longer law but perversion of
law.[xiv] The
flavor is captured in James Otis’ Rights of British Colonies Asserted and
Proved (1764) where he echoes Cicero:
The law of nature was not
of man’s making, nor is it in his power to mend it or alter its course.
He can only perform and keep or disobey and break it.
The last is never done with impunity, even in this life, if it is any
punishment for a man to feel himself depraved, to find himself degraded by his
own folly and wickedness from the rank of a virtuous and good man to that
of a brute, or to be transformed from the friend, perhaps father, of his country
to a devouring lion or tiger.[xv]
What comes to view in the foregoing paragraphs is the Great Chain or
hierarchy of being with man’s place in it an intermediary one between God and
brute, obliged to obey natural and divine law, to be obedient to human authority
as divinely ordained unless to do so violates God’s law, in which circumstance
at least passive resistance is demanded if not an appeal to heaven that may end
in the deposition of the tyrant. Government,
so conceived, rests on the consent of free men.
In fact, liberty in one of its principal meanings
during the founding meant to live under laws consented to by the people either
directly or through their representatives, whence the term free government.[xvi]
The stress comes much earlier, however.
Thus, the hallmark of English rule (as Sir John Fortescue in the
fifteenth century insisted and Coke and American Whigs subsequently believed),
is not merely regal (as in France) but political and regal (dominium
politicum et regale). By this
is especially meant that the king cannot legislate solely by his own will but
only with the consent of the realm as given through Parliament: "a king of
this sort is obliged to protect the law, the subjects, and their bodies and
goods, and he has power for this end issuing from the people, so that it is not
permissible for him to rule his people with any other power."[xvii]
The close approach to the later notion of popular sovereignty is to be
observed. In Richard Hooker’s
elegant summation: "Laws they are not therefore which public approbation
hath not made so."[xviii] But
this was so at least as early as De laudibus (ca. 1470) when Fortescue
laid it down that royal power in England (in sharp contrast to the lex regia
of Roman law as institutionalized as dominium tantum regale in the France
of Louis XI) is limited by law and that law could neither be made nor altered
without consent of parliament, perhaps the first direct assertion of
parliamentary authority as a constitutional limit on the king’s power.
Thus, England as a mixed monarchy of double majesty found
articulation. Behind the words lay
also the political tradition (capable of being revived over centuries as crises
demanded) of an independent baronage with power to confront the king and insist
upon his observing the limits imposed through covenant and law upon his great
office–as had in fact been done on that memorable June 15 in 1215 at Runnymede
when Magna Carta was signed by King John.
Four hundred years later, by the time of the crisis leading to the
Petition of Right (1628), Coke found that Magna Carta had been confirmed no less
than thirty-two times by English monarchs.
That "princes are bound by and shall live according to their
laws" as a matter of natural law was concluded by the Bolognese monk
Gratian in about 1140, in his great work entitled A Concordance of Discordant
Canons (Decretum); this had been asserted earlier by Ivo (1040-1115)
but was not to be found in Roman or German law.[xix]
The principle took on new life, however, with Henry de Bracton (d. 1268)
in De legibus, written in the wake of the signing of Magna Carta and the
Great Charter’s having been confirmed four times by Henry III (1216, 1217, 1225,
and 1251).
Bracton’s words were aptly recalled at a climactic moment in
the great seventeenth-century struggle between crown and parliament that had
been led at earlier stages by Coke and John Selden before civil war ensued.
In 1649, John Bradshaw, the Puritan parliamentary prosecutor addressed
"Charles Stuart," after the court had condemned him for murder,
arbitrary rule, and tyranny but before the sentence of death by beheading was
pronounced, as follows: "The
king has a superior, namely, God. Also
the law by which he is made king. Also
his curia, namely, the earls and barons, because if he is without bridle,
that is without law, they ought to put the bridle on him."
Bradshaw explained the political theory in his own words:
"This we learn: the end of having kings, or any other
governors, it is for the enjoying of justice; that is the end.
Now, Sir, if so be the king will go contrary to the end of his
government, Sir, he must understand that he is but an officer in trust, and he
ought to discharge that trust; and they are to take order for the punishment of
such an offending governor. This is
not law of yesterday, Sir, but it is law of old."[xx]
II.
With the old medieval representative assemblies of France and Spain gone
under before the rising tide of absolutism, Britain alone among the major
nations avoided absolute kingship–the vanguard of modernity whereby
political rulers claim to be mortal gods entitled to exercise dominion without
restraint. By this reading royal absolutism
prefigures Bonapartism, proclamation of the Uebermensch, and
totalitarianism as quintessential modernity.
That absolutism was avoided in Britain, and that supremacy of the law in
its medieval guise came to be applied to modern states–the legacy claimed by
eighteenth-century Americans as their birthright–was no accident.
As the premier historian of English legal history wrote:
"It is largely owing to the influence of [Coke’s] writings that
these medieval conceptions have become part our modern law…. They preserved
for England and the world the constitutional doctrine of rule of law."
They formed "the turning-point in English
constitutional history."[xxi]
Constitutionalism or rule of law (to use the terms as equivalents) means
that the power of rulers is limited and that the limits can be enforced through
established procedures. It means
government that is, at once, devoted both to the public good of the entire
community and to the preservation of the liberties of individual persons as far
as that is consistent with public good. In
John Selden’s formulation during the Petition of Right debate, salus populi
suprema lex, et libertas popula summa salus populi [the welfare of the
people is the supreme law and the liberty of the people the greatest welfare of
the people].[xxii]
Because the most precious liberties of free men are preserved in law
conceived to be just, reasonable, and immemorial as the fundamental law or law
of the land (Magna Carta’s lex terrae), Coke gives the primary meaning of
libertates as used in Magna Carta as "the Laws of the Realme, in
which respect this Charter is called, Charta libertatum."[xxiii]
This understanding of liberty is akin to the philosophical one
that only the man whose reason governs base passions, therewith to live justly,
is truly free and, thus, capable of happiness conceived as a life lived in
accordance with virtue. The
opposite type is the banausic or materialistic man who is routinely governed by
his desires and, in extreme cases, by libido with such compulsion that
reason becomes merely instrumental as the means of finding ways to
gratification: so to be enslaved by passion is to be radically unfree.
Aristotle’s "slave by nature," approximates Thomas Hobbes’
typical man who, devoid of sensitivity for summum Bonum, is consumed by
self-love (amor sui, in the Augustinian sense).[xxiv] Pride
in such men can only be broken by the complete therapy prescribed in Leviathan,
a work perhaps ironically intended by its author.
Liberty is experienced in its primary sense only through willing
acceptance of truth or reason’s dictates as a matter of free choice which rises
in maturity into becoming an eager seeking after the transcendental Good for its
actualizing attractiveness. This
aspect blends philosophical and biblical teachings as symbolized by New
Testament statements: "You
shall know the truth and the truth shall make you free" (John 8:32); and,
by verses dear to Americans during the Revolution: "So, then, brethren, we
are not children of the bondwoman, but of the free.
Stand fast therefore in the liberty wherewith Christ hath made us free,
and be not entangled again with the yoke of bondage" (Galatians 4:31-5:1).[xxv]
In other words, liberty and license were clearly distinguished by
Americans of the period, even if this may no longer be the case.
And there are two other vital dimensions of liberty to be noticed: liberty
and private property and freedom of conscience.
With a Revolution fought whose motto (if it had one) was "No
taxation without representation," the connection of freedom and property
deserves emphasis. John
Witherspoon, president of the College of New Jersey at Princeton–and, as the
teacher there of eight of the 55 eventual participants in the Constitutional
Convention of 1787 (including James Madison), probably the most influential
professor in American history–stressed the indissoluble link between personal
and property rights as part of the divine, natural, and civic order.
"If we take tradition or Revelation for our guide," Witherspoon
wrote, "the matter is plain, that God made man lord of works of his hands,
and puts under him all the other creatures…. Private property is every
particular person’s having a confessed and exclusive right to a certain portion
of the goods which serve for the support and conveniency of life."
And in the face of the depredations of the British ministry Witherspoon
asserted in the Continental Congress that "[t]here is not a single instance
in history in which civil liberty was lost, and religious liberty preserved
entire. If therefore we yield up
our temporal property, we at the same time deliver the conscience into
bondage."[xxvi] In
his mighty last-ditch appeal of March 1775 to avoid war, Edmund Burke in the
House of Commons reminded members that
the people of the colonies
are descendants of Englishmen. England,
Sir, is a nation which still, I hope, respects, and formerly adored her freedom.
The colonists…are therefore not only devoted to liberty, but to liberty
according to English ideas and on English principles.
Abstract liberty, like other mere abstractions, is not to be found.
Liberty inheres in some sensible object…. [T]he great contests
for freedom in this country were from the earliest times chiefly upon the
question of taxing…. On this point of taxes the ablest pens and most eloquent
tongues have been exercised, the greatest spirits have acted and
suffered….They took infinite pains to inculcate, as a fundamental principle,
that in all monarchies the people must in effect themselves, mediately or
immediately, possess the power of granting their own money, or no shadow of
liberty could subsist…. [I]n order to prove that the Americans have no right
to their liberties, we are every day endeavoring to subvert the maxims which
preserve the whole spirit of our own….As long as you have the wisdom to keep
the sovereign authority of this country as the sanctuary of liberty, the sacred
temple consecrated to our common faith, wherever the chosen race and sons of
England worship freedom, they will turn their faces toward you…. Slavery they
can have anywhere. It is a weed
that grows in every soil.[xxvii]
III.
With freedom of conscience we may sidle in the direction of what is new
in American liberty and rule of law. The
line is hard to draw. Burke in the
place just quoted has much to say about the fierce American devotion to liberty
and the centrality of their dissenting Protestant beliefs to that cast of mind.
Alexis de Tocqueville in the 1830s would remind his readers that it
should never be forgotten that religion gave birth to America, that Christianity
was as ubiquitous as the air we breathe, and he saw Anglo-American civilization
as the "product" of two elements most often at war with one another
elsewhere but here to be found "forming a marvelous combination.
I mean the spirit of religion and the spirit of freedom."
The "main reason" for this happy state of affairs, Tocqueville
concluded, and "for the quiet sway of religion over their country was the
complete separation of church and state."[xxviii]
Freedom of religion in America at the time under discussion was
overwhelmingly a freedom to be religious according to one’s own lights.
As the conflict with Britain intensified from the 1760s
onward the terror swept the colonies that a bishop would be sent to America to
secure conformity of worship and submission to the Church of England.
George Whitefield himself sounded the alarm as early as 1764 when he
warned two New Hampshire ministers: "There is a deep laid plot against both
your civil and religious liberties, and they will be lost.
Your golden days are at an end."[xxix]
The Methodists were buoyed when John Wesley in 1774 supported the
colonial cause, but the satisfaction turned to horror when Wesley changed sides
a year later and chose to explain himself in a pamphlet partly plagiarized from
Samuel Johnson.
This went through nineteen printings and was widely
circulated by the British government but seized and burnt by American Methodists
wherever they could find copies, trying to keep them out of the country where
they and Wesley were vilified.[xxx]
Reverend James Madison, cousin of the statesman and an Anglican priest
who later became bishop, as president of William and Mary became captain of
militia and led his students in battle during the Revolution; he was said to
have been so intense in his patriotism as to emend the Lord’s Prayer, on
occasion, by intoning "…Thy
Republic come."[xxxi]
Americans during the Revolution were called to their houses of worship
for public days of prayer, fasting, humiliation (or thanksgiving, as suited) at
least sixteen times by formal Proclamation of the Continental Congress, a
practice that continued during the early administrations under the Constitution
and of which the modern observance of Thanksgiving Day is a relic.
With completion of the new capitol in the District of Columbia, church
services regularly were held for the Congress and officials of government,
including the president and cabinet members, in the House of Representatives
chamber on Sundays, a practice that continued until well after the Civil War.[xxxii]
President Thomas Jefferson attended these, arranged for the newly-formed
(1800) United States Marine Corps Band to play on occasion to help with the
music. When the band’s playing
turned out not to be the best, Jefferson (himself a violinist and the best
musician ever elected president) is said to have connived with the band director
to recruit some eighteen Italian musicians into the band so as to improve it.
The log cabin and dirt street capital of the United States was a major
culture shock for the Italians.[xxxiii]
Thus, the separation between church and state was never so absolute as
Tocqueville thought. Much of the
moral basis of the Revolution came from the religious communities, with the
preachers playing a vital, perhaps decisive role in forming the resolve of the
country for independence and sustaining courage to see the war through to the
end. As Perry Miller summarized the
matter: "A pure rationalism such as [Jefferson’s] might have declared the
independence of these folk, but it could never have inspired them to fight for
it."[xxxiv]
The role of the dissenting religious communities–Baptists,
Presbyterians, Lutherans, Quakers, plus Jews and Catholics–was equally vital in
arriving at the unique American solution to the vexed problems of religious
conflict and persecution so admired by Tocqueville and, indeed, so worthy of
admiration. For the solution turned
on the matter of disestablishment, so that public money was not devoted to
religious entities, thereby favoring one sect over another; and side-by-side
with this was the requirement that freedom of religion not be tampered with by
public officials. The major victory
on these grounds was won in Virginia shortly before the calling of the Federal
Convention and prefigured the form to be taken in the initial clauses of the
First Amendment which read: "Congress
shall make no law respecting an establishment of religion, or prohibiting the
free exercise thereof…." The
leadership in both instances came from James Madison, whose interest in matters
religious was profound. He
personally defended jailed Baptist ministers at the beginning of a public career
that next saw him helping to frame the Virginia Declaration of Rights, defending
his state against the advocates of religious establishment through authorship of
the Memorial and Remonstrance Against Religious Assessments, securing passage of
Thomas Jefferson’s long dormant Bill/Statute for Religious Freedom (January
1786), leading the drafting and passage of the federal Bill of Rights in the
First Congress under the Constitution, enforcing it as President, and never
deviating throughout his lifetime in devotion to liberty of conscience.
He regarded securing the enactment of the Virginia Act Establishing
Religious Freedom as his most gratifying legislative achievement.
"We now give full credit to the contribution of James Madison,
mediating with consummate skill among Baptists, Presbyterians, and liberal
Anglicans, putting through the Statute while Jefferson was in Paris," Henry
F. May writes. "The troops
were Baptists and Presbyterians and the tactics were Madison’s, but the
words…were Jefferson’s. These
were and are wholly representative of the Revolutionary Enlightenment."[xxxv]
A hallmark of American liberty, the Bill of Rights deserves
further special comment at this juncture.[xxxvi]
The Bill of Rights of the United States Constitution consists of the
first ten amendments taken together, especially the first eight of these which
identify specific individual rights. These
were proposed in 1789 by Representative James Madison who was solidly backed by
President George Washington during the First Congress.
Ten of the twelve congressionally approved amendments were ratified by
ten states so as to take effect on December 15, 1791.
Their general tenor is to protect individual personal,
political, and religious liberties against infringement by government,
principally by the national government in the original conception and down to
1925 when a process of "nationalization" gradually began that has
brought protection against invasion by the states of most of the rights listed
and of a number only implied by (or "penumbral" to) the rights
specified. The philosophical
foundation of the Bill of Rights is set forth in the Declaration of
Independence’s first sentences, especially the announcement of "certain
unalienable rights" grounded in the "laws of nature and nature’s
God."
The effectiveness of the provisions of the Bill of Rights in
protecting fundamental personal liberties through American law is uniquely
dependent upon the power of judicial review as exercised by the Federal
judiciary, with a last resort in the Supreme Court of the United States. The
judiciary determines with finality, on a case by case adversary basis, the
meaning and force of laws under the Constitution considered as the Supreme Law
of the Land (Art. VI).
The origins of the liberties protected and general theory of rights
undergirding that protection are of great antiquity and grounded in immemorial
usage (or prescription) and natural right, although meaning and
importance were sharpened by the debate leading to American independence and
Revolution and gained impetus from the eighteenth-century Enlightenment with its
emphasis upon reason and the individual. It
remains generally true, however, that the rights protected substantively were
part and parcel of an inherited tradition of common law liberty and rule of law
that emerged in medieval England from the time of King Edward the Confessor (d.
1066), last of the Saxon kings, to Magna Carta as developed in the jurisprudence
of Henry de Bracton, refined in the Lancastrian constitutional jurisprudence of
Sir John Fortescue (Lord Chief Justice and Lord Chancellor under Henry VI, d.
1479-?). This tradition was
recovered, vivified, and perfected in seventeenth-century England especially by
Sir Edward Coke (1584-1634) in the House of Commons during the long contest
between parliament and the Stuart kings memorialized in the Petition of Right
(1628), the beheading of Charles I (1649), and eventuating in the Glorious
Revolution of 1688, Settlement of 1689 and parliamentary enactment of the
Declaration of Rights as the English Bill of Rights of the same year, thus
giving its name to the genre. The
constitutional form authoritative at the time of the American founding, was
powerfully shaped by Coke, former Attorney General and Lord Chief Justice of
England, who led a successful resistance against extension of the royal
prerogative and the attendant establishment of absolutism and rule by divine
right that saved rule of law and constitutionalism for England and the modern
world, as Sir William Holdsworth emphasized.
Decisive for the continuity of this vision of liberty through law and
limited government was the education of subsequent generations of lawyers,
including the American revolutionary generation and beyond, by Coke’s Institutes
and Reports. There is, thus,
this international or ecumenic dimension that, while the bill of rights concept
may primarily be American, the liberties protected, and institutional modes
devised for their protection, are deeply moored in Anglo-American political and
constitutional history, especially in those passages of it in which the
absolutism was narrowly averted that swept over almost all of Western
civilization in the seventeenth century with consequences into the present.
Indeed, the securing of personal liberty and free government through rule
of law is a legacy quite self-consciously reaching back to distant antiquity, to
Cicero in Rome and Aristotle in Hellas.
Well before 1789 when, under heavy political pressure from the
Antifederalists and public sentiment fearful that personal liberties might be
imperilled by the new Constitution, Madison proposed his amendments, virtually
all of the rights to be included in the Federal Bill of Rights already had
been set out in bills of rights ratified by eleven of the original thirteen
states plus Vermont. The inventory
of such rights already adopted by one or another of the new American states,
thus, included the following: no establishment of religion, free exercise of
religion, free speech, free press, assembly, petition, right to bear arms, no
quartering of soldiers, searches and seizures protection, requirement of grand
jury indictment, protection against double jeopardy and self-incrimination,
guarantee of due process of law, just compensation, a public trial, jury trial,
accusation and confrontation, witnesses, guarantee of counsel, protection
against excessive bail, fines, and punishment.
The only major provision not found in the earlier state documents is the
retained rights provision of the Ninth Amendment.
The Massachusetts Declaration of Rights (1780), drafted by
John Adams, even included a reserved powers clause (Art. IV) analogous to the
Tenth Amendment’s provision. The
Massachusetts document also had the merit of partly replacing the admonitory
language of ought used by George Mason in drafting the 1776 Virginia
Declaration of Rights (the model for eight other states’ bills of rights), with
the imperative shall of legal command found (along with shall not)
in Madison’s Bill of Rights.
With a glance at developments since the founding, it can be noted that
there was virtually no judicial construction of the meaning of the various
provisions of the Bill of Rights until well after adoption of the Civil War
amendments, numbers thirteen, fourteen, and fifteen.
A voluminous litigatory process of "absorption,"
"selective incorporation," and identification of liberties occupying a
"preferred position" (First Amendment rights), or as being
"fundamental rights" has accelerated, however, since the Adamson
case in 1947 which results in applying the Bill of Rights to state governments
and even private actions, no less than to actions of the Federal government.
Today the liberty protected against invasion by the states under
the Due Process Clause of the Fourteenth Amendment embraces all
provisions of the First Amendment and nearly all provisions of the Fourth,
Fifth, Sixth, Seventh, and Eighth Amendments.
The principal exceptions are the Fifth Amendment’s right to a grand jury
indictment in criminal cases and the Seventh Amendment’s guarantee of a jury
trial in civil cases. In addition,
there is a substantial expanse of additional personal liberty, especially
race-related "civil rights," protected
by the Equal Protection Clause, and as strictly extra-constitutional
rights (such as privacy and the right to travel) that an activist judiciary has
discovered in "penumbras" of the express rights, or has construed as
being included in the Retained Rights Clause of the Ninth Amendment and,
perhaps, even in the Blessings of Liberty phrase of the Preamble to the
Constitution.[xxxvii]
IV.
Much remains that is new and remarkable about the American founding, but
the occasion does not allow for a fuller statement.
The most noteworthy structures of the Constitution, the separation
of powers and attendant system of checks and balances organizing the central
branches of the national government, and the division of powers between
the national government and the several states in the intricate web constitutive
of the federal system especially deserve mention, of course.
In the spirit of this presentation, I would be remiss if I did not stress
that the theory of human nature that underlies the separation of powers and
checks and balances mechanism is its secret.
True enough, it is an old secret, one going back to Aristotle’s Politics
where the philosopher weighs the argument that "the rule of law…is
preferable to that of any individual…. Therefore he who bids the law rule may
be deemed to bid God and Reason alone rule, but he who bids the
man rule adds an element of the beast; for desire is a wild beast and
passion perverts the minds of rulers, even when they are the best of men.
The law is reason unaffected by desire…. [A] man may be a safer ruler
than the written law, but not safer than the customary law."[xxxviii]
The question so strikingly answered by the American founders was
how to arrive at a government of laws and not of men when there were only men
available to rule. Their estimate
of human nature was as well informed as was Aristotle’s, and they understood
what Acton would later express in the maxim that "Power corrupts and
absolute power corrupts absolutely." Publius
in The Federalist Papers writes of the fallibility of men, of their
tendency to favor their own causes, and in a famous passage asks:
what is government itself
but the greatest of all reflections on human nature?
If men were angels, no government would be necessary.
If angels were to govern men, neither external nor internal controls on
government would be necessary. In
framing a government which is to be administered by men over men, the great
difficulty lies in this: you must first enable the government to control the
governed; and in the next place oblige it to control itself.
A dependence on the people is, no doubt, the primary control on the
government; but experience has taught mankind the necessity of auxiliary
precautions.[xxxix]
Primary
reliance is upon a virtuous and civic-minded people–but "prudence"
requires something more than this, Publius wrote.
The "system" is not so perfect that no one will have to be
good; the system is a back-up, expressly an "auxiliary" precaution.
No utopian expectations here! Its
mechanism takes seriously the understanding of human nature as it comes from the
classic philosophers and is enriched with Christian teaching about the willful
selfishness of human beings in their fallen sinful state.
Man is viewed as capable of virtue but inclined to vice and to favoring
his own cause whenever he has the opportunity to do so.[xl] The
mechanism addresses just this fallible human material,
by pitting rival ambition against rival ambition in persons occupying
each of the three major branches of government which overlap, Legislative,
Executive, and Judicial. This major
innovation is an entirely new conception of separation of powers. It is one
directly to be contrasted to that found in the French Constitution of 1791 where
the separation is adopted without the checks and balances, thereby making the
legislature supreme (rule by law) and cutting-off possibility of judicial review
as it developed in America as a key to rule of law as a practical matter.[xli]
Under our Constitution, the ambitiously striving persons, then, are given
the constitutional means in each instance of resisting encroachments overweening
ambition is inclined to seek on others’ authority.
It is in the interest of each to repel encroachment or suffer the
diminishment of one’s own power and authority: thereby, "the private
interest of every individual [becomes] a sentinel over the public rights."
Through these checks of ambition counteracting ambition, a three-way
cancellation process is effected in the normal operations of the machinery of
government.
The "rival interests," Publius wrote, supply the
"defect of better motives."
Especially ambition (John Adams called it the desire for emulation)
drives political man, and this lends vigor to the institutions of government,
but control is requisite.[xlii]
Because of the ingenuity of institutional design channeling adversarial
interplay, a noble residue of reason and justice is the outcome of normal
operations. Passion is sufficiently
blunted that a government of laws under moderately favorable circumstances
becomes a realistic possibility. The
constitutional equilibrium achieved by the mixed constitution of rival estates
in Britain is supplanted in potentially egalitarian America by a new set of
equivalences that function to similar purpose.
In Edward S. Corwin’s words, the "opposition…between the desire of
the human governor and the reason of the law lies, indeed, at the foundation of
the American interpretation of the doctrine of separation of powers and so of
the entire system of constitutional law."[xliii]
Born of a philosophically sound view of man, society, and history that
maintained a clear vision of the tension structuring reality toward transcendent
divine Being, the civic consciousness whose long experience in self-government
and robust common sense made possible the American founding seems, in many
respects, a unique growth. And it
is both fragile and perishable, as was known from the beginning.
We have a republic, but can we keep it?–to recall the question asked
Benjamin Franklin as he left the Convention after its work finally was done.
Urgent questions impose themselves.
Is the American founders’ political vision so exceptional as to be
impossible to propagate today in alien soil, especially in a world paradoxically
hungry for the blessings of liberty and rule of law but bafflingly plagued by a
nihilistic disdain for the hard-won insights of faith, history, and reason?
Will Jacobinism yet carry the day?
Has virulent social amnesia at long last so overwhelmed the mind of
America today as to make it forgetful of its very self?
The blunt question a Czech friend recently asked must give us pause:
"Are you going to win the Cold War and lose your own country?"
Endnotes
[1]*
Copyright (c) 1993 by Ellis Sandoz.
All Rights Reserved.
[i]
Quoted from T. S. Eliot, The Complete Poems and Plays, 1909-1950
(New York, n.d.), 106. Copyright
(c) 1971 by Esme Valerie Eliot, permission to quote pending.
[ii]
See Harold J. Berman, Law and Revolution: The Formation of the
Western Legal Tradition (Cambridge, Mass., 1983), 9, 395-96.
[iii]
See Jack P. Greene, The Intellectual Constitution of America:
Exceptionalism and Identity from 1492 to 1800 (Chapel Hill, N.
C., 1993), passim.
[iv]
Ralph Waldo Emerson, Self-Reliance in The Complete Essays
and Other Writings of Ralph Waldo Emerson, ed. Brooks Atkinson (New
York, 1940), 152.
[v]
The argument here extends and partly summarizes lines of analysis
detailed in the author’s recent work: A Government of Laws: Political
Theory, Religion and the American Founding (Baton Rouge, 1990); Political
Sermons of the American Founding Era 1730-1805 (Indianapolis, 1991); and
The Roots of Liberty: Magna Carta, Ancient Constitution and the
Anglo-American Tradition of Rule of Law (Columbia, Mo., 1993)–the
latter two being edited volumes.
[vi]
Edmund Burke, Letters on a Regicide Peace (I) in The
Writings and Speeches of Edmund Burke [ed. anon.] 12 vols. (Boston,
1901), 5:308-10. This
"Book Lover’s Limited Edition" apparently reprints the standard
American edition, i.e., The Works of the Right Honorable Edmund Burke
published by Little, Brown & Company of Boston, 1865-67.
[vii]
Letter of Thomas Jefferson to James Madison, February 17, 1826, in The
Life and Writings of Thomas Jefferson, ed. A. Koch and W. Peden (New
York, 1944), 726. Jefferson
(and, remarkably, John Adams as well) died on July 4, 1826.
[viii]
Sandoz, A Government of Laws, 151.
Emphasis added.
[ix]
Ezra Stiles, The United States Elevated to Glory and Honor in Pulpit
of the American Revolution, ed. John Wingate Thornton (Boston, 1860),
397-520 at 439.
[x]
For the distinctions drawn see Harold J. Berman, "The
Rule of Law and the Law-Based State (Rechtsstaat) (with Special
Reference to developments in the Soviet Union),"
The Harriman Institute Forum 4 (May
1991), 1-3. It
may be stressed that Hobbes’ "sovereign" is above all law in the
commonwealth as its exclusive source, so that while rule is by laws they do
not bind him.
[xi]
Ibid.
[xii]
8 Coke’s Reports 107a (1610), 2 Brownl. 225 (1610),
quoted from Edward S. Corwin, The "Higher Law" Background of
American Constitutional Law (1928-1929; rpr. Ithaca, 1955), 44.
[xiii]
7 Coke’s Reports 12a-12b.
Corwin notes that Bacon’s argument in this case invoked the law of
nature. Corwin, "Higher
Law" Background of American Constitutional Law, 46.
On the mingling of natural law and common law in America, in contrast
to England where they "had been inimical," see J. C. Holt, Magna
Carta, 2nd ed. (Cambridge, England, 1992), 16-18.
Of major importance for linking English jurisprudence with
Thomas Aquinas is Fortescue, A Treatise Concerning the Nature of the Law
of Nature, Part 1, in The Works of Sir John Fortescue, Knight…,
ed. Sir Thomas (Fortescue) Lord Clermont (London, 1869), esp. 194, 205-6,
215-16, 219-22 and passim.
[xiv]
Cf. Augustine De lib. arb. 1. 5., in Thomas Aquinas Summa
Theologica I-II. 95. 2; Aristotle Rhetoric 1. 15. 1375a27 et seq.
[xv]
James Otis, Rights of British Colonies Asserted and Proved
(Boston, 1764), quoted from Sandoz, A Government of Laws, 202.
Cf. Cicero De re pub. 3. 22; Lactantius Inst.
6. 8. 6-9.
[xvi]
This is extensively documented in John Phillip Reid, The Concept
of Liberty in the Age of the American Revolution (Chicago, 1988), 79-82,
111, and passim.
[xvii]
Sir John Fortescue, De Laudibus Leges Angliae, Chap. 13,
quoted from Sandoz, ed., The Roots of Liberty, 10.
[xviii]
Richard Hooker, Of the Laws of Ecclesiastical Polity 1. 10. 8;
quoted by John Locke, Second Treatise of Government, Sec. 134n; cf.
Sandoz, A Government of Laws, 118-19.
[xix]
Gratian, Decretum. in E. Friedberg, ed., Corpus Iuris
Canonici, vol. 1 (1879; rpr. ed. Graz, 1959), Dist. 9, c. 2.
Quoted and cited from Harold J. Berman, Law and Revolution,
145, 585.
[xx]
Henry de Bracton, De legibus et consuetudinibus Angliae, ed.
S. E. Thorne, 4 vols. (Cambridge, Mass., 1968), II, 110; cf. 33, 305.
Trials of Charles the First, and of Some of the Regicides:
With Biographies or Bradshaw, Ireton, Harrison, and others [ed. anon.],
(London, 1832), 81. Cf. Sandoz,
Government of Laws, 232-35.
[xxi]
Sir William Holdsworth, A History of English Law, 13 vols.,
variously revised by volume (London, 1903-1966), 5:493; 6 (2nd ed. rev’d):66,
70. Emphasis added.
[xxii]
Quoted from Paul Christianson, "Ancient Constitutions in the Age
of Coke and Selden," in The Roots of Liberty, ed. Sandoz, 120.
The second clause of the quotation is Selden’s quip during debate in
the House of Commons (March 28, 1628), augmenting the maxim given in Coke’s Tenth
Reports (La Dixme Part des Reports [London, 1614], f. 139).
See Robert C. Johnson, et al., eds., Proceedings in
Parliament 1628, 6 vols. (New Haven, 1977-1978, 1983), 2:171-85.
[xxiii]
Sir Edward Coke, The Second Part of the Institutes of the Laws of
England ([1641]; London, 1642), 47.
On the development of lex terrae as due process and to include
trial by jury by the fourteenth century see J. C. Holt, "The
Ancient Constitution in Medieval England," in Roots of Liberty,
ed. Sandoz, 45.
[xxiv]
Cf. Thomas Hobbes, Leviathan; or the Matter, Forme and Power of a
Commonwealth Ecclesiasticall and Civil, ed. Michael Oakeshott (Oxford,
n.d.), 39, 63-65, 99, 101, 104-120; St. Augustine, City of God,
trans. Marcus Dods et al. (New York, 1950), 477-83.
[xxv]
For example, see the 1778 Massachusetts election sermon by the
Reverend Phillips Payson in Pulpit of the American Revolution, ed.
Thornton, 329-30.
[xxvi]
John Witherspoon, Lectures on Moral Philosophy, ed. Jack Scott
(Newark, N.J., 1982), 126-27; Witherspoon, Works of the Reverend John
Witherspoon, [ed. anon.], 4 vols. (Philadelphia, 1800-1801), III:37.
[xxvii]
Edmund Burke, Speech on Moving His Resolutions for Conciliation
with the Colonies, March 22, 1775, in Edmund Burke: Selected Writings
and Speeches, ed. Peter J. Stanlis (Chicago, 1963), 158-59, 164, 184.
[xxviii]
Alexis de Tocqueville, Democracy in America, ed. J. P. Mayer,
trans. George Lawrence, 2 vols. in 1 (Garden City, NY, 1969), 46-47, 295,
432.
[xxix]
Quoted from Carl Bridenbaugh, Spirit of ’76: The Growth of
American Patriotism Before Independence, 1607-1776 (New York, 1975),
117-19.
[xxx]
Cf. Sandoz, ed., Political Sermons of the American Founding Era,
409-40, which reprints Wesley’s pamphlet entitled A Calm Address to Our
American Colonies (London, 1775).
[xxxi]
Ibid., 1305-20.
[xxxii]
Cf. Anson P. Stokes, Church and State in the United States, 3
vols. (New York, 1950), 1:499-507; Sandoz, A Government of Laws,
136-41; Sandoz, ed., Political Sermons of the American Founding Era,
1571-96.
[xxxiii]
Helen Cripe, Thomas Jefferson and Music (Charlottesville, Va.,
1974), 24-26.
[xxxiv]
Quoted from Sandoz, Government of Laws, 111.
[xxxv]
Henry F. May, The Heart Divided:
Essays on Protestantism and the Enlightenment in America (New
York, 1991), 172. See
the discussion in Ralph Ketcham, James Madison: A Biography (New
York, 1971), esp. 165-68.
[xxxvi]
The following paragraphs quote from Ellis Sandoz, "Bill of
Rights," in The Oxford Companion to the Politics of the World,
ed. Joel Krieger et al. (New York, 1993), 79-81.
Copyright (c) 1993 by Oxford University Press, permission to quote
pending.
[xxxvii]
Adamson v. California, 332 U. S. 46 (1947).
Of the vast literature on the Bill of Rights and relied on in the
foregoing summary, see especially: Sir William Holdsworth, Some Makers of
English Law: Tagore Lectures of 1937-38 (Cambridge, England, 1938);
Robert A. Rutland, The Birth of the Bill of Rights, 1776-1791 (Chapel
Hill, 1955); Bernard Schwartz, ed., The Bill of Rights: A Documentary
History, 2 vols. (New York, 1971);
Bernard Schwartz, The Great Rights of Mankind: A History of the
American Bill of Rights (New York, 1977); Ellis Sandoz, Conceived In
Liberty: American Individual Rights Today (North Scituate, Mass., 1978);
Helen E. Veit, Kenneth R. Bowling, Charlene Bangs Bickford, eds., Creating
the Bill of Rights: The Documentary Record from the First Federal Congress (Baltimore,
1991); and Sandoz, A Government of Laws, 163-217.
[xxxviii]
Aristotle, Politics III. 16. 1287a19 et seq., trans B. Jowett.
[xxxix]
Jacob E. Cooke, ed., The Federalist (Middletown, Conn., 1961),
349 (No. 51).
[xl]
Ibid., 59, 378 and 538 (Nos. 10, 55 and 80, respectively).
[xli]
Berman, "The Rule of Law and the Law-Based State," 3, 10,
citing André Hauriou, Jean Gicquel, and Patrice Gélard, Droit
constitutionnel et institutions politiques, 6th ed. (Paris, 1975),
195-97, and Joseph LaPolombara, Politics Within Nations (New York,
1974), 106.
[xlii]
Cf. Charles Francis Adams, ed., The Works of John Adams, 10
vols. (Boston, 1850-56), 4: 391, 408, 410, 436; 5: 10, 40, 273; 6:234,
246-48, 252, 271-72, 279, 284, and passim.
[xliii]
Corwin, "Higher Law" Background American Constitutional
Law, 9.