Louisiana State University
So What's the Difference?
The Philadelphia Society
Regional Meeting, October 14, 2006
Copyright ©Ellis Sandoz 2006 All Rights Reserved
In a particularly frenzied debate over Equality in the
Constituent Assembly during the French Revolution, the old story goes, one
citizen-deputy enthusiastically affirmed that “There is very little
difference between men and women!” At
which assertion the entire body rose to its feet shouting “Vive la
it was with Britain and America during the period of the Founding, although
the little difference might not have been quite so entertaining.
Still, everything important seemed to be quite the same: language,
religion, ethnicity, political institutions and practices, legal heritage,
patrimony, allegiances. Paradoxically,
everything was the same and yet totally different, depending on perspective
from the end of the process, the little difference is magnified.
The United States emerged from it a republic (if we can keep it) and
Great Britain remained a monarchy and empire, even without most of its North
American colonies. From the Stamp
Act (1765) through the Battle of New Orleans (1815) what began as discussion
became debate and debate became war not once but twice.
To their chagrin and astonishment, the Brits lost both
times–convincingly at Yorktown with French help, decisively in the Chalmette
swamp where the crack Black Watch (93rd Highlanders) and several
elite units fresh from sacking and burning Baltimore and Washington were
decimated by Barataria pirates and Tennessee frontiersmen commanded by Jean
Lafitte and Andrew Jackson with 2,600 British killed compared to eight
American dead and thirteen wounded. The
common man took his rise. In the
passionate course of these events America defined itself, by a process that
continued – and may even be said still to continue into the present.
incipient characteristics and principles distinguishing America and the
American mind emerged during what began as a civil war–the worst kind of
warfare, as we know. Ezra Stiles, the Congregational minister and president of
Yale during the Revolution, was convinced the Scots were instrumental (led by
John Witherspoon and James Wilson), and that America might have patched things
up with the mother country but for their fomenting discontent and rebellion.1
Salient attributes of difference between the two countries became
First, there was a kind of dogged literal-minded insistence born of pervasive
Evangelical Christianity and a legalist cast of mind that words mean what they
say, especially such words as consent
“Laws they are not which public approbation hath not made so,” the
Judicious Hooker had elegantly intoned, John Locke repeated, and Americans
believed. This meant real
consent by real representatives–not some fanciful virtual
representation in a remote Parliament having no electoral connection with
American constituents and notoriously corrupted by Robinarchy. This is the
bedrock of free government for free men and nothing less would suffice.
Samuel Adams was especially clear on the matter.
In 1765, Adams wrote to the governor on behalf of the Massachusetts
House of Representatives as follows:
advocates for the constitution usually compared their acts of Parliament with
Magna Charta; and if it ever happened that such acts were made as infringed
upon the rights of that charter, they were always repealed.... There are
certain original inherent rights belonging to the people, which the
Parliament itself cannot divest them of, consistent with their own
constitution: among these is the right of representation in the same body
which exercises the power of taxation.... The right of the colonies to make
their own laws and tax themselves has never been questioned.... The very
supposition that the Parliament, through the supreme power over the subjects
of Britain universally, should yet conceive of a despotic power within
themselves, would be most disrespectful.... To suppose an indisputable right
in any government, to tax the subjects without their consent, [includes] the
idea of such a power.”2
Witherspoon, James Madison’s mentor at Princeton, remarked that “the
generous principles of universal liberty” are incomprehensible to the
British, who think Parliament can do anything and who, therefore, “consider
the liberty of their country itself as consisting in the dominion of the House
2. Second, the Liber homo– Free man– of Magna Carta was
alive and well and living in Boston, Philadelphia, and Charleston.4
With a painful firsthand knowledge of slavery, Americans knew it when
they saw it, and the Declaratory Act (1766) undoubtedly was it.
Edmund Burke (as well as Pitt and Camden) knew it too and scathingly
denounced the ministry to within an inch of committing treason on the floor of
the House of Commons for abandoning the great heritage of English freedom and
embracing slavery for the Englishmen in America, as a weed that grows in every
soil, thereby stabbing their very vitals.
Moreover, Burke observed, if you can do it to Englishmen with your army
there you can do it as well to countrymen who stayed at home.
In his old age a half-century later the last of the founders, James
Madison, still found the argument cogent and esteemed his countrymen for their
perspicacity in seeing the hand of tyranny in a 3-penny tax on tea!
3. Third, liberty and
tyranny were the antipodes of the political and constitutional argument. The
categories were as old as Aristotle, Cicero, and the immemorial English
constitution, as ancient as coercive Nimrod and the free republic of Elders in
Israel. Religion and metaphysics
as well as mere political theory were in play and gave great resonance to
related assertions–as the Declaration of Independence itself succinctly
stated the familiar case. A cool
rationalism such as Jefferson’s might have declared the independence of such
folk but that could never have persuaded them to fight for it, Perry Miller
observed. And he added that the
Revolution itself was preached as a revival and had the astonishing result of
succeeding, a conclusion borne out by recent scholarship.
Patriotism without piety is mere grimace one Philadelphia preacher
thundered. “The Sabbath was
made for man, not man for the Sabbath” (Mark 2:27)–and the same held true
of government. “We are not
children of the bondwoman, but of the free” (Galatians 4:31) became an
unlikely rallying cry, as did also:
“We ought to obey God rather than men” (Acts 5:29) and “If God be
for us, who can be against us?” (Romans 8:31)
Celebrated elements of the American political theology therewith
appeared and were propagated by James Otis’s “black regiment” but not
only his. We remember the
practice of James Madison (cousin of the President, later Bishop Madison,
president of William and Mary College who led his students into battle) who
sometimes prayed the Lord’s Prayer with the words, “thy Republic
come, Thy will be done on earth as it is in heaven.”
4. Fourth, there was natural law with correlative natural rights as
abiding structures drawing from the biblical, classical, and medieval horizons
of faith and from Enlightenment philosophy in an eclectic fashion.
However noble and enduring the English constitution and its celebrated
liberties, the transcendent reality of God and hegemonic nature loomed supreme
and beyond all human devising in recta ratio as the providential
sources of order and justice. But this generous understanding already was
reflected in Gratian and affirmed by Thomas Aquinas: “The natural law is
what is contained in the Law and the Gospel...by which everyone is commanded
to do to others as he would be done by”: all law is founded on the Golden
Rule, in other words (Matthew 7:12). “An
unjust law is no law at all,” Augustine wrote, Aquinas repeated, and Martin
Luther King made the centerpiece of the civil rights revolution.
Liberty itself had been instilled into human nature by the hand of God,
Sir John Fortescue affirmed, in what has been called the Englishing of Thomism
in the 15th century. Sir
Edward Coke, and later on, Jefferson and the Adamses in 1776 agreed.
This settled conviction supplied the groundwork for inalienable
rights in men who had been created equal by their Creator and, consequently,
might rightly aspire to political equality as well–the common sense
of the subject, Jefferson later called it and an augury of the democratic
republicanism to come. At the concrete level of the American debate, Camden
declared that “Taxation and representation are inunited: This position is
founded on the laws of nature: It
is more: It is itself an eternal law of nature— Whatever is a man’s
own is absolutely his own; and no man has a right to take it from him without
his consent.... Whoever does it, commits a Robbery: He throws down the
distinction between liberty and slavery.”5
5. Constitutionally the
Framers in 1787 placed their “true map of man” (as John Adams called their
philosophical anthropology) at the center of the self-equilibrating
institutional order as the chief technical means of achieving a government of
laws and not of men, conceived as a noble residue of the operation of
separated and divided powers textured by an intricate web of adversarial
checking. This ingeniously helped to supply for fallible and self-serving men
the defects of better motives, Madison said. It did so, also, without
sacrificing the possibility in the Supreme Law of the Land of an energetic
Executive when that might be called for; even Plato insisted that his
philosopher-king (who might be a woman, we remember) had to be a person best
in both philosophy and in war, given the human condition (Republic 543-544).
The novel Philadelphia vision of a compound mixed republic was persuasively
explained in The Federalist –with palpable echoes back to Aristotle,
Cicero, Aquinas (the first Whig, Acton thought), Charles I’s 1642 Answer
to the Nineteen Propositions of Parliament, and the Cromwellian
commonwealth or republic. This
had lasted a mere twelve years, ended with the Restoration, and was said to
have been buried in an unmarked grave after the English Glorious Revolution
and Settlement of 1689–only to be resurrected in splendor in America a
What had been wrong in the 18th century was not the
British constitution itself, as venerated by everyone from Montesquieu to John
Adams, but the abandonment of Old
Whig principles in favor of imperial hubris and libido dominandi.
This was amply reflected in policy grown insufferable in American
eyes but also in theory as propounded by the “honeyed Mansfieldism” of
Blackstone with its embrace of the principle of an irresistible “supreme
power” vested in Parliament along with the undergirding natural right
theories of Grotius and Puffendorf making these “absolute” in autonomous
human beings–who might thereby absolutely reject as well as claim them.
Hobbes is reborn and the positivist jurisprudence of John Austin looms.
The recourse to transcendence was thus cast aside. The effect of a
naturalistic reduction of this magnitude was to sever the anchoring in divine
Being, invoked in the Declaration of Independence, and insisted on by a
faithful community that resolutely interpreted politics and history in
biblical and Providential terms. The
result was philosophically unacceptable and became politically repugnant when
unmasked as a smokescreen concealing old-fashioned tyranny. So it seemed, in any event. In the spirit of the Pelican
chorus, I think so then and thought so still.
Thus, the American adaptations of their precious English and broadly
Western heritage aimed at justice and insisted on personal and corporate
liberty, not simply at independence at any cost as some then suspected. The Constitution required a Bill of Rights for ratification.
It also required guardians of those rights against majoritarian tyranny in an
independent judiciary. The power of judicial review established in
Marbury v. Madison (1803) was anticipated by Coke in Dr.
Bonham’s Case (1610) but was, of course, rejected by Blackstone.
“Parliament can do anything but make a man a woman and a woman a man,”
Lord Herbert hopefully remarked in the 17th century–a minor
impediment lately removed by Danish medicine.
Albert Dicey, effectively confirming the obnoxious claim of the old
Declaratory Act over a century later, nailed the door shut in 1885 by
summarizing how things stood: “Parliament...has...the right to make or
unmake any law whatever; ... no person or body is recognised by the law of
England as having a right to override or set aside the legislation of
The Founders knew what they were doing, after all.
There had been no misunderstanding.
Sovereignty shifted to popular or constituent sovereignty in America
where it was said “the People are king,” a matter vexed by “this mixed
Constitution” composed of sovereign states.7
Parliamentary sovereignty and ministerial responsibility formed the
British path. The American
adaptations manifested continuity but took quite a different and less decisive
path, favoring an empire of Liberty under law.
The founders relied on an admirable store of experience in
self-government and public affairs, the fruit of long “salutary neglect” to
be sure, but also of admirable sophistication and astute practice in
self-government and constitution-making.
The statesmen of the period, thus, drew upon the prudential science of
the old Greeks such as that esteemed in Aristotle’s phronimos and in
Tully; upon the enlightened faith of a citizenry long practiced in the
operations of free institutions– economic,
political and ecclesiastical; and upon what they themselves called “the divine
science of politics.” Their
noble synthesis made all the difference for republican free government on the
presidential model, then and now. Finally,
they also lay claim under divine Providence to the high ground of history,
expressing the prayerful hope “That the rod of tyrants may be broken into
pieces, and the oppressed be made Free–That wars may cease in all the Earth,
and that confusions that are and have been among the Nations may be
overruled...” so that Peace might prevail.8
Vive la différence!
Cf. Ezra Stiles, The Literary Diary of Ezra Stiles, ed. Franklin B.
Dexter, 3 vols. (New York: Charles Scribner’s Sons, 1901), 2: 184-85:
“There are only two Scotchmen in Congress, viz. Dr. Witherspoon...&
Mr. Wilson.... Both strongly national, & can’t bear any Thing in
Congress which reflects on Scotland....Let us boldly say, for History will
say it, that the whole of this War is so far chargeable to the Scotch
Councils, & to the Scotch as a Nation (for they have nationally come
into it) as that had it not been for them, this Quarrel had never
happened.” Dated July 23, 1777.
2 “Answer of the House of Representatives of Massachusetts to the Governor’s Speech. October 23, 1765.” The Writings of Samuel Adams, ed. Harry A. Cushing, 4 vols. (New York: Octagon Books, Inc., 1968), 1: 13-18 (capitalization modified and italics added).
3 Quoted from Ellis Sandoz, A Government of Laws: Political Theory, Religion, and the American Founding (1990; rpr. Columbia: University of Missouri Press, 2001), 165.
For the term liber homo in the 1225 Magna Charta which became
the first statute of the realm in 1297, see esp. chaps. 1, 14, 24, 29, and
32. On the meaning of the term see the discussion of
J. C. Holt, Magna Carta, 2nd edn (Cambridge, Eng.: Cambridge University Press, 1992), esp.10-20, 276-80: “It was a grant to all free men throughout the realm” (276).
5 Quoted by Samuel Adams, Writings, 2:302.
6 A V. Dicey, Introduction to the Study of the Law of the Constitution (8th ed., 1915, rpr.:Indianapolis: Liberty Classics, n.d.), 3-4
7 Cf. The Federalist, Nos. 39 and 40. Quoted phrase is on p. 247 in the Rossiter edition (New York: New American Library, 1961).
“A Proclamation for a Day of Solemn Fasting and Prayer,” March 20, 1797,
in Writings of Samuel Adams, 4:407.
The Proclamation’s text quoted continues with: “for the promoting
and speedily bringing on that holy and happy period, when the Kingdom of our
Lord and Saviour Jesus Christ may be everywhere established, and all the
people willingly bow to the Sceptre of Him who is the Prince of Peace”