#constitutional principles

The Resilient Philosopher Public discourse often collapses authority into a single shape. Police, federal agents, immigration enforcement, and even the military are spoken about as if they are interchangeable. They are not. The distinction between them matters, not politically, but ethically and constitutionally. When those distinctions blur, power stops being restrained by purpose. It becomes…

The Resilient Philosopher Public discourse often collapses authority into a single shape. Police, federal agents, immigration enforcement, and even the military are spoken about as if they are interchangeable. They are not. The distinction between them matters, not politically, but ethically and constitutionally. When those distinctions blur, power stops being restrained by purpose. It becomes…

A Conversation Between Bret Stephens and Gail Collins Bret Stephens: Hi, Gail. Do you think it would be wise for Joe Biden to issue presidential pardons in advance — not just for us, but for anyone else Donald Trump might target if he returns to office? Gail Collins: Ah, Bret, you’ve touched on several — perhaps even numerous — issues that have surfaced this month. Biden’s actions have certainly…

The Foundation of American Constitutional Government The Constitution of the United States is not merely a grant of power to a ruler; rather, it serves as a foundational document that represents a covenant between the sovereign people and their government. It establishes a system of republican governance — a representative democracy characterized by limited and enumerated powers. This republican…

Publisher: In-Sight Publishing Publisher Founding: September 1, 2014 Publisher Location: Fort Langley, Township of Langley, British Columbia, Canada Publication: Freethought Newswire Original Link: https://ffrf.org/news/releases/ffrf-applauds-reps-huffman-and-delbenes-reissued-call-for-irs-review/ Publication Date: July 10, 2024 Organization: Freedom From Religion Foundation Organization…

[Note:  This posting that are entered under the same title.  Part 2 will be posted on June 6.]

Confusion arises today with some of the language used in the early years of the republic.  For example, one of the prominent political groups of the time was known as the Anti-Federalists.  This moniker was the product of historical happenstance, an unfortunate development that had more to do with political strategy than an accurate use of the term.  In the traditional meaning of this term, the Anti-federalists were more “federalist” than the Federalists.

One of the areas in which this confusion manifests itself is over the issue of adding a bill of rights to the US Constitution.  This is seen by many as a historical turn toward individualism or individual liberty. Despite the increasing popularity of Lockean ideas during the years of the founding, a look at this development from another perspective is useful.

In a lecture, Daniel N. Robinson states the following:

We tend to think of the American founding as being the bedrock of what we are pleased to call American individualism, often referring to it as rugged individualism, and the spectacle that I think we’re inclined to picture here …would be maybe John Wayne on the horizon, alone with his horse, and perhaps a shotgun over his shoulder, taking arms against any and all comers.  That just isn’t the America of the founding…  

[S]urely in America at the time of the founding, the proposition that the idea behind a just form of government is that somebody is to be left alone would have been regarded as pathological.[1] (emphasis added)

The history of the Bill of Rights is telling.  During the ratification process, a call for a bill of rights was part and parcel of the Anti-Federalists,' Whigs,’ demands of the proposed constitution.  In the debates that arose in the separate state ratification conventions, opponents to the new constitution, as proposed, argued that the document would be the death of individual and state rights.  Their support was to be contingent on the addition of a bill of rights.

The Anti-Federalists wanted the more traditional view of federalism with provisions to protect local control of governance.  The Federalists, on the other hand, argued that a bill of rights was unnecessary because, unlike state governments, the new central government would not have unlimited power.  

In Article I of the new constitution, there was a list of delegated powers and those powers, except for a few other powers listed elsewhere in the document, would limit the central government.  The new Congress could not legislate beyond those powers.  But this did not placate the Anti-Federalists.  

With their more heightened concern over individual rights, – the effect of Locke’s influence among the Jeffersonian types – along with the rights of their local communities, – a Whig concern – they insisted that the new constitution needed a bill of rights.  The bargain was reached; the Federalists promised that as soon as the new government was set up, the first order of business would be to submit to the states proposed amendments to the constitution that would in effect serve as a bill of rights.[2]

And so, it happened with the ratification of the first ten amendments to our national constitution.  But a subtle difference exists between state and national constitutions.  In the states, the bills of rights appear first in the respective documents and serve as a list of guiding principles.  In the national constitution, the Bill of Rights appears after the main body of the document; it's an add-on.  As such, the national Bill of Rights takes on more of a legal mandated set of provisions instead of a list of guiding principles.

But this did not usher in a governance that heightened individualism or individual rights.  For example, the listing of individual rights did not practically affect jurisprudence until the beginning of the twentieth century with protections of property rights, and during the sixties and seventies of that century when, starting with the Warren Court, the courts identified constitutional rights regarding arrests, civil rights, public employment rights, and reproduction rights.

So, to be clear, the founding generation was almost unified in supporting integral federalism.  Considering the relationship between the central government and liberty, Donald Lutz provides a revealing description:

The preamble to the U. S. Constitution “secured the blessings of liberty to “our-selves and our posterity,” echoing that long-term communitarian commitment.  The Constitution sets forth a decision-making process designed to produce, as Madison says in Federalist 10, “the permanent and aggregate interests of the community.” There must be values, attitudes, and commitments – a mental stance, if you will – that lead people to frame their discourse, approach problems, and justify solutions in terms of the long-term community interests.[3] (emphasis added).

Here, to be honest, within the discussions concerning liberty and community interests, there were genuine disagreements regarding the appropriate level of individual versus community rights.  One should remember, this is a matter of degrees.  Yes, the overall bias was toward community rights, but the shifting toward individualism had begun.  

There was the initial appeal among Jeffersonians of John Locke, and his version of natural rights thinking (this was reviewed in a previous posting).  James Madison, even with his concern over factions (described further in the next posting) and how they are difficult to control in smaller polities, voiced a more communal bias, as indicated in the above quotation.[4]  Each side had its spokespeople.  

While origins of this debate can be traced to the years surrounding the writing of the Constitution, one can safely say that the founding generation and many generations later had a significantly different view of rights from what exists currently.  This belies what many libertarians claim today.  

[1] Daniel N. Robinson, American Ideals:  Founding a “Republic of Virtue,” (Chantilly, VA:  The Teaching Company/The Great Courses, 2004), 15.

 [2] Considering the Whigs’ concern, a reader of the Constitution should read Amendments II, IX, and X as protections not of individuals but of states.

[3] Daniel N. Robinson, American Ideals:  Founding a “Republic of Virtue,” 77.

 [4] Lester J. Cappon (editor), Adams-Jefferson Letters, (Chapel Hill, NC: The University of North Carolina Press, 1959).