Our Founding Fruitcakes?
posted by Bruce Boyden
Hello! I’m excited to try this whole blogging thing from the other side of the comment line. Thanks to everyone at Concurring Opinions (Co-Op? Con-Op?) for letting me visit for a bit.
My research at the moment focuses on copyright and content protection (a/k/a DRM), but I thought I’d start off with one of my other loves, history. (If academics are divided between hedgehogs and foxes — “The fox knows many things, but the hedgehog knows one big thing” — I’m definitely more of a fox.) And what more appropriate topic, given the recent July 4th holiday, than the Founding and what it means for constitutional interpretation.
Lawyers tend to revere the Founding as a magical moment of almost perfect democracy. Obviously, most are aware that many of the Founders owned slaves, and that suffrage was limited to white male property holders. But the Founders created a democratic nation that has lasted and thrived for over two centuries, and it seems reasonable to attribute to them some special wisdom and foresight in establishing a political culture and a government that would withstand the whips and scorns of time.
I’m not saying that’s wrong, exactly. But it is interesting to go back and look at what was actually motivating the revolutionaries in that “magical moment,” and to discover them saying some things that make them look positively bonkers. What does that mean about the significance we should attach to what the Founders thought about anything? For example, should we continue to take the Founders’ fear of executive power seriously?
A contrarian view of the Founding has been around, of course, at least since Charles Beard. But the problem I have with simple economic theories of history is that they tend to leave unexplained why people commonly and frequently describe their own motivations in starkly non-economic terms. The Founders are a good example. The revolutionaries frequently pronounced themselves in fear of being reduced to slavery — a concern that had deep roots in British politics, as several historians have explained. But as voiced by the Founders — many of whom actually owned real slaves, and were by no stretch of the imagination even close to being reduced to slavery — that prevalent concern seems simply bizarre.
The same holds for one of the other main complaints, the famous “taxation without representation.” Until recently, I lived in a place — Washington DC — where the inhabitants pay federal tax without full representation in Congress. It’s not optimal, certainly, but it seems a far cry from “absolute Despotism.” In a wonderful essay published almost 50 years ago, Bernard Bailyn suggested the strife that preceded the Revolution was driven primarily by the Founders being shut out of the British patronage system. See Bernard Bailyn, “Politics and Social Structure in Virginia,” in James Morton Smith, ed., Seventeenth-Century America: Essays in Colonial History (Chapel Hill, 1959), pp. 90-115. Plum jobs in the colonies went not to colonial elites, but to the friends and acquaintances of elites in London. The increasing sense of unrepresentative, unbridled executive control was fueled by the disparity between colonial elites’ newfound economic and social status in the colonies, and the lack of any political payoff accompanying that status.
If all that is true — if the concerns of the Founders were more driven by self-interest than is generally admitted — what conclusions should we draw for the continuing relevance of Founding ideology? Take the Declaration of Independence. The meat of the Declaration is not the most famous bit — “We hold these truths to be self-evident,” etc. — it’s the laundry list of complaints toward the end, the “long train of abuses and usurpations” that “evince a design to reduce [the colonies] under absolute Despotism,” and “constrains them to alter their former Systems of Government.” These concerns seem a bit exaggerated, given the reality that the colonies were then a part of the most democratic nation on Earth, Great Britain. But they also indicate a deep fear — one that possibly still has bite — of untrammeled executive power. The “he” in the laundry list refers to “the King-in-Parliament,” i.e., the legal fiction that Parliament acted only in accordance with King George III’s wishes:
He has refused his Assent to Laws, the most wholesome and necessary for the public good.
He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.
He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.
He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their Public Records, for the sole purpose of fatiguing them into compliance with his measures.
He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.
He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative Powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.
He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws of Naturalization of Foreigners; refusing to pass others to encourage their migration hither, and raising the conditions of new Appropriations of Lands.
He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary Powers.
He has made judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.
He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our People, and eat out their substance.
He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.
He has affected to render the Military independent of and superior to the Civil Power.
He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended legislation:
For quartering large bodies of armed troops among us:
For protecting them, by a mock Trial, from Punishment for any Murders which they should commit on the Inhabitants of these States:
For cutting off our Trade with all parts of the world:
For imposing taxes on us without our Consent:
For depriving us, in many cases, of the benefits of Trial by Jury:
For transporting us beyond Seas to be tried for pretended offences:
For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies:
For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments:
For suspending our own Legislatures, and declaring themselves invested with Power to legislate for us in all cases whatsoever.
This is the story of an executive that is unchecked by any other governmental body, either an independent legislature or a judiciary. Obviously we are much more comfortable now with a strong national government headed by a powerful executive branch, and there are those that argue that, in fact, the executive is or should be less checked than most people think. Should the complaints above from the Declaration be consigned to the same status as their concern about standing armies — concerns that are no longer relevant? If so, isn’t the conclusion that we give less weight to executive-checking mechanisms provided in the Constitution, such as the limitation in Article I that only Congress declare war?
July 5, 2006 at 5:09 pm
Posted in: Constitutional Law, History of Law
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Responses (10)
meep - July 6, 2006 at 7:35 am
To be fair to them, what the Founding Fathers were likely afraid of is becoming a subject state like Ireland. Yes, the UK was the most democratic state in the world at the time, with the most freedoms and rights for its citizens, but the image of the put-upon Irish was well known in the American colonies and was considered their worst-scenario fate. It mattered not that British citizens had various freedoms and rights if it turned out the UK decided you weren’t a citizen.
This is irrelevant to the point you’re making about executive power, but it makes the Founders look less nutty. They had a good picture where subjugation to the UK could end up, and they didn’t like it one bit.
Bruce - July 6, 2006 at 10:22 am
Meep, that’s a really good point. My title is intentionally a little provocative, but I do think it’s a bit of a puzzle why the Founders decided to take up armed revolt against their country. Some of them may have had the Irish example in mind (I distantly recall reading something about this), but on the other hand, one of the complaints listed in the Declaration is that Britain refused to impose English law on Quebec after taking it over, and instead left it as a festering outpost of Catholicism, right on the colonies’ door. So the plight of Catholic Ireland may not have resonated as much as it could have. I think for many, the actions of a distant government over which they had little influence fed into conspiracy theories concerning corruption in London that were gaining wide acceptance. Of course, that doesn’t explain *why* those theories were gaining acceptance; it just pushes the mystery one level down.
Simon - July 6, 2006 at 11:00 am
I was under the impression that of late, the left wanted to take that fear even more seriously.
Bruce - July 6, 2006 at 11:26 am
The great thing about this issue is that there is something in it for everyone. If the answer on executive power is “yes, we should continue to be very suspicious of unchecked executive authority,” then does that mean we must also be adamantly opposed to attempts to restrict the keeping of rifles and other armaments by individual citizens — a right that may have made more sense twelve years after General Gage’s infamous attempt to round up the stores kept in Lexington and Concord?
Tom - July 6, 2006 at 11:54 am
In short: Yes. It’s high time the left started according the Second Amendment the same status as the rest of the Bill of Rights.
Simon - July 6, 2006 at 2:16 pm
Bruce,
Your comment about the Second Amendment might make more sense if the Second Amendment was adopted in direct response to the experience of the war of independence, rather than codifying a common-law right that was almost six centuries old before the ink was dry on the Declaration of Independence.
Bruce - July 6, 2006 at 5:18 pm
Simon, there’s a lot of common law out there. How come only some of it made it into the Constitution?
Bruce - July 6, 2006 at 5:23 pm
Also, I’m a little skeptical of the idea that there was a common-law right to keep large caches of arms safe from the King’s troops and to go parading in the streets with them; but I admit I haven’t read a whole lot of 12th-century English court decisions.
Simon - July 6, 2006 at 9:44 pm
Bruce,
The right stems from the 1181 Assize of Arms, promulgated by Henry II, which not only permitted, but required the keeping and bearing of arms. Its adoption means the right to keep and bear arms technically predates the common law, and makes it a contemorary of the formal adoption of the jury trial in 1179 and the creation of the circuit courts, organized in 1176.
As to why not every element of the common law was codified into the Constitution, the Ninth Amendment makes plain – in its injunction not to disparage rights not protected by the Constitution – that not every right must be protected by the Constitution. The Framers did not share the modern liberal’s assumption that everything must be protected from the democratic process by constitutionalizing it; they sought only to create a structure and to protect in the Constitution only those freedoms implicit in the concept of ordered liberty.
Bruce Boyden - July 7, 2006 at 8:53 am
Interesting. Here’s the full thing. I’m no expert on this era, but the Assize to me looks only like a command to keep certain arms, and not a right to keep and bear arms even if the King thinks otherwise. Take a look at article 4, which requires that the arms and armor be borne “in [King Henry's] service according to his command and in fealty to the lord king and his kingdom.” Article 4 also makes the equipment in question inalienable. (Is that part of the common law? Should we read it into the Second Amendment?) And article 6, which forces burgesses to sell or give away extra arms they don’t need. (Same question — that would be an interesting gun control measure.) Article 8 prohibits export. Article 9 mandates an enumeration of the various arms people keep (sounds good to me!). Article 10 promises “vengeance” against those not keeping the right equipment. Article 12 prohibits the carrying of wood. (Huh?)
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