Dr. Carson specializes in American intellectual history. This article is reprinted here by permission from his book series now in preparation, A Basic History of the United States.
The Constitution of 1787 was a culmination. It was the culmination of a decade of constitution making in the states and for the United States. It was the culmination of several long traditions. For one, it was the culmination of a British tradition of having written acknowledgements and guarantees of rights and liberties. For another, it was the culmination of a colonial tradition of having governments based upon charters. And for yet another, it was the fruition of the Judeo-Christian and Protestant practice of appealing to the precise written word. The Constitution brought to fertile fruition, too, the natural law philosophy. The natural rights doctrine, which held a central place in the justification of revolt against British rule, now served as a basis for protecting rights and freeing people under independence.
That is a way of saying that liberty was the great motivating theme of these years. The desire to preserve and extend their liberty moved the Patriots to break from England, to fight a War for Independence, and to establish their own governments. The constitution making of these years was animated by the determination to establish liberty more firmly upon these shores. Of course, those who participated in these activities were under the sway of a whole range of motives, ranging from the noble to ordinary to sometimes base ones, as people always are. But what distinguished them, surely, was the steadfast determination to establish liberty.
The Founders believed that for people to have liberty and enjoy their rights governments must be limited and restrained. They believed that government is necessary, of course. It is necessary because men without government would do violence to one another; the strong would prey upon the weak; the clever would take unjust advantage of others; disorder would prevail. Or, to put it another way, man is a fallen creature and must be restrained from harming others. But governments are made up of men as well, and those who govern are given unusual power over others. It is especially important, then, that government be limited and restrained. If men were angels, Madison observed, they would have no need of government. And if they had angels to govern them, there would be no need of limiting the government. But those are not the conditions that prevail: there are fallible men to be governed and fallible men to govern them. That being the case, they believed that government should be limited.
Indeed, there probably have never been a people more jealous of their rights or more aware of the dangers of government to them than were Americans in the late 18th century. The documents of this period are replete with warnings about the dangers of extensive or unrestrained government power. John Dickinson stated that it was his conviction “that every free state should incessantly watch and instantly take alarm on any addition being made to the power exercised over them.” Thomas Jefferson maintained that “The natural progress of things is for liberty to yield and government to gain ground.” John Adams wrote Thomas Jefferson in 1777 congratu lating him on the fact that Virginia had been able to fill its quota for the Continental Army without resorting to the draft, for he said that a draft “is a dangerous Measure, and only to be adopted in great Extremities, even by popular Governments.” He had observed, he said, that kings gathered armies in this fashion as a means of realizing their own ambitions? Power was the danger, not simply the form of government, according to Richard Henry Lee. He thought “that unbridled passions produce the same effect, whether in a king, nobility, or a mob. The experience of all mankind has proved the . . . disposition to use power wantonly. It is therefore as necessary to defend an individual against the majority in a republic as against the king in a monarchy.”
The dangers of government were fully rehearsed in the Constitutional Convention. For example, Rufus King of Massachusetts objected to setting a date for Congress to meet each year because he “could not think there would be a necessity for a meeting every year. A great vice in our system was that of legislating too much.” Roger Sherman wanted to make the President absolutely dependent on Congress because “An independence of the Executive . . . was in his opinion the very essence of tyranny . . . .” Benjamin Franklin opposed salaries for those in the executive branch because, he said, “there are two passions which have a powerful influence on the affairs of men. These are ambition and avarice; the love of power, and the love of money. Separately, each of these has great force in prompting men to action; but when united . . . in the same object, they have in many minds the most violent effects. Place before the eyes of such men, a post of honour that shall be at the same time a place of profit, and they will move heaven and earth to obtain it”
James Madison pointed out the dangers of unrestricted majority rule: “In all cases where a majority are united by a common interest or passion,” he said, “the rights of the minority are in danger.”
This awareness of the dangers of governmental power, an awareness sharpened by the history of the abuse of those powers over the years, provided the framework for the American limitation of government. It was this that so moved them to separate the powers of government into three branches—the legislative, executive and judicial—, to divide the legislature into two houses, to give the states a check on the government through the Senate, and to disperse power between the general government and the states. But the Founders went beyond separating and dispersing power; they made it necessary for branches to act in concert to accomplish their ends and required a consensus for great and important changes.
Legislation has to pass each of the houses separately and be approved by the President to become law. In addition to that, any act is supposed to be in keeping with the powers granted under the Constitution, and the courts may refuse to enforce it. Thus, ultimately, all acts may re quire the approval of all three branches. That would be majority rule, however. But if the President vetoes a bill, it can only become a law by being passed in each house by at least two- thirds of those voting. That moves closer to the requirement of consensus for government action. For major changes in the government—constitutional changes—there is, in effect, a required consensus. The ordinary route of amendment is for each of the houses to approve a proposed amendment by two-thirds of those voting. Then, the amendment must be submitted to the states, and three-fourths of them must approve the change. All these are procedural requirements which limit the government.
The United States government is limited in two other ways by the Constitution. First, it is a government of enumerated (named) powers. The government is not clothed with all powers but only such as are named in the Constitution or necessary to put into effect those that are named. James Madison described the situation this way: “The powers delegated by the proposed Constitution to the federal government are few and defined. Those . . . will be exercised principally on external [foreign] objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected.”
All legislative powers in the United States government are vested by the Constitution in the Congress. Thus, the powers granted to the government are mostly named in the grant of these powers. They are listed in Section 8 of Article I, and include the following:
The Congress shall have Power to lay and collect Taxes . . . .
To borrow Money on the credit of the United States;
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
To establish a uniform Rule of Naturalization.
The going assumption at the time of the drawing and ratification of the Constitution was that the general government had only such powers as were granted. But it was not left as an assumption; the 10th Amendment spells out the point. It reads, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
The second way the United States government is limited is by specific prohibitions. For example, taxation is limited in various ways in the Constitution. It required that all direct taxes be apportioned on the basis of population (altered later by the 16th Amendment). Other taxes must be levied uniformly throughout the United States. All taxation must be for the common defense and/or general welfare of the United States, which was not a grant of power but a limitation upon it. Section 9, Article I contains these among other limitations:
The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.
No Tax or Duty shall be laid on articles exported from any State . . . .
No Title of Nobility shall be granted by the United States.
In addition to such prohibitions as these the Bill of Rights or first ten amendments to the Constitution consists of limitations on the United States government. As already noted, the fear of government generally, and especially of a central government, resulted in the move for a bill of rights. Many were emphatic about the need for such a list to limit the new government. Thomas Jefferson declared that it was a matter of principle with him “that a bill of rights is what the people are entitled to against every government . . . . and what no just government should refuse.” Patrick Henry insisted that “If you intend to reserve your inalienable rights, you must have the most ex press stipulation . . . .”
Liberty, in its genuine sense, is security to enjoy the effects of our honest industry and labors, in a free and mild government, and personal security from all illegal restraints.
—Richard Henry Lee, 1787
At any rate, the Bill of Rights specifically restricts and limits the United States government. The first Amendment begins in a way to make that crystal clear: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech,” etc. (Italics added.) The others do not point to a specific branch of government that may not act, but it is clear from the language that government is being restricted by them. For example, the fourth Amendment states that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause . . . .” Since governments are the only body that may legally do such things, the article clearly is limiting government. So it is with the other parts of the Bill of Rights.
Not only is the United States government limited by the Constitution, but the state governments are as well. They are limited, in the first place, by the grant of powers to the United States government, powers which, ordinarily, states may only exercise, if at all, with the approval of Congress. Second, some powers are absolutely denied to the states, e.g., “No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any . . . Law impairing the Obligation of Contracts, or grant any Title of Nobility.”
The central feature of the United States Constitution, then, is the limitation of government.
Freeing the Individual
A major fruit of independence was the freeing of the individual from a variety of government compulsions. Governments were restrained that individuals might be free. That was the thrust of the making of constitutions during these years. The state constitutions were already limiting state governments before the United States Constitution was written. States frequently had their own bills of rights which had as their main purpose the protection of their inhabitants from government. Moreover, many of the restraints which had been imposed under British rule were removed as independence was achieved. Indeed, Americans used the occasion offered by the break from England to remove those restraints on the individual that did not accord with their outlook.
One of those restraints on the individual was compulsory church attendance and the associated taxation and other restrictions supporting an established church. In the main, these restrictions were removed by disestablishing churches. The establishment most readily dispensed with was that of the Church of England. While that church was established in several colonies, it was not popular in most of them, many of its clergy remained loyal to England, and dissenters were numerous in most states. The movement to disestablish the Church of England was greatly aided, too, by the fact that it was a national church; membership in it was tied to loyalty to the king of England. Since Americans could not accept that any longer, the church was speedily disestablished. Several states had no established churches: namely, New Jersey, Rhode Island, Pennsylvania, and Delaware. Even so, they used the opportunity afforded by independence to reduce religious restraints.
The established Congregational church was maintained for several decades in Massachusetts, Connecticut, and New Hampshire. There was, however, some lightening of the load of religious restrictions in these states. The Massachusetts constitution of 1780 affirmed that every man had the right to worship in his own way, that all churches were equal before the law, and tax monies could be used to pay ministers of churches generally. However, attendance in some Christian church was still required, and people were still taxed to pay ministers. New Hampshire made much the same provisions as Massachusetts, but Connecticut clung to as much as the leaders dared of the established church. They did allow a dissenter from it to avoid payment of taxes if he could present a certificate from an officer of the church showing that he attended. But the days of formally established churches were ending in New England, too, though disestablishment in the last of these states was not completed until the 1830s.
The constitutions of New Jersey, Georgia, North and South Carolina, Delaware, and Pennsylvania provided that none should be compelled to pay taxes to churches nor attend any service except such as they chose. Virginia, however, made the most thorough-going effort to establish freedom of conscience. This might have been a reaction to the fact that Virginia had the oldest established church in English America and the most rigorously established. Thomas Jefferson, James Madison, and George Mason were leading advocates of religious liberty, but they did not succeed in getting their ideas into law until 1786. This was done by the Virginia Statute of Religious Freedom, which proclaimed religious liberty a natural right. The legally effective portion of the statute reads this way:
That no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burdened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but that all men shall be free to profess and by argument to maintain, their opinion in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities.
In large, this was what Americans were coming to think of as religious liberty.
The Constitution of the United States left to the states the power to determine as they would whether they would have an established church or to what extent religious liberty would prevail. The first Amendment simply prohibited Congress to establish a religion or interfere with its free exercise. The states did, however, move to disestablish churches and to reduce religious re strictions, as already noted, thus freeing people in the matter of conscience.
Many of the provisions in the state bills of rights, as well as the Bill of Rights for the United States, were guarantees of legal practices protecting the freedom of the individual that were a part of the British tradition. The Virginia Bill of Rights, adopted June 12, 1776, was both a model for such documents and illustrates the point. It guaranteed trial by jury in both criminal and civil cases, prohibited excessive bail and fines, declared general warrants to be oppressive, and acknowledged freedom of the press. The protections of persons accused of a crime were stated in detail:
That in all capital or criminal prosecutions a man hath a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence in his favour, and to a speedy trial by an impartial jury of his vicinage [the vicinity of where he lives], without whose unanimous consent he cannot be found guilty, nor can he be compelled to give evidence against himself; that no man may be deprived of his liberty, except by the law of the land or the judgment of his peers.
In addition to these protections, the Massachusetts Declaration of Rights of 1780 provided for the right to bear arms, the right of peaceful assembly, the prohibition of ex post facto laws and bills of attainder, among others. Most of the above provisions are also in the United States Constitution.
There were some major changes from British practice, however, particularly in the matter of ownership of real property. Several feudal restraints on property were removed. Primogeniture—the legal provision requirement that if the owner died without a will the bulk of the estate went to the eldest son—was abolished generally. The most general encumbrance on property was the quitrent, an annual payment due to king or proprietors on land. Such claims as still existed at the time of independence were speedily extinguished, and land thereafter was generally owned in “fee simple.” En-tail—legal provisions that estates could not be broken up—, where it existed, was abolished. Such royal prerogatives as the right of the monarch to white pines (for shipbuilding) on private land were, of course, nullified.
A part of the freeing of the individual, then, was making real property ownership free of government restraints and disposable at will by the individual. Indeed, property in general was carefully protected both in state constitutions and in the United States Constitution. Some later commentators have claimed that the Founders distinguished between what they call “human rights” and property rights and attached greater significance to the former. The evidence for that does not appear in the documents or pronouncements of the time. If anything, they placed more emphasis on property than on other rights of humans, but they certainly did not declare one variety higher than the other.
For example, the Massachusetts Declaration of Rights states:
All men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness.
The Declaration went on to provide that “No part of the property of any individual can, with justice, be taken from him, or applied to public uses, without his consent, or that of the representative body of the people . . . .” With even greater clarity, the Virginia Bill of Rights says that people “cannot be taxed or deprived of their property for public uses, without their own consent or that of their representatives so elected.”
In any case, the tendency of the declarations and constitutions of these years was the freeing of individuals from governmental control of their affairs and protecting them in their rights. It has rightly been pointed out, of course, that where Negro slavery continued to exist it was a glaring exception to this tendency. Some have even gone so far as to accuse the Founders of hypocrisy in professing to believe in the equal rights of all men and acquiescing in the continuation of slavery. It strikes us as strange that Thomas Jefferson, who penned the stirring statement “that all men are created equal,” should have been himself a slaveholder. But even in the case of chattel slavery the trend of the 1780s was toward the freeing of the individual, and if the trend and sentiment in the direction of ending slavery had continued apace the apparent contradiction would have been resolved.
Some states began to act with the purpose of eventually ending slavery almost as soon as independence from Britain was declared. In 1776, Delaware prohibited the importation of slaves and removed all restraints on their manumission (freeing by the owner). Virginia stopped slave imports in 1778; Maryland adopted a similar measure in 1783. Both states permitted manumission. In 1780, Pennsylvania not only prohibited further importation of slaves but also provided that after that date all children born of slaves should be free. Similar enactments were made in the early 1780s in New Hampshire, Connecticut, and Rhode Island. In Massachusetts, the supreme court ruled that on the basis of that state’s constitution of 1780 slavery was abolished there. Even North Carolina (the greatest resistance to freeing slaves was in the lower South) moved to discourage the slave trade in 1786 by taxing heavily such slaves as were imported after that time. In order to protect free Negroes, Virginia made it a crime punishable by death for anyone found guilty of selling a freed Negro into slavery. As already noted, the Northwest Ordinance of 1787 prohibited slavery in the Northwest territory.
Jefferson had written a warning about the continuation of slavery, which he abhorred, in his Notes on Virginia. It was a violation of their most basic rights to keep some people in perpetual bondage. “And can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are the gift of God? That they are not to be violated but with his wrath? Indeed I tremble for my country,” he said, “when I reflect that God is just: that his justice cannot sleep forever . . . .”
Madison, writing in defense of the Constitution, said that it would no doubt have been better if the slave trade had been prohibited by the Constitution rather than delaying action until 1808, but he looked forward to the time when “a traffic which has so loudly upbraided the barbarism of modern policy . . . may terminate forever . . . .”
There is no reason to doubt the sincerity of many of the Founders in wishing an end both to slavery and the slave trade. Moreover, at the earliest date that it could constitutionally Congress prohibited the importation of slaves. Although slaveholders in the lower South were still tenaciously attached to slavery, they were holding out against a tide running in the opposite direction in the 1780s. Even in the lower South, the crops which were so dependent on slave labor—rice and indigo—declined in importance once the break from England was made. Unfortunately, for the abolition of slavery, the cotton gin was invented in the 1790s; cottonbecame an important fiber; and slavery was revived by the expansion into the Old Southwest.
One of the fruits of independence was the freeing of trade both within the United States and with other peoples around the world. Independence from Britain removed British imposed mercantile restrictions in one swoop. That is not to say that Britain did not continue in various ways to limit American trade after the break. They did, well into the 1790s, at least. But British mercantilism was no longer legally binding on Americans; they could trade with whomever they could and would around the world. Initially, too, the states adopted various restrictions which limited trade within the United States. But the Constitution of 1787 put an end to that.
American belief and sentiments were tending more and more to favor free trade. The freedom of people to trade with whomever they would on mutually agreeable terms seemed to them to be of a piece with freedom for the individual in general. Benjamin Franklin said that “it seems contrary to the nature of Commerce, for Government to interfere in the Prices of Commodities. Trade is a voluntary Thing between Buyer and Seller, in every article of which each exercises his own Judgment, and is to please himself.” Pelatiah Webster, an American economic thinker of this period, declared: “I propose . . . to take off every restraint and limitation from our commerce. Let trade be as free as air. Let every man make the most of his goods in his own way and then he will be satisfied.” Jefferson said that “the exercise of a free trade with all parts of the world” was “possessed by the American . . . as of natural right . . . .”
Actually, the freedom to trade is a corollary of private property. The right to dispose of property on whatever terms he will to whomever he will is necessarily a part of the full ownership of property. At its fully extended development, it involves for the seller the right to find anywhere in the world that buyer who will make the best offer for his goods, his time, or his services. For the buyer of these, it involves his right to locate the most attractive goods at prices he is willing to pay.
Aside from the break from England, the greatest stride by Americans toward free trade was the ratification of the Constitution. The Constitution provided for a common market throughout the United States. The power to regulate commerce among the states was vested in the United States. Thereafter, the states could not obstruct commerce, and the whole country became in effect, a free trading area. Further, the Constitution provided that states may not tax imports or exports, except for carrying out inspection laws, without the consent of Congress. But to discourage any of that, all money collected had to be paid into the U.S. Treasury.
A Common Currency
The Constitution contains several other provisions promoting a common market throughout the country. Congress is empowered to pass uniform bankruptcy laws, set up standard weights and measures, and establish post offices and post roads. A common currency (or money) is also important for trade to take place easily. So far as the Constitution provides for a common currency, however, it does so by indirection. It authorizes the government to coin money and to regulate its value. It does not authorize the passing of any tender laws (laws making any currency or money legal tender or forcing its acceptance), and it prohibits states to make anything legal tender except gold and silver coins.
Paper money had a well deserved bad reputation at the time of the making of the Constitution. Not only did Americans generally have the recent unsettling experience with the Continental currency, which became worthless, but also several states had in the 1780s flooded the market with virtually worthless paper money. When the states, most notably Rhode Island, adopted laws to force the paper money into circulation, it not only obstructed trade but also endangered property in debts. The subject of paper money came up twice for extended discussion in the Constitutional Convention. It arose once over a proposal to authorize Congress to emit bills of credit (issue paper money). The delegates were overwhelmingly opposed to the proposal. The tenor of the opposition may be gathered from these delegate comments. Oliver Elsworth of Connecticut declared that he “thought this a favorable moment to shut and bar the door against paper money . . . . The power may do harm, never good.” George Read of Delaware “thought the words [emit bills of credit], if not struck out, would be as alarming as the mark of the Beast in Revelations.” John Lang-don of New Hampshire “had rather reject the whole plan [the Constitution] than retain the . . . words.” Voting by states, the delegates omitted the power by a vote of 9 to 2.
Paper money came up again in connection with a proposal to permit the states to emit bills of credit with the consent of Congress. That, too, was overwhelmingly rejected. The states are prohibited to issue paper money. Thus, the only provision for a common currency is in the power of the United States to coin money and the reserved power of the states to make those of gold and silver legal tender.
While the Constitution does not specifically provide for free trade with the rest of the world, its provisions lean in that direction. It does provide that “No Tax or Duty shall be laid on Articles exported from any State.” Thus, tariffs on exports are prohibited. Congress is authorized to levy tariffs on imports. In any case, the widespread sentiment in favor of freeing trade set the stage for low tariffs in the early decades of the Republic, and many Americans had come to dislike British mercantilistic restraints too much to wish to impose them on their own trade.
The Voluntary Way
The story of America after 1789, until well into the 20th century, is not so much the story of the doings of government as of people generally. It is the story of freed individuals working, building, growing crops, building factories, clearing the land for farms, organizing churches, providing for families, and doing all those things that make up the warp and woof of life. They did this singly as individuals, as families, and in voluntary groups. This is always to some degree true, of course. The world’s work is done by people generally and very little by governments. But governments often play a dominant role in the economic, social, religious, educational, recreational, and community lives of a people. This had been so in the European countries from which American settlers came. It has become the rule once again in most places in the world in the 20th century.
The constitution making cleared the ground for the triumph of the voluntary way in America in the late 18th century. Governments were restrained and individuals were freed to pursue their own devices alone or in voluntary cooperation with others. There is no need to exaggerate the extent of this change, however. The British colonists generally enjoyed considerable liberty, as a result of British tradition and law, of British neglect, and of the remoteness of many people from the oversight of government. The Americans continued much of what they considered to be the best of their British heritage under their new constitutions. Nor was everyone freed nor to the same degree under them. Slaves were still in bondage where slavery was continued and could hardly participate in the voluntary way. Children were, as they usually are, under the authority of their parents or other adults. Women generally were still under the protection and in some respects the authority of men—fathers, older brothers, and husbands—, partners, as adults, ordinarily to men, though in some ways subordinate ones. But these last were family matters, not things under the direction of government.
In large, then, the voluntary way triumphed. Governments still issued charters for some undertakings, but these more often confirmed some voluntary undertaking than initiating it. Even the registry of births and deaths was much more apt to be done in the family Bible than in some government office. As churches were disestablished, religion became a voluntary affair. Attendance, participation, the payment of the clergy, what structures would be built, what services would be held, were matters left to individual and family choice and voluntary cooperation. Education had never been firmly established by government in America. There had been some faltering attempts to do so in New England and New York, but not much came of them. The education of children was largely left to parents, and schools and colleges were set up, when they were, by churches or other voluntary associations or simply by some schoolmaster. So it was, too, in the matter of providing for those in temporary or some longer term need. Most often, extended families provided for orphans, for widows, for the sick, and for the disabled. Institutional charity, such as it was, was most apt tobe provided by churches or private gifts.
Under mercantilism, governments had attempted to direct economic activity for their own ends. The British had not only restricted and controlled economic activity but also granted monopolies to chartered companies to engage in specified production or trade. American colonies had sometimes imitated some of these mercantilistic practices. There were still residues of mercantilism at the time of the founding of the United States, but in general Americans preferred voluntary economic activity to that which was government directed. Mostly men started and operated businesses without asking the leave or aid or charters from government. They built ships and plied the seas in trade as they could and would. In short, they tended to follow the voluntary in their economic life.
How America flourished and grew by voluntary cooperation is a story to be told in detail elsewhere. Suffice it to say here that numerous voluntary societies came into being, that religious denominations multiplied and congregations were organized in virtually every community, that schools and colleges became commonplace, and that there were no more enterprising people in the world than were Americans in the 19th century.