Constitutional Primer #1: The Constitutional Convention and the Meaning of Liberty

by Timothy B. Lewis of the Constitutional Freedom Foundation

Before considering specific aspects of the Constitution, perhaps we should establish its underlying philosophical base by reviewing a little American history and some basic principles.  That is what the first several articles in our series will do.

Before the American Revolution, the colonists felt they had too little say in the laws that governed them and that the British Crown had too much say.  They protested in several ways, but perhaps the most famous was the Boston Tea Party. 

After the Boston Tea Party, Parliament passed a series of bills known in the colonies as the "Intolerable Acts."  They closed the Boston harbor, changed the government of the Massachusetts Bay Colony, changed the judicial system in that colony and allowed the quartering of troops in private homes without paying compensation. ^[i]  

Lord North was the leading proponent of these acts in Parliament on behalf of the King.  In arguing his case for a stronger exercise of authority over the colonies he said: "If we exert ourselves now with firmness and intrepidity, it is the more likely they [the colonists] will submit to our authority."  Mr. Montague agreed and maintained that the disorders in America resulted from England being too lenient and that the situation called for the exercise of power.  Mr. Jenkins observed that if England did not take a strong position and make an example out of the Bostonians, they will "become a precedent to the rest of the Colonies." ^[ii]

As part of a minority in Parliament opposed to those bills, Mr. Byng predicted that the bills would only produce more of the very conduct by the Americans that Lord North and his friends detested and wished to control. ^[iii]   Captain Phipps added: "Let America alone, and it will return of itself to obedience...." ^[iv]   Lord G. Cavendish said: "...that country which is kept by power, is in danger of being lost every day." ^[v]   And Edmund Burke observed: "The spirit of English legislation...must execute itself, or no power under Heaven will be able to effect it." ^[vi]   In other words, the law must be moral enough and respectable enough that people, in general, can see on their own, the wisdom of self-compliance and do so voluntarily without the necessity of external force.

Ultimately, the latter group proved to be the better prophets.  The “intolerable acts” tended to unite the colonies against the Crown – public sentiment in the colonies turned revolutionary. ^[vii]

Life Under the Articles of Confederation

When they finally decided to revolt from the mother country, the colonists organized under a very weak type of central government called the Articles of Confederation.  Under this arrangement, the federal government had little power to force the states to do anything.  For example, near the end of the war, when the federal government would order certain amounts of manpower and financing from the various states, the states started to refuse those orders.  The states claimed they had already committed more than their fair share of money and blood to the war effort and, under the Articles of Confederation, there wasn’t much the federal government could do about it. ^[viii]

So we went from a situation of very little colonial rights before the Revolution to ultimate states’ rights during and after the Revolution.

After winning the Revolutionary war, however, the thirteen states started exercising their state sovereignty in somewhat extreme ways.  They were very uncooperative with one another and started acting almost like independent countries.  They had their own money systems, many of which printed worthless paper money at the behest of the debtor class against the interests of their creditors.  Shays Rebellion, which had to be forcibly subdued, was an attempt by insurrectionists to force the same thing in Massachusetts.⁹ 

Border fights erupted over contested territory.  For example, New York, New Hampshire and Massachusetts all claimed the territory which now comprises the state of Vermont.  George Washington had to personally intervene to avert war concerning the matter.¹⁰

Maryland claimed ownership to the far bank of the Potomac river and charged all Virginian traffic a fee to use the river.  In response, Virginia charged all Maryland traffic a fee to use the portion of the Chesapeake Bay which it controlled further on down the river.¹¹

Connecticut was the major supplier of firewood for New York and New Jersey was New York's major supplier of food.  When New York levied a tax on firewood and food, Connecticut cut off all trade with New York.  In similar fashion, New Jersey attempted to get even by imposing a property tax on the lighthouse at Sandy Hook which was on the New Jersey side of the New York Harbor. ¹²

The various states imposed tariffs whenever commodities would pass through them to some other state.¹³ These were attempts by the various states to push the burden of taxation onto the shoulders of out-of-staters who couldn’t vote within the various states in question.  All of this conduct cumulatively created artificial barriers to free trade among the states.

The federal government could not effectively make any treaties with foreign countries since the states had the power to circumvent them at every turn.  Foreign powers saw no point in trying to negotiate with an entity which had no effective power to bind its constituent parts.¹⁴

People could see that they would have to change things or we would just break up into thirteen different countries and in effect, construct a miniature Europe over here with all of its long tradition of uncooperation, political infighting, and wars.¹⁵  Consequently, the Constitutional Convention was convened in Philadelphia to consider how to strengthen the federal government so that we could seriously call ourselves one unified country without laughing in the next breath.

Principal Fear in Changing Their Form of Government: They Didn’t Want To Make Too Strong Of A Central Government

As the people considered the prospect of changing the federal government, they knew they had to give it more central power but their principal fear was going too far and creating too strong of a central government.¹⁶  People generally prized the notion of individual state sovereignty and didn't want to give up too much of it.  They wanted to find a happy medium between the two extremes which they had recently experienced – i.e. too strong of a central government in the British Crown and too weak of a central government under the Articles of Confederation. 

The Federal Government Was Viewed As Only Being A Government Of Limited Delegated Powers

As the constitutional convention proceeded and the new constitution was debated, it became clear that the new federal government was viewed by most as a government of specifically "delegated powers."  Whatever power it had, came from below by delegation and common consent and it held no powers by itself absent that bottom-up delegation.  To illustrate this point, consider the following examples of sentiment. 

About three months into the constitutional debate in Philadelphia, George Mason rose to his feet and proposed that the new constitution contain certain delineations of rights like freedom of speech to protect the people from the federal government.  The basic upshot of the response was effectively this:  "Don't worry Mr. Mason, we didn't delegate any power to the federal government to regulate speech -- so it would be superfluous to even talk about it in the text of the constitution."  Hence, Mason's proposal failed.¹⁷

When the Constitution was sent to the states for adoption without a Bill of Rights attached, many people agreed with Mason and criticized this as a major deficiency.¹⁸  In response, Alexander Hamilton in Federalist #84 echoed the sentiments of Mason’s opponents by saying:

“For why declare that things shall not be done which there is no power to do?  Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?”¹⁹

Hamilton wanted to make sure that no faulty implications were drawn regarding the notion of the federal government having only limited delegated powers.  He worried about the implications of total silence regarding a particular governmental power.  On the one hand, he argued in several of the Federalist Papers that unless a particular power was specifically delegated in a positive way to the federal government, it did not reside with the federal government.²⁰  But on the other hand, later some people with an expansionist federal mind-set could argue that unless that particular power were specifically denied to the federal government, it held that power by implication.  Hamilton worried that attaching a Bill of Rights with specific prohibitions would bolster the latter erroneous argument made by those desirous of expanding federal authority. 

Nevertheless, many were not persuaded by his argument and did not want to take any chances that this new federal government would trample on their rights. Consequently, several states voted to adopt the new constitution but only after getting assurances that after adoption, the federalists would support amending the Constitution with a Bill of Rights.²¹  Hence, the first ten amendments were added to it four years later.

The Final Draft of the Constitution was Completed

After about 4 months of debate and drafting, the final version of the Constitution was complete.  It was then transmitted to the national congress and the states for adoption.  Under the signature of George Washington, a letter of transmittal accompanied the document.  It said in part:

"Sir, We have now the honor to submit to the consideration of the United States in Congress assembled, that Constitution which has appeared to us the most advisable....Individuals entering into society must give up a share of liberty to preserve the rest.  The magnitude of the sacrifice must depend as well on situation and circumstance, as on the object to be obtained.  It is at all times difficult to draw with precision the line between those rights which must be surrendered, and those which may be reserved; and on the present occasion this difficulty was increased by a difference among the several States as to their situation, extent, habits, and particular interest.

"In all our deliberations on this subject we kept steadily in our view, that which appears to us the greatest interest of every true American, the consolidation of our union, in which is involved our prosperity, felicity, safety, perhaps our national existence.  This important consideration, seriously and deeply impressed on our minds, led each State in the Convention to be less rigid on points of inferior magnitude, than might have been otherwise expected; and thus the Constitution, which we now present, is the result of a spirit of amity, and of that mutual deference and concession which the peculiarity of our political situation rendered indispensable."²²

The Issue of Slavery

During the convention, the divisive issue of slavery was debated.²³  Many wanted to abolish the practice, but the southern states refused to go along with anything that would do that.  Since that issue threatened the goal of national unity, which Washington observed to be their primary goal, it would have to wait for another day before it could finally be resolved.  In order to secure the necessary southern votes, the Constitution specifically prohibited any amendment until 1808 of its sections which effectively protected the institution of slavery.²⁴  In effect, the drafters promised the south twenty years of a “hands-off” policy concerning slavery. The implication of this was that after twenty years, the issue would finally be addressed at the national level. It wasn’t until the Civil War that the issue would finally be resolved, but everyone was on notice from the outset, that the status quo regarding that issue was only temporary.  Henry Jaffa cautions us not to think of slavery as a “constitutional principle” but rather, a “constitutional compromise” dictated by the demands of prudence.

It is easy for us to morally criticize our history of slavery, but just try to imagine what would have happened had those opposed to slavery imprudently taken an unyielding and categorically absolute moral stance on that issue and demanded that the Constitution, then and there, abolish the practice.  We might very well have split into two different countries – a United States of Northern America and a United States of Southern America.  And who knows, like other countries around the world, perhaps that southern nation would still practice slavery even today. 

We Call Ourselves a “Free People,” but What Does It Mean To Be “Free?”

In the above quotation, Washington astutely observed that there will always be a tension balance between liberty and law.  In order to create and maintain civil society, we cannot retain unlimited individual liberties – we have to give up certain freedoms in order to gain and/or protect others and to achieve other worthy societal goals and objectives.  As important as any particular right or societal goal might be, we cannot afford to look at any in terms of categorical absolutes. 

For example, if we looked at freedom as some sort of categorical absolute that would always trump every other worthy societal goal or objective, we could never incarcerate a convicted criminal for the sake of promoting justice; we would sacrifice the public safety on our roads if we imposed no legal restraints against the freedom to drive on the left-hand side or the freedom to personally interpret a red light as meaning “go” instead of “stop”; etc.  Thus, in structuring and organizing civil society, we are continually forced to make trade-offs between competing goals and objectives – freedom being but one of them, albeit a very important one. 

William Blackstone, the preeminent English legal scholar, recognized this long ago when he distinguished between "natural liberty"--part of which "every man who enters society gives up"--and "civil liberty" which he defined as "no other than natural liberty, so far restrained by human laws (and no farther) as is necessary and expedient for the general advantages of the public."²⁵

J. Reuben Clark, Jr. once reflected on the principle of liberty as he compared our form of government to others around the world:

“I have often put the situation thus: we look into our laws to see what we may not do, for we may do anything we have not given away, for the whole residuum is ours.  They look into their laws to see what they may do, for they may do only the things the Emperor has said they may do for all the residuum of power is in him.  This makes us free men; it makes them subjects.”²⁶

In other words, for a people to call themselves “free” does not mean that they are subject to no laws, but rather, that they are subject only to those laws they themselves have given their government the power to make.  In a republic such as ours, at any time the people can withdraw previously granted powers or grant more.  Thus, ultimately, from the bottom-up rather than the top-down, the people are free to choose the limits and extents of their individual liberties on the one hand and, on the other, their collective legal regulations for the sake of creating and preserving the type of civil society they desire.

Is It Possible To Have Too Much Liberty?

Today some people seem to believe that the more unbridled individual liberty, the better.  But in addressing the issue of balancing liberty and law, James Madison warned us that too much liberty can be as dangerous as too much law:

“[L]iberty may be endangered by the abuses of liberty as well as by the abuses of power; that there are numerous instances of the former as well as of the latter; and that the former [abuses of liberty], rather than the latter [abuses of power], are apparently most to be apprehended [anticipated; dreaded] by the United States.”²⁷

The notion that abuses of liberty threaten its very existence has been well expressed by many people.  The following represent but a small sample:

George Washington:

“...arbitrary power is most easily established on the ruins of liberty abused to licentiousness.”²⁸

Robert P. George:

“True freedom, the freedom that liberates, is grounded in truth and ordered to truth and, therefore, to virtue.  A free person is enslaved neither to the sheer will of another nor to his own appetites and passions....The counterfeit of freedom consists in the idea of personal and communal liberation from morality, responsibility and truth.  It is what our nation’s founders expressly distinguished from liberty and condemned as ‘license.’”²⁹

John Milton:

“None can love freedom heartily, but good men; the rest love not freedom, but license.”³⁰

Daniel Webster:

“Liberty exists in proportion to wholesome restraint.”³¹

James V. Schall:

“The classical writers...used to relate self-discipline to liberty.  The person who was most free was the one who had the most control over himself.  The person who was most unfree was the one who was ruled by pleasures, money, or power.  Self-discipline does not, however, solve the problem of what is knowledge or truth or good; self-discipline is a means, not an end in itself.”³²

There Can Be No Liberty Without Law

The idea that virtue is a necessary pre-requisite to liberty, will be the subject of a future article, but to conclude this article, let us consider a quotation from John Locke, a philosopher on whom our founders greatly relied.  He observed there can be no lasting liberty without law:

“[T]he end of law is not to abolish or restrain, but to preserve and enlarge freedom.  For in all the states of created beings, capable of laws, where there is no law there is no freedom.  For liberty is to be free from restraint and violence from others, which cannot be where there is no law; and is not, as we are told, ‘a liberty for every man to do what he lists.’ For who could be free, when every other man’s humour might domineer over him?  But [“liberty” means] a liberty to dispose and order freely as he lists his person, actions, possessions, and his whole property within the allowance of those laws under which he is, and therein not to be subject to the arbitrary will of another, but freely follow his own.” (emphasis added.)³³

Recognizing this dynamic, in America The Beautiful, part of the second verse reads: “Confirm thy soul in self control, thy liberty in law.”

Conclusion

So if there can be no liberty without law and if we must sacrifice some of our liberties in order to preserve the rest, how do we decide which individual liberties to give up and which to retain?   As discussed earlier, we, as a free people, do it bottom-up through representative republican government built upon a constitutional foundation.  But a very important aspect of our original constitutional framework for making such decisions has largely been destroyed by the judiciary.  That aspect -- federalism -- will be the focus of our next article, and the judiciary’s role in its demise will be addressed in subsequent articles.

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For more information visit The Constitutional Freedom Foundation website at: http://www.constitutionalfreedomfoundation.org/index.htm

Notes