June 1, 2011

American Revolutionary Principles (2 of 3): Constitution and Rights


In part one I described how America’s idea of representation evolved over the course of the Revolution. The conclusion was that no representative form is a principle in itself, but is only valid insofar as it helps maximize democracy and freedom.
Similarly, America’s concept of constitution radically evolved and reached a similarly practical viewpoint where it came to written charters, while developing a more profound principle of what underlies any charter and code of law.
To summarize:
1. Sovereignty is the basis of legitimate power. This basis lies only in the people themselves. (I’ll discuss sovereignty in part 3.)
2. The sovereign constitution is the particular form a particular people’s sovereignty takes. It comprises the principles, traditions, and practices native to a people, as these evolve through history. It’s the sum of our natural rights as human beings and the way these rights manifest through our citizenship as part of a particular people. It is independent of and underlies our social morality.
By now this constitution can only have a democratic character, as other possible measures of sovereignty – theocracy, statism, elitism – are proven to have been temporary historical stages at best, fraudulent false paths at worst. Only the democratic ideal in its broadest sense – that the people are the source of all authority and must seek a way of life which maximizes their own well-being and autonomy – accurately depicts where history has been heading for thousands of years.
By now we know that democracy in the specific sense – direct political participation and control, and economic self-management – is in fact the aspiration of humanity as a whole. Nowhere has a people rejected these, and in most places they’ve fought for them if they saw a chance to do so. This true democracy is the deepest ideal of the sovereign constitution.
3. A written Constitution or charter is then supposed to be an adequate expression of this sovereign form. It’s an attempt on the part of the people’s sovereignty to formally codify the sovereign constitution. This written attempt can be legitimate only insofar and as long as it embodies the sovereign constitution in principle and practice. It’s the pre-written set of political, economic, and moral norms, not the written expression, which is truly authoritative.
Since all sovereignty and power resides in the people, while any written document is only the tool of our sovereign constitution, it follows that the written Constitution and any interpretations and laws which stem from it must tend to expand democracy and the democratic well-being of the people. Otherwise they are invalid and illegitimate and must be rejected.
The constitution in the sense of the formalized structure – charters, laws, governmental bodies – is subsequent to and contingent upon the sovereign constitution, which is the democratic imperative itself as a non-negotiable principle, our human right, and our citizen mandate. This sums up the constitutional innovation of the American Revolution. I recently discussed constitutionalism and positive democracy.
So to repeat: The sovereign constitution (the democratic imperative) precedes the written Constitution. The latter has authority only to the extent it’s in the spirit of the former.
(I’m not claiming that a polity which is achieving true democracy needs a written charter at all. But historically such charters have been steps in the democratic movement’s evolution, and they remain highly popular. So my attitude toward a written Constitution is practical: If continuing to express sovereignty in such a way looks like it would help democracy progress, I’m all for it. If it looks like we can dispense with such a document, I’d dispense with it.) 
I already wrote a post briefly describing the evolution of colonial thought on the constitution. I want to go over the chronology one more time in greater detail, to establish that my position is sound according to the principles of the Revolution, while the modern fetish of the written document (let alone the perversion of it by the kleptocracy, for example in the case of corporate “rights”, something rejected even by the 1788ers) is unhistorical and contrary to the spirit of America. Today’s SCOTUS, for example, is profoundly unamerican.
As in part one, I’m drawing on Bernard Bailyn’s guidebook for this chronology.
Going into the 1760s there was consensus in both Britain and the colonies that the constitution comprised the structures of government and written codes. Future loyalist Charles Inglis was to call it “that assemblage of laws, customs, and institutions which form the general system according to which the several powers of the state are distributed and their respective rights are secured to the different members of the community.” Similarly, in the mid-60s John Adams called it “a frame, a scheme, a system, a combination of powers.” So the mechanistic and non-principled view of it was the norm. Only rarely did a commentator suggest constitution might have anything to do with underlying principle. Unlike with representation, where the sea change in American attitudes took place over the span of two years in the mid-60s, the evolution of constitutional consciousness occurred gradually over the revolutionary era, from the early 60s to 1776.
James Otis first rang the change in the 1761 writs of assistance case, where he proclaimed that any act of Parliament “against the constitution is void”, and that the courts had the duty of “pass[ing] such acts into disuse.” At first this sounded unintelligible to conventional thinkers. Parliament was by definition an integral part of the constitution; how could its acts be against the constitution? Did this mean the conventional view was wrong, and that the constitution was really not the political body but the underlying principle it was supposed to exalt?
Otis himself soon got mixed up in his theorizing, as he was unwilling to follow through on his own logic. But other thinkers carried out the development. Given the new problems of the 1760s, the fact that Britain was trying to assert its power in aggressive new ways, the colonists needed new interpretations of the old terms and concepts if they were to effectively wage the war for democracy on the philosophical front. The new interpretation was the ideal of constitution as a set of principles preceding and superior to institutions. Once they crossed over this ridgeline in the mid 1760s, they made rapid progress.
In his 1768 letters on behalf the Massachusetts House of Representatives and his Massachusetts Circular Letter, Samuel Adams declared that “the constitution is fixed; it is from thence that the supreme legislative as well as the supreme executive derives its authority.” This means that these too have no inherent authority, but are only to exist at all so long as they democratically work; so long as they carry out the spirit of the constitution. Here too we see how the logic now leads us beyond where Adams himself would have wanted to go, to true democracy.
Others took up this idea, culminating in John Joachim Zubly’s 1769 declaration that Parliament “derives its authority and power from the constitution, and not the constitution from Parliament.” The constitution “is permanent and ever the same”, and a thing like Parliament is, in principle, merely contingent upon it. The idea was developed over the first half of the seventies, finding its full expression in the anonymous “Four Letters on Interesting Subjects”. Government is not the same thing as constitution, but is rather an outgrowth of it. Constitution, like Rousseau’s general will, must be grounded in a higher authority, “an act of all.” It could be encoded in a written charter, but this too is an appendage and not the core being. The written constitution lays out a technical framework for government. This is procedural, not essential. It’s to be judged by how well it works. The Letters propose conventions every seven years to assess this written expression of the underlying constitutional principle.
In calling for a Bill of Rights the Letters touched on the closely related issue of natural rights vs. encoded ones. Here too, there had been an evolution in colonial thought away from the idea of rights as granted from above (“matters of the mere favor and grace of the donor or founder”, for example Parliament) and written as an exhaustive list, toward the conception of rights as coming from “the law of nature and its author” (Otis).
[Otis also distinguished between corporate rights, which he interpreted as indeed being matters of favor and grace, and human rights, which are prior to all governmental grace and inalienable.]
Here it was John Dickinson in the mid 60s who achieved the conceptual breakthrough with his analysis of how rights were from god, while charters are “declarations but not gifts of liberties.” Charters are “founded on the acknowledged rights of human nature”, while the rights themselves:

We claim them from a higher source…They are not annexed to us by parchments and seals. They are created in us by the decrees of Providence, which establish the laws of our nature. They are born with us; exist with us; and cannot be taken from us by any human power without taking our lives. In short, they are founded on the immutable maxims of reason and justice.

Anything written, even the Magna Carta, “must be considered as only declaratory of our rights, and in affirmance of them.”
Alexander Hamilton of all people (but in 1775, still in his first act) cried out, “the sacred rights of mankind are not to be rummaged for among old parchments or musty records. They are written, as with a sunbeam, in the whole volume of human nature, by the hand of divinity itself, and can never be erased or obscured by mortal power.”
We can judge Hamilton’s later parchments according to his own measure as avowed here. We have the recognition that natural rights and the fundamental constitution are above and prior to charters (like that of 1788), legislatures/executives/courts and other institutions (let alone corporations and globalization cadres), written laws (let alone kleptocratically rigged laws). All these are to be judged, respected or disrespected, accepted or rejected, acclaimed or overthown, based solely on how faithfully and effectively they carry out their mission to further our democratic sovereignty and constitution. Wherever we the people judge that an institution has maliciously abrogated this mission (and is therefore a classical usurper), or at any rate has failed in its trust, we have the right and duty as citizens to do away with it. Exercising such right and duty is the proof of citizenship and humanity.


  1. Damn the usurpers. Damn them all!

    I’d go as far to say that not only do we have a duty to discharge illegitimate institutions, but a duty to hold our fellow citizens to a high standard; something that seems to have been lost in a culture of excess.

    Comment by Strieb Roman — June 1, 2011 @ 1:27 pm

    • The spirit of citizenship is rusty indeed. The reason I wrote these posts is because I’m trying to find ideas which can help reinvigorate it. They’ve worked before.

      Comment by Russ — June 1, 2011 @ 2:45 pm

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