The Patriot's Primer on American Liberty (Part 1)
Liberty v Tyranny and the Primacy of Rule of Law over rule of men
A treatise on the eternal struggle between Liberty and tyranny, and on the primacy of Rule of Law over rule of men
“Our cause is noble; it is the cause of mankind!” —George Washington
Publisher’s Note: This essay is the first of a two-part treatise on constitutional Rule of Law. (Read Part 2) It is published as the introduction to our Essential Liberty Project, and printed pocket guides are available for bulk purchase here.
The mission of this essay is to support restoration of our Republic’s constitutional integrity and Rule of Law. Our objective is to distribute millions of our “Patriot’s Primer on American Liberty” to students, grassroots organizations, civic clubs, political alliances, military and public service personnel, professional associations and other groups. As a preface on Liberty, the unalienable Rights of Man – the rights of all people – “endowed by [our] Creator,” as enshrined in the Declaration of Independence, and further codified in our Constitution, these pocket guides are a vital educational resource for Patriots of all ages. If this essay inspires you to action, then I invite you to support the printing and distribution of the Patriot’s Primer on American Liberty, and to purchase them for your own distribution from The Patriot Post Shop. Visit the official page of the Essential Liberty Project for more information.
Sons of Liberty — The Fight for Freedom
“The tree of Liberty must be refreshed from time to time with the blood of patriots and tyrants.” —Thomas Jefferson
On December 16th, 1773, “radicals” in Boston, members of a secret organization of American Patriots called Sons of Liberty, boarded three East India Company ships at Griffin’s Wharf and threw 342 chests of British East India Company tea into Boston Harbor. This iconic event, which foretold the revolution to come against oppressive taxation and tyrannical rule, is immortalized as “The Boston Tea Party.”
Resistance to the British Crown had been mounting since King George imposed the Writs of Assistance, giving British authorities power to arrest and detain colonists for any reason. He also imposed oppressive bills of attainder and authorized troops to “quarter” in the homes of his colonial subjects. Protests intensified over enactment of heavy taxes, including the 1764 Sugar Act, 1765 Stamp Act and 1767 Townshend Acts.
The growing unrest came to bloodshed in March of 1770, when British troops fired on civilians in Boston, killing five colonists. This event, the “Boston Massacre,” gave rise to the slogan, “No taxation without representation.”
But it was the 1773 Tea Act, under which the Crown collected a three-pence tax on each pound of tea imported to the colonies, that instigated many Tea Party protests and seeded the American Revolution. Indeed, as James Madison reflected in 1823, “The people of the U.S. owe their Independence and their Liberty, to the wisdom of descrying in the minute tax of 3 pence on tea, the magnitude of the evil comprised in the precedent.”
News of the Tea Party protest in Boston galvanized the colonial movement opposing onerous British parliamentary acts that were a violation of the natural, charter and constitutional rights of the British colonists.
In response to the rising colonial unrest, the British enacted measures to punish the citizens of Massachusetts and to reverse the trend of resistance to the Crown’s authority. These were labeled “The Intolerable Acts,” the first of which was the 1774 Boston Port Bill that blockaded the harbor in an effort to starve Bostonians into submission.
Among the Patriots who broke the blockade to supply food to the people of Boston was William Prescott, who would later prove himself a heroic military leader at Bunker Hill and Saratoga. To his fellow Patriots in Boston, Prescott wrote, “We heartily sympathize with you, and are always ready to do all in our power for your support, comfort and relief; knowing that Providence has placed you where you must stand the first shock. … Our forefathers passed the vast Atlantic, spent their blood and treasure, that they might enjoy their liberties, both civil and religious, and transmit them to their posterity. … Now if we should give them up, can our children rise up and call us blessed?”
The Boston blockade was followed by the Massachusetts Government Act, the Administration of Justice Act and the Quartering Act. But far from accomplishing their desired outcome, the Crown’s oppressive countermeasures hardened colonial resistance and led to the convention of the First Continental Congress on September 5th, 1774, in Philadelphia.
By March of 1775, civil discontent was at its tipping point, and American Patriots in Massachusetts and other colonies were preparing to cast off their masters. The spirit of the coming Revolution was captured in Patrick Henry’s impassioned “Give me Liberty or give me death” speech.
That month, Dr. Joseph Warren delivered a fiery oration in Boston, warning of complacency and instilling courage among his fellow Patriots: “The man who meanly will submit to wear a shackle, contemns the noblest gift of heaven, and impiously affronts the God that made him free. … Ease and prosperity (though pleasing for a day) have often sunk a people into effeminacy and sloth. … Our country is in danger, but not to be despaired of. Our enemies are numerous and powerful; but we have many friends, determining to be free, and heaven and earth will aid the resolution. On you depend the fortunes of America. You are to decide the important question, on which rest the happiness and liberty of millions yet unborn. Act worthy of yourselves.”
On the eve of April 18th, 1775, General Thomas Gage, royal military governor of Massachusetts, dispatched a force of 700 British Army regulars under Lieutenant Colonel Francis Smith with secret orders to arrest Boston Tea Party leader Samuel Adams, Massachusetts Provincial Congress President John Hancock and merchant fleet owner Jeremiah Lee.
But what directly tied Gage’s orders to the later enumeration of the Second Amendment in our Constitution was the primary mission of his Redcoats: A preemptive raid to confiscate arms and ammunition stored by Massachusetts Patriots in the town of Concord. The citizen minutemen understood even then that their right to keep and bear arms should not be infringed.
Patriot militia and minutemen, under the leadership of the Sons of Liberty, anticipated this raid, and the confrontations between militia and British regulars at Lexington and Concord were the fuse that ignited the American Revolution.
Near midnight on April 18th, Paul Revere, who had arranged for advance warning of British movements, departed Charlestown (near Boston) for Lexington and Concord in order to warn John Hancock, Samuel Adams and other Sons of Liberty that the British Army was marching to arrest them and seize their weapons caches. After meeting with Hancock and Adams in Lexington, Revere was captured, but his Patriot ally, Samuel Prescott, continued to Concord and warned militiamen along the way.
The Patriots in Lexington and Concord, as with other militia units in New England, were bound by “minit men” oaths to “stand at a minits warning with arms and ammunition.” The oath of the Lexington militia read thus: “We trust in God that, Should the state of our affairs require it, We shall be ready to sacrifice our estates and everything dear in life, Yea, and life itself, in support of the common cause.”
In the early dawn of April 19th, their oaths would be tested with blood. Under the command of Captain John Parker, 77 militiamen assembled on the town green at Lexington, where they soon faced Smith’s overwhelming force of British regulars. Parker did not expect shots to be exchanged, but his orders were: “Stand your ground. Don’t fire unless fired upon, but if they mean to have a war, let it begin here.”
A few links away from the militia column, British Major John Pitcairn swung his sword and ordered, “Lay down your arms, you damned rebels!”
Not willing to sacrifice his small band of Patriots on the green, as Parker later wrote in sworn deposition, “I immediately ordered our Militia to disperse, and not to fire.” But the Patriots did not lay down their arms as ordered, and as Parker noted, “Immediately said Troops made their appearance and rushed furiously, fired upon, and killed eight of our Party without receiving any Provocation therefor from us.”
The British continued to Concord, where they divided ranks and searched for armament stores. Later in the day, the second confrontation between regulars and militiamen occurred as British light infantry companies faced rapidly growing ranks of militia and minutemen at Concord’s Old North Bridge. From depositions on both sides, the British fired first, killing two and wounding four.
This time, however, the militia commander, Major John Buttrick, yelled the order, “Fire, for God’s sake, fellow soldiers, fire!”
And fire they did, commencing with “The Shot Heard Round the World,” as immortalized by poet Ralph Waldo Emerson. With that shot, farmers and laborers, landowners and statesmen alike brought upon themselves the sentence of death for treason. In the ensuing firefight, the British suffered heavy casualties and in discord retreated to Concord village proper for reinforcements, and then back toward Lexington.
During that retreat, British regulars took additional casualties, including those suffered in an ambush by the reassembled ranks of John Parker’s militia — “Parker’s Revenge,” as it became known. The English were reinforced with 1,000 troops in Lexington, but the King’s men were no match for the militiamen, who inflicted heavy casualties upon the Redcoats along their 20-mile tactical retreat to Boston.
“What a glorious morning this is!” declared Samuel Adams to fellow Patriot John Hancock upon hearing those first shots.
Indeed, the first shots of the eight-year struggle for American independence were in direct response to the government’s attempt to disarm the people.
By the time the Second Continental Congress convened in the Spring of 1775, the young nation was in open war for Liberty and independence, which would not be won until a full decade later, at great cost of blood and treasure.
In January of 1776, Thomas Paine published his pamphlet Common Sense, which framed the uprising, noting, “The cause of America is in a great measure the cause of all mankind.”
Of the justification for Revolution, Samuel Adams wrote, “The People alone have an incontestable, unalienable, and indefeasible right to institute government and to reform, alter, or totally change the same when their protection, safety, prosperity, and happiness require it.”
On May 15th of 1776, the Continental Congress adopted a resolution calling on states to prepare for rebellion. In its preamble, John Adams advised his countrymen to sever all oaths of allegiance to the Crown.
“Endowed by Their Creator”
“In the supposed state of nature, all men are equally bound by the laws of nature, or to speak more properly, the laws of the Creator.” —Samuel Adams
On July 2nd, 1776, delegations from the 13 sovereign states, in convention as the Second Continental Congress at the Pennsylvania State House, voted in support of a much-debated resolution for unity and independence. There was one abstention from the New York delegation, which had not yet received permission from its Provincial Congress to vote in the affirmative.
On July 3rd, John Adams wrote his wife Abigail: “Yesterday, the greatest question was decided, which ever was debated in America, and a greater, perhaps, never was or will be decided among men. … You will see in a few days a Declaration setting forth the causes which have impelled us to this mighty revolution, and the reasons which will justify it in the sight of God and man.”
Adams continued: “The Second Day of July 1776, will be the most memorable Epocha, in the History of America. I am apt to believe that it will be celebrated, by succeeding Generations, as the great anniversary Festival. It ought to be commemorated, as the Day of Deliverance by solemn Acts of Devotion to God Almighty. It ought to be solemnized with Pomp and Parade, with Shews, Games, Sports, Guns, Bells, Bonfires and Illuminations from one End of this Continent to the other from this Time forward forever more. You will think me transported with Enthusiasm but I am not. I am well aware of the Toil and Blood and Treasure, that it will cost Us to maintain this Declaration, and support and defend these States. Yet through all the Gloom I can see the Rays of ravishing Light and Glory.”
He concluded, “I can see that the End is more than worth all the Means. And that Posterity will tryumph in that Day’s Transaction, even altho We should rue it, which I trust in God We shall not.”
The delegates then spent two days reviewing the draft of the proposed declaration for independence, which John Adams had requested Thomas Jefferson compose. After revisions and deletions, it was ratified on July 4th and signed by John Hancock, president of the Continental Congress. July 4th has since become the Independence Day we celebrate with “Pomp and Parade, with Shews, Games, Sports, Guns, Bells, Bonfires and Illuminations.”
On the night of its enactment, printer John Dunlap produced the first 200 broadsides for distribution. Notably, however, the famous parchment copy of the Declaration now in the National Archives was ordered by Congress on July 19th — including the additional word “unanimous” after the New York delegation affirmed its support. It was then signed by 56 Patriots, some of whom were not present in Philadelphia in early July. Most signed in early August, with the last signature affixed on November 4th.
The delegate signers were merchants, farmers, doctors, lawyers and others, all of whom pledged “our lives, our fortunes and our sacred honor” to the cause of Liberty. And nine of the 56 did lose their lives in the ensuing conflict.
They declared, “When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.”
Our Founders further avowed in the Declaration, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”
Our Declaration of Independence was derived from common law, “the Laws of Nature and Nature’s God.” And the assertion that the rights of all men were irrevocable as “endowed by their Creator” rather than by kings and magistrates was radical, as was its call upon “the Supreme Judge of the world” for “protection of Divine Providence.”
The Declaration’s first paragraph references “the separate and equal station to which the Laws of Nature and of Nature’s God entitle them,” which informs the words “endowed by their Creator” in the second paragraph.
To better understand what is meant by “the Laws of Nature and of Nature’s God,” recall that our Declaration’s signers were not of one mind on matters of theology and doctrine. They were Christians, Deists and Agnostics, but they did, however, uniformly declare that the Rights of all people were, are and forever will be innate and unalienable, as established by “the Laws of Nature and of Nature’s God.” (Notably, references to God and our Creator are also carried through all 50 state constitutions.)
This is not an article of “faith.” It is the assertion that the right to “Life, Liberty and the pursuit of Happiness,” as enshrined in our Declaration, is inherent and applicable to all humans of every nation, religion, race and ethnicity, and for all time.
It makes no difference what one’s concept of “Nature’s God” or our “Creator” is, or whether one even subscribes to any such understanding. All people are entitled to Liberty and all the rights so embodied. Those rights are not the gift of man nor the declarations and constitutions written by men. As Founder Alexander Hamilton wrote, “The sacred Rights of mankind are not to be rummaged for among old parchments or musty records. They are written, as with a sun beam, in the whole volume of human nature, by the Hand of the Divinity itself, and can never be erased or obscured by mortal power.” Indeed, the Declaration and Constitution were designed specifically to protect those rights, not award them.
“Life, Liberty and the pursuit of Happiness…” These are natural rights — gifts from God, not government.
The Declaration’s common law inspiration for the Rights of Man has its origin in governing documents dating back to the 1164 English Constitutions of Clarendon and 1215 Magna Carta. Each established objective Rule of Law over and above the subjective rule of the king. Rex Lex (“The king is law”) was slowly replaced by Lex Rex (“The law is king”). With the Magna Carta, the king was bound under the law by a national covenant — a declaration of mutual obligations of the ruler and those ruled.
In his 1690 Second Treatise on Government, John Locke articulated this contractual vision of a government of laws existing to protect the liberties of its citizens. The context for Locke’s thought was the Glorious Revolution (1688) and the English Bill of Rights (1689).
However, our Declaration’s most contemporary common law inspiration was William Blackstone’s 1765 Commentaries on the Laws of England, perhaps the most scholarly historic and analytic treatise on Natural Law.
Blackstone wrote, “As man depends absolutely upon his Maker for everything, it is necessary that he should in all points conform to his Maker’s will. This will of his Maker is called the law of nature. … This law of nature, being coeval [coexistent] with mankind and dictated by God Himself is, of course, superior in obligation to any other. It is binding over all the globe, in all countries, and at all times; no human laws are of any validity if contrary to this. … Upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered [permitted] to contradict these.”
Justice James Wilson, a signer of both the Declaration of Independence and the Constitution, and one of George Washington’s first nominees to the Supreme Court, wrote, “Law … communicated to us by reason and conscience … has been called natural; as promulgated by the Holy Scriptures, it has been called revealed. … But it should always be remembered, that this law, natural or revealed … flows from the same divine source; it is the law of God. … Human law must rest its authority, ultimately, upon the authority of that law, which is divine.”
As John Adams resolved, “If men through fear, fraud or mistake, should in terms renounce and give up any essential natural right, the eternal law of reason and the great end of society, would absolutely vacate such renunciation; the right to freedom being the gift of God Almighty, it is not in the power of Man to alienate this gift, and voluntarily become a slave.”
It is these fundamental principles of Liberty, as “endowed” and protected by Rule of Law, that Thomas Jefferson enumerated in our Declaration of Independence, and which James Madison later codified in our Constitution.
“We Resolve to Conquer or Die”
“The fate of unborn millions will now depend, under God, on the courage and conduct of this army. … We have therefore to resolve to conquer or die: Our own Country’s Honor, all call upon us for a vigorous and manly exertion, and if we now shamefully fail, we shall become infamous to the whole world.” —George Washington
On July 6th, 1776, Congress approved the “Declaration of the Cause and Necessity of Taking up Arms,” drafted by Thomas Jefferson and John Dickinson, which noted: “With hearts fortified with these animating reflections, we most solemnly, before God and the world, declare, that, exerting the utmost energy of those powers, which our beneficent Creator hath graciously bestowed upon us, the arms we have been compelled by our enemies to assume, we will, in defiance of every hazard, with unabating firmness and perseverance employ for the preservation of our liberties; being with one mind resolved to die freemen rather than to live as slaves.”
At the advent of the American Revolution, John Adams wrote, “Objects of the most stupendous magnitude, and measure in which the lives and liberties of millions yet unborn are intimately interested, are now before us. We are in the very midst of a revolution the most complete, unexpected and remarkable of any in the history of nations.”
Samuel Adams captured the spirit of the Revolution in his statehouse speech in Philadelphia a month after the Declaration’s signing: “Courage, then, my countrymen; our contest is not only whether we ourselves shall be free, but whether there shall be left to mankind an asylum on earth for civil and religious Liberty. … If I have a wish dearer to my soul than that my ashes may be mingled with those of a Warren and Montgomery, it is that these American States may never cease to be free and independent.”
In December of 1776, Thomas Paine wrote in The American Crisis, of the contest for Liberty: “These are the times that try men’s souls. The summer soldier and the sunshine patriot will, in this crisis, shrink from the service of their country; but he that stands by it now, deserves the love and thanks of man and woman. Tyranny, like hell, is not easily conquered; yet we have this consolation with us, that the harder the conflict, the more glorious the triumph. What we obtain too cheap, we esteem too lightly. … Heaven knows how to put a price upon its goods; and it would be strange indeed if so celestial an article as freedom should not be highly rated…”
As Benjamin Franklin noted, “It is a common observation here that our cause is the cause of all mankind, and that we are fighting for their Liberty in defending our own.”
American Patriots faced what seemed to be insurmountable odds, but their leader, George Washington, who was unanimously chosen as Commander-in-Chief of the Continental Army, was both a proven and Divinely inspired military leader.
Washington had proven his steadfast leadership as a Virginia militia officer in the French and Indian War two decades before the Revolution, most notably at the Battle of the Monongahela. When the French and their Indian allies ambushed General Edward Braddock’s forces and mortally wounded Braddock, the British were retreating in chaos. But Washington rode back and forth amid the pitched battle, rallying the Redcoats and his Virginians into an ordered retreat. In the process, two horses were shot from under him, and he would later count four bullet holes through his coat.
Concerning overwhelming odds, Washington wrote in his General Orders of 1776, “Let us therefore rely upon the goodness of the Cause, and the aid of the supreme Being, in whose hands victory is, to animate and encourage us to great and noble Actions — The Eyes of all our Countrymen are now upon us, and we shall have their blessings, and praises, if happily we are the instruments of saving them from the Tyranny mediated against them. Let us therefore animate and encourage each other, and shew the whole world, that a Freeman contending for Liberty on his own ground is superior to any slavish mercenary on earth.”
Washington continued, “The hour is fast approaching, on which the Honor and Success of this army, and the safety of our bleeding Country depend. Remember officers and Soldiers, that you are Freemen, fighting for the blessings of Liberty — that slavery will be your portion, and that of your posterity, if you do not acquit yourselves like men.”
The Revolutionary War was hard fought and nearly lost on many fields. There were pitched and bloody battles between the onset at Lexington/Concord in 1775 and the war’s conclusion with the Treaty of Paris in 1783. The most notable of those battles were Ticonderoga (May 1775), Bunker Hill (June 1775), Quebec (December 1775), Charleston (June 1776), Trenton (December 1776), Bennington (August 1777), Saratoga (October 1777), the encampment at Valley Forge (December 1777), Monmouth (June 1778), Rhode Island (August 1778), Kings Mountain (October 1780), Cowpens (January 1781) and finally Yorktown (October 1781).
There were some 6,800 American battle deaths, with overall deaths including starvation and disease of more than 55,000. Our French ally suffered more than 10,000 battle deaths (most at sea) and their Spanish ally bore more than 5,000 casualties. By comparison with the casualty counts of the 20th century’s world wars, these are small, but the population of the 13 colonies in 1776 was just 2.3 million, less than 15 percent of the population of Britain at the time.
At war’s end in 1783, Washington wrote, “It is yet to be decided whether the revolution must ultimately be considered as a blessing or a curse: a blessing or a curse, not to the present age alone, for with our fate will the destiny of unborn millions be involved.”
Benjamin Rush observed, “The American war is over; but this far from being the case with the American revolution. On the contrary, nothing but the first act of the drama is closed. It remains yet to establish and perfect our new forms of government, and to prepare the principles, morals, and manners of our citizens for these forms of government after they are established and brought to perfection.”
In retrospect, John Adams wrote, “But what do we mean by the American Revolution? Do we mean the American war? The revolution was effected before the war commenced. The revolution was in the minds and hearts of the People; a change in their religious sentiments, of their duties and obligations. … This radical change in the principles, opinions, sentiments, and affections of the People was the real American revolution.”
Rather than anoint himself king, as some speculated he might, General Washington chose instead to return to his Mount Vernon farm. When King George III heard from his American-born portrait painter, Benjamin West, that Washington would retire rather than take power, he replied, “If he does that, he will be the greatest man in the world.”
Fortunately, Washington was later persuaded to return to public service as our nation’s first president. The man also known as the Father of our Country and its “Indispensable Man” set a lasting standard for presidential character.
“We the People”
“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.” —Preamble to the Constitution of the United States
In 1776, the Second Continental Congress appointed a committee representing the 13 newly sovereign states to draft a formal document of incorporation. On November 15th, 1777, the states approved the Articles of Confederation and Perpetual Union. The Articles, which maintained the maximal autonomy of the individual states, were finally ratified on March 1st, 1781, and “the United States in Congress assembled” became the Congress of the Confederation.
Returning focus to the issue of self-governance at the close of the Revolutionary War, it was evident to most American leaders that the Articles of Confederation between the states did not sufficiently ensure the interests and security of the Confederation. In September 1786, at the urging of James Madison, 12 delegates from five states (New Jersey, New York, Pennsylvania, Delaware and Virginia) met in Annapolis, Maryland, to consider amendments to the Articles.
Those delegates called for representatives from every state to convene at the Pennsylvania State House in Philadelphia for full consideration of the revisions needed, and 12 states (Rhode Island declining) sent 55 delegates, a third of whom had signed the Declaration of Independence.
The most noted delegates were George Washington, James Madison, Roger Sherman, Alexander Hamilton, Benjamin Franklin and George Mason. (Thomas Jefferson was in Europe in his capacity as Minister to France, but he expressed his cautious support for the new Constitution in correspondence with Madison.)
Noticeably absent from the proceedings were Patrick Henry, Samuel Adams and Thomas Paine, who believed the Articles did not need replacement, only modification. They were concerned that a proceeding aimed at establishing a new constitution could imperil our fundamental liberties. Summing up their sentiments, Henry wrote that he “smelt a rat in Philadelphia, tending toward the monarchy.”
The Philadelphia (Constitutional) Convention opened its proceedings on May 25th, 1787, having unanimously chosen George Washington as convention president, and soon decided against amending the existing Articles in favor of drafting a new constitution. The next three months were devoted to deliberations on various proposals with the objective of drafting a document that would secure the rights and principles enumerated in the Declaration of Independence and in the Articles of Confederation, thus preserving Liberty.
In late July, after much debate, a Committee of Detail was appointed to draft a document to include all of the compromise agreements, but based primarily on Madison’s Virginia Plan, establishing a republican form of government subject to strict Rule of Law, reflecting the consent of the people and severely limiting the power of the central government.
A month later, the Committee of Style and Arrangement, which included James Madison as primary author and intellectual inspiration, Gouverneur Morris, Alexander Hamilton, William Samuel Johnson and Rufus King, produced the final draft of the Constitution, which was then submitted September 17th, 1787, for delegate signatures. Here it must be stressed that this document established a republic, not a popular democracy — which is to say that it affirmed the primacy of Rule of Law over the rule of men.
Said Benjamin Franklin of the new document, “I confess that there are several parts of this constitution which I do not at present approve, but I am not sure I shall never approve them: For having lived long, I have experienced many instances of being obliged by better information, or fuller consideration, to change opinions even on important subjects, which I once thought right, but found to be otherwise. … Thus I consent, Sir, to this Constitution because I expect no better, and because I am not sure, that it is not the best.”
Of the 55 delegates, 39 signed the new Constitution while the remaining delegates declined, most out of concern that the power apportioned through the new plan was a threat to the sovereignty of the several states and, thus, to individual Liberty.
The ensuing ratification debates among the states were vigorous.
James Madison, John Jay and Alexander Hamilton authored The Federalist Papers, which advocated ratification of the new Constitution and the strong central government it established. The Federalist Papers remain to this day its most detailed explication — affirming the original meaning and intent of our nation’s founding document.
Patrick Henry’s Anti-Federalists opposed the plan under consideration because they believed it allocated too much power to the central government. Henry, Samuel Adams, George Mason, Robert Yates, Thomas Paine, Samuel Bryan and Richard Henry Lee were among those who spoke against ratification, and some authored several essays that were aggregated and published as The Anti-Federalist Papers.
The Federalists prevailed, but Madison conceded, “It has been said that all Government is an evil. It would be more proper to say that the necessity of any Government is a misfortune. This necessity however exists; and the problem to be solved is, not what form of Government is perfect, but which of the forms is least imperfect.”
To that end, it is important to note that the “strong central government” established by our Constitution bore no resemblance to, nor did that document authorize, the behemoth, intrusive, statist central government of today.
In Federalist No. 32, Hamilton notes, “But as the plan of the [Constitutional] convention aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, exclusively delegated to the United States.”
The new Constitution stipulated that once nine of the 13 original states ratified it through state conventions, a date would be established for its implementation. This created controversy, as the document in question had no standing authority to make such a stipulation. However, once the ninth state, New Hampshire, reported its convention’s approval on June 21st, 1788, the Continental Congress set the date for enactment of the Constitution for March 4th, 1789.
With Rhode Island’s ratification on May 29th, 1790, all 13 states endorsed the Constitution.
Though critical of many of its provisions, Thomas Jefferson wrote in reflection of the Convention and its product, “The example of changing a constitution by assembling the wise men of the state, instead of assembling armies, will be worth as much to the world as the former examples we had given them. The constitution, too, which was the result of our deliberation, is unquestionably the wisest ever yet presented to men.”
Our Founders affirmed that the natural rights enumerated in our Declaration of Independence and, by extension, as codified in its subordinate guidance, our Constitution, are those endowed by our Creator. Regarding the supremacy of the Declaration’s enumerations, on the occasion of the Declaration’s 50th anniversary, Madison wrote to Jefferson, “On the distinctive principles of the Government … of the U. States, the best guides are to be found in … The Declaration of Independence, as the fundamental Act of Union of these States.”
Hence, the Articles of Confederation and its successor, the U.S. Constitution, were created as contractual agreements binding the several states into one strong union in defense of Liberty as our national motto implies — E Pluribus Unum. But the innate Rights of Man identified in the Declaration are the overarching basis of that union, irrevocable and non-negotiable by way of “collective agreement and compromise.”
James Madison observed, “It is impossible for the man of pious reflection not to perceive in [the Constitution] a finger of that Almighty hand which has been so frequently and signally extended to our relief in the critical stages of the revolution.”
George Washington was unanimously elected by the Electoral College twice, after national elections in 1789 and 1792, and served our new nation until 1797, when he chose, once again, to return to his Mount Vernon farm.
“To Secure These Rights”
“In order to prevent misconstruction or abuse of [the Constitution’s] powers…” —Preamble to the Bill of Rights
Endeavoring to further define our Constitution’s limits on governmental encroachment upon the innate rights of the people, James Madison, its primary architect, introduced to the First Congress in 1789 a Bill of Rights — which was ratified on December 15th, 1791.
The Bill of Rights was inspired by three remarkable documents: Two Treatises of Government, authored by John Locke in 1689 regarding protection of “property” (in the Latin context, proprius, or one’s own “life, Liberty and estate”); the Virginia Declaration of Rights, authored by George Mason in 1776 as part of that state’s constitution; and, of course, our Declaration of Independence, authored by Thomas Jefferson.
Though the Bill of Rights is commonly referred to as “the first ten amendments” to our Constitution, it is important to distinguish these ten articles from amendments — the former being an integral part of our Constitution, while the latter, over the course of our nation’s history, having modified it.
Because of that distinction, the addition of the Bill of Rights was hotly debated among our Founders, many of whom argued that the mere reiteration of these innate and unalienable Rights of Man within the Constitution might imply that they are somehow subject to amendment, as if granted by the state.
Alexander Hamilton argued in Federalist No. 84, “Bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?”
On the other hand, George Mason was among 16 of the 55 Constitutional Convention delegates who refused to sign because the document did not adequately address limitations on what the central government had “no power to do.” Indeed, he worked with Patrick Henry and Samuel Adams against its ratification for that very reason.
As a result of Mason’s insistence, the first session of Congress incorporated those ten additional limitations upon the federal government for the reasons outlined by the Preamble to the Bill of Rights: “The Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution.”
Read in context, the Bill of Rights is both another affirmation of the unalienable Rights of Man as “endowed by their Creator” and a clear proscription upon any central government infringement of those rights. The purpose of its inclusion was, without question, to further secure those rights.
“An Evil of Colossal Magnitude”
Much has rightly been said of the fact that, at the time our Constitution was ratified, many Africans were enslaved on our continent. Notably, the roots of abolition were also established in that same era.
In 1773, Patrick Henry wrote, “I believe a time will come when an opportunity will be offered to abolish this lamentable evil. Everything we do is to improve it, if it happens in our day; if not, let us transmit to our descendants, together with our slaves, a pity for their unhappy lot and an abhorrence of slavery.”
A year later, Thomas Jefferson wrote, “The abolition of domestic slavery is the great object of desire in those colonies, where it was unhappily introduced in their infant state.”
In his draft of the Declaration, Jefferson wrote, “[King George] has waged cruel war against human nature itself, violating its most sacred rights of life and Liberty in the persons of a distant people who never offended him, captivating & carrying them into slavery in another hemisphere, or to incur miserable death in their transportation thither.”
“Negro slavery,” said John Adams, “is an evil of colossal magnitude,” and Benjamin Franklin concluded that slavery was “an atrocious debasement of human nature.”
During the constitutional debates, James Madison observed, “The real difference of interests, lay not between large and small, but between the Northern and Southern states. The institution of slavery and its consequences formed a line of discrimination.”
George Washington would later write, “I wish from my soul that the legislature of [Virginia] could see the policy of a gradual Abolition of slavery.”
Slaves would not be fully emancipated until the end of the cataclysmic War Between the States that was, ironically, fought over offense to the Constitution’s assurance of states’ rights. That emancipation was codified in 1865 with the ratification of the Thirteenth Amendment.
Rule of Law
“They define a republic to be a government of laws, and not of men.” —John Adams
Article VI of our Constitution proclaims: “This Constitution … shall be the supreme Law of the Land.”
For its first 150 years (with a few exceptions), our Constitution and Rule of Law stood mostly as our Founders and “The People” intended — as is — in accordance with its original intent. In other words, it was interpreted exegetically (as textually constructed) rather than eisegetically (as a so-called “living constitution” that could be continually reinterpreted to express the biases of later generations of politicians and jurists).
But incrementally, constitutional Rule of Law in the United States has been diluted by the actions of those in the executive, legislative and judicial branches — most notably the latter — and at great hazard to the future of Liberty.
As Thomas Jefferson warned repeatedly, the greatest threat to Rule of Law and constitutional limitations on central government was an unbridled judiciary: “The original error [was in] establishing a judiciary independent of the nation, and which, from the citadel of the law, can turn its guns on those they were meant to defend, and control and fashion their proceedings to its own will. … The opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.”
Jefferson clearly understood that, should our Constitution ever become a malleable document for a politicized and despotic judiciary to misinterpret according to executive and legislative special interests, Rule of Law would gradually yield to the rule of men — the historical terminus of the latter being tyranny.
Our Framers did not subject judges to election in order to avoid political corruption. They assumed judges would remain above such influences and stay true to Rule of Law, thus protecting our Constitution from avarice and populist adulteration. Our Founders and early members of the judiciary were certainly men of such character, and they were singularly devoted to Liberty and Rule of Law.
But as Jefferson predicted, many in the executive and legislative branches eventually abandoned their obligatory oaths “to Support and Defend” our Constitution. Consequently, an ideologically appointed judiciary would suffer a similar fate of corruption, which would then be difficult to correct since judges are protected from electoral eviction. In effect, it may be argued that all three branches of government have devolved into “despotic” branches.
Regarding the process of amendment prescribed by our Constitution, George Washington wrote, “If in the opinion of the People the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates, but let there be no change by usurpation; for though this in one instance may be the instrument of good, it is the customary weapon by which free governments are destroyed.”
Alexander Hamilton concurred: “A sacred respect for the constitutional law is the vital principle, the sustaining energy of a free government.” He also wrote, “The present Constitution is the standard to which we are to cling. Under its banners, bona fide must we combat our political foes — rejecting all changes but through the channel itself provides for amendments.”
On the subject of constitutional interpretation, Jefferson wrote: “The Constitution on which our Union rests, shall be administered … according to the safe and honest meaning contemplated by the plain understanding of the People of the United States at the time of its adoption — a meaning to be found in the explanations of those who advocated it. … On every question of construction, carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates and instead of trying what meaning may be squeezed out of the text or invented against it, conform to the probable one in which it was passed.”
Jefferson concluded, “Our peculiar security is in the possession of a written Constitution. Let us not make it a blank paper by construction.”
James Madison agreed: “I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that is not the guide in expounding it, there may be no security for a consistent and stable, more than for a faithful exercise of its powers.”
Madison added, “As the Courts are generally the last in making the decision, it results to them by refusing or not refusing to execute a law to stamp it with its final character. This makes the Judiciary department paramount in fact to the Legislature, which was never intended, and can never be proper.”
Justice James Wilson set forth, “The first and governing maxim in the interpretation of a statute is to discover the meaning of those who made it.”
The Federalist Papers clearly delineate constitutional interpretation. In Federalist No. 78, Alexander Hamilton wrote, “[The judicial branch] may truly be said to have neither FORCE nor WILL, but merely judgment. … Liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments.”
In Federalist No. 81, Hamilton declared, “There is not a syllable in the [Constitution] which directly empowers the national courts to construe the laws according to the spirit of the Constitution. … The Constitution ought to be the standard of construction for the laws, and that wherever there is an evident opposition, the laws ought to give place to the Constitution.” And yet this non-existent “spirit” is the essence of today’s “living constitution” as amended by judicial diktat rather than its prescribed method in Article V.
But the national courts have done great damage to our Constitution’s original form and intent, errantly, regressively and perilously eroding Rule of Law and incrementally replacing it with the rule of men. The federal judiciary has indeed become the “despotic branch” that Jefferson warned of.
Shortly before his death, Jefferson wrote, “At the establishment of our constitutions, the judiciary bodies were supposed to be the most helpless and harmless members of the government. Experience, however, soon showed in what way they were to become the most dangerous; that the insufficiency of the means provided for their removal gave them a freehold and irresponsibility in office; that their decisions, seeming to concern individual suitors only, pass silent and unheeded by the public at large; that these decisions, nevertheless, become law by precedent, sapping, by little and little, the foundations of the constitution, and working its change by construction, before any one has perceived that that invisible and helpless worm has been busily employed in consuming its substance. In truth, man is not made to be trusted for life, if secured against all liability to account.”
The Rule of Men
“The basis of our political systems is the right of the People to make and to alter their Constitutions of Government. But the Constitution which at any time exists, until changed by an explicit and authentic act of the whole People is sacredly obligatory upon all.” —George Washington
The first significant instance of constitutional interpretation by the federal judiciary was the 1803 case of Marbury v. Madison. The Supreme Court, under Chief Justice John Marshall, denied a plaintiff’s claim because it relied on the Judiciary Act of 1789, which the court ruled unconstitutional.
Since that ruling, the Marbury precedent has been used by judicial activists to violate the limits of judicial power outlined in Article III of our Constitution. It has thus eroded Rule of Law and created a sort of quiet constitutional crisis that may ultimately be more ruinous to our nation than that which led to the War Between the States.
Prior to Woodrow Wilson’s “progressive” presidency, and prior to Franklin Roosevelt’s further expansion of the central government with his “New Deal” social welfare programs, the courts were still largely populated with originalists — that is, those who properly rendered legal interpretation based on the Constitution’s “original intent.” Because of this, Roosevelt was often at odds with the courts.
So determined was FDR to overstep the constitutional limits on the executive branch that in 1937 he attempted to increase the number of justices on the Supreme Court from nine to 15, with the expectation that his six newly minted appointees would give him a favorably predisposed activist majority. (It’s no coincidence that the term “living constitution” was coined that same year.)
Roosevelt failed in his attempted coup, but during his unprecedented three terms in office (he died 11 weeks into his fourth term, and the 22nd Amendment, which set a two-term limit on the presidency, was passed by Congress in 1947 and ratified by the states in 1951), he appointed a whopping eight Supreme Court justices. Their activist rulings consistently allowed him to enact his New Deal policies and expand the power and scope of the state. A fair reading of history shows that his policies also helped prolong the Great Depression.
In effect, Roosevelt successfully converted the judicial branch from one of independent review according to Rule of Law into one of subservience according to the rule of men.
In its prescription for separating the judiciary from the executive branch, Federalist No. 73 notes, “Judges … by being often associated with the Executive … might be induced to embark too far in the political views of that magistrate, and thus a dangerous combination might by degrees be cemented between the executive and judiciary departments. It is impossible to keep the judges too distinct from every other avocation than that of expounding the laws. It is peculiarly dangerous to place them in a situation to be either corrupted or influenced by the Executive.”
But by the mid-20th century, statist executives had all but co-opted the judiciary, and those who favor judicial despotism have been devitalizing Rule of Law ever since.
In the decades that followed, the notion of a “living constitution,” one subject to contemporaneous judicial interpretation molded by political agendas, became the standard in federal courts. With increasing frequency, judicial activists — jurists who “legislate from the bench” by issuing rulings at the behest of like-minded special-interest constituencies — were nominated and confirmed to the Supreme Court.
This degradation in Rule of Law was codified by the Warren Court in Trop v. Dulles (1958). In that ruling, the High Court noted that the Constitution should comport with “evolving standards … that mark the progress of a maturing society.” In other words, the Warren Court concluded that the Constitution should be a fully pliable document, “a mere thing of wax in the hands of the judiciary which they may twist and shape into any form they please,” as Thomas Jefferson had forewarned.
Since then, activist judges have not only undermined the plain language of our Constitution but have also done equal injury to the Bill of Rights.
By the 1980s, the adulteration of our Constitution by its Supreme Court arbiters was so commonplace that Justice Thurgood Marshall would frequently lecture on “The Constitution: A Living Document.” He defended constitutional interpretation based upon contemporaneous moral, political and cultural circumstances.
More recently, the late Justice Antonin Scalia wrote, “[There’s] the argument of flexibility and it goes something like this: The Constitution is over 200 years old and societies change. It has to change with society, like a living organism, or it will become brittle and break. But you would have to be an idiot to believe that; the Constitution is not a living organism; it is a legal document. It says something and doesn’t say other things.”
Justice Clarence Thomas followed, “There are really only two ways to interpret the Constitution — try to discern as best we can what the Framers intended or make it up. No matter how ingenious, imaginative or artfully put, unless interpretive methodologies are tied to the original intent of the Framers, they have no basis in the Constitution. … To be sure, even the most conscientious effort to adhere to the original intent of the Framers of our Constitution is flawed, as all methodologies and human institutions are; but at least Originalism has the advantage of being legitimate and, I might add, impartial.”
On the political consequences of a “living constitution,” Justice Scalia concluded plainly, “If you think aficionados of a living constitution want to bring you flexibility, think again. … As long as judges tinker with the Constitution to ‘do what the people want,’ instead of what the document actually commands, politicians who pick and confirm new federal judges will naturally want only those who agree with them politically.”
Indeed, as Thomas Jefferson wrote, “In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.”
A “Wall of Separation”?
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the People peaceably to assemble, and to petition the Government for a redress of grievances.” —Article One, Bill of Rights
Among the most egregious examples of judicial activism undermining our Constitution are the many flawed rulings rendered in regard to Article One (the First Amendment) of the Bill of Rights, particularly to its assurance of religious freedom. Once again, in plain language, the First Amendment stipulates, “Congress shall make no law…”
But activist courts have ruled that this prohibition applies to virtually every public forum, from public schools and sporting events to public squares.
There is no more ominous assault on our Constitution, no more serious threat to Liberty “endowed,” than that of the errant notion of utter separation between our constitutional government and our Creator. If knowledge of our Creator (at one time prevalent in every educational institution) is constrained, then the historically accepted knowledge that Liberty is “endowed by [our] Creator” will be equally diminished.
Our Founders’ intent was that the central government would not favor one religious denomination over others by act of Congress. “Congress shall make no law…” It is precisely that which Thomas Jefferson referenced when noting the Constitution built “a wall of separation between church and State” — and nothing more.
But for decades, judicial activists have “interpreted” the First Amendment’s “Establishment Clause” to suit their political agendas, placing severe constraints upon the free exercise of religion by invoking Jefferson’s obscure and now wholly misrepresented “wall of separation” language
Advocates of the “living constitution” are intent upon removing faith from every public quarter, and they ironically and erroneously cite a once-obscure “wall of separation” metaphor from Thomas Jefferson’s 1802 letter to the Danbury Baptists Association in Connecticut.
In 1802, Jefferson rightly supported the disestablishment of the Anglican Church as the official religion in Virginia. Baptists hoped he would similarly affirm the disestablishment of the Congregational Church in Connecticut, and moreover, that the national government would not declare Anglicanism the national church, much as the Crown recognized the Church of England as its official church. Such recognition led to discriminations against those who were not adherents of the official church.
Responding to the Baptists, Jefferson wrote, “I contemplate with solemn reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between Church and State. … I reciprocate your kind prayers for the protection and blessing of the common Father and Creator of man.” (Notably, two days after writing that letter, Jefferson attended religious services in the House of Representatives.)
His letter, in fact, reaffirmed the Bill of Rights’ barrier between federal and state governments, and the prohibition against Congress making any law “respecting an establishment of religion.” His “separation” language most certainly *did not* create a prohibition against faith expression in any and all public venues, and yet that is how the courts interpret it today.
Again, the intended consequence of the contemporary artificial barrier between church and state is to remove references to our Creator from all public forums, particularly government education institutions, and thus, over time, to disabuse belief in a sovereign God and His endowment of Liberty — the innate rights of man.
Recall that this same Thomas Jefferson also proclaimed, “The God who gave us life, gave us Liberty at the same time. … 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 of the gift of God? That they are not to be violated but with his wrath? Indeed I tremble for my country when I reflect that God is just: that his justice cannot sleep for ever.”
Indeed, “Life, Liberty and the pursuit of Happiness” are the Natural Rights of Man. They are gifts from our God, not government. And yet an activist judiciary would have us believe otherwise.
It was with firm regard for the Rights of Man that our Constitution was written and ratified “in order to secure the Blessings of Liberty to ourselves and our Posterity.” As such, it established a constitutional republic whose foundation was laws based on Natural Rights, not rights allocated by governments or by those in positions of power.
“Our political way of life,” John Quincy Adams wrote, “is by the Laws of Nature and of Nature’s God, and of course presupposes the existence of God, the moral ruler of the universe, and a rule of right and wrong, of just and unjust, binding upon man, preceding all institutions of human society and government.”
George Mason declared, “The laws of nature are the laws of God, whose authority can be superseded by no power on earth.”
Notably, the conviction that our Rights are innately bestowed by “the Laws of Nature and of Nature’s God” is enumerated in the constitutional preambles of every state in our Union.
“Let it simply be asked,” George Washington wrote in his 1796 Farewell Address, “where is the security for property, for reputation, for life, if the sense of religious obligation deserts the oaths, which are the instruments of investigation in the Courts of Justice? And let us with caution indulge the supposition, that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that National morality can prevail in exclusion of religious principle.”
John Adams asserted, “Our constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.”
As the late Chief Justice of the Supreme Court William Rehnquist protested, “The wall of separation between church and state is a metaphor based upon bad history, a metaphor which has proved useless as a guide to judging. It should be frankly and explicitly abandoned. … The greatest injury of the ‘wall’ notion is its mischievous diversion of judges from the actual intention of the drafters of the Bill of Rights.”
(Read “Essential Liberty (Part 2)”.)
Semper Vigilans Fortis Paratus et Fidelis
Pro Deo et Libertate — 1776
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