Historical and Philosophical Roots of the Founding

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Historical and Philosophical Roots of the
Founding
David Roberts (British, 17961864). The Houses of
Parliament from Millbank, 1861.
Bill of Rights Institute Prairie State
College---Matteson Area Center Matteson,
IL March 19, 2009

• Artemus Ward
• Department of Political Science
• Northern Illinois University
• http//polisci.niu.edu/polisci/faculty/ward

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Introduction

• We will look at a number of important documents
  and thinkers that were central to the formation
  of the American Republic, the Constitution, and
  the Bill of Rights.
• Specifically, we will discuss the Magna Carta
  (1215), the English Bill of Rights (1689), John
  Lockes Two Treatises of Government (1690), and
  the Declaration of Independence (1776), among
  other writings.
• Along the way, we will see how the Constitution
  and the Bill of Rights were built on a rich
  historical and intellectual foundation.

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Thesis Rights as an Evolving Concept

• In the American context, the notion of rights
  is rooted in the English experience. Hence we
  must understand the political and legal history
  of England in order to understand how the
  American conception of rights came to be.
• The medieval king had a right to govern, and the
  English had their feudal rights, but over the
  course of the 17th century, rights came to be
  understood as something to be held against the
  monarch while Parliamentary sovereignty was
  understood to be the protector of the peoples
  rights.
• The American experience grew out of a tradition
  of rights claims against a monarch, but after the
  experiment with state sovereignty under the
  Articles of Confederation, Americans developed a
  recognition that legislatures and executives,
  though agents of the people, might also threaten
  the rights of the people as monarchs once had.
• Hence, today American understand individual
  rights as protections against their own
  representatives in the form of the government.

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Origins

• The Bill of Rights contain twenty-six specific
  rights in its ten provisions.
• At most, seven of these rights can be traced to
  Magna Carta, the English Petition of Right
  (1628), or the English Bill of Rights (1689).
• Seven others can be traced in their origin to the
  Massachusetts Body of Liberties (1641), which
  also included the seven English-originated rights
  and four more rights that were first codified in
  Massachusetts prior to 1641.
• All but three of the remaining rights in the U.S.
  Bill of Rights would originate in other colonial
  documents.

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Magna Carta (1215)

• Magna Carta required King John of England to
  proclaim certain rights (pertaining to lords
  nobles and barons), respect certain legal
  procedures, and accept that his will could be
  bound by the law. It was the first document
  forced onto an English King by a group of his
  subjects (the lords) in an attempt to limit his
  powers by law and protect their rights.
• It explicitly protected certain rights of the
  King's subjectsmost notably the writ of habeas
  corpus, allowing appeal against unlawful
  imprisonment. Indeed, the U.S. Constitution does
  not grant this right, it merely limits the
  governments ability to suspend it 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
  (Article I, 9).
• King John agreed to
• preserve the freedom of the Church and to hear
  petitions from the barons (1st Amendment)
• remove foreign armies from England (3rd
  Amendment)
• not seize land to pay for debts (4th Amendment)
• not take life or liberty without due process or
  repayment (5th Amendment)
• not delay court proceedings or punish without
  hearing from witnesses (6th Amendment)
• repay unjust fines and not issue excessive
  punishments (8th Amendment).

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The Petition of Right (1628)

• Not long after he became King, Charles I sought
  to raise funds on his own for an unpopular war
  with Spain. He unilaterally imposed taxes and
  forced loans. He housed soldiers in civilian
  homes to save funds and punish political
  opponents. When five knights refused to pay the
  force loan, Charles arrested and imprisoned them
  without charge.
• In response, Parliament passed a Petition of
  Right, establishing the principle that the King
  was not above the law.
• The Petition relied heavily on the Magna Carta
  (1215) and was essentially a restatement of
  ancient rights, rather than an establishment of
  new ones.
• It is most notable for its confirmation of the
  principles that taxes can be levied only by
  Parliament, that martial law may not be imposed
  in time of peace, and that prisoners must be able
  to challenge the legitimacy of their detentions
  through the writ of habeas corpus. Additionally,
  the Petition's ban on billeting (quartering)
  soldiers in private residences is reflected in
  the 3rd Amendment to the U.S. Constitution.
• Ultimately, Charles I gave royal assent to the
  petition in order to gain the funds he needed for
  his military conflicts. However, he had no
  intention of abiding by it. He refused to convene
  parliament and undertook a period of Personal
  Rule which included religious oppression, a war
  with Scotland, and an ongoing struggle to raise
  funds. He finally had no choice but to convene a
  new parliament but it immediately turned on him
  and their battles led to the English Civil War
  (1642-1651), his trial for treason, and beheading
  in 1649.

Charles I by Anthony Van Dyck, 1636
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The English Bill of Rights (1689)

• Following the Glorious Revolution of 1688,
  William and Mary became joint sovereigns of
  England. As a condition of their rule, they
  agreed to abide by the provisions of the Bill of
  Rights (also known as the Declaration of Rights)
  which was passed by Parliament in December 1689.
• The Bill of Rights (1689) requires the Crown to
  seek the consent of the people (parliament) for
  its actions. This is similar to the lawmaking
  power of the U.S. Constitution where both
  congress and the president are part of the
  legislative process. It also prohibited royal
  interference with the law in terms of
  unilaterally establishing courts or acting as a
  judge. This is similar to the U.S. Constitutions
  delegation to court-creation to congress and
  judicial appointments to both congress and the
  president.
• The Bill of Rights also enumerates certain rights
  to which citizens, permanent residents, and
  members of Parliament in a constitutional
  monarchy were entitled to. Many of these
  provisions are similar to provisions in the
  American Bill of Rights
• freedom of parliamentary speech (1st Amendment)
• right to petition the monarch (1st Amendment)
• right to keep and bear arms (2nd Amendment)
• protections of property and liberty, such as
  fines and forfeiture without trial (4th and 5th
  Amendments)
• rights of the accused (6th Amendment)
• rights of criminals such as cruel and unusual
  punishment and excessive bail (8th Amendment)

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The Act of Toleration (1689)

• William and Mary also agreed to the Toleration
  Act of 1689 which expanded freedom of religion.
• Its formal title was An Act for Exempting their
  Majesties Protestant Subjects dissenting from the
  Church of England from the Penalties of certain
  Laws.
• Though it did not protect Catholics or Quakers,
  It granted Protestants who did not attend the
  Church of England the right to freely exercise
  their faith.
• The principle of religious freedom guaranteed in
  this Act became an important protection in the
  American 1st Amendment.

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John Locke

• During the English Civil War Thomas Hobbes
  published Leviathan (1651) which postulated a
  war-like state of nature where men pursue selfish
  desire and life is solitary, poor, nasty,
  brutish, and short. Hence, Hobbes explained the
  importance of men engaging in a social contract,
  necessarily giving up their rights in the state
  of nature, and being governed under a single
  sovereign authority. Many immediately saw Hobbes
  as an advocate of absolute monarchy.
• In the Two Treatises of Government (1690) John
  Locke argued against the divine right of kings
  and instead said that in the state of nature all
  men were created equal by God with rights to
  life, liberty, and property. In order to protect
  these rights, men enter into a social contract
  with each other in the form of a government with
  separation of powers. Should government no longer
  protect individual rights, the people have the
  right to revolution to dissolve the
  government.
• Though some saw Lockes ideas as little more than
  a rationalization of the Glorious Revolution,
  Locke ultimately proved influential on early
  American revolutionaries. For example, Thomas
  Jefferson and the drafters of the Declaration of
  Independence included verbatim passages from the
  Two Treatises. Samuel Adams cited Lockes ideas
  in his attempts to gain support for the
  revolution. And in the end, the U.S. adopted a
  separation of powers system where life, liberty,
  and property were constitutionally protected.

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Massachusetts Body of Liberties (1641)

• An important model for the American Bill of
  Rights, it is considered the first post-medieval,
  or modern, bill of rights.
• Included many familiar protections including
• free speech and petition (1st Amendment)
• just compensation for property taken for public
  use (5th Amendment)
• double jeopardy (5th Amendment)
• trial by jury and council 6th Amendment)
• cruel punishment and excessive bail (8th
  Amendment).
• The Body of Liberties, however, did not make
  these rights explicitly inalienable in that they
  could be altered by the legislaturean important
  difference from the American Bill of Rights.

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Prelude to Revolution (1763-1776)

• The British government limited a number of
  freedoms which ultimately were addressed by the
  Bill of Rights
• Quartering Act (1765) demanded colonists house
  British troops (3rd Amendment)
• Coercive Acts (1774) restricted speech, press,
  and assembly (1st Amendment)
• Seized colonists weapons (2nd Amendment)
• Lifting property protections (4th and 5th
  Amendments)
• Prosecuting colonial protesters in English courts
  or holding them without trial (6th Amendment)

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The Virginia Declaration of Rights (1776) and
the Declaration of Independence (1776)

• George Mason drafted the Virginia Declaration of
  Rights (1776) which protected the press, exercise
  of religion, arms, property, the accused, and
  criminals. In drafting the Declaration of
  Independence, Thomas Jefferson borrowed heavily
  from it (as well as concepts from John Locke) and
  James Madison later modeled the Bill of Rights
  after Masons language.
• In the Declaration of Independence, Jefferson
  began with Masons statement that all men are
  born equally free and independent, which he
  rewrote to say they were created equal
  independent then (on his original rough draft)
  cut out the independent.
• Mason said that all men had certain inherent
  natural rights, of which they cannot, by any
  compact, deprive or divest their posterity,
  which Jefferson compressed into a statement that
  men derived from their equal creation rights
  inherent inalienable, then moved the noun to
  the end of the phrase so it read inherent
  inalienable rights.
• Among those rights, Mason said, were the
  enjoyment of life and liberty, with the means of
  acquiring and possessing property, and pursuing
  and obtaining happiness and safety, which
  Jefferson again shortened first to the
  preservation of life, liberty, the pursuit of
  happiness, and then simply to life, liberty,
  the pursuit of happiness.

George Mason
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The Bill of Rights as Political Concession

• After the revolution, state constitutions
  governed the former colonies until the Articles
  of Confederation were effectuated from 1781-1788.
  However, the Articles proved inadequate and the
  U.S. Constitution was written.
• For many of the framers, the most important
  purpose of the new Constitution was to safeguard
  individual rights and liberties. They created a
  limited government that would wield only those
  powers delegated to it and that could be checked
  by its own component partsthe states and the
  people.
• The majority of the founders felt it unnecessary
  to load the Constitution with specific individual
  rights, such as those later spelled out in the
  Bill of Rights. As Alexander Hamilton put it,
  The Constitution is itselfa Bill of Rights.
  Under it, the government could exercise only
  those functions specifically bestowed upon it
  all other rights remained with the people. He and
  others felt that a list of rights might even be
  dangerous because it would inevitably leave some
  out.
• Ultimately, the promise of a bill of rights was
  necessary to obtain ratification from the states.
  Accordingly, after ratification and after the
  government began, specific amendments were added.

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Conclusion

• The guarantees in the Bill of Rights came from an
  evolving conception of rights and liberties
  stemming from the Magna Carta (1215) and
  subsequent documents.
• The Bill of Rights was passed in order to secure
  the ratification of the Constitution.

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Further Reading

• Amar, Akhil Reed. The Bill of Rights Creation
  and Reconstruction. New Haven Yale University
  Press, 1998.
• Brant, Irving. 1965. The Bill of Rights Its
  Origin and Meaning. Indianapolis, IN
  Bobbs-Merrill, 1965.
• Rakove, Jack. Original Meanings Politics and
  Ideas in the Making of the Constitution. New
  York Knopf, 1996.
• Shain, Barry Alan, ed. The Nature of Rights at
  the American Founding. Charlottesville
  University of Virginia Press, 1997.
• Wood, Gordon S. The Creation of the American
  Republic. Chapel Hill University of North
  Carolina Press, 1969.