Documents: Creation of the Constitution

Latin for “Great Charter,” Magna Carta was written by a group of Barons at Runnymede, England in 1215 and forced on King John. Although the protections provided were for the Barons only, Magna Carta embodied the general principle that the King accepted limitations on his power. Included was the fundamental acknowledgement that the King was not above the law. Magna Carta is thus an early example of the principle of limited government.

Among specific guarantees, the “Great Charter” provided that the Church of England would be free, that no tax for military purposes would be imposed without legislative consent, that no man would be prosecuted for violating the law without credible witnesses, and that freedom of movement into and out of England would be secured. One of the most important, and often quoted, provisions stated that “no freeman shall be seized, imprisoned, dispossessed, outlawed, or exiled, or in any way destroyed; nor will we proceed against or prosecute him except by the lawful judgment of his peers, or by the law of the land.” This provision resembles that part of the U. S. Constitution found in Amendments 5 and 14 which states that “no person shall be denied life, liberty, or property without due process of law.” Another of the most important, and often quoted, provisions of Magna Carta asserts: “To none will we sell, to none will we deny, to none will we delay right or justice.”

The men who later wrote and adopted the U. S. Constitution as well as its Bill of Rights were clearly influenced by some of the ideas found in the “Great Charter.”

As some historians have noted, English kings of the seventeenth century either had poor memories or deliberately forgot past promises made in Magna Carta. Just a few years after the settlement of Jamestown in Virginia, conflict between the monarch and Parliament grew. King Charles I disbanded Parliament and ruled England on his own. In response to the king’s illegal taxes, quartering of troops in private homes, and arbitrary arrests and imprisonment of citizens, Parliament in 1628 drew up the Petition of Right which reminded Charles I that the law gave Englishmen their rights, not the king, and that the king himself was not above the law. The Petition focused on Charles’s violations of the law which included denying Englishmen due process of law, unjust seizure of property or imprisonment, denial of the right to trial by jury, and unjust punishment. The king accepted the Petition of Right, but soon broke his word and resumed his violations. This struggle eventually resulted in a civil war which ended with the beheading of Charles I in 1649.

The framers of later 18th century American documents were familiar with English history and specifically with the English Petition of Right. It is not surprising, therefore, that they included several protections found in the Petition of Right in American documents: no taxation without consent of the legislature, right to petition, right to due process of law, and right to a fair trial by a jury.

The English philosopher Thomas Hobbes wrote Leviathan which was published in 1651. According to Hobbes, people naturally love liberty as well as power over others. He wrote that the life of man in a state of nature without government is one of “war of all against all” and thus “life is solitary, poor, nasty, brutish, and short.” Hobbes is famous for his early development of what came to be known as “the social contract theory” of the origin of government, a theory later developed by other philosophers such as John Locke. The social contract theory argues that government comes into being as a result of the people agreeing among themselves to create it. Unlike other social contract theorists such as Locke, however, Hobbes is also famous for using the theory to arrive at the conclusion that the people should surrender their liberty and submit themselves to the authority of an absolute, unlimited sovereign ruler. He argued that government is created to bring peace and that an absolute ruler was a lesser evil than war because the ruler ensured social order and helped human beings free themselves from their miserable condition. When people are free from the constant threat of war and death, he asserted, they can take part in other pursuits. Also, unlike Locke, Hobbes did not acknowledge the right of the people to overthrow a government which failed to protect them.

The framers of American government in a later century were very familiar with Hobbes’ philosophy, but do not appear to have been as influenced by Hobbes as much as they were by John Locke.

In 1688-89, weary of the actions of King James II, the people of England removed him from the throne in what the English call “the Glorious Revolution.” This event ended the old theory of the divine right of kings in England and established the supremacy of Parliament. The two chambers of Parliament meeting at Westminster adopted the English Bill of Rights in 1689 and invited William and Mary of Orange to rule the nation on their acceptance of this document limiting their power.

The document asserted that Englishmen had certain inalienable civil and political rights. It made clear that “the pretended power of suspending of laws or the execution of laws by regal authority without consent of Parliament is illegal.” Unless Parliament consented, the monarch could not act as judges or raise or keep a standing army. The monarch could not impose fines or punishment without benefit of trial. English citizens had the right to petition the king and could not be punished for doing so. Freedom of speech in Parliament was guaranteed. Of interest for the framers of the U. S. Bill of Rights in the late 18th Century was a specific provision of the English Bill of Rights which stated: “that excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” That language is almost identical to that found in the Eighth Amendment of the U. S. Bill of Rights of 1791.

The English philosopher John Locke authored the Second Treatise of Civil Government which was published in 1690 following the “Glorious Revolution” in England. According to Locke: “Man being, as has been said, by nature, all free, equal and independent, no one can be put out of this estate, and subject to the political power of another, without his own consent.” He thus argued that all men are created equal and that no man could be denied his free and equal condition without his consent. He also argued that all people are born with the same natural rights which, therefore, do not come from government, but rather from nature or God. Government, Locke insists, exists to protect these natural rights. Without government, people cannot preserve these natural rights, so they “unite into a community for their comfortable, safe, and peaceable living.” The desire to protect one’s property, Locke argues, is paramount in men’s decision to establish government. Property, for Locke, included life, liberty, and possessions. This is a form of the so-called social contract theory earlier advocated by the philosopher Thomas Hobbes. Unlike Hobbes however, it is the people’s right, Locke argues, to overthrow a government that fails to protect their rights. This revolutionary natural rights theory, as it is known, strongly influenced America’s Founding Fathers. George Mason’s Virginia Declaration of Rights of June,1776, and Thomas Jefferson’s Declaration of Independence of July,1776, especially were greatly influenced by ideas found in the Second Treatise of Civil Government.
Charles Louis Baron de Montesquieu was a French lawyer and philosopher who lived and wrote in the 18th Century known as the Age of Reason or the Age of Enlightenment. His most well-known and influential work was The Spirit of the Laws published in 1748. Montesquieu was particularly concerned with the liberty of citizens. For that reason, he argued, if government is to provide citizens with the most liberty, it must have certain characteristics. He notes, “since constant experience shows us that every man invested with power is apt to abuse it … it is necessary from the very nature of things that power should be a check to power.” This is accomplished, Montesquieu asserted, by separating the legislative, executive, and judicial powers of government. In this way, he argued, if different persons or parts of government exercise these powers, each can check the other two if either tries to abuse its powers. This theory, which came to be called separation of powers and checks and balances, apparently had great influence on the framers of the 1787 U. S. Constitution.
Sir William Blackstone, an English jurist, wrote Commentaries on the Laws of England, a multi-volume treatise on English common law, from 1765 to 1769. His work was the first attempt to condense English common law into a clear system. The four volumes of the Commentaries were: The Rights of Persons (structure of the legal system), The Rights of Things (property rights), Private Wrongs (torts or civil actions), and Public Wrongs (criminal law). Blackstone believed that law existed to protect peoples’ lives, liberty, and property. This belief greatly influenced America’s Founding Fathers. For example, to learn the law, all lawyers in the American colonies primarily read Blackstone’s Commentaries, and many the Founding Fathers were lawyers. One important piece of scholarly research has indicated that Blackstone was one of the three individuals most often quoted by America’s Founding Fathers.
George Mason wrote the Virginia Declaration of Rights in June,1776. It was published three weeks before Thomas Jefferson’s Declaration of Independence. Like Jefferson, Mason was clearly influenced by the English philosopher John Locke. The document begins with a declaration that “all men are by nature free and independent” and have certain natural rights including life, liberty, and “the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.” That is followed with a declaration that government derives its power from the people and that whenever government is not serving the interests of the people, it is the right of the people to alter or abolish it. Insofar as the government itself was concerned, the document declares that the legislative, executive, and judicial powers should be separate and distinct and that there should be term limits for the legislative and executive parts of the government. Of course, a large part of the Virginia Declaration of Rights was devoted to spelling out the rights of the people of Virginia. Among the many rights guaranteed were: freedom of the press, property rights, a speedy trial by an impartial jury, right to know the cause and nature of any criminal prosecution, right to confront those accusing one of a criminal offense, no self-incrimination, no deprivation of liberty except by the law of the land or judgment of one’s peers, no excessive fines or bail, no cruel and unusual punishment, no general warrants, and trial by jury in civil disputes between man and man. It also called for civilian control of the military, free elections, the right to vote, a well-regulated militia composed of the people trained to arms to defend the nation, no standing armies, and the duty of all citizens to practice justice, moderation, temperance, frugality, and virtue. One of the most significant, and often quoted, parts of the document was one of the strongest defenses ever written of the importance of freedom of religion for all persons: “That religion, or the duty which we owe our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and that it is the duty of all to practice Christian forbearance, love and charity towards each other.”

The influence of the Virginia Declaration of Rights on the authors of later significant American documents cannot be exaggerated. All one has to do is examine portions of the U. S. Declaration of Independence, the original U. S. Constitution, and, especially, the U. S. Bill of Rights, to understand how great was the impact of Mason’s Virginia Declaration of Rights. Most, but not all, of the rights spelled out in the U. S. Bill of Rights can be traced to Mason’s Virginia Declaration of Rights.

The Articles of Confederation was the first of only two constitutions under which the nation known as the United States of America has been governed. It was adopted by the Second Continental Congress in November,1777, and took effect in 1781 when ratified by the states. It was discarded when the new Constitution of the United States of America written at the constitutional convention at Philadelphia in 1787 was finally ratified by the required number of states and thus took effect in 1789. The nature of the system of government which the document created is clearly indicated by Article 2 which provides: “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right which is not by this confederation expressly delegated to the United States in Congress assembled.” A portion of Article 3 also indicates clearly the nature of the system created: “The said states hereby severally enter into a firm league of friendship with each other …” The national government consisted solely of a unicameral Congress in which each state had one vote. There was not separate and independent executive or judicial branch. This Congress’ powers were very few and consisted only of those granted by the states. Congress, for example, of great significance, had no power to tax and no power over interstate commerce. For Congress to pass any major law required the votes of nine of the thirteen states, thus making it difficult for Congress to pass any major legislation. Even if Congress managed to pass major legislation, this might mean little since the national government had no executive to enforce any law the Congress passed. Because Congress had no power to tax, anything the Congress did which required money to carry it out meant that it had to depend on the states to voluntarily send their fair share of the money needed. In the years the nation lived under the Articles, some of the states never sent any money to pay for anything with which the state might disagree. Because Congress had no control over interstate commerce, it could do nothing to prevent economic warfare between states. One of the most important weaknesses of the Articles was the requirement that any change (amendment) in the document required the unanimous approval of all thirteen states. As a result, it was impossible to amend the document. One of the interesting articles of the document was Article 11 in which Canada was invited to join the union of the United States of America.

Somehow the Congress of the Articles of Confederation did manage to adopt two major pieces of legislation: (1) the Land Ordinance of 1785 which provided for a systematic development of western lands and set aside lot No. 16 of every township for the support of public schools; and (2) the Northwest Ordinance of 1787.

The one event which did more than anything else to persuade leaders of the time that something had to be done about the Articles was Shays’ Rebellion in western Massachusetts in late 1786 and early 1787.

Authored by Thomas Jefferson and steered through the state’s legislature by James Madison in 1786, the Virginia Statute for Religious Freedom is still part of the state’s constitution today. The law declared that religion mandated by the government was a violation of natural rights, and therefore “no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever….” Furthermore, it asserted that “all men shall be free to profess, and by argument to maintain, their opinion in matters of religion.”

The law was partially motivated as a response to Patrick Henry’s call to expand government support for teachers who at that time were mainly Episcopalian ministers. Passage of the law led to the end of forced government support for the Episcopalian church in the state. Virginia thus became the first state to disestablish its official religion. Other states soon followed suit, especially after the ratification in 1791 of the U. S. Constitution’s First Amendment which included the no establishment of religion and free exercise of religion clauses.

By the mid-1780s, more and more leaders in the American states were aware of serious problems with the nation’s government under the Articles of Confederation. A major concern was that the weak central government had no power to regulate interstate trade, and consequently, economic warfare between states was not uncommon. After representatives from Virginia and Maryland met at George Washington’s Mt. Vernon home to discuss navigation on the Potomac River, James Madison of Virginia called for a convention to be held in Annapolis, Maryland to discuss issues concerning interstate trade and commerce. The Annapolis Convention was held in September,1786. Twelve delegates from five of the thirteen states (Delaware, New Jersey, New York, Pennsylvania, and Virginia) attended. These delegates included James Madison, Alexander Hamilton, and John Dickinson. They discussed possible changes in the Articles of Confederation to better regulate interstate trade and commerce. The Convention’s authority was limited, however, by the small number of states represented. Nevertheless, Alexander Hamilton introduced a resolution adopted unanimously calling for another convention to be held at Philadelphia beginning in May,1787, for the purpose of revising the Articles of Confederation. All thirteen states were invited to send delegates to this convention.
Along with the Land Ordinance of 1785, the Northwest Ordinance was one of the two most important pieces of legislation adopted by Congress under the Articles of Confederation. As a result of the Treaty of Paris of 1783 ending the American Revolution, the United States acquired from England a large area of land west of Pennsylvania, northwest of the Ohio River, east of the Mississippi River, and south of the Great Lakes. The land included what is today the states of Ohio, Indiana, Illinois, Michigan, Wisconsin, and part of Minnesota. Once the land came under the control of the United States government, a procedure for establishing governments in the region and setting rules for future statehood had to be established. For this purpose, Congress adopted the Northwest Ordinance of 1787. Speaking of the Northwest Ordinance, Daniel Webster said he doubted whether “any single law of any lawgiver, ancient or modern, has produced effects of more distinct, marked, and lasting character than the Ordinance of 1787.”

According to the Ordinance, no less than three and not more than five states could be carved out of this Northwest Territory. When any of the states had 60,000 free inhabitants, it would be admitted to the Union of the United States “on an equal footing with the original states in all respects whatever.” The Ordinance spelled out in some detail what the government of each state should look like. The Ordinance also addressed the rights of inhabitants of the territory. For example, it declared that “no person, demeaning himself in a peaceable and orderly manner, shall ever be molested on account of his mode of worship or religious sentiments in the said territory.” It listed such fundamental rights as trial by jury, writ of habeas corpus, no cruel or unusual punishment, and no deprivation of life or liberty except by judgment of one’s peers or the law of the land. It declared that “religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.” It also called for “the utmost good faith to always be observed toward the Indians and their lands and property shall never be taken from them without their consent.”

Perhaps the most remarkable provision of the Ordinance, however, was Article 6 which stated that “there shall be neither slavery nor involuntary servitude in the said territory, otherwise than in punishment of crimes whereof the party shall have been duly convicted.”

One significant result of the Northwest Ordinance was that it greatly accelerated westward expansion.