Front and Center Vol 1 No 11 November 2022

When Americans were debating whether to ratify our Constitution, one of the disagreements that animated them was whether to include a bill of rights. James Madison argued against, holding that the purpose of a bill of rights is to restrain tyrants and that the general government proposed in the Constitution is not a sovereign power able to exploit citizens, but rather an agent of the sovereign states that created it. The general government has only those powers delegated to it in the Constitution and nothing more. Thus a bill of rights would not add to our security, but it could become a focus of contention as scheming people will assert that the rights in the bill of rights are the only rights possessed by the people. Thomas Jefferson argued in favor, holding that a bill of rights will give to Americans a common language in which to discuss the political implications of our rights. Several states insisted they would not ratify the Constitution without assurances of a bill of rights quickly to follow. James Madison relented and agreed to draft a bill. Interestingly, one can argue that Madison is not the father of the Constitution since his Virginia Plan was mostly shot down at Philadelphia in 1787, and the government contrived in the Constitution is not the nationalist model Madison wanted. But he is doubtless the father of the Bill of Rights, and his work here is influenced by the English Bill of Rights of 1689.

The English Bill of Rights is a basic document of the British constitution alongside such documents as Magna Carta, the Petition of Right, and the Habeas Corpus Act of 1679. By 1689, the English were well into a contentious development away from executive rule by kings and queens and toward Parliamentary rule and a recognition of rights held by the people. Many analysts of this development contend that the English Bill of Rights is influenced by the political philosophy of John Locke, which is likely to be true, but there is disagreement about what Locke was up to, especially in his Treatise of Civil Government. Locke asserts that each human being owns him- or herself, and because we each own ourselves, we are not to be used by others without our consent, and we naturally own the products of our labor. At the same time, Locke holds a conception of sovereign government that is in line with that of the 17^th century English political philosopher Thomas Hobbes, advanced most famously in his 1651 book Leviathan, which 20^thcentury English philosopher Michael Oakeshott called the most important work on political philosophy written in English. Hobbes argues that in a state of nature, which is a condition without a civil government, there are no moral obligations except to live in peace with anyone willing to live peacefully with you. Where others are not willing to do this, we are at liberty to do anything at all to them we think will effect our security. This primordial condition of humanity prevents salutary cooperation, since no one is willing to produce wealth lest others kill him for it. To overcome this, Hobbes argues, people will surrender their right to use force against others to a sovereign power, and in return the sovereign protects us from violence, foreign and domestic, and enforces our contracts one with another. This, in brief, is the structure of the “social contract.” We should observe that on Hobbes’ account of the state, the people may consent to establish a sovereign government one time only, after which disobedience or attempts to leave are treason, a capital crime. This, however, is not part of the American political tradition that produced the Constitution of the United States in 1787. Treason against the United States is defined in Article III, section 3 of the Constitution and consists only in levying war against them, or in adhering to their enemies, giving them aid and comfort. Thus in the American political tradition, as explained in the Declaration of Independence, the people of the states are sovereign political societies within each state, and thus possess the right to alter or abolish abusive government and to fashion new government to protect their safety and happiness.

One might notice that Hobbes’ view of legitimate government does not fit well with Lockean self-ownership and the right to the products of one’s labor. In practice, however, whatever rights we might have by nature are not always the rights a political society chooses to protect. The rights we each will enjoy in fact are the rights most dear to the people to whom we belong, for these are the rights a people will protect. This is why the sorts of rights Americans advocated in our colonial and early republican history are those we see developing in early modern England. We might then attend briefly to some of these rights that have been influential for Americans.

The English Bill made it illegal for the executive power (the king) to spend money without consent of the legislature (Parliament). Moreover, the executive cannot levy taxes on the people; this is the power of the elected legislature. The people have the right to petition the executive for redress of grievances, and any attempt to punish such acts is illegal. The Bill made it illegal for the king to maintain a standing army in peacetime without consent of the Parliament. This issue, whether to maintain a standing army in peacetime, was a very serious concern during the ratification debates for our Constitution because Americans saw in a standing army the means of their oppression by tyrannical governments. The sword, the argument goes, is to be held by state militias who in time of emergency protect the country while an army is raised, and the army is to be disbanded when the emergency passes. Lastly, this should be familiar to all of us: “Excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

In these rights we see enshrined, not only in our Bill of Rights, but also in Article I of the Constitution that sets out the powers delegated to Congress, and in Article II that establishes the authority, and limits thereto, of the executive, ideas that came to North America with the English settlers in the 17^th century, and which remain vital today. We conclude with an admonition given to Americans by President Jefferson in his first inaugural address in 1801.

Having set out what he found to be the basic principles of American political order, Jefferson says: “These principles form the bright constellation, which has gone before us and guided our steps through an age of revolution and reformation. 

The wisdom of our sages, and blood of our heroes have been devoted to their attainment:—they should be the creed of our political faith; the text of civic instruction, the touchstone by which to try the services of those we trust; and should we wander from them in moments of error or of alarm, let us hasten to retrace our steps, and to regain the road which alone leads to peace, liberty and safety.”