CHAPTER ONE

THE REVOLUTIONARY ORIGINS OF THE AMERICAN CONSTITUTION

AMERICA’S CONSTITUTIONAL HISTORY did not begin in 1787 with those Founding Fathers who gathered in Philadelphia, in the building we now call Independence Hall. Indeed, it did not begin with America’s Declaration of Independence, adopted in that same building on July 4, 1776. Rather, it developed gradually over the nearly two hundred years of British rule preceding America’s bold leap toward independence.

America’s legal and constitutional traditions were influenced profoundly by English common law and by a deep reverence for what British subjects on both sides of the Atlantic called the “English constitution.” It did not seem to matter that the English constitution did not actually exist in written form—it was and is a jumble of parliamentary statute, legal precedent, and simple custom. Yet English colonizers and American colonists alike held it in uncommonly high regard.

It was in large measure the disagreements between Americans and Englishmen over how to interpret the English constitution that precipitated the conflict that would result in the world’s first popular revolution. The origins of the conflict lay in two things that have caused trouble since the beginning of time: money and taxes. In 1763 the British government, following a successful but costly war against France (as well as against some of France’s Indian allies in North America), found itself in possession of vast amounts of new territory west of the Appalachian Mountains and in Canada. That was the good news. The bad news was that the costs of the war, and the likely continuing costs of protecting the newly won gains, had left the king and his government deeply in debt, with the prospect of even greater debt on the horizon. Since much of that debt had been incurred in a war fought in America and since the spoils of that war—vast lands stretching west to the Mississippi River and north into Canada—would ultimately be sources of opportunity for future generations of American colonists, from the British point of view it seemed only reasonable that Americans pay their fair share of the costs.

Of course, the Americans saw things differently. They too had sacrificed. They had provided supplies and, more important, militiamen who had fought alongside the British regular army during that seven-year-long war. Indeed, a young colonel in the Virginia militia, George Washington, had acquired an international reputation for his bravery as commander of the Virginia regiment in the French and Indian War. If there was ever a time in which Americans were in a mood to be left alone to enjoy the relative peace of a world in which the threat of French intrigue and Indian warfare on their frontiers was significantly diminished, that time came at the conclusion of the war, signaled by the signing of the Treaty of Paris in February 1763. At precisely the moment when the British government was looking to America for an unprecedented contribution to the British treasury, for “the good of the empire,” Americans, weary of sacrifice and less dependent on British military might for the security of their frontiers than ever before, were in an entirely different frame of mind.

Beginning in 1764 and 1765 the British parliament began levying a new series of taxes on the colonies aimed at raising revenue to pay the expenses of administering their empire. The British government also announced its intention to tighten up enforcement of existing customs laws, which, because of lax enforcement over many decades, had been widely evaded by American merchants. In fact, the taxes imposed on the colonies—a tax on molasses imported from the West Indies into America and a stamp tax, similar to taxes already levied back in England—did not present a major economic burden to the Americans. But the means by which the taxes were imposed—enacted by a distant Parliament without the Americans’ consent—seemed to the Americans to violate a principle of the English constitution that they valued dearly: the principle of “no taxation without representation.”

The American protests against the taxes began in the colonies’ provincial assemblies, which sent humble petitions to Parliament asking for a repeal of what they believed to be unjust and unconstitutional acts. But protest was not confined to humble petitions. Gradually, ordinary folks in America’s cities and towns joined the protests, and as American resistance assumed this popular dimension, the forms of protest—street marches and demonstrations; economic boycotts of British goods; and, at times, violence aimed at British officials charged with enforcing the acts—became more direct and more threatening to the authority of the Crown. What began as a constitutional debate between American and English political leaders was becoming something more explosive—an intensely personal conflict between British officials and ordinary Americans played out, not in legislatures or courtrooms, but in the streets of Boston, New York, and Philadelphia.

Resistance bred reaction, and the British responded by sending more troops to keep order in their restive colonies. Parliament was goaded into passing additional legislation—not simply taxes but other measures, such as those requiring Americans to provide lodging for British troops in their homes—further inflaming public opinion. The turning point in the escalating conflict between the Crown and colonies came on a cold, moonlit night on December 16, 1773. Earlier in the year, Parliament had passed the Tea Act, a law not only intended to reassert England’s right to tax the colonies but which also gave the East India Company—the company that enjoyed a monopoly on all English trade in India—a similar monopoly on all tea imported into America. Once again the amount of the tax involved was relatively trivial, but Americans now rose up in protest, not only against being taxed without their consent, but also against the threat of monopoly. If Parliament could give one company a monopoly on the importation of tea, what was to prevent it from doing the same with other commodities, leaving American merchants, and all those who worked for them, out in the cold?

So on that cold night in December, three small groups of men poorly disguised as Mohawk Indians—but who were in fact common seamen and urban laborers acting under the direction of the political activist Samuel Adams—dumped ninety thousand pounds of East India Company tea into Boston Harbor. John Adams, a witness to the event, wrote in his diary that night that “this destruction of the tea is so bold, so daring, so firm, intrepid and inflexible, and it must have so important Consequences, and so lasting, that I cannot but consider it an Epocha in History.” Indeed, the effects of the Boston mob action would shake politicians in England to their very core, setting in motion a chain of events that would change the world.

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SOME IN AMERICA REGRETTED THE PROVOCATIVE MANNER in which the Bostonians had acted, but when the British parliament responded with a harsh set of measures aimed at punishing the colony of Massachusetts, public opinion began to change. The Coercive Acts, as they came to be called, not only closed the port of Boston, but also strengthened the power of the royal governor while dissolving the provincial legislature and restricting the actions of town meetings. This aggressive display of parliamentary power posed an obvious threat not merely to Massachusetts, but to the liberties of all Americans. The constitutional battlefield had now expanded: the issues now confronting Americans went beyond taxation to the wider question of whether Parliament had any political authority over the American colonies. In June of 1774, all thirteen of America’s provincial legislatures, accustomed to going their separate ways, agreed to send delegates to Philadelphia to meet in a Continental Congress in order to work out a common response to this new and dangerous provocation.

When the delegates gathered in a carpenters’ guild hall in Philadelphia on September 5, 1774, there was general agreement among them that some response to the Coercive Acts was necessary but little consensus on what that response should be. For a few—particularly those like John and Samuel Adams from fractious Boston and the Virginian Patrick Henry—the idea of independence was beginning to seem like a possible, even desirable, outcome. But most of the delegates to the Continental Congress retained a deep affection for their monarch and for the English constitution. Surely, there must be some means of resolving the conflict short of revolution. The magnitude of the change being proposed by the advocates of independence—a revolution in which Americans would be transformed from loyal subjects of a beloved British king into independent citizens in a new republic—was almost too much to comprehend. Yet gradually, haltingly, America’s political leaders, and the constituents they represented, would set themselves on a course to independence—to a rejection of their identity as British subjects and a declaration of their desire to be citizensof the “united states.”

The Continental Congress met in Philadelphia’s Carpenters’ Hall between September 5 and October 26, 1774, and after a six-month recess moved to the Assembly Room of the Pennsylvania State House, the building that would later be called Independence Hall. They met continuously from May 10, 1775, until the adoption of the Declaration of Independence on July 4, 1776. From May 1775 forward, the constitutional battle was waged on two fronts: between political leaders in America and their counterparts in London, and among the American delegates to the Continental Congress, who continued to disagree about whether independence was the course for the colonies to take. The latter debate was profoundly influenced by the steadily escalating conflict between Great Britain and the colonies outside the halls of Congress and, just as importantly, by the climate of opinion back home in the delegates’ respective colonies.

The battles of Lexington and Concord, occurring less than a month before the Continental Congress reconvened in May 1775, provided one flash point, transforming the conflict between Crown and colonies from a political dispute to a military confrontation. But even after the opposing patriot and British armies had taken up arms, most Americans hoped for a solution that would not force them to abandon their loyalties as British subjects. As the skirmishes at Lexington and Concord escalated into full-scale war—Bunker Hill in June 1775, military clashes spreading to a new front in western New York and Quebec in the fall of 1775, Virginia royal governor Lord Dunmore’s promise of freedom to slaves who deserted their masters and fought on the British side to put down incipient rebellion in that colony—it became more and more difficult to imagine a path toward reconciliation.

Still the delegates sought that reconciliation. John Dickinson, a delegate to the Continental Congress from Pennsylvania, had already made a name for himself in the preceding years as an articulate spokesman for the constitutional rights of Americans. But Dickinson, trained as a lawyer in London, also had a deep reverence for the English constitution. If only the king and Parliament could be persuaded to return to the true principles of that constitution and to restore their liberties! In August 1775 Dickinson persuaded the Congress to draft the Olive Branch Petition, which firmly reiterated the Americans’ constitutional objections to Parliament’s attempts to tax and legislate for the colonies but at the same time expressed affection for and allegiance to the British Empire. Notably, the petition was sent, not to Parliament, but to King George III, for even moderate Americans like Dickinson had reached the point of denying all parliamentary authority over the colonies.

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WHATEVER HOPES OF ENLISTING THE AID OF their sovereign that men like Dickinson may have entertained, they were coldly dashed by late October 1775, when the Congress received news that the king had declared the colonies in a state of rebellion even before receiving the Olive Branch Petition. When the petition finally reached the king, he refused to look at it. To make matters worse, in his October speech at the opening of Parliament (which the Continental Congress only learned about in early January 1776), George III denounced the Congress as “promoters of [a] desperate conspiracy.” Its petitions, he charged, were only a ruse designed to lull the British while the delegates were preparing for a “general revolt,” with the ultimate goal being the establishment of “an independent empire.” And although the news would not reach America until the end of February, Parliament, at the king’s urging, had passed the Prohibitory Act, which effectively declared war on American commerce on the high seas. With the adamant refusal of the king to help turn the tide of events back toward reconciliation, the next move would be up to the Americans.

At nearly the same time that George III was making pronouncements that dimmed the hopes of those in Congress who yearned for some sort of honorable path toward reconciliation, a scruffy, recent English immigrant to Pennsylvania, one Thomas Paine, wrote a pamphlet, Common Sense,that would bring about a revolution in public opinion. Paine had nothing but contempt for the “boasted constitution of England,” which was, he derisively commented, “noble for the dark and slavish times in which it was erected,” but wholly inadequate for a free people in a new world. And the greatest absurdity of that constitution, he exclaimed, was the very idea of a hereditary monarch. His attack on the monarchy in general, and on George III in particular, was devastating and, as it turned out, unanswerable. John Dickinson, whose devotion to the English constitution formed the core of his desire to stay within the British Empire, was rendered mute in the face of Paine’s assault. And General George Washington, now leading the Continental army’s troops in battle, was so moved by Paine’s pamphlet that he had his officers read it to his men in the field to inspire them to fight for the common cause.

The period between the publication of Common Sense in mid-January and the decision to declare independence in early July was a chaotic one. At this stage the decision on independence became not one but thirteen separate decisions, as political leaders and ordinary citizens in each of the colonies read and then debated the argument in Common Sense. In Congress, those continuing to hope for reconciliation found their numbers declining and their arguments less persuasive. Nevertheless, even those delegates most committed to independence knew that the drama needed to be played out in each of the individual colonies, for the authority of the Congress was ultimately dependent on public opinion beyond the walls of the Pennsylvania State House.

By April of 1776, most, but by no means a decisive majority, of the colonies appeared ready to declare independence. A few—Pennsylvania, New York, Maryland, and New Jersey—had, with varying degrees of emphasis, instructed their delegates to the Congress to oppose any resolution for independence. But as the possibilities for reconciliation with Great Britain dwindled (the British government had indicated that it might send peace commissioners to America to attempt to negotiate a settlement, but the commissioners never arrived), those colonies that had argued for caution were left with few plausible alternatives.

On June 7, Richard Henry Lee of Virginia introduced into the Congress a resolution sent to him by a specially called convention in his home colony. The resolution proposed:

• that these United Colonies are, and of right ought to be free and independent states.

• that it is expedient forthwith to take the most effectual measures for forming foreign alliances.

• that a plan of confederation be prepared and transmitted to the respective Colonies for their consideration and approbation.

Agreement on these three items—independence; foreign assistance; and, perhaps most important, union—constituted the essential preconditions for a formal declaration of independence.

Even with those resolutions before the Congress, the delegates from Pennsylvania, New York, New Jersey, and Maryland remained opposed, and others seemed to be on the fence. As a consequence, the Congress postponed debate on the resolutions from Virginia until July 1. But on that day, as debate on the resolutions began, nearly everyone gathered in the Assembly Room of the Pennsylvania State House knew that they had reached a moment of truth. During the first go-around, on July 1, Pennsylvania and South Carolina opposed the resolution for independence, with Delaware divided. And New York’s delegates had to sit on their hands, for they had been given explicit instructions by their legislature not to vote on any measure aimed at independence.

Finally, on July 2 the votes fell into place. An additional Delaware delegate, Caesar Rodney, arrived in Philadelphia that day, voting in favor of independence and breaking the deadlock in that delegation. Edward Rutledge of South Carolina, who had opposed independence, deferred to his older, more politically powerful brother, John Rutledge, and agreed to support the resolutions. The situation with the Pennsylvania delegation was the most interesting. Although prominent Pennsylvania delegates like John Dickinson and Robert Morris continued to oppose independence, they realized that their views were out of step with those of their constituents. Recognizing that their duty to their constituents was more important than their personal feelings, they voluntarily absented themselves from the voting on Richard Henry Lee’s resolution for independence on July 2. The effect of their absence was to tip the balance within the Pennsylvania delegation toward independence. The New Yorkers still sat on their hands, waiting for their legislature to have a change of heart. But at least they had not voted no, allowing John Adams to crow that the “resolution was passed without one dissenting colony.” The following day he wrote his wife, Abigail, in exultation: “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.” He missed the mark by two days.

The man most closely associated with American independence has turned out not to be its most indefatigable advocate, John Adams, but rather a relative newcomer to the political scene: the soft-spoken, lanky Virginian Thomas Jefferson. On June 11, three weeks before the formal vote on independence, the Continental Congress had appointed a committee composed of Jefferson, Adams, Benjamin Franklin, Roger Sherman, and Robert Livingston to prepare a declaration of independence, in case such a declaration should be necessary.

It was of course Jefferson who took on the task of completing a first draft of the Declaration of Independence. But if we are to believe the testimony of John Adams, that was not a foregone conclusion. According to Adams, when the committee first met it decided that Jefferson would be given that task, but Jefferson proposed instead that Adams do it. Then followed an exchange in which each man tried to persuade the other to write the draft. Adams argued that Jefferson should do it because he was a Virginian, “and a Virginian ought to appear at the head of this business,” a reference to the fact that New Englanders like Adams were seen by many as the troublemakers who had gotten the colonies into the conflict with England in the first place, and that it would look better if the more conservative Virginians took the lead in the movement for independence. Adams went on to say that “I am obnoxious, suspected, and unpopular. You are very much otherwise.” That, unfortunately, was probably true, for Adams’s curmudgeonly nature, together with his often abrasive insistence on independence even before some of the other colonies were ready for it, had earned him at least a few enemies. Adams’s third reason was that he believed Jefferson could “write ten times better than I can.” It is hard to imagine Adams admitting that anyone was a better writer, and indeed Jefferson—again, long after the fact—had a rather different recollection. According to Jefferson, the decision about who was to write the draft of the Declaration was straightforward: the members of the committee “unanimously pressed on myself alone to undertake the draught [and] I consented.” Jefferson went on to recall that at that point he retired to his rented rooms at Seventh and Market Streets in Philadelphia and wrote a draft, and before sending it formally to the committee for their comments, he informally asked both Benjamin Franklin and John Adams to suggest corrections. According to Jefferson, “their alterations were two or three only, and merely verbal.” At which point, Jefferson recalled, he wrote out a new copy of the document and reported it to the committee, which, without making alterations, sent it to the full Congress for its consideration.

In fact, the rough draft of Jefferson’s Declaration that was submitted to the Congress had a total of twenty-six alterations—two in Adams’s handwriting, five in Franklin’s, and sixteen in Jefferson’s. And three additional paragraphs were added as well. It appears likely that many of the changes were the result of further conversations that Jefferson had with Adams and Franklin, both of whom made substantial contributions to the revisions of Jefferson’s original draft. When comparing the two drafts, it is sometimes difficult to tell whether the revisions were made by Jefferson or made by others but recorded in Jefferson’s handwriting, but there is no doubt that the revisions did make the document both more elegant and more forceful. To give just a few examples:

1. The initial draft stated: “We hold these truths to be self-evident: that all men are created equal & independent; that from that equal creation they derive rights inherent & inalienable, among which are the preservation of life, & liberty, & the pursuit of happiness.”

The final draft: “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.”

2. The concluding portion of the preamble initially read: “The history of his present majesty is a history of unremitting injuries and usurpations, among which no one fact stands single or solitary to contradict the uniform tenor of the rest, all of which have in direct object the establishment of an absolute tyranny over these states. [T]o prove this, let facts be submitted to a candid world, for the truth of which we pledge a faith yet unsullied by falsehood.”

This was shortened to read: “The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute tyranny over these States. To prove this, let Facts be submitted to a candid world.”

Both of these sets of changes made the document both more concise and elegant, and by doing so, more powerful.

The list of grievances that followed was anything but a fair-minded and evenhanded assessment of the conflict between Great Britain and America. Rather, it was aimed at persuading those Americans who remained undecided to support the patriot cause and, equally important, at signaling to potential European allies, particularly France, that America was serious about its intent to break with England—an action that, if successful, would significantly weaken the British Empire in North America.

Although the Declaration was adopted on July 4, the only two members of the Continental Congress who appear to have signed it on that day were John Hancock, the Congress’s president, and Charles Thomson, the Congress’s secretary. The final wording of the Declaration was apparently engrossed on parchment sometime between July 19 and August 2. On the latter date, some but not all members of the Congress signed it, with those members who were absent on August 2 trickling in to sign it in subsequent days. Although some of the reasons for the delay were purely logistical—the members of the Congress first needed to get the document properly engrossed on parchment, and then they had to round up those delegates who were prepared to sign it—another was more substantial. The Declaration begins with the words: “The unanimous Declaration of the thirteen united States of America.” The New York legislature did not give its delegates permission to support independence until July 9, and if the Declaration was truly to be a unanimous one, the members of the Congress had to be sure that New York was on board.

Whatever the delay in signing the document, there was little delay in proclaiming it to a vitally interested public. When John Hancock transmitted America’s Declaration to the states on July 6, he observed: “The important consequences . . . from this Declaration of Independence, considered as the Ground and Foundation of a future Government will naturally suggest the Propriety of proclaiming it in such a Manner, that the People may be universally informed of it.” In fact, someone had gotten hold of a copy of the Declaration a day earlier, and on July 5 a group of citizens gathered in the yard of the Independence Hall and listened as America’s first founding document was read aloud. Three days later there was another, “official” reading of the Declaration in that same spot, and within a few days similar readings occurred in the principal public gathering places all over America. General George Washington, already fully engaged in battle against the British army, ordered his officers in New York City to read copies of the Declaration to their troops, and with their British adversaries “constantly in view,” the troops were “formed in hollow squares on their respective parades,” and the Declaration was read “with an audible voice.” Washington hoped that these public—even daring—readings would “serve as a free incentive to every officer, and soldier, to act with Fidelity and Courage . . . knowing that now the peace and safety of his Country depends (under God) solely on the success of our arms.”

America’s political leaders in the Continental Congress, and American soldiers in the field, had taken the bold, fateful step of declaring their independence from Great Britain. But the struggle to achieve independence would sorely test the will of all Americans.

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