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POINTS TO REMEMBER - James McClellan, Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government [1989]

Edition used:

Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government (3rd ed.) (Indianapolis: Liberty Fund, 2000).

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


POINTS TO REMEMBER

1. Beginning with the founding of Jamestown in 1607, Englishmen in the American colonies were entitled to the same rights as their countrymen at home. Not all inhabitants, including indentured servants and slaves, enjoyed these rights, however. As in England, there were also property qualifications for voting. The principles of republicanism and representative government were introduced into the colonies with the establishment of the Virginia House of Burgesses in 1619.

2. The Pilgrims who landed at Plymouth Rock in 1620, by virtue of their Mayflower Compact, brought a contractual theory of government to the colonies. This later served as the basis for popularly based constitutions. All of the colonies, however, carried on the constitutional and legal customs of Great Britain. The American colonists were familiar with the idea of a written constitution as a result of their experience with colonial charters, the Fundamental Orders of Connecticut (1639) being the most famous.

3. The colonists adopted the English theory of representation, which included the principle of geographical representation, or the representation of localities as well as people. The Americans modified the English system of representation, however, by introducing a residency requirement for elected representatives. The most significant colonial departure from the English system was the absence of an aristocratically based upper chamber.

4. Colonial assemblies enjoyed considerable but not complete independence. Their most important and decisive victory was their control of the purse strings. This gave them financial independence and eventually undermined British control of the colonies.

5. Local self-government, based on counties or townships, became firmly established in the colonial period, and helped to prepare the nation for the concept of federalism that triumphed in the Constitutional Convention of 1787.

6. In general, most American colonists enjoyed a great deal of religious liberty. There was some religious intolerance, however, even though colonial governments were more tolerant of dissenting or minority sects than were European governments. Freedom of speech was protected by British statutes and the common law, and the American press was also much freer than that of most of Europe.

7. The important turning point in Anglo-American relations was 1763, when the British adopted a bold new policy that sought to establish a new economic relationship between the colonies and the mother country. The Stamp Act, passed in 1763 for the purpose of raising revenue, met with the cry: “No taxation without representation.” It was the first in a series of parliamentary laws that led eventually to the American Revolution.

8. In the Declaration and Resolves of the First Continental Congress (1774), the colonists declared that, “by the immutable laws of nature, the principles of the English Constitution, and the several [colonial] charters,” they were “entitled to life, liberty and property [and] all the rights, liberties, and immunities of free and natural born subjects within the realm of England [and] to the common law of England.” Rejecting legislative supremacy, they asserted that the legislative authority of Parliament was limited by the higher law of the Constitution. In their Declaration of the Causes and Necessity of Taking up Arms (1775), the colonists listed their grievances against Parliament, declaring they were “resolved to die freemen rather than to live slaves.”

9. The Preamble of the Declaration of Independence is based on the theory that the American people are entitled to certain natural rights, including life, liberty, and the pursuit of happiness, and that all men are created equal. The main text of the document, on the other hand, asserts that the inhabitants of the colonies are entitled to various constitutional, common law, and charter rights. The claim that “all men are created equal” has received different interpretations, one being that the colonists were simply contending that the American people, as a nation, were entitled to the same rights as Englishmen. Later generations interpreted the equality language of the Declaration of Independence more broadly as a prohibition against slavery.

10. The most comprehensive statement of colonial rights and privileges made during the revolutionary period appeared in the Declaration of Rights of 1774, wherein the colonists identified nine different rights. In essence, however, the quarrel between Parliament and the Ameri can assemblies over rights was symptomatic of a more fundamental disagreement: the meaning of the English Constitution and of constitutional government.

11. The year 1776 marks the birth of constitutional government in the United States and in the world at large. This was the first time in the world’s history that a large group of communities—now independent and sovereign States—had begun the formation of their own governments under written constitutions. This was also the year in which the Articles of Confederation, our first national constitution, was written.

12. The principal figure in the drafting of the new State constitutions was John Adams, “the father of American constitutionalism.” His pamphlet, “Thoughts on Government,” was widely used as a source of understanding, and Adams was the chief architect of the Massachusetts Constitution of 1780. This was the best of the early State constitutions and the first to employ a check and balance system.

13. The first State constitutions contained a variety of flaws requiring subsequent correction. None was written by a constitutional convention or submitted to the people for approval. The first State constitution resting on a thoroughly republican base was the Massachusetts Constitution of 1780, which set the standard for the United States Constitution. It is still in force today and is the oldest constitution in the country.

14. In general, our first State constitutions contained three basic weaknesses: (a) They failed to provide for an adequate system of separation of powers; (b) all but the Constitution of New York failed to establish an independent executive; (c) all lacked a provision establishing the constitution as the supreme law. In addition, a number of State constitutions neglected to provide for their amendment. Nor did all of the early State constitutions contain a bill of rights.

15. The first draft of the Articles of Confederation was made in the summer of 1776. But the document was not submitted to the States for approval until the fall of 1777 and did not take effect until 1781. The three major sources of contention among the States were: (a) the western land claim of Virginia and other States; (b) the system of representation in Congress; and (c) the basis for determining how much each State should contribute to the national treasury. The most important issue in the writing of the Articles was the question of State sovereignty. This was resolved in favor of the States, Article II declaring that “Each State retains its sovereignty, freedom, and independence.”

16. The Articles of Confederation were little more than a treaty among sovereign States. The States granted certain of the same basic rights and privileges to citizens of other States as they granted to their own citizens. The government was exceedingly weak, however, consisting of a unicameral Congress that lacked the power even to regulate commerce or levy a tax. No provision was made for an executive or judiciary and the Confederation government was forced to rely upon the States for the enforcement of its laws. Because the unanimous vote of all of the States was required to amend the Articles, it was virtually impossible to change the document even when its faults were generally acknowledged. Only by circumventing Congress were the nation’s leaders able to reform the system and establish a new Constitution.