The Online Library of Liberty

A project of Liberty Fund, Inc.

• About the Author
• Preface
• Part 1: The Constitution’s Deep Roots
• Points to Remember
• The Meaning of Constitutional Government
• The Lamp of Experience
• The Constitutions of Antiquity
• English Origins of America’s Constitution
• The Growth of Parliament
• The Challenge of Parliamentary Supremacy
• The Common Law Tradition
• The Republican Tradition and the Struggle For Constitutional Liberty
• The Influence of Continental Thinkers
• The Education of the Founders
• The French and American Revolutions Compared
• Appendix A: Relevant Chapters of Magna Charta (1215)
• Appendix B: Petition of Right (1628)
• Appendix C: The English Bill of Rights (1689) an Act For Declaring the Rights and Liberties of the Subject, and Settling the Succession of the Crown.
• Part 2: America’s First Constitutions and Declarations of Rights
• Points to Remember
• Colonial Governments
• Relations With Great Britain
• Local Government In the Colonies
• Civil Liberties In the Colonies
• The Movement Toward Independence
• The Declaration of Independence
• The Rights Proclaimed
• The First State Constitutions, 1776–1783
• The Articles of Confederation
• Appendix A: the Mayflower Compact
• Appendix B: Fundamental Orders of Connecticut
• Appendix C: Declaration and Resolves of the First Continental Congress
• Appendix D: Declaration of the Causes and Necessity of Taking Up Arms
• Appendix E: the Declaration of Independence (1776)
• Appendix F: Virginia Bill of Rights
• Appendix G: Thoughts On Government
• Appendix H: Massachusetts Constitution of 1780
• Appendix I: Articles of Confederation (1778)
• Part 3: The Achievement of the Philadelphia Convention
• Points to Remember
• The Problems of the Convention
• The Delegates to the Convention
• A Wide Range of Talents
• Plans and Progress At Philadelphia
• The Meaning of “federal”
• The Virginia Plan: a Supreme National Government
• Hamilton’s Concept of a Unified America
• The New Jersey Plan:checks Upon Central Power
• The Benefits of Compromise
• Compromise and Consensus
• Appendix A: Virginia Plan
• Appendix B: New Jersey Plan
• Appendix C: Constitution of the United States of America (1787)
• Part 4: Basic Constitutional Concepts: Federalism, Separation of Powers, and Rule of Law
• Points to Remember
• A.: Federalism
• Powers Delegated to Congress
• Powers Denied to Congress
• Powers Denied to the States
• The Division of Powers
• The Supremacy Clause
• National and State Obligations
• Obligations of the National Government to the States
• Obligations of the States to the National Government
• Obligations of the States to Each Other
• The Role of the States In the Amendment Process
• The Federalism Factor
• The Advantages of Federalism
• The Future of Federalism
• B.: the Separation of Powers
• Checks and Balances
• Checks Upon the Congress
• Checks Upon the President
• Checks Upon the Judiciary
• The Independence of Congress
• The Independence of the President
• The Independence of the Judiciary
• Summary and Review
• Separation of Powers: a Critical Evaluation
• Separation of Powers At the Crossroads
• C.: The Rule of Law
• The Basic Principles of the American Constitution
• Appendix A: the Federalist No. 10
• Appendix B: the Federalist No. 45
• Appendix C: The Federalist No. 47
• Part 5: Defending the Constitution: the Struggle Over Ratification and the Bill of Rights
• Points to Remember
• A.: the Anti-federalist Persuasion
• The Constitution Establishes a Consolidated Empire
• The Constitution Establishes an Aristocracy
• The Constitution Confers Too Much Power
• An Imperial Congress
• An Elected Monarch
• An Omnipotent Judiciary
• B.: the Federalist Response
• The Constitution Limits and Distributes Power
• Congress Is Not an Oligarchy
• The President Is Not a King
• The Judiciary Is the Least Dangerous Branch
• Whether a Bill of Rights Was Necessary
• The Clash of Values
• C.: The Bill of Rights
• The First Amendment: Religious Freedom, and Freedom to Speak, Print, Assemble, and Petition
• The Second Amendment: the Right to Bear Arms
• The Third Amendment: Quartering Troops
• The Fourth Amendment: Search and Seizure
• The Fifth Amendment: Rights of Persons
• The Sixth Amendment: Rights of the Accused
• The Seventh Amendment: Trial By Jury In Civil Cases
• The Eighth Amendment: Bail and Cruel and Unusual Punishments
• The Ninth Amendment: Rights Retained By the People
• The Tenth Amendment: Rights Retained By the States
• Rights Versus Duties
• Appendix A: the Address and Reasons of Dissent of the Minority of the Convention of the State of Pennsylvania to Their Constituents
• Appendix B: Northwest Ordinance (1787)
• Part 6: Interpreting and Preserving the Constitution
• Points to Remember
• Principles of Statutory Construction
• The Doctrine of Judicial Review
• The Supreme Court As Final Interpreter
• The States As Final Interpreters
• Strict Versus Loose Construction
• The Independence of the Judiciary
• A.: Origins of Judicial Independence
• B.: the Judicial Power
• C.: Jurisdiction
• Appendix A: Marbury V. Madison
• Appendix B: Martin V. Hunter’s Lessee
• Appendix C: Washington’s Farewell Address (1796)
• Part 7: Changing the Constitution—together With an Explanation of the Amendments Added Since 1791
• Points to Remember
• Our Living Constitution
• Our Changing Constitution
• Amending the Constitution
• The Limits of the Amending Power
• The Amended Constitution
• A.: Amendment Xi (1798)
• B.: Amendment Xii (1804)
• C.: Amendment Xiii (1865)
• D.: Amendment Xiv (1868)
• E.: Amendment Xv (1870)
• F.: Amendment Xvi (1913)
• G.: Amendment Xvii (1913)
• H.: Amendment Xviii (1919)
• I.: Amendment Xix (1920)
• J.: Amendment Xx (1933)
• K.: Amendment Xxi (1933)
• L.: Amendment Xxii (1951)
• M.: Amendment Xxiii (1961)
• N.: Amendment Xxiv (1964)
• O.: Amendment Xxv (1967)
• P.: Amendment Xxvi (1971)
• Q.: Amendment Xxvii (1992)
• Conclusion

The Republican Tradition and the Struggle for Constitutional Liberty

In responding to the radical policies and innovative constitutional doctrines of King George and his Tory ministers, the Americans were also much attracted to John Hampden and Algernon Sidney, whose names were virtually synonymous with constitutional liberty. Hampden was the leader of a local tax revolt that shook the foundations of royal absolutism in seventeenth-century England. In the Petition of Right of 1628, the King had bound himself never again to imprison any person except by due process of law, never again to circumvent the regular courts through court martial trials by commissions, never again to quarter soldiers in private homes without the consent of the householder, and never again to raise money without the consent of Parliament.

There was, however, a potential loophole concerning the limitations imposed on the King’s power to levy a tax by virtue of a longstanding practice which permitted the throne to issue special writs calling for a tax in time of emergency. These writs, however, had been imposed only on the port towns of England because their purpose was to raise money for ships of the Royal Navy. Charles I, anxious to build more ships, issued a writ in 1636, clearly in violation of the spirit of the Petition of Right, extending the system inland—to all of the counties. There was no national emergency, but Charles declared the existence of one anyway, and argued that the inland counties should pay because they too enjoyed the protection of His Majesty’s Navy.

Many declined to pay, declaring that the King’s writ was a tax levied without parliamentary authority. A member of the House of Commons, John Hampden had vigorously opposed the arbitrary rule of the crown for many years. In the famous Ship Money Case of 1637, he was tried for refusing to pay the small sum of twenty shillings assessed upon his land, claiming that Charles had no authority to declare a national emergency on his own, and that the writ itself violated his property rights. Although Hampden lost his case, the judges’ decision was later stricken from the rolls. Hampden became a popular hero in both England and the American colonies, and a symbol of resistance to oppressive taxation and arbitrary government. A monument memorializing Hampden’s courageous stand against the ship money tax remains to this day in his native village of Great Kimble: “Would 20s. Have Ruined Mr. Hampden’s Fortune? No, But The Payment of Half 20s. On the Principle it was Demanded Would Have Made Him a Slave.”

The Ship Money Case was cited by American lawyers in their battle with Parliament over the latter’s taxing powers, and the constitutional doctrine that the executive has a special prerogative, or reserved power, to rule by decree in times of crises was rejected by the Framers. The American constitutional tradition has never embraced the doctrine of royal absolutism that emergencies create power. Unfortunately, not all nations of the world have learned the lessons of history as well as the Americans. Invoking so-called “emergency powers” has been a favorite executive device for seizing “temporary”—and then permanent—dictatorial control of government in modern democracies, and to this day there are foreign constitutions which confer this dangerous power on the chief executive.

Algernon Sidney, beheaded on a London scaffold in 1683 for the crime of treason, left a different mark on the American mind. Falsely accused of participating in a plot to murder the King, he was arrested and brought to trial by his political opponents before the infamous Chief Justice George Jeffreys, whose cruelty and misconduct on the bench were a disgrace to the English judiciary. Throughout much of the seventeenth century, the courts of England were subjected to political manipulation and control. The Stuart kings had begun the policy of removing judges who disagreed with them, but the Puritans under Cromwell went further by filling the bench with subservient judges, Jeffreys being the worst of the lot.

The Puritans treated Magna Charta, parliamentary government, and the rule of law with contempt, acting in a far more arbitrary fashion than any English king had ever dared to attempt. In the trial of Sidney, principles of due process and established rules of criminal procedure were deliberately violated by the court. The indictment charging Sidney with treason was issued without a grand jury proceeding. He was refused a copy of the indictment. The jury was handpicked to exclude jurors who might declare him innocent. Perjured testimony and hearsay (second-hand) evidence were introduced against him. Sidney had committed no overt act against Charles II, but the court devised a farfetched interpretation of the treason statute to gain a conviction. An unpublished manuscript found among Sidney’s personal papers was then produced in court as proof of his treasonous behavior. This was the Discourses Concerning Government, a treatise on liberty which praised limited and “mixed” government, denied the divine right of kings, and asserted that “power is originally in the people” and that “the king is subject to the law of God.” These and similar non-treasonous statements were interpreted by the court as proof that Sidney was involved in a plot against the King’s life, and he was convicted on that fraudulent basis.

The Discourses were later published in 1698 and again in 1763 and 1772. The work was hailed in America by Jefferson and other colonial leaders. The two-volume book, though less coherent or profound than John Locke’s political writings on the same subjects, served along with Locke’s Two Treatises of Government as an inspiration to Whigs in the colonies and as one of the main arsenals from which the American revolutionary writers drew their arguments. But Sidney’s life, trial, and martyrdom probably had greater influence on American thinking, and many a patriot who had never even read the Discourses appealed to Sidney’s memory as a symbol of defiance to tyrants. Sidney’s trial in particular served as a glowing reminder to American constitution-makers of the need for an independent judiciary that respected rule of law and judicial restraint. Both Hampden and Sidney were held in such high esteem that in 1776, under the leadership of Patrick Henry, James Madison, and other prominent figures, a school was founded in Virginia bearing the name Hampden-Sydney College.

It should be borne in mind, however, that not all of the American colonists were persuaded that a monarchy was necessarily a bad form of government, or that Sidney’s Discourses were politically or philosophically sound. It has been estimated that at least one-third of the Americans were Tories or Loyalists, who opposed independence. Many believed that a limited constitutional monarchy was preferable to a republican form of government, or what was then often called a commonwealth. Their position was not wholly untenable, or so absurd as Thomas Paine made it appear in his famous tract Common Sense. King George III was no Henry VIII or Charles I. In 1776, royal absolutism was a thing of the past, and the English Constitution had changed much since the days of Hampden and Sidney. Besides, the English experiment with republicanism, when Cromwell and the Puritans tyrannized Britain, had been a catastrophic failure. Why blame the King, they asked, when it was the leaders of Parliament who were really at fault for the deprivation of American rights. Parliamentary sovereignty, not the monarchy, was the problem. The French Revolution that began in 1789, far exceeding the crimes and human atrocities of Cromwellian England, would later show that radical republicanism, if unrestrained, might degenerate into anarchy and mob rule. Under the rule of Robespierre, the French actually lapsed into a period of totalitarian democracy, the first the world had ever seen, followed by the rise of a young army captain named Napoleon Bonaparte, who became the first modern dictator, crowned himself Emperor, and plunged all of Europe into nearly two decades of war, death, and destruction. In retrospect, then, it may be seen that the case for a limited constitutional monarchy was not as weak as some maintained. Even today we are struck by the fact that Great Britain, the Netherlands, Sweden, and other regimes that have kept the throne and have evolved into a limited constitutional monarchy have been among the freest and most stable democracies of modern Europe.

A few Americans entertained the notion that perhaps George Washington should be crowned the American king; and there were rumors that John Adams and Alexander Hamilton harbored monarchist sentiments. But Washington never took it seriously, and the charges against Adams and Hamilton were false. Many American political leaders, especially Hamilton, did greatly admire the English Constitution, however, even though they agreed with the great majority of their countrymen that American society, lacking a permanent aristocracy or class system like that of England, was not suited for a monarchy. No proposal to establish such a system was ever made at the Philadelphia Convention, the Framers being unanimously agreed that a republican form of government, though difficult to maintain, was the best system for the people of the United States.

The extent to which the writings of Sidney and Locke contributed to the increasing disenchantment with monarchy and the growing popularity of republicanism among the American people cannot easily be measured. Among the educated class, however, their works were read widely and often discussed. Although James I had published a defense of monarchical government early in the seventeenth century, the principal book was Sir Robert Filmer’s Patriarcha (1680), a learned treatise which argued nevertheless that the King ruled by divine right and could trace his line of authority back to Holy Scripture. Sidney denied the validity of the theory in his Discourses, and Locke repudiated it in his First Treatise of Civil Government. With the notable exception of Jonathan Boucher, a Tory preacher from Maryland who published a defense of Filmer and ridiculed the doctrines of Locke, few Americans seem to have been much persuaded by Filmer. With many other Loyalists, Boucher eventually fled the colonies, never to return. What sentiment there was for monarchical government effectively vanished with the massive emigration of the Loyalists to Canada and the mother country during the Revolution.

Far more influential than any of these writings, however, was Locke’s Second Treatise of Civil Government, which sought to provide a theoretical justification for the Glorious Revolution, and presented a view of government based on the theory that all men possess certain “natural rights” which government has a duty to protect. Though Locke’s understanding of the origin and purpose of civil society was unhistorical and logically unsound, as Boucher and the Scottish philosopher and historian David Hume were quick to point out, his natural rights philosophy was sometimes invoked by American revolutionary leaders to buttress their arguments against the legitimacy of British colonial policies. Americans were entitled not only to the rights of Englishmen, some maintained, but to the “natural rights of life, liberty and estate” (Locke’s phrase) common to all mankind.