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The Rights Proclaimed - 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.


The Rights Proclaimed

The common theme of the various declarations issued by the Continental Congress between 1774 and 1776 was the claim of equal rights, the argument being that Americans were entitled to the same rights as Englishmen. These rights, the Americans argued, were basically inherited rights, derived from the English Constitution and the great charters of liberty, the English common law, and colonial charters. Nature was another source of rights—“the right to life, liberty, and property”—but to suggest that Americans were motivated principally by a natural right theory is to overstate the importance of John Locke and natural rights doctrines. The controversy with Great Britain centered mainly on legally established constitutional rights, not abstract philosophical rights. As an authoritative source of rights, nature was mentioned either as an alternative source or as a rhetorical device.

The first official list of claimed rights appeared in Patrick Henry’s famous Resolves, which the Virginia House of Burgesses adopted in 1765. They were passed in response to the Stamp Act and were repeated again and again in other State assemblies and in the Continental Congress down to the outbreak of the Revolution. Henry argued that the English had violated three rights. The first was the right of equality between the American and European subjects of George III. The colonists, said the Virginia Resolves, were entitled to “all the liberties, privileges, franchises, and immunities that have at any time been held, enjoyed, and possessed by the people of Great Britain.” The second English right asserted was the right to be taxed only by representatives of one’s choosing. And the third, closely related to the second, was government by consent: “the inestimable right of being governed by such laws, respecting their internal polity and taxation, as are derived from their own consent.”

The most comprehensive statement of colonial privileges made during the revolutionary period appeared in the Declaration of Rights of 1774. Whereas Henry’s resolves were concerned with the single issue of internal taxation, the Declaration of 1774 listed nearly all of the rights Americans had been claiming since the passage of the Stamp Act. Nine rights were identified: (1) the right to “life, liberty and property,” which the colonists never “ceded to any sovereign power whatever”; (2) the right to equal rights; (3) the right of representation; (4) common law rights; (5) trial by jury; (6) rights under English statutes that were in force at the time of colonization; (7) the right to petition, the House of Commons having refused to receive colonial petitions; (8) the right to be free from standing armies unless legislative consent had been granted; and (9) the right to free government, which Parliament had abridged in several colonies by conferring legislative power on councils appointed by the Crown.

The Americans claimed other rights, of course, but many of these were seldom mentioned because they were not part of the dispute with England. Freedom of the press and the free exercise of religion, for example, did not enter into the debate, although these were rights much valued by the colonists. Although we no longer think of security as a “right,” the colonists thought that security, especially security of property, was one of the most important guarantees of the English Constitution. “The absolute rights of Englishmen,” wrote James Otis on behalf of the Massachusetts House of Representatives, “are the rights of personal security, personal liberty, and of private property.” John Dickinson contended that “Men cannot be happy, without freedom; nor free, without security of property; nor so secure, unless the sole power to dispose of it be lodged in themselves.”

In essence, however, the quarrels between Parliament and the American assemblies over the nature and scope of individual rights were symptomatic of a more fundamental disagreement: the meaning of the English Constitution and of constitutional government. The Constitution as the Americans understood it was the old English Constitution of customary powers, in which inherited and inherent rights were protected against the arbitrary capriciousness of government power. The Constitution as London viewed it was a modernized British Constitution—the emerging constitution of the nineteenth century—of sovereign command and unchecked parliamentary supremacy. The American dilemma was not simply that Parliament had denied certain rights, but Parliament’s claim that it had the right to define them and impliedly to deny them at its pleasure. The real issue was sovereignty. “A paltry tax upon tea, a particular insult, a single act of violence or sedition,” a member of the House of Lords wisely noted, “was not the true ground of the present dispute. It was not this tax, nor that Act, nor a redress of a particular grievance. The great question in issue is, the supremacy of this country and the subordinate dependence of America.”

If Parliament was supreme, and free to revise the Constitution at will, how were American rights to be protected? Incredibly, only one member of Parliament ventured a solution during this great upheaval. “It was for liberty they fought, for liberty they died,” said James Luttrell, a member of the House of Commons, in 1777. “An American Magna Charta is what they wisely contend for; not a Magna Charta to be taxed by strangers, a thousand leagues distant … but if constitutional freedom was secured to America every victory might then gain over some worthy friends to our cause.” But Luttrell’s proposal went unnoticed and was never debated. Perhaps it would not have resolved the problem anyway. Assuming that Parliament passed an American Magna Charta, what would have prevented a future Parliament from repealing it? Only fundamental law could guarantee the security of American rights; but a fundamental law is little more than an ordinary statute where a constitution is subject to parliamentary supremacy. As one constitutional historian put it, “American whigs began their resistance in 1765 in the belief that Parliament was acting unconstitutionally. They went to war in 1775 in the belief that they were fighting to defend the British Constitution, not rebelling against it; they were in fact doing both. They were defending the Constitution of limited government and of property in rights that had been the English Constitution. They were rebelling against the Constitution of arbitrary power that the British Constitution was about to become.” In sum, the colonies had no choice but to declare independence and establish their own constitutions if they wished to secure the rights they had enjoyed under the old constitution they loved and cherished.