Today is the anniversary of the ratification of the first written constitution in American history, the Fundamental Orders of Connecticut, which took place on January 14, 1639. The Fundamental Orders outlined the form of government that would be established over the Connecticut River Towns, enumerating its powers and describing the duties of citizens active in government. A fascinating document and a historic landmark for the development of constitutionalism in America, the Fundamental Orders, it should be said, did not include a bill of rights.
We often take it for granted that individual rights must be spelled-out in a written document if we want to be sure that they will be protected. The enumeration of rights has a long pedigree in Anglo-American law, stretching back at least to the sealing of Magna Charta in 1215 AD. So deeply engrained was this idea, that even before the American Revolution, the English people, with their many charters, their Petition of Right and Bill of Rights, considered themselves to be the freest people on earth. Yet the meaning of a document like Magna Charta was never static and the idea that lists of personal liberties like the Great Charter are an unambiguous good was never universal.
Here are a few opinions from the age of the American Founding. Take for example the following piece of eloquence from James Wilson (1742-1798), speaking here as a representative from Philadelphia at Pennsylvania’s ratification convention in 1788. Wilson supported ratification of the federal constitution and opposed appending a bill of rights to it:
“I confess I feel a kind of pride in considering the striking differences between the foundation on which the liberties of this country are declared to stand in this Constitution, and the footing on which the liberties of England are said to be placed. The Magna Charta of England is said to be an instrument of high value to the people of that country. But, Mr. President, from what source does that instrument derive the liberties of the inhabitants of that kingdom? Let it speak for itself. The king says, “We have given and granted to all archbishops bishops, abbots, priors, earls, barons, and to all the freemen of this our realm, these liberties following, to be kept in our kingdom of England, forever.” When this was assumed as the leading principle of that government, it was no wonder that the people were anxious to obtain bills of rights, and to take every opportunity of enlarging and securing their liberties. But here, Sir, the fee-simple remains in the people at large, and by this Constitution they do not part with it….A bill of rights annexed to a constitution is an enumeration of the powers reserved. If we attempt an enumeration, everything that is not enumerated is presumed given. The consequence is, that an imperfect enumeration of the powers would throw all implied power into the scale of government, and the rights of the people would be rendered incomplete.” (Eliott’s Debates, pp. 435-436)
This is to say that Wilson opposed emulating Magna Charta in the creation of our constitution. After all, Magna Charta presumes that the king has the power to grant, as much as to take away, the liberties of the citizen. The federal constitution by contrast derives its power from the people, and the enumeration of the powers the people has given it ought to be considered complete in the constitution as it stands. Therefore, since there is no presumption that people have surrendered all of their rights to a sovereign, there is no need to enumerate the rights they retain.
Alexander Hamilton made much the same point in the Federalist no. 84:
“It has been several times truly remarked that bills of rights are, in their origin, stipulations between kings and their subjects, abridgements of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was MAGNA CHARTA, obtained by the barons, sword in hand, from King John. Such were the subsequent confirmations of that charter by succeeding princes. Such was the PETITION OF RIGHT assented to by Charles I., in the beginning of his reign. Such, also, was the Declaration of Right presented by the Lords and Commons to the Prince of Orange in 1688, and afterwards thrown into the form of an act of parliament called the Bill of Rights. It is evident, therefore, that, according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing; and as they retain every thing they have no need of particular reservations.”
John Adams took a different attitude toward the Great Charter. Adams was not an ardent believer in democracy. One might have a monarchy or a democracy and it was all the same to him; for Adams, the question of a regime’s legitimacy depended on whether the government was government of law or government of men. By government of law, Adams meant steady adherence to a legal order that operated with an eye to the public good on the one hand, and that was not subjected to the caprice of some private interest on the other. In his 1787 Defense of the Constitutions of the United States he elaborates on this point:
“If in England there has ever been such a thing as a government of laws, was it not magna charta? And have not our kings broken magna charta thirty times? Did the law govern when the law was broken? Or was that a government of men? On the contrary hath not magna charta been as often repaired by the people? And, the law being so restored, was it not a government of laws, and not of men?” (pg. 126)
To supply the answers to the rhetorical questions Adams poses: a government of law is what we ought to desire, and therefore, Magna Charta, as opposed to its capricious abrogation at the hands of lawless English kings, is the model for our constitutionalism. The people did right by this principle when they insisted on restoring Magna Charta, but the fact that the law was secured by the power of the people was no particular moral trump. Democracies, like monarchies, can and do turn tyrannical.
The so-called Anti-Federalists, on the other hand, tended to see Magna Charta as the most important model for safeguarding liberties against the possibility of a new federal government. An important lawyer of the founding generation, John Francis Mercer, voiced this outlook when he wrote the following in a letter to the members of the conventions of New York and Viriginia in April or May of 1788:
“The most blind admirer of this Constitution must in his heart confess that it is as far inferior to the British Constitution, of which it is an imperfect imitation [,] as darkness is to light – In the British Constitution, the rights of Men, the primary objects of the social Compact – are fixed on an immoveable foundation and clearly defined and ascertained by their Magna Charta, their Petition of Rights and Bill of Rights[;] and their Effective administration by ostensible Ministers, secures Responsibility – In this new Constitution – a complicated System sets responsibility at defiance and the Rights of Men, neglected and undefined are left at the mercy of events.” (Storing, v. 5, pg. 105)
Governments, no matter how they claim to derive their legitimate powers, have a tendency to expand beyond their proper bounds at the expense of the people’s individual rights. Without a written pledge in the form of a Great Charter or a Bill of Rights, there is no clearly defined set of rights that are unassailable. And therefore, over time, no individual rights will be left unabridged.
Philadelphensis, a pseudonymous Anti-Federalist, sees the lack of a bill of rights as the opening to tyranny of the worst sort. Note that the outrages which he lists are specifically those prohibited by Magna Charta, namely, unlawful seizure of property, unlawful imprisonment, unlawful execution and the denial of trial by a jury of one’s peers:
“To such lengths have these bold conspirators carried their scheme of despotism, that your most sacred rights and privileges are surrendered at discretion. When government thinks proper, under the pretense of writing a libel, &c. it may imprison, inflict the most cruel and unusual punishment seize property, carry on prosecutions, &c. and the unfortunate citizen has no magna charta, no bill of rights, to protect him; nay, the prosecution may be carried on in such a manner that even a jury will not be allowed him. Where is that base slave who would not appeal to the ultima ratio, before he submits to this government?” (Philadelphensis, no. 9)
Magna Charta will celebrate its 800th birthday in 2015. Look for more news and blog posts on the heritage of English Liberties and Anglo-American Constitutionalism here on In Custodia Legis in the coming months.