Debunking American History, Part III: Making the Republic

Why did Americans reach the point of rebellion in 1776?  It is a complex story.  First, most Americans in 1776 did not reach that point.  Different historians have different opinions, but a common estimate today is that at most 30% of Americans wanted to secede from Great Britain.  Roughly the same number or more were actual Tories, the rest were indifferent.

Then how did they manage it?  The story is different in each of the 13 colonies, as the late M.E. Bradford has shown, and, although there was a coordinating committee known as Congress, it might be better to speak of American revolutions rather than one American revolution.  Americans had a number of grievances against Britain: We disliked paying our taxes of course, as most people do, but we were conveniently forgetting that fact that the British government spent a great deal of money defending our puny settlements from aggressive enemies, namely, the French and the Spanish.   

As Americans attempted to evade the various excise taxes levied on cider, molasses, legal documents, and tea, British authorities decided to crack down—as they did in Britain itself—on the tax-cheats and smugglers of New England.  In cracking down, they had recourse to a patently unjust legal procedure using general warrants, known as writs of assistance, which gave them the power to invade a man’s warehouse, shop, or house in search of contraband.  Such searches had provoked riots in England, and Americans were even more stubborn.  Americans could only defend their interests by citing the terms of the founding charters of their colonies, but the British government seemed determine to violate and even abrogate those charters. 

The British, on the other hand, were convinced that Boston merchants were conspiring to detach the American colonies from the mother-country.  In fact, they were right: the Boston patriot committee led by John Hancock, Samuel Adams, Dr. Joseph Warren sent Paul Revere the length and breadth of New England, urging local communities to form and train the militia bands that would rise up when he gave the signal.  The problem was not that the British were coming—they were already here—but that the Patriots wanted them to be going.

Calling George III--a very limited monarch manipulating the Parliament that had more real power-- a "tyrant" is silly. The New Englanders had reason to be resentful, though they never took into account their own disloyal and treasonous conspiracy, and a spirited political defense was certainly justifiable. A confederation of colony--a sort of mutual defense pact--was not a bad idea, either, but the Boston conspirators had a different objective, and it was to rule as much of North America as they could. It is an obvious truism of politics that whenever a group demands equal rights, it is really aiming at superiority. When, just before the outbreak of hostilities, the prominent Bostonian Josaiah Quincy visited Charleston, he attended a gathering at the home of a very prominent merchant. (I believe it was Miles Brewton). A British traveler, so JQ records, warned the Charlestonians that if they joined in the New England rebellion, they would live to regret it, when Yankees ruled over them far more despotically than the British ever did. Alas, he spoke truth. Imagine no secession in 1776 or just New England. What would have happened. Look at the Canadian parallel. The Americans tried to enlist the Quebeckers in their cause, but the Frogs said nothing doing, so we invaded them for absolutely no just reason. That was not the only attack. What the Quebecois understood was this: They were more likely to be protected from their predatory enemies in Canada and New England as subjects of the British crown. I admire the Americans, North and South, who justly or not endured a serious war and, with the help of the French without whom we should never hav won, won their independence. It lasted about two generations. Robert E. Lee was the son of a Revolutionary War hero. The son had far greater cause to join a secession than his father Lighthorse Harry ever did.

Since the 19th century, historians have given the impression that all the really important events of the war happened in the Northeast—first Lexington and Concord, and then Saratoga--but then for some mysterious reason the British surrendered in Virginia.  In fact, a majority of the casualties were southern, a majority of the major battles were fought on southern soil.

This revolution would never have succeeded but for one fact: the French sent their fleet and a sizable army.  When Cornwallis surrendered at Yorktown, it was because he was bottled up by the French fleet and facing him on land was not only Washington’s ragtag army but an even larger force of French regulars.  Think of that the next time Bill O’Reilly or some other professional ignoramus tells you to boycott French wine.

The 13 American colonies formed a confederal union under a constitutional document known as the Articles of Confederation.  Under the Articles each of the former colonies was a quasi-sovereign state, with far greater autonomy than the members of the EU enjoy today.  What they surrendered, basically, was foreign policy and defense.  Many merchants and creditors did not like the Articles and wanted them revised, primarily because states had been repudiating debts and issuing inflationary currency.  Among the old leaders of the revolution, a consensus was reached—excluding Jefferson and his allies—that the states should send delegates to Philadelphia to revise the articles.  These delegates did not have right to draw up a new constitution, which is exactly what they did.

What happened in those blisteringly hot days in Philadelphia is often described as some kind of “miracle,” or at least the result of the sober deliberations of a set of philosophical demi-gods.  The reality is quite different.  The constitution represents the hard political work of compromise responding to corruption.  Every economic interest, every geographical section, every class had interests to advance—north v. south, small states v. big states, debtors v. creditors, farmers v. merchants and manufacturers.  The genius of the Constitution is that in reflecting all these competing interests it actually represented the people themselves in all their variety.

When asked what kind of government the wise men at Philadelphia had produced, Ben Franklin is said to have quipped, “a republic, if you can keep it."  What Franklin and the others knew is that a republican government is an exercise in human optimism, and patriotic republicans must be engaged in an unremitting struggle against that human entropy we used to know as original sin.  The Roman poet Vergil captures the difficulty in a beautiful metaphor.  In the Georgics he describes human civilization as a man rowing a boat upstream against the current.  If he exerts himself, he makes progress, but if he slacks off on the oars for only a brief period, the boat is swept back downstream.  That is human history: a few bright periods like the Golden Age of Greece or Augustan Rome or the early decades of the American republic, punctuated by long stretches in which, at best, we hold on our own and more typically are swept downstream by the violent current.

Any real American citizen can quote or at least dimly recall Washington’s declarative challenge in his Farewell Address: “Of all the dispositions and habits which lead to political prosperity, Religion and morality are indispensable supports.  In vain would that man claim the tribute of Patriotism, who should labour to subvert these great Pillars of human happiness, these firmest props of the duties of Men and citizens.”  Determined not to be misunderstood as making a partisan statement that applied narrowly to his own conception of government, the retiring president widened the application of his remark: “'Tis substantially true, that virtue or morality is a necessary spring of popular government. The rule indeed extends with more or less force to every species of free Government.”  

For Washington, then a republican government does not reside in constitutional form alone but rests on the virtue of its citizens.  Patriotic rhetoric aside, we Americans have never been a particularly virtuous people.  Like most peoples, we have got drunk and blasphemed, fornicated and philandered, lied, cheated, and stolen.  Puritan New England was notorious for premature births.  But if we are hardly better than the French, we were no worse, and if we were not distinguished for virtue in the Christian sense, we had more than enough virtù in Machiavelli’s sense—the courage and toughness to take control over our own lives.

By republican government, I do not mean a non-monarchical state, though that is the most common sense of the word in English, since many monarchs have presided over constitutional orders that limited the ruler’s power far more effectively than either the American or the Athenian democracy ever did.  Differences in political form, as both Machiavellians and Aristotelians understand, are less important than differences in character, and in its essence the term republic is opposed not to monarchy but to tyranny.  Tyrants rule, for good or ill, according to the whim of the sovereign or of the class that keeps the sovereign in power, whether that class is a military elite, the communist party, or the fickle and ignorant mob. 

 A republic, by contrast, is governed by law and custom, and the rulers of a republic may not and cannot violate the constitutional order in a good cause.  Although he had fought a revolutionary war to free the American colonies from British rule, Washington was not particularly averse  either to monarchy per se or to the English system, and I think he would have conceded that, despite George III’s lamentable exercise in personal rule, the British monarchy could generally be called a free, if not a popular government.

A republic in the wider sense in which I am using the term is equivalent to Aristotle’s politeia, a constitutional order based on nomos, a word that includes both written laws and inherited traditions.   A shorthand way of expressing this is John Adams’ maxim (sometimes attributed to Edmund Burke), “a government of laws and not of men,” though the word “laws” might lead the unwary to conclude that, since a democratically elected legislature can pass any law it likes, such a legal commonwealth could overturn the social, moral, and political order--as it does in Britain and the United States--so long as the government had continued to win elections.  

Both Adams and Burke would have been appalled by such a suggestion. As Burke said early in his career: “Prescription is the most solid of all titles, not only to property, but, which is to secure that property, to government. They harmonise with each other, and give mutual aid to one another.”  Prescription is a legal term referring to an uninterrupted possession (of property or right) going back to time immemorial; thus, law and prescription together form the basis of any constitutional order.

Prescriptive rights do not always find their way into written laws, at least not until they are challenged and require a defense.  The founding decades of the American republic—roughly from the Stamp Act crisis of 1765 to the ratification of the Bill of Rights in 1791—represent such a challenge.  Americans demanded both the rights they thought they had enjoyed as Englishmen and also the rights to which they had become accustomed as American colonists. The government of Britain had not only threatened the existing colonial charters but had also pushed its authority to censor the press, and, by using the legal fiction of general writs, invaded shops, warehouses, and even homes in search of contraband and untaxed goods. 

Neither the king nor the parliamentary leadership regarded these actions as tyrannical, which, indeed, they were not, since unrest within Britain was being repressed by similar measures.  What the Americans understand better than most Englishmen is that Parliament had been acting out a revolutionary coup.  The House of Commons, after defeating the monarchy and establishing the principle that succession to the crown depended upon the will of the nation as expressed by the Parliament, had gone on to make itself the sole arbiter of law.   Provincials are often more conservative than people who live at the center of power, and the Americans honestly did not understand that the rules of the game had changed.

The men of Massachusetts, however, were a troublesome lot, and ever since the Stamp Act, their leaders (the Boston Patriot Committee) had been fomenting rebellion by forming and drilling militia bands throughout the state.  As Americans they had the habit of defending themselves against the attacks of the French and their native American surrogates.  Unlike their compatriots in England, then, Americans regarded the possession of firearms as a traditional right, and their stockpile of arms at Lexington was only the next step, dictated by logic and necessity, in their plot to defend themselves from the British.  The political struggle turned into armed conflict when British forces were sent to seize the arms stockpiled by the militiamen.

The Declaration of Independence lists some of the grievances in the more important, but less read second part.  Some of the most glaring have to do with political administration.  The king is accused of not providing justice by his refusal to assent to useful laws and by his general interference in local legislation and courts, which includes the subordination of judges to the governor and the denial (in some cases) of trial by jury; he has similarly interfered in the colonial legislatures and taken away charters—in other words he has deprived the colonies (soon to be states) of their rights to govern themselves, and he has denied the traditional right to petition for redress.  He has taxed the colonies without consulting their legislatures, quartered troops upon the citizens (a claim without the foundation most Americans think it has), and “made the military independent of and superior to the Civil Power.”

This is only a summary and not a complete list, but it will do to give the flavor of their concerns, which are basically fourfold: simple abuse of power (quartering troops), economic intervention (taxation and interference in international trade), denial of the legal rights of Englishmen (trial by jury), and erosion of colonial self- government.  When the leaders of the rebellion came to form a government, they took for granted that all the basic rights of Englishmen under common law would be preserved, but they also took care to ensure the autonomy of their newly independent states:  As article II of the preamble to the Articles of Confederation states, “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.”  This article precedes the declaration that the states have formed a “firm league of friendship with each other for their common defense, the  security of their liberties, and their mutual and general welfare.”

After stipulating the very limited responsibility of the new government, the signers concluded: “And that the Articles thereof shall be inviolably observed by the States we respectively represent, and that the Union shall be perpetual.”  Note, please, how inviolable observation of the articles is linked with the perpetuity of the union.

The union was not, after all, perpetual any more than the Articleswere inviolably observed.  When delegates were sent to Philadelphia in 1787, they were instructed only to amend the articles as might be necessary and not to draw up a new constitution.  Whether they did right or wrong in violating those instructions is now a moot point, but the Articles remain important as a means of interpreting the Constitution.  We know the signers at Philadelphia wanted to strengthen the bonds of union, but few of them supported Alexander Hamilton’s plot to create a strong central, almost monarchical government.  Hamilton his allies ran into such stiff resistance, both at the Convention and afterwards, we are not justified in supposing that any phrase in the document gives carte blanche for continual expansion of federal power.

The 10th and most vital amendment of the Bill of Rights makes this clear by reserving to the states and to the people all powers not specifically enumerated in the Constitution, but the Bill of Rights also addresses other concerns—or rather fears--that an ambitious federal government might begin acting like King and Parliament. 

The Congress was not to interfere in either establishing or hindering religion (by which they could only have meant Christian sects), prevent the press from informing the people about political matters or the people from assembling or petitioning their government.  Nor could the new government quarter troops or deny the people the right to arm themselves and form militia companies for their own defense, either against a hostile enemy or against an abusive government.  They also specifically deprived the federal government of the power to interfere in the operation of justice (by denying trial by jury or due process) or to break into shops and homes looking for contraband materials.  Just to make sure they had not left anything out, they threw in the 9th amendment, which stipulates that the enumeration of any right is not to be construed as excluding any prescriptive rights they had forgotten to mention. 

This, in other words, was it, a line in the sand which the federal government could not cross without violating the terms of its creation and existence.  Think of Wagner's Wotan, who is warned that if he violates his own rules he will undermine his own sovereignty.

Most Americans with their eyes open understand that from almost the beginning, the federal government has unconstitutionally expanded its powers.  The campaign began, as Jefferson knew it would, with the Federal judiciary, but, starting with Lincoln, American Presidents labored effectively to convert the Constitutional executive into a popular dictator more like Caesar or Cromwell than like George Washington--or King George III himself, who in comparison with presidents since Lincoln was a powerless puppet.  Nothing daunted, the Congress of the United States has passed millions of pages of legislation illegally and unconstitutionally expanding the powers of all three branches of government at the expense not only of the states but of the people, who have been stripped of their prescriptive rights.

To enumerate even the most grievous instances would require hundreds of pages, but let us just consider the 14th Amendment: how it was passed illegally, how its provisions violate the Constitution, and how the courts have continued to widen its application well beyond its original limits to the point that the federal courts can deny any community or state the right to regulate pornography or encourage religion.  For decades we have been the victims of an ongoing campaign to turn the Bill of Rights on its head.  What had been a barrier to federal encroachment upon the rights of the states and the people is now the justification for the unconstitutional amalgamation of power at the center.