Debates on the Founding Era - Part 2

In the last post, a commenter asked why the "apparent omission" of mention of individual rights in the Constitution, which was also one of the questions Uttles asked all along. My reply was long, so I'm reposting it here (edited slightly). The quotes I pulled bear directly on many of the issues discussed previously, and though they are long, I think all of the text is relevant to the debate.

What follows is part of the political and historical context of what the framers thought and argued for. It is crucial also to keep in mind the explicit and implicit philosophical and moral context of the time, the climax of the American Enlightenment, and the following from Leonard Peikoff's The Ominous Parallelssets that context well:
The Americans were political revolutionaries but not ethical revolutionaries. Whatever their partial (and largely implicit) acceptance of the principle of ethical egoism, they remained explicitly within the standard European tradition, avowing their primary allegiance to a moral code stressing philanthropic service and social duty...

The American Enlightenment, like the European, came to an abrupt end. "Its ideas were soon repudiated or corrupted," writes Herbert Schneider, "its plans for the future were buried, and there followed on its heels a thorough and passionate reaction against its ideals and assumptions." It was a reaction prepared for by the Enlightenment itself, by its own philosophic deficiencies, by the seeds it had nourished and allowed to sprout—the seeds of an irrationalism it was not equipped to combat and an altruism it predominantly endorsed.
With this philosophical context, it is easier to interpret the historical context, and identify 1) what the framers thought about rights, 2) why they thought it unnecessary and perhaps even counterproductive to include specific protections in the Constitution, and 3) that even if they had written a rock-solid defense of individual rights it would have been a floating abstraction, and not a strong enough protection from undermining by their contradictory premises and the mounting philosophic war that was to soon come from Europe.

I found some good historical quotes and notes in Miracle At Philadelphia: The Story of the Constitutional Convention May - September 1787 by Catherine Drinker Bowen.This book details the debates, including quotations from all the members of the Convention and other relevant items from the press and other quarters. The following quotes are from the chapter about the rejection of a Bill of Rights (Ch. 21, pp 244-248):
When the Constitution was published in the newspapers… and the Antifederalists gathered their strength for opposition, nothing created such an uproar as the lack of a bill of rights. What had the Convention been thinking of, to neglect a matter so elementary, so much a part of the heritage of free people?

The Convention’s stand, however, was reasonable, if mistaken. No delegate had been against such rights. Merely they considered the Constitution covered the matter as it stood. And when… Pinckney and Gerry moved for a declaration “that the liberty of the press should be inviolably observed,” Roger Sherman said at once it was unnecessary; the power of Congress did not extend to the press. Seven to four the states again voted no.

There is a fascination in reading the delegates’ later defense of their position. To Alexander Hamilton a bill of rights was more than unnecessary. It would be dangerous, he said. “Why declare that things shall not be done which there is no power [in Congress] to do?” Hamilton argued that bills of rights originally were stipulations between kings and their subjects, like Magna Carta, which was “obtained by the barons, sword in hand, from King John.” Whereas in the American government the people, having surrendered nothing and retained everything, have no need of particular reservations.
So here we see it put forth that the specific rights need not be enumerated because it was assumed that the Constitution was a strict bound for action that Congress could take, and nothing more. All rights not mentioned were held by individuals. This is essentially the argument given in the 9th amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

The Constitution was, in their mind, was a basic list of instructions for creating the forms of government, and did not require more grand statements that, as Hamilton said, “would sound much better in a treatise of ethics than in a constitution of government.” Further quoting Bowen:
The new Constitution in [James] Wilson’s view was not a body of fundamental law which would require a statement of natural rights. Rather it was municipal law, positive law… Not a declaration of eternal rights but a code for reference.

Quite evidently the Federal Convention looked on its work as practical, everyday business; all along they had avoided high-flown phrases about the rights of man. Such rights, John Dickinson was to argue… “must be preserved by soundness of sense on honesty of hears.” Compared with these qualities, what, he demanded, are bills of rights? “Do we want to be reminded that the sun enlightens, warms, invigorates, and cheers” or how horrid it would be, to have his blessed beams intercepted, by our being thrust into mines or dungeons” Liberty is the sun of society, and Rights are the beams.”
Liberty is like the sun, and Rights follow naturally as beams of sunshine. They are in the very air, these men said, so why should we list them? The Constitution only describes the very few things that the government may do, and nothing else.

That being said, others did see something insidious afoot, or were prescient about the slow creeping of tyranny.
In Portland, Maine, a printer name Thomas Wait… maintained “there was a certain darkness, duplicity and studies ambiguity of expression running through the whole Constitution which renders a bill of rights peculiarly necessary. As it now stands, but very few individuals do or ever will understand it, consequently Congress will be its own interpreter.”
To this, Bowen says that arguments like this were only responses to ideas that were too new, and “minds offended by novelty are apt to complain of darkness or ambiguity in matters not yet digested.” Of course, we know that Wait was unfortunately very correct.

One of Patrick Henry’s fellow Virginians provides a good conclusion to this investigation. As Bowen writes:
With charity and much perceptive good sense, Richard Henry Lee of Virginia, a congressman—no member of the Convention and fiercely anti-Constitutionalist—excused the Convention’s fault concerning a bill of rights. Lee said that when men have long and early understood certain matters as the common concerns of the country, they are apt to suppose these things are understood by others and need not be expressed. … The framers looked upon the Constitution as a bill of rights in itself; all its provisions were for a free people and a people responsible. Why, therefore, enumerate the things that Congress must not do?
In the end, they all thought that individual rights were as plain as the nose on your face, and the culture was such that it was inconceivable that there could come a time when the government would not protect them. Americans had made it out of Plato’s cave. Who in their right mind would go back in?

Of course they were wrong, but also, they simply lacked the knowledge to better ground the theory of individual rights in reality. Ayn Rand said (paraphrasing and recalling from memory… if anyone can find a reference please let me know) that she could not have developed her philosophy without the example of the Industrial Revolution. I take this to mean that seeing the example of near free market capitalism helped concretize the value of liberty that previous philosophers were only able to vaguely imagine.

So I come back to my initial assessment that the Founders accomplished something amazing and they deserve our thanks for the amount of freedom and prosperity their works afforded us. But now, armed with more complete knowledge, we need to carry on the fight if we are to fully secure our liberties.


Tom said...

I still disagree:

"In Portland, Maine, a printer name Thomas Wait… maintained “there was a certain darkness, duplicity and studies ambiguity of expression running through the whole Constitution which renders a bill of rights peculiarly necessary. As it now stands, but very few individuals do or ever will understand it, consequently Congress will be its own interpreter.”"

Yes, and Patrick Henry said it even better:
"This, Sir, is my great objection to the Constitution, that there is no true responsibility - and that the preservation of our liberty depends on the single chance of men being virtuous enough to make laws to punish themselves."


"We are told that we need not fear, because those in power being our Representatives, will not abuse the powers we put in their hands: I am not well versed in history, but I will submit to your recollection, whether liberty has been destroyed most often by the licentiousness of the people, or by the tyranny of the rulers? "

oh yes, and don't forget

"You ought to be extremely cautious, watchful, jealous of your liberty; for instead of securing your rights you may lose them forever. If this new Government will not come up to the expectation of the people, and they should be disappointed - their liberty will be lost, and tyranny must and will arise."
(pretty much hit the nail on the head there I'd say)

So the claim that they didn't have the knowledge necessary to explicitly define individual rights just doesn't hold up. Henry and many others wanted explicit definitions in place and they settled for the compromise of a Bill of Rights.

Also, when quoting a book titled "The Miracle in Philadelphia" you have to wonder if they would even report anything negative about a "mircale" if they found out about it...

I agree with Peikoff and Rand that there is a high probability that we would have still degenerated into the current state, even with a more explicit constitution, because our lack of strong philosophical convictions based on reality. That is a separate issue though. The fact remains that the Constitution is a flawed document with far too much ambiguity and it could have never protected the natural rights outlined in the Declaration. The evidence is there to support this claim, and that many people had knowledge of this, they were simply ignored. You just have to check your sources. I mean this is kind of like using a book called "God's great gift of socialist republics" buy Hugo Chavez as reference on Venezuelan matters.

Burgess Laughlin said...

This discussion raises a related question: What should be the use of history for philosophical, intellectual, and political activists?

The general answer I have is to be very cautious. History is a specialized science, though one peculiarly tied to philosophizing.

In debates over "Cap and Trade," philosophical arguments (e.g., about individual rights to property) can be properly separated from the alleged results of climatology, which is a specialized science.

Isn't that generally true for the science of history too?

C. August said...

You said:
"So the claim that they didn't have the knowledge necessary to explicitly define individual rights just doesn't hold up."

And yet not one of your quotes shows that they had a fundamental understanding of the source of individual rights, only that they felt really strongly about it, and thus some of the founders were suspicious of the proposed Federal government. They could not fundamentally defend their position because they didn't have the philosophy.

All of them -- at least all of the founders for which we have any historical record -- seem to have held fundamental contradictions. Such contradictions allowed, as a previous commenter said, Patrick Henry to propose a kind of Church/State integration, or Jefferson, Washington, Madison and Adams to approved of tariffs and the regulation of commerce. Both of these are fundamental violations of individual rights, and yet they didn't see them that way. And let's not forget the institution of slavery. You say they had "the knowledge necessary to explicitly define individual rights," but I'd say that the fact that it took many decades and a terrible war for slavery to be abolished shows they did not. On top of that, the predominant argument for abolition was based on religion.

This is because, and I now tire of saying this, they just did not have the knowledge to know any better.

I'll ignore your dig about the title of "Miracle at Philadelphia," because it's completely irrelevant. You say it wouldn't report anything negative, but I hold the fact that the book outlined that the framers refused to consider "high-flown language about natural rights" as extremely negative. They clearly should have discussed it, fleshed it out, and included it. But for all the reasons I have outlined, significant proportions of them didn't see it as necessary.

You seem to suggest that this was in fact devious, where I just think it was a mistake.

In the end, you say something I actually agree with:
"The fact remains that the Constitution is a flawed document with far too much ambiguity and it could have never protected the natural rights outlined in the Declaration."

I agree. It was flawed, just as the predominant political philosophy of the time was flawed. You admit that even a stronger Constitution would not have helped because they lacked fundamental philosophy, but then chastise the framers for ignoring the Antifederalists... do you see the error in that line of thought? By what standard were they to judge that Patrick Henry was more right than they were? In ultimate questions of morality, they abandoned reason and went by feelings of conscience. (see Ominous Parallels, p.116)

They lacked knowledge, and yet came up with a government that created the freest society humanity has ever seen, to this day. You deride them for not writing a more perfect document--with explicit definitions of individual rights which they could not justify in reality, by the way--while acknowledging the flaws in their philosophy that would have rendered that document indefensible. That makes no sense.

brendan said...

Uttles, after looking at this, I'm going to have to come down on C. August's side.

I do think you raise some valid points -- the exclusion of any enumeration of rights (and then the "patch-up job" which is the Bill of Rights' attempt to fix it) is valid reason for suspicion. But I don't see any real, hard evidence of any conspiracy to suppress it.

Again, there is reason to be suspicious. But in the absence of hard evidence, I think C. has done a pretty compelling job of outlining how the absence of an underlying philosophy for individual rights, freedom, and particularly capitalism, is the root of the fundamental flaw in the Constitution. Without a unifying philosophy to defend ALL of these, it would have been difficult to argue for their inclusion in a document whose purpose was to set up a structure for the new government.

You've even said so yourself -- this view is based on your intuition, in the lack of objective evidence. While I am also a naturally suspicious person (particularly when it comes to government action), I just don't see any malice of intent here.

That said, this was a very thought-provoking and entertaining discussion! Thanks to all who posted!

Tom said...

"You admit that even a stronger Constitution would not have helped because they lacked fundamental philosophy"

Well, I said "high probability" and really I don't care if they understood the proper source of natural rights or not, the point is that they clearly understood what were our natural rights (life, liberty, property).

I think it's kind of silly to ignore the foresight of Henry because it's alleged that at some point he tried to combine religion and state. I read a great deal about him fighting the religious establishment and demanding that free exercise of religion be placed in the bill of rights, but I don't think that's trying to combine church and state. Even so, that doesn't take anything away from the validity of his statements on individual rights and government tyranny.

Also, to say that they didn't understand the rights of man because they supported slavery is not very rational. At that time, blacks were not considered men. They were considered a subspecies in effect. This was wrong, and they were (rightfully) integrated into the concept of "man" but at the time they did not "qualify" from the viewpoint of the civilized world. YES, it was wrong, but those were the facts of the day.

Also, it didn't take a war to end slavery. Capitalism ended Slavery because it became too expensive an enterprise. It ended first in the North because of an endless supply of cheap labor coming in from Europe. The South's economy was not ready for an abrupt end to slavery at that point but it would have ended, very shortly, without the civil war. In fact the evidence shows that the war ended up hurting blacks and setting them back about 100 years as they didn't actually get any rights until the 1960s, and in the northeast a great number of blacks now live as slaves to the Federal government, neatly tucked away in the ghettos of the large cities.

That's an entirely different debate, but saying "it took a war to end slavery" is like saying "it took a war to free the Iraqis. Technically correct but grossly misleading.

C. August said...

This looks like the source of our disagreement:

"really I don't care if they understood the proper source of natural rights or not, the point is that they clearly understood what were our natural rights (life, liberty, property)"

To rephrase your sentence while retaining its basic form, it essentially says the following: "they didn't know where rights came from, but they knew what they were."

Really? How does that follow? They might have agreed with you about that, attributing their "knowledge" to intuition or feeling. Need I describe in detail how feelings are not a means of cognition?

You seem to think it was enough that, based on Locke, they knew the words life, liberty, and property, and some arguments for them--admittedly, many of them valid. And because they saw them in the Declaration and Henry spoke of them in speeches, they should have been adopted by all.

I think that, with the contradictory premises they held, no amount of specific wording in the Constitution would prevent the ultimate erosion of the protection of rights. They could have handed Patrick Henry a quill and asked him to pen the document... it would not have made a significant difference.

To put it another way, words--or more properly, concepts, no matter how abstract--without sufficient grounding in metaphysical fact, are floating abstractions. You seem to think that such floating concepts were enough to defend liberty. You are completely, utterly wrong.

You said at the beginning of this long discussion, that the Constitution "was created to erode" individual rights. Not that it was flawed and thus eroded them, but was actively created to erode them. Based on all that has been said, I'm afraid I'm starting to agree with madmax that you are "minimizing or excluding philosophical fundamentals," and engaging in "hatred of the good for not being perfect."

By the way, I'd like to see some substantial proof that the framers, whom we are primarily discussing, agreed that "at that time, blacks were not considered men."

You say my statement that, because they supported slavery they didn't understand rights, is not rational. In other words, because they did not understand the nature of man himself, it is irrational to suggest that they didn't understand the nature of man's rights? That, sir, is not rational.

Rad4Cap said...

"You seem to suggest that this was in fact devious, where I just think it was a mistake."

I have seen no actual evidence presented to support the conclusion that the Founders attempted any subterfuge in their creation of the Constitution. All I am seeing is an attempt at mindreading being presented as if it were the identification of facts of reality.

Anyone who claims the Founders were trying to create something *other* than that which they explicitly said they were trying to create has an extremely high burden of proof. And not only has that burden not been met, but I have not seen a presentation of facts which suggests anyone can begin to meet it.

Where is the actual proof of the Founders' deception, deviousness and subterfuge? Without it, one simply has here an arbitrary assertion - and a scurrilous one at that.

Tom said...

A smoking gun on something that happened 230 years ago and is directly contradictory to the accepted version of history is something that none of us could possibly find. That being said, I think the evidence is in the wording of the document.

I don't have the time right now as I've been travelling all week on business trips but I will focus in on the issue of intent of the Constitution and try to illustrate how I think certain parties were able to manipulate the constitution and the people into ratifying it. This weekend I will be home and I'll have my books and some time to revisit the issue so I'll be more specific and less rambunctious :)

PS - I hope I haven't been to abrasive, I enjoy these types of discussions and this blog but I do get fired up sometimes.

C. August said...

I'll be interested to see what you come up with.

I must stress, however, that even if you're right, and there were some "evil manipulators," all that does is support Peikoff's idea that the philosophic seeds of downfall were already sown. These supposed villains would only be capitalizing on the indefensibility of natural rights theory based on mysticism.

I've been arguing that one, ideas drive history, and two, that as flawed as the Constitution is, it is still damn good in comparison to the rest of human history.

I think that the facts of the accomplishments of our (relatively) free society back that up. And the flaws and problems, coupled with the certainty of answers provided by Ayn Rand, give us the tools to finish what the Founders were unable to.

Rad4Cap said...

You say you do not have any facts which "directly contradict" the given conclusions about the Founding Fathers and their intentions, but that you believe you have facts which show how some of them *purposefully* 'manipulated' the wording of the constitution so it would knowingly be 'liberty-killing' rather than liberty-protecting.

I too am interested in seeing the facts which purportedly support such a conclusion.

Tom said...

I'm still working on this. To me it's just self evident when you read the constitution. It was created to rule, not to preserve freedom. As I expected there's not much information out there from the anti-federalist point of view (outside of what they wrote in newspapers) but I'll illustrate why I think the Constitution was designed by Aristocrats to ensure an Aristocracy (which it has.)

Rad4Cap said...

"To me it's just self evident when you read the constitution. It was created to rule, not to preserve freedom."

So you keep repeating. Of course, what we are waiting for is indeed the supposed evidence which proves your conclusion. But that you for letting us know that, while you are not having much luck in finding that evidence, you are persevering in your search for it.

As an aside, I would like to make an observation about epistemological methodology. Is one not supposed to start with facts and THEN come to a conclusion - rather than the other way around? My understanding is that a conclusion which is not derived from such facts is properly identified as "arbitrary".

Rad4Cap said...


"But that you for letting us..."

should read:

"But thank you for letting us..."

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