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.

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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.

Musings on Scipio Africanus and B. H. Liddell Hart

Scipio Africanus, the Roman consul and general who saved the Republic by defeating the supposedly unbeatable Carthaginian, Hannibal, and winning the Second Punic War, is an historical figure whose greatness has been unjustifiably ignored. In 1926, the military historian B. H. Liddell Hart set out to rectify this, and published Scipio Africanus: Greater Than Napoleon.

This book was recommended to me in the comments of a previous post and at just over half way done, I can already heartily second the recommendation. It's a thrilling, insightful story of a true hero and military genius, and Liddell Hart draws on a near contemporary of Scipio, the Greek historian Polybius, who was able to interview Scipio's close confidant and direct subordinate, Gaius Laelius, as well as gain access to the Scipio family archives. That events over 2,200 years ago could have such a detailed, objective account is simply amazing (in addition to the work of the Roman, Livy, who Hart references and appreciates but doesn't trust as much, out of concern that Livy was propagandizing the glory of Rome).

Now, on to a few unrelated musings on Liddell Hart's work.

Musing 1: You keep on using that word. I do not think it means what you think it means. (Inconceivable!)
It wasn't until just last night, half way through the book, that I solved a puzzle that had bothered me until that point, having to do with Hart's use of the word moral. Hart, in describing Scipio, mentions repeatedly that not only was he a military genius, but in the modern terms, he could read people. In other words, he could very effectively rally his troops, and lead them, not with cruelty or overly authoritarian means, but by understanding their motivations and guiding them, and he called this a moral quality. He also describes Scipio as wanting to "strike not at their flesh, but at the moral Achilles heel" of the enemy, and that a delay after the capture of one city "allowed the moral effect" of the city's capture "to sink into the minds" of the enemy.

What the heck does he mean by "moral"? Finally, the particular construction of a sentence gave me the clue I needed. I unfortunately can't find it, but it was essentially like this: "Scipio was able to raise up the moral of the troops to fight even harder." So Hart often, but not always, means morale! Sometimes he means "taking moral actions," sometimes he means esprit de corps, and sometimes a strange mix of the two. This will help as I finish the book.

Musing 2: A Good Historian Is Not Immune From Mistakes Or Sour Grapes
Just because Liddell Hart has written an excellent history of Scipio Africanus does not mean that he, himself, is immune from some significant mistakes in other areas of history. The biggest one that jumped out at me occurred on page 72. Here, Hart describes what happened in Spain after Scipio initially expelled the Carthaginians. Scipio then fell ill and there were rumors of his death. Some of his troops took this as a cue to revolt, and two of the Romans' major Spanish allies, the tribes led by Mandonius and Andobales, also revolted. Here is what Hart wrote about this episode.

Mandonius and Andobales, dissatisfied because after the expulsion of the Carthaginians the Romans had not obligingly walked out and left them in possession, raised the standard of revolt, and began harassing the territory of the tribes faithful to the Roman alliance. As so often in history, the disappearance of the oppressor was the signal for dependencies to find the presence of their protector irksome. Mandonius and Andobales were but the forerunners of the American colonists and the modern Egyptians. There is no bond so irksome as that of gratitude. [bold added]

The context for this sentiment is that B. H. Liddell Hart was British. I can only assume that in comparing the revolt of barbaric tribes of Spanish warriors and the American Revolution, he seems to think that the colonists should have shut up and paid their taxes as "war debt" for the French and Indian War. In other words, the principled American fight for unabridged liberty was unjustified, and they should have been grateful to the crown, showed due deference, and kept quiet.

This, Mr. Liddell Hart, is clearly a case of sour grapes. It's also horribly, drastically wrong, and shows a fundamental misunderstanding of the conflict. This seemingly offhand comment, added to a few others, makes me think that Hart's evaluation of Scipio, though generally good, may be skewed to be overly negative. I think I'll have to look up the original writings of Polybius and Livy.

Hart also wrote a book on William Tecumseh Sherman, and his view of America as expressed above makes me wonder how he would treat a polarizing hero like Sherman. Has anyone read it? John Lewis made a reference to it in his excellent TOS article, William Tecumseh Sherman and the Moral Impetus for Victory, so I'm curious how Hart viewed the man.

OK, that's it for my random musings on Scipio and his historian. If you've made it this far, hopefully you've learned something, or at least been prompted to look into some of these historical works. After finishing this book, I intend to dig back into "Miracle at Philadelphia," and hope to post more interesting quotations from it.

Miracle at Philadelphia: QOTD 3

Part 3 in a series of quotations from "Miracle At Philadelphia: The Story of the Constitutional Convention May - September 1787" by Catherine Drinker Bowen.

In my last post on the topic, I alluded to the fact that the members of the Convention relied on popularly held ideas that were simply accepted as obvious and thus needed no explicit statement. Of such concepts as life, liberty, and property, and their nature as inextricably tied together, Bowen said "such declarations were already cemented with their blood."

Later, on page 71, she relates the following:

The Continental Congress, composing its first Declaration and Resolves (1774), had said the colonists were entitled to "life, liberty and property." In the Declaration of Independence, Jefferson altered it to read, "life, liberty and the pursuit of happiness." If nobody knew exactly what that meant, they did not need to know. They felt it, breathed it in the Revolutionary air. To pursue happiness signified that a man could rise in the world according to his abilities and his industry. [bold added]

Recognizing the vagueness of "the pursuit of happiness," Bowen basically says that it didn't matter much at the time because it was obvious to all thinking men what was intended. In the next paragraphs, however, she hints at what was to come because of this opening -- I'd call it a weak spot in the armor caused by a contradiction never rooted out -- left by the Founding Fathers.

Here was no quarrel, as today, between human rights and property rights. Madison said that "a man has property in his opinions and the free communication of them, he has property in the free use of his faculties, in the safety and liberty of his person." ...

The Federal Convention was not interested in the redistribution of property, nor did it meet for such a purpose. Threatened with anarchy, the founders desired order, and to blame the Convention as "conservative" is to look on 1787 with the eyes of today. [bold added]

Bowen correctly identifies that there is a philosophical difference between 1787 and today, and leaves no indication of her thoughts on which is correct -- a fine course of action for a historian. However, she doesn't go further to identify exactly what the difference is.

With the benefit of Ayn Rand's insights, we can now see that the chink in the armor of the founders was the moral code of altruism. Because they had not identified that a consistent defense of the political principles of individual rights rests upon the moral code of rational egoism, they did not predict that failing to consistently and explicitly defend property rights would eventually leave us with the statist shell of a Constitution and country we see around us.

The founders took for granted that "the pursuit of happiness" implied property rights, but 200 years of philosophical assault left us with the possibility that there could be a conflict between human rights and property rights. I have previously described what I call the anti-concept of human rights, a muddled term that serves to destroy the concept of individual rights by confusing it with "positive" rights to legally loot from productive individuals. "Human rights," as a commonly held concept, means the sacrifice-by-right of the haves to the have-nots, i.e. altruism.

What the founders saw as obvious and "in the Revolutionary air" -- that liberty and property are inseparable ideas -- has been all but wiped from the public consciousness by altruism. It will certainly be an uphill battle, but what we can take away from this example is that now, armed with the knowledge we need to fully defend life, liberty, and property, we have a tremendous opportunity to pick up where the founders left off.

Miracle at Philadelphia: QOTD 2

Continuing my ongoing (does the second of two count as "ongoing?") series of quotations from "Miracle At Philadelphia: The Story of the Constitutional Convention May - September 1787," today I have a passage that is quite different in tone than the last one.

My last post discussed "the quality of the men who founded the country, their passion and the sharpness of their intellects, and the profound seriousness with which they took their mission," and was, I thought, rather inspirational.

Today's post is somewhat cautionary. It should become clear why I say that.

Context: As the delegates to the Convention got down to work, the Virginians set the tone of the entire affair by proposing what became known as the Virginia Resolves. They consisted of 15 resolves that essentially outlined a new national government. Today's quote picks up the day after the Resolves were proposed, as they got down to business:

Characteristically, the Convention never stayed long upon theory. Its business was not to defend "freedom" or to vindicate a revolution. That had been done long ago, in July of 1776 and later, when colony after colony created its state constitution, flinging out its particular preamble of political and religious freedom. The Convention of 1787 would debate the rights of states, but not the rights of man in general. The records show nothing grandly declaratory or defiant, as in the French constituent assembly of 1789. America had passed that phase; had anyone challenged members, they would have said such declarations were already cemented with their blood. In 1787 the states sat not to justify the term United States but to institute a working government for those United States. One finds no quotations from Rousseau, John Locke, Burlamaqui or the French philosophes, and if Montesquieu is invoked it is to defend the practical organization of a tripartite government. When the Federal Convention discussed political power, governmental authority, they discussed it in terms of what was likely to happen to Delaware or Pennsylvania, New Jersey or Georgia.

Most members of the Philadelphia Convention, in short, were old hands, politicians to the bone. That some of them happened also to be men of vision, educated in law and the science of government, did not distract them from the matters impending. There was a minimum of oratory or showing off. Each time a member seemed about to soar into the empyrean of social theory -- the eighteenth century called it "reason" -- somebody brought him round, and shortly. "Experience must be our only guide," said John Dickinson of Delaware. "Reason may mislead us." [bold added, italics in original]

The Convention had a very specific mission: to craft a national government that was grounded in rights -- this meant state's rights, though individual rights were assumed -- and to get it to work, because they saw real threats to the Union in the way things were going. And of course, the rights of man were eventually addressed in the Bill of Rights.

But one wishes that this Convention had not relied on "declarations [that] were cemented in the blood" so much, and instead, allowed for quotations from John Locke to inform the proceedings explicitly.

The author, Catherine Drinker Bowen, was careful at the end to state that Dickinson and others used the word "reason" in a different sense than we do, but there is an inherent problem with using experience and the only guide when you are proposing something that has never been done in the history of the world.

None of this should cast a pallor on their achievement, but it does give one pause as an example of focusing only on practical considerations, without also concerning oneself with moral ones.

Miracle at Philadelphia: QOTD 1

I am reading "Miracle At Philadelphia: The Story of the Constitutional Convention May - September 1787" by Catherine Drinker Bowen, and it's chock full of very interesting quotes and anecdotes about a momentous time in human history and progress. I plan to post some of these quotes of the day (QOTD) as I go through the book.

Context: Chapter 1 sets the scene for the Constitutional Convention, describes some of the influential men in it, and the tenuous staqte of the Convention and the Confederation of states in general.  James Madison--described as both pertinacious and flexible, "two qualities not often found together"--prepared tenaciously for the daunting task ahead.  

Of the entire delegation no one came better prepared intellectually.  At his request Jefferson... had sent books from Paris.  Madison asked for "whatever may throw light on the general constitution and droit public of the several confederacies which have existed."  The books arrived not by ones and twos but by the hundred:  ... books on political theory and the law of nations, histories, works by ... Voltaire, Diderot, Mably, Necker, d'Albon.  There were biographies and memoirs, histories in sets of eleven volumes...  Madison threw himself into a study of confedereracies ancient and modern, wrote out a long essay comparing governments, with each analysis followed by a section of his own...

Madison, in particular, was concerned that even in the unlikely event they could come up with a new Constitution, the very real possibility existed that it would not be ratified.  Bowen wrote:

Yet should it fail, what hope was there of calling another [Convention]?  In April, a full month before the Convention met, Madison had told a Virigina colleague that the nearer the crisis approached, the more he trembled for the issue.  "The necessity," he wrote, "of gaining the concurrence  of the Convention in some system that will answer the purpose, the subsequent approbation of Congress, and the final sanction of the states, presents a series of chances which would inspire despair in any case where the alternative was less formidable."

It was like Madison to declare that the situation was too serious for despair.  It was like Washington, too, of whom the British historian Trevelyan was to write that he "had learned the inmost secret of the brave, who train themselves to contemplate in mind the worst that can happen and in thought resign themselves -- but in action resign themselves never."  ...  It was hard to say which man was the more serious by nature.  Reading Madison's long letters on politics, with ther cool forceful arguments, or Washington's with their stately rhythym, one senses beneath the elaborate paragraphs a very fury of concern for the country.  And one takes comfort in this solemnity.  One rejoices that these men felt no embarrassment at being persistently, at times awkwardly serious, according to their natures.

I highlight these passages to show the quality of the men who founded the country, their passion and the sharpness of their intellects, and the profound seriousness with which they took their mission.  At a time when many are looking to rekindle the spirit of the Boston Tea Party, it is more important than ever to fully understand the nature of the men who shaped our nation and the ideas they held so dearly.

In the quotation above, Bowen remarked on the "very fury of concern for the country" held by Madison, Washington, Jefferson and others.  While concern for the country was certainly a part of it, I prefer to think of it as a fury of concern for truth, justice, and liberty; a concern for ideas, as both moral and practical, a vision for the world as it ought to be and would be.

[H]e "had learned the inmost secret of the brave, who train themselves to contemplate in mind the worst that can happen and in thought resign themselves -- but in action resign themselves never."

I get chills reading that.  I'm going to like reading this book, I think.  I hope you'll enjoy the passages I quote.