It is common to refer to the Framers of the Constitution of the United States as if they constituted a single, cohesive group of men. Some people venerate them as men of great wisdom; others denigrate the Framers as a group of self-interested men whose primary concern was to augment their financial portfolios; and still others fall somewhere in between. Toward the former end of the continuum is Attorney General Edwin Meese, who calls for a return to the “jurisprudence of original intention.” Toward the other end is Justice William J. Brennan. He argues that upholding “constitutional claims only if they were within the specific contemplation of the Framers” would entail hanging horse thieves, burglars, and counterfeiters, supporting churches with tax dollars, and prosecuting seditious libel, since all of this was the common practice of the time.
Forrest McDonald, in Novus Ordo Seclorum: The Intellectual Origins of the Constitution, calls for a pox on both houses.It is meaningless to say that the Framers intended this or that the Framers intended that: their positions were diverse and, in many particulars, incompatible. Some had firm, well-rounded plans, some had strong convictions on only a few points, some had self-contradictory ideas, some were guided only by vague ideals.
When the Constitutional Convention began, there was consensus only over generalities, and often even the generalities were in conflict. It was agreed that liberty and property must be secured and protected from majoritarian tyranny, but there was little agreement over the particulars. It was also agreed that a republican form of government would offer the best protection, though there were several different formulations of republicanism which were employed to bolster different positions at the convention. Temperamentally, the Framers were adverse to speculative philosophy and were in agreement with John Dickinson that “experience must be our only guide [for] reasons may mislead us.” Yet, as McDonald says, political theory “formed a greater part of their understanding and of their perceptive apparatus than they always realized or were willing to admit.”
It is not surprising that the Framers resorted to political theory to make sense of the complexities of eighteenth century British thought concerning liberty and property. Government regulations limiting the use and disposal of an individual’s property are not a recent invention. The contention that private ownership entails the right to buy or sell property in the free market was an idea only a few bold souls were willing to entertain seriously when the Framers were meeting in Philadelphia, and the majority of them lived in England. The vast majority of people simply took it for granted that property rights were restricted by numerous “offenses against public trade.” For example, the price a person could charge for the use of his money was strictly controlled; the size and price of a baker’s loaf was determined by the “assize of bread,” not the law of supply and demand; and a person who foresaw an increase in the price of some commodity could not purchase it when the price was low and then resell it for a profit when the price rose—that was “forestalling the market” and was strictly prohibited.
Property rights were further limited by sumptuary laws. Both before and after independence, a person’s right to purchase clothing, jewelry, and food was not only constrained by his pocketbook but was also limited by legal judgments concerning the social effects of one’s purchase. Legislature reasoned that extravagant purchases indulged and encouraged a taste for luxury, and Americans were in agreement with Baron Montesquieu’s dictum that luxury was fatal to republics.
There were also numerous rights reserved for the public which limited the uses of property. A person could not, for example, post a “no hunting and trespassing” sign, since the public had a legal right to follow game wherever it ran or flew. Even if a person had no better reason to be on private property than the fact that it stood between his desire to get from here to there, property owners had no legal recourse. In the eighteenth century, the public’s “right of passage” was deemed to be more pressing than the private desires of landowners.
Sometimes, the rights reserved for the public were more than a simple nuisance or inconvenience to the owner. The right of common pasturage and pannage made it the landowner’s responsibility, not the shepherd’s, to keep animal herds of cows or pigs from destroying a tobacco field. This could be quite costly, since “fencing costs alone required from one third to one half the income from landed property.”
Eighteenth century thought concerning liberty was no simpler. While the Framers agreed that liberty was a good thing, “what liberty was, who deserved it, how much of it was desirable, how it was obtained, how it was secured—was subject to debate.” While Englishmen and Americans generally said that there ought to be religious freedom, what they meant was that there ought to be religious freedom for Protestant Christians. No one balked when Jews or Catholics were discriminated against. Nor was it uncommon for state legislatures to establish tax-supported churches. (The First Amendment states only that Congress shall make no law respecting an establishment of religion.)
Nor were the ideas of freedom of the press and speech what they are in the twentieth century. Freedom of the press generally meant freedom from prior restraint; that is, the government could not legally prevent the press from printing stories to which it objected, but after they were printed, the government could and did prosecute editors for publishing that which was “dangerous to the public peace,” even if the story were true. Benjamin Franklin, while he endorsed “the liberty of discussing the Propriety of Public Measures and Political opinions,” was quick to add that a publisher should regard himself as a “Guardian of his Country’s Reputation, and refuse to insert such Writings as may hurt it.” According to Franklin, newspapers which printed scurrilous or defamatory remarks about the government were an “infamous disgrace.” Freedom of speech, for the most part, “referred not to a civil right but to a parliamentary privilege,” which neither Englishmen nor Americans were wont to extend to the general public. Furthermore, on another point, American Patriots were adamant: Freedom of speech did not extend to Loyalists.
The Framers’ document, however, does not simply parrot a prior era. The Framers worked during a time of transition, and historical transitions are notoriously murky. The rights and privileges outlined above have their justification in the principles of civic humanism which dominated the passing age.
Very roughly speaking, civic humanism is the view that society constitutes an organic whole in which everyone has a place, though by no means an equal place....
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