America in 2020 Through the Lens of 18th Century Founding Documents

June 22, 2020

Almost three weeks have passed since my last dollar essay in this space. The prior focus on the Covid-19 pandemic and its potential effects on the global and U.S. economies has been overshadowed by an introspective examination into the disturbing state of American race relations and how the dream enshrined in the U.S. Constitution preamble of forming “a more perfect union” might, if at all possible, be actually accomplished.

In these three weeks, not much has happened in financial markets. The dollar has slipped 1.6% against the yen, 0.6% versus the Swiss franc and 0.5% relative to the euro. One currency against which the dollar has risen 1.0% is sterling. The pandemic has made the timing of Brexit even worse than thought and made less the chance of an eventual trade deal with the EU. The S&P 500 index of U.S. share prices is lower but by only 0.5%, and the 10- and 30-year Treasury yields are lower too by 7 and 9 basis points, respectively. The pandemic hasn’t slowed. The number of reported cases in the world has increased 2.6 million with an associated 487 thousand more deaths than the total back on June 3rd. The U.S. share of deaths and cases continues to run at slightly more than a quarter of the global totals.

But I digress from the intent of this update which is to summarize some of my own introspective findings in some of America’s founding documents  like the Virginia Declaration of Rights, the Declaration of Independence, the U.S. Constitution, the Bill of Rights, the Northwest Ordinance, and the 13th constitutional amendment banning slavery.

With July 4th just weeks away, it seemed sensible to start with the Declaration. That document makes bold claims advocating for the equality of all men and the unalienable sovereignty of people to determine their own governance collectively. The Declaration, if nothing else, is a rebuke of tyrannical governments wherever found and proclaims that it is the duty of peoples to reform and, if necessary, to overthrow tyrannical governments when subjected to repeated and arbitrary “injuries and Usurpations.” A large part of the Declaration is a very long list of the many ways that the King of England had crossed the line of tyranny, proving that the colonies’ recourse to separation was being taken only after exhaustive yet futile efforts over many years to find a non-tyrannical arrangement to remain British subjects.

The Declaration borrows much of its political philosophy from the Virginia Declaration of Rights written mostly by George Mason and passed also in 1776.

  • A belief “that all men are by nature equally free and independent and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.”
  • “All power is vested in, and consequently derived from, the people.”
  • “Government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community… When any governments shall be found inadequate or contrary to these purposes, a majority of the community has an indubitable, inalienable, and indefeasible right to reform, alter, or abolish it, in such manner as shall be judged most conducive to the public weal.”
  • This document then covers a lot of points covered in the Constitution and Bill of Rights such as a need for competent and responsible government, separation of government powers among different branches, checks on those powers, and limits on government to prevent abuse of individual freedoms.

Section 13 of the Virginia Declaration of Rights provides a less obtuse explanation of what later was streamlined into the second amendment of the Constitution.

A well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.

The Constitution ratified in 1787-88 was an effort to rectify the weaknesses of its predecessor, the Articles of Confederation and Perpetual Union, which delegated very few powers to a central government like waging war, making treaties, incurring debt but notably no ability to tax. Sovereignty for the most part resided with individual states, and the experiment failed the fundamental and essential test of achieving effective and sustainable government.

Unlike the Declaration of Independence and the Virginia Declaration of Rights, the Constitution has almost nothing to say about the equality of men. Slavery was legal in a majority of the colonies. Indigenous communities living in North America from long before the arrival of European explorers were also considered inferior, and women and people without property were put on a less entitled footing, too. Given  the choice of no constitution or one that kicked unresolved fundamental questions down the road, the Constitution addressed other key issues of government: who is to be sovereign, fostering healthy democracy, striking a balance between a political system sufficiently empowered to deliver desired objectives but not so empowered and unchecked as to be tyranny-prone, setting out broad goals of government (such as domestic peace, defense against a foreign threat, and improving the welfare of the people), and preserving individual liberty.

The Constitution did not satisfy all the delegations to the Constitutional Convention. The critical misgiving was that individual rights were not explicitly granted, even though many delegates argued that such rights were implicit because the Constitution had been specific in describing the only powers that a federal government could deploy. To get those state delegations with reservations to approve the Constitution, James Madison became the principal author of a series of amendments that collectively came to be known as the Bill of Rights, which addresses many of the arbitrary violations of individual freedoms cited in the Declaration of Independence as tyrannical acts by the British monarchy.

There are 10 amendments in the Bill of Rights. Madison proposed about twice as many at first. The House of Representatives in the very first Congress accepted 17 of them, while the senate rejected five of those. A Constitutional Amendment has to get two-thirds approval in each house of Congress and then be ratified by three-fourths of the state legislatures in order to become a change in the Constitution. Two of the twelve Bill of Rights approved by both houses of Congress weren’t ratified, giving us ten amendments in that collection. Half of these concern the rights of people accused of a crime. Amendment 4 constrains arbitrary police searches and seizures. Amendment 5 limits prosecutorial powers in criminal cases, and the sixth amendment establishes allowable guidelines for criminal trials. Amendment 7 insures that civil suits be decided by a jury, and amendment 8 prohibits excessive bail or fines and cruel and unusual punishments.

The first amendment forbids government from establishing an official religion or making laws that compromise religious choice. The first amendment is also essential to maintaining the people’s sovereignty. Freedoms of speech, press, assembly, and to petition are essential for an informed citizenry and for creating two-way communication between elected government and the people. The second amendment, particularly as expressed in the Virginia Declaration of Rights, has less to do with unqualified access to firearms for everybody than it does for preventing a professional standing army that the national government could utilize, as the British had, to put down domestic dissent. Sovereign control over the military and the participation in the military was strictly meant to be a matter of the people, by the people and for the people. In a sense, the second amendment allows a last and violent resort against a tyrannically abusive despot when all other means have failed.

Like the second amendment, the third addresses another common transgression of the British in pre-revolutionary times and during the war of independence. It forbids people from having to involuntarily house soldiers in their private homes.

The ninth amendment in the Bill of Rights allows for the existence of individual rights not explicitly named in the Constitution or nine Bill of Rights. A right to privacy would be an example.

The last item included in the Bill of Rights, number ten, proclaims that “powers not delegated to the federal government by the Constitution, nor ones prohibited in it to the States, are reserved to the States, respectively, or to the people.”

Some of the amendments that Madison wanted the Bill of Rights to include but which the Senate rejected were his favorites. One would have underscored the absolute separation of executive, legislative and judicial powers. Another mirrored rules applying to the federal government regarding freedom of speech and press and the mandate of trial by jury to State law.

The Bill of Rights left all the inequities regarding race relations unaddressed. That unfinished business was supposed to have been addressed by the 13th amendment (ratified in December 1865), but a careful reading of that short edict reveals a trap in a clause that I’ve italicized: “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” What’s that all about, especially in light of the replacement of slavery by disproportionate African-American representation in the bloated U.S. prison population? Well it turns out that the language represents thinking from the late 18th century rather than at the end of the Civil War. The Northwest Ordinance of 1787, which became a blueprint for the process of converting U.S. territories into eventual states, included this passage:

There shall be neither slavery nor involuntary servitude in the said territory, otherwise than the punishment of crimes whereof the party shall have been duly convicted. Provided, always, that any person escaping into the same, from whom labor or service is lawfully claimed in any one of the original States, such fugitive may be lawfully reclaimed and conveyed to the person claiming his or her labor or service as aforesaid.”

It’s been said that the 13th amendment banning slavery and other postbellum changes — the 14th amendment granting unabridged citizenship rights (due process) to all and 15th amendment barring race as a criterion for voting rights — put teeth into the Bill of Rights and established equality as a full goal of the U.S. Constitution. Had it really done so, the Civil Rights law  would not have been necessary a century later, and the United States would not be wracked with self-recrimination about race relations when fast-forwarding another half century to the present.

Part of the blame lies in the anachronistic phraseology inserted in the 13th amendment, but even more so has been America’s culture that discriminates against people of color in housing, education, voting rights, health care, job opportunities, and the prevalent portrayal of blacks as perpetrators and whites as victims in movies, TV crime shows, and on the local news. One can hope America has entered a real awakening in its race relations. Seeing will be believing. People were ecstatic also about prospects for peace in the Middle East after the 1993 Oslo Accords, and alas that wasn’t to be.

Copyright 2020, Larry Greenberg. All rights reserved. No secondary distribution without express permission.



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