For Americans living in the 21st Century, it is hard to imagine living in the world in which our Constitution was written. Under the Imperial British system, speech was regulated; anything deemed anti-Parliament or anti-monarchy could result in imprisonment or execution if the government deemed it necessary to make an example out of those expressing political dissent. Efforts to impose regulatory controls over the colonial Americans included the Stamp Act, designed to require that those involved with the press, including newspapers, would be required to be registered with the bureaucracy of Imperial government. Essentially, had the colonial British Americans had accepted this act, it would have silenced free speech; there would be no discussion of independence, no discussion of faith outside the “official” Church of England, and certainly no evolution of society beyond the Imperial British system. The Currency Act, which was intended to outlaw the colonial production of currency and the use of any other specie except British coin, was also designed to firmly tie the colonial economy – and individual wealth – to the British crown and Parliament. What most Americans take for granted in the 21st Century was this simple fact understood by the men who desired American independence: without the freedom of speech and the press, there will never be individual liberty; without a free market, there will never be individual prosperity.
Three Enlightenment ideas that shaped the Constitution
By the middle of the 18th Century, there were several Enlightenment thinkers whose ideas were being pondered by the men who would fight for American independence and later would write our Constitution. The ideas of John Locke, who not only suggested that government was a contract between the governed and the governor, but also that the government had no right to interfere with life, liberty and the pursuit of property had witnessed the battle between Parliament and the rise of power of King George III. He questioned the rationality of heavy taxation since what was being taxed – personal wealth and property – had actually been purchased not with gold or silver, but through individual labor. He argued that man “purchased” wages in exchange for work; excessive taxation is, in essence stealing labor from the worker. He also claimed that any government exists by the consent of the governed. The government, by its contract, had certain responsibilities that it had to perform to honor the contract. If the government ceased to meet its responsibilities or exceeded its agreement, then the citizenry had the right to overthrow that government and establish a new government. (1)
Another Enlightenment thinker that most of those involved within the American independence movement were familiar with was Cesare Beccaria. He questioned the validity of the traditional marriage between the enforcement of religious and secular law. Within Europe, violation of ecclesiastical law carried the same weight as violating royal law. Failure to pay tithes to the church or failure to pay taxes were treated with harsh criminal punishments ranging from the stockade, to debtor’s prison, or simply the forfeiture of tangible property. Within his writings, he advocated for a separation of ecclesiastical and royal (civil) law and for more advanced legal reforms, such as an end to harsh capital punishment for minor offenses, legal torture to coerce confessions to crimes, and for a judicial process where one’s peers would determine the proper course of action upon hearing evidence presented by both sides.
In the era in which he lived, there was no separation of ecclesiastical and civil law and judgments issued by the clergy were just as binding as judgments issued by secular judges. The accused, by either civil or religious authorities, could be “coerced” into making a confession that would be used against them to prove their guilt. All one has to do is to look back to the fifteenth and sixteenth centuries and the various witch hunts that took part all over Europe. Many of these confessions were done upon extreme torture, threats of death, or even threats to family members. This kind of “justice” had already been witnessed in the American Colonies through various New England witch trials, the Salem Witch Trials being the most notorious and famous. There were no trials by a jury of peers; when a trial with a jury was used, normally members of the clergy were used. Even within civil trials, the clergy had the ability to charge infractions of ecclesiastical law and impose punishments that were carried out by civil authorities. Within Great Britain, the Anglican church began to use its judicial authority and influence to crack down on all dissent within the church. It is for this reason that many Puritans, Quakers, and other religious groups fled their homelands to settle in the untamed wilderness of North America. (2)
The third enlightenment figure to influence the formation of the concepts behind the Constitution of the United States was François-Marie Arouet, more commonly known as Voltaire. He also questioned the alliance and interdependence of the church and state. He lived during an era where the French Catholic Church and the monarchy of France dominated the affairs of state. He challenged the state and church’s discouragement of self-expression and absolute control of the press. His outspoken criticisms of unlimited royal authority and the marriage of that power to the religious leaders of the French Catholic Church actually caused him to be treated as an enemy of the French monarchy and was even sentenced to prison for his views.
The influence of these thinkers on the Constitution
The framers of the Constitution had fought a long and bloody war to secure the freedom of the American people from the British crown. Now, as the Articles of Confederation and the national government it created was on the verge of political collapse, they understood that a new national government, empowered with some centralized but limited power, was absolutely necessary to prevent the destruction of the new nation. Although the ratification process demanded the creation of a Bill of Rights to be added to the Constitution, there were several Enlightenment concepts and theories that would be included throughout the Constitution writing process. From the Preamble to the last sentence of the Tenth Amendment, it is easy to find the philosophy of the Enlightenment written within the Constitution. Looking at the Preamble of the Constitution, the purpose of national government is clearly defined; for the Preamble is more than just an introduction to the Constitution. It is the justification for the existence of the national government for a generation of Americans who had fought the American Revolution who were distrustful of consolidated national political power as they had experienced under the British monarchy.
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
Within the Preamble, the authors of the Constitution limited the role of the national government to five core activities: to strengthen the union between the states, to establish justice, to ensure domestic tranquility, to defend the nation, to promote general welfare, and to ensure that personal liberty and freedoms are passed from one generation to the other. Absent from the Preamble is any discussion of religion or the role of the press in American society. These areas were not even considered as areas where national government influence was desired or wanted. The defining of these five areas were seen as being in line with the political theories proposed by John Locke and Thomas Hobbes on the understanding of the relationship between the governed and the government. (3)
According to the political philosophies of both men, there is an understood and unwritten contract between the governed and the government. The Preamble, although written, is an example of Enlightenment philosophy. It limits the role of government to the above mentioned five areas of responsibility, which was why James Madison, Benjamin Franklin, and even John Jay were opposed to the addition of a Bill of Rights. These men and others feared that if the Constitution went to define the rights of the citizenry rather than restrict the power of government, then the government would be able to legislate further definitions – restraints – on those rights. That is why the plan was to use the Constitution to define and restrain the role of government. The founders and framers wanted to create a national government that was restrained by law, where personal liberty and freedom were paramount, and where the state – not the national government – would hold most of the political power. This shared sovereignty concept was unique to the American political experience and would remain uniquely practiced in the United States alone until the end of the American Civil War.
(1) Key Thinkers of the Enlightenment (Internet; accessed March 12, 2015). Mill, John. (1806). On Liberty. (2011 Printing). Publisher unknown. Pages 9-22. Hofstadter, Richard. (1973). The American Political Tradition and the Men Who Made It. (1989 edition). New York: Random House/Vintage Books Edition. Pages 1-21. Mace, George. (1979). Locke, Hobbes, and the Federalist Papers: An Essay on the Genesis of the American Political Heritage. Carbondale: Southern Illinois University Press. Pages 3-26.
(2) Key Thinkers of the Enlightenment (Internet; accessed March 12, 2015).Taylor, Alan. (2001). American Colonies. New York: Penguin Books. Pages 23-49; 158-165.
(3) Mace, George. (1979). Locke, Hobbes, and the Federalist Papers: An Essay on the Genesis of the American Political Heritage. Carbondale: Southern Illinois University Press.