The Intellectual Origins of the Constitution by Forrest McDonald

Novus Ordo Seclorum: The Intellectual Origins of the Constitution By Forrest McDonald Forrest McDonald’s book Novus Ordo Seclorum: The Intellectual Origins of the Constitution, discusses the ideas that shaped the Constitution. The book consists of a preface, eight chapters, two appendices, a bibliography, and an index. In the preface McDonald gives the reader some background on how and why this book came about and the positions historians have taken regarding the origins of the Constitution. McDonald brings up in his book how “ideological historians have delineated the tensions between republican virtue and luxury/vice, they have inadequately addressed the counterpart tensions between communitarian consensus and possessive individualism and those between concepts of liberty to participate in the governing process and liberty from unlimited government.” McDonald states that he intends to provide a reasonably comprehensive survey of the complex body of political thought, including history, law, and political economy, which went into framing the Constitution. In the preface as well McDonald notes how eighteenthcentury English is quite different from today’s. He suggests the following three guiding principles for understanding eighteenth-century English: one must pay attention to the meanings of the most ordinary of words; one must seek out the “buzz words” or “code words” that are identifiable with particular ideologies or bodies of thought; and the historian must be careful in bringing to bear concepts and information that were not available to the eighteenth-century subjects. In chapter one McDonald recounts how divided the Americans were in regard to demanding independence. The Patriots among them, in principle at least, were nearly unanimous in their understanding of what independence entailed. Patriots were agreed that the proper ends of a government were to protect the people in their lives, liberty, and property and that these ends could best be obtained through a republican form. When the Framers convened in 1787 to reconstitute the Union, they were guided as well as limited by four sets of considerations, these were as follows: providing protection for the lives, liberty, and property of the citizenry; ensuring the nation’s commitment to republicanism; recognizing history in several senses of the term, and drawing on the large body of political theory at their disposal. Chapter two discusses the theoretical origins of liberty and how it relates to being an English subject. Freedom originates in natural law, deriving from “the rights of human nature.” Second, it exists in a state of nature; third the vast majority of governments illegitimately deny the people their natural right to liberty. And fourth more than half of the people who live freely in organized political societies have their liberties by virtue of the English constitutional tradition. At the time of independence, many Americans believed that liberty or freedom required no definition. But two decades before the Constitutional Convention, Americans were involved in an ongoing political discourse on the meaning of liberty. There was a wide range of opinion, though no one called for its immediate abolition. The things that were subject to debate were, what liberty was, who deserved it, how much of it was desirable, how it was obtained, and how it was to be secured. The protection of property was interrelated to the idea of liberty and was the fundamental purpose for submitting to the authority of the government. In order to understand the concepts of liberty and property in America, one must understand the similarities and differences between British and American law. Neither liberty nor property was a right singular; each was a complex, subtle combination of many rights, powers, and duties distributed among individuals, society, and the state (p.13). The form of “taking” that affected the widest spectrum of the English population was that of taxation. Taxation in theory, in the English-speaking world was not of taking per se, but of voluntary giving (p.25). In order to vote or be elected to public office the candidate or voter must own property, one reason for this was that the person elected had a “stake” in society. This method of allowing people to vote in America was different due to the fact that land was readily available; around 80 percent of the white males in some colonies met the landed-property qualifications for voting. The most important public rights in terms of property were those of grazing, wood gathering, hunting, passage, and the use of water (p.29). American law dealing with real property was considerably more advanced than English law. In regard to personal property, particularly to commercial activity, English law was half a century more advanced than American law. Freedom of the press and freedom of speech are two of the other most precious of freedoms that had restraints and limitations placed upon them under English law (p.45). If the Founding Fathers’ beliefs about freedom of speech and freedom of the press seem to fly in the face of reality, the same is even more true in regard to their belief in human equality and their practice of keeping slaves. Most Americans seemed to have been indifferent to slavery, and, indeed, felt no embarrassment about the apparent contradiction between the Declaration and the existence of slavery (p.51). In chapter three McDonald explains how Americans believed that their rights, whether they be life, liberty, property, or anything else were not founded on mere will but upon some broader legitimating principle. One of these broader principles – to claim the rights on the basis of natural law – went beyond the forms and norms of English law and to squint toward independence (p.58). According to McDonald, the Patriots turned to John Locke rather than to the other great natural-law theorists. To Locke, natural law was based upon three fundamental principles: the duty of every man to “praise, honor, and glory” God does not enter directly into man’s social relations except as the fount of the others; that mankind ought to be preserved; and, arising from this second principle, the notion that man is obliged by nature to live in society, without which he cannot survive, and therefore is obliged to preserve society in order to preserve himself (p.62). Independence also brought with it a commitment to republicanism, at first only as a by-product of a general reaction against the supposed excesses of George III. In chapter four McDonald discusses how there was another dimension to the question of relations between society and government and that had to do with the body of thought that was coming to be called “political economy”— ideas about the policies governments should or should not pursue regarding property relations to promote the general welfare (p.97). Americans had learned about mercantilism through the operation of the English Navigation Acts, and Patriots everywhere had joined in denouncing the acts; but, ironically, after independence every state began to develop a mercantilist system of their own (p.102). A radically different set of ideas about political economy was worked out between the 1750s and the 1770s by the first group of economists, the French physiocrats; this idea was laissez faire. This idea taught that there were natural laws governing economic activity, and that if those laws were followed, the result would be increased production and maximum benefits for the society as a whole (p.107). Laissez faire made its way into American thinking through work of Adam Smith and his book, An Inquiry into the Nature and Causes of the Wealth of Nations. The principal architect of the first national system of political economy was Alexander Hamilton, whose views of the subject were far removed from Madison’s and Smith’s. As Hamilton saw it, the greatest benefits of a government-stimulated, government-channeled system of free enterprise for profit were spiritual, not economic: the enlargement of the range of human freedom and the diversification of the possibilities for human endeavor. Chapter five deals with the lessons that the framers of the Constitution had to draw upon from 1776 to 1787. When the American colonies won independence from Britain, the thirteen colonies did not constitute a “United States,” but rather they were individual states that had different forms of law. Some retained, for the most part, the same colonial charters; some colonies attempted to use colonial charters, but ran into severe problems due to the fact that many of the offices had been appointed by the Crown, elections did take place but the interior locations within some of the colonies chose not to acknowledge the government. The other position was that sovereignty had passed to the Continental Congress. Although that position had the least support as first, it slowly gained support by 1787. Whatever methods that the states employed to constitute their governments, several attempted to secure property rights in accordance with the self-proclaimed Lockean justification for their existence (p.152). There were three means to that end. They were as follows: first was to affirm man’s natural right to property, either in declarations of rights or in the body of their constitutions. The second method was to attempt to avoid the complications and embarrassments of discontinuity by expressly declaring previous law to be still in force. The third and final method was to incorporate specific legal protections of property rights into the constitutions. The fear of demagogues was also discussed and how in the four years between the Peace of Paris and the Constitutional Convention, the demagogues had risen to great power in state after state and had caused turmoil and disgraced the new nation. Madison devised a two part plan to overcome these dangers, first the creation of a national government that would have the power to veto the state legislation. The second was his analysis of factions which he discussed in Federalist number 10. Factions could not be done away with, but it was possible to minimize the mischief that they did (p.165). In chapter six, McDonald notes how almost all of the delegates who attended the Constitutional Convention were nationalists in the sense that they believed it necessary to reorganize and strengthen the central authority. McDonald explains how it was to the benefit of the nation that “doctrinaire ideologues by no means constituted a majority of those in attendance” at the Convention (p. 185). The most important delegates were those who were not members of the arch-republican Patriot leaders, for example Washington. Most of these men had similar backgrounds and experiences: they had been born or were educated abroad; they had served for a long time as officers in the Continental Line; or they had held important civilian positions in the Confederation during the climatic years 1781 to 1783. The Framers of the Constitution left nothing to chance – they had a plan, which was dear to Washington’s heart, for training a class of Optimates. The framers wanted to ensure that there would be an ample supply of virtuous men to lead the nation. This was to be done by establishing a national university that would select the cream of the American youth to “overcome the provincialism of young men and instill in them a love of the nation and a desire to serve it” (p.191). Another framer of great importance was Madison. His views placed him somewhere between the court-party nationalists and the republican ideologues. One of his nationalist concerns was that the power of the national government be appropriately balanced, checked, and refined. He proposed a government that would be partly federal and partly national. Whatever their political philosophies, most of the delegates sought to pattern the United States Constitution, as closely as circumstance would permit, to the English Constitution (p.209). Chapter seven deals with the convention proceedings. It recounts the agenda for each day, quickly reviewing what the issues were, how they were resolved, and what committee actually worked out the specifics of the various laws. For instance, McDonald explains the specifics of the large-state plan, which called for the establishment of a national government that would consist of an executive branch, a judicial branch, and a bicameral legislature. The first branch of the legislature would be apportioned to states according either to free population or to the quotas of revenues assessed for contribution to the national treasury, or directly elected by the people. The second part would be elected by the first branch from candidates nominated by the state legislatures (p.226). McDonald states that there are three observations that can be made about the convention itself: first, that the delegates, at least in dealing with the question whether the legislature should be national, federal, or mixture, did not derive their positions from systems of political theory. The second is that the framers were politically multilingual – they could speak in the language of many political theorists. The third was that the convention was not to end in failure; a compromise had to be worked out (p.235). The chapter continues to analyze each of the problems that arose during the convention in detail and the method to which a compromise was worked out. Chapter eight goes over what the framers achieved during the convention, and how effective the powers of the government were. The framers restructured the central authority from a simple unicameral Congress into a complex, self-balancing, four-branched institution (p.261). McDonald reminds the reader how one should remember that the convention did not start from scratch and that it was built upon both the Articles of Confederation and the determination of the framers to create an effective government. Some of the powers that were desperately needed for the new government included taxation, regulation of commerce, regulation of the militias, and the powers implicit in the necessary and proper clause (p.263). McDonald goes into great detail about these new governmental powers and also discusses the restriction of certain powers both in regard to states as well as the central governing authority. McDonald ends the chapter with a great quote from Bismarck, in which the German leader is supposed to have said, “a special Providence takes care of fools, drunks, and the United States of America” (p.293) There are two appendices in this book, the first contains a list of all the delegates who attended the convention, and the second reprints the Constitution of the United States. A comprehensive bibliography follows as well as an index.