The polarizing had been growing for years.
A harassed, increasingly assertive and arguably corrupt government confronted a resistance movement goaded by radical activists. The government sought to enforce the law. The activists demanded rights they thought long since guaranteed. Violence exploded.
In the spring of 1775, 250 years ago, the War for American Independence began. And most of those “patriots” didn’t know it. They were seeking rights, not revolution.
The American Revolution occurred to “secure those rights” denied by Great Britain. But why were they — and why are we still — so focused on rights?
From ancient times, the ruler enjoyed privileges and fulfilled a duty to govern. In turn, the great body of underlings enjoyed protection, and fulfilled a duty to obey. How did that social order flip on its head?
What drove those farmer-soldiers at Concord Bridge, in defense of rights, to spring to arms against the soldiers of their king?
The musket volleys of April 1775, in the moment a mere armed stand against armed repression, would soon plunge into an organized war for independence.
RIGHTING WRONGS: The protests of 1775
The roots of those “shots heard round the world” at Concord date back a dozen years, to a decisive triumph over the French in an earlier war. American colonials exulted in the benefits of victory. But a deeply indebted British government glumly counted the costs.
American rejoicing turned sour when Parliament began “laying taxes in cold blood,” as one member of Parliament frankly put it. A series of British actions culminated in the notorious Boston Tea Party of December 1773, which in turn led to a crackdown that imposed military rule over Massachusetts. A Redcoat raid into the countryside to confiscate military stores brought out militiamen in force. Shots erupted, followed by a running battle as the British soldiers beat a headlong retreat back to their Boston base.
The shocking news soon reached Philadelphia, where representatives of each colony were reconvening as a “Second Continental Congress.” Their measured responses to the report of bloodshed included a monumental act of collective defiance and a document defending American rights.
The Congress first agreed to stitch together, from colonial militias, a joint force, including the Massachusetts companies still encamped around Boston. It would be styled the “Continental Army.” It would be commanded by a militia colonel from Virginia, George Washington.
The bdy next turned to a right rooted in English tradition. Often invoked by American resisters, the “right of petition” sanctioned letting rulers know how they were failing in their duty to care for their subjects. Precisely as an exercise of that right, one year before its more famous Declaration of Independence, Congress issued a “Declaration of the Causes and Necessity of Taking Up Arms.” Thomas Jefferson penned a first draft. John Dickinson, a savvy and respected Delaware lawyer, revised it, at once tailoring its tone to its audience and strengthening its radical substance.
“Government was instituted,” the final text read, “to promote the welfare of mankind.” But Parliament has violated that purpose with its “passion for a power,” namely a “purpose of enslaving these colonies by violence.” Colonists had emigrated to find the freedom — religious and civic — that is our English birthright. But British rule, long a protector of those freedoms, has pivoted to their destruction. Thus “a virtuous, loyal and affectionate people” has been forced to choose either “unconditional submission to the tyranny of irritated ministers, or resistance by force. The latter is our choice. . . .”
Resorting to an ironic metaphor, Dickinson concluded: “Our cause is just, Our union is perfect . . . being with one mind resolved to die freemen rather than live slaves.”
Writing their rights, then, was the first step in righting Parliament’s wrongs. But the colonials had a precedent — and principles. A century earlier, a new system of English government had been constituted, and its foundation articulated. Dickinson drew on that foundation. The U.S. Constitution of 1787, whose approval we mark today on its 238th anniversary, embraced that legacy.
WRONGS AND RIGHTS: The backstory
Limiting the unaccountable power of a ruler — the core meaning of “Constitutional government” — had a deep history well-known to American rebels. Most vivid was the English Civil War of the mid-1600s, which inverted the ancient conception of monarchy. In its struggle with King Charles I, Parliament established the principle that a sovereign monarch is not, in fact, an absolute sovereign; at bottom it is the people who are sovereign.
When, two kings later, King James II sought to re-establish both his own power and Catholicism, Parliament engineered his ouster in a (bloodless) “Glorious Revolution” (1689). A successor, King William III, was installed; he recognized who was really boss. To nail it down philosophically, the profound English thinker John Locke developed the notion of “natural rights”: the rights of all people come from the basic laws of nature. And Parliament, collective representative of the English people, codified parliamentary supremacy in several foundational acts, including a Bill of Rights.
This system of rule by King–in-Parliament didn’t stabilize until the mid-1700s. Meanwhile, England’s rulers had to a large degree left their colonies to their own devices, distracted by the political strife at home. Under their original crown charters the colonies worked out systems of rule by local elites that granted significant freedom to most common folk. When Britain’s government finally sought to reclaim control, savvy colonial politicians were ready to synthesize history, theory and practical politics to articulate their “rights as Englishmen.”
WRITING NATURAL RIGHTS: The Declaration of Independence
So it was that colonials came to the ironic conclusion in 1776 that to secure their English rights they must separate from English rule. To Thomas Jefferson, on behalf of the Continental Congress, went the task of laying it all out in the Declaration of Independence
His final paragraph stated the fundamental point: “these united colonies are, and of right ought to be, free and independent states.” How did Jefferson justify that conclusion?
The core of the document hammers a long recital of the “repeated injuries and usurpations” by the same King George III once celebrated as the victor over France. Now the king stood indicted by “facts submitted to a candid world.”
Yet what we remember today is not these paragraphs but the preamble — a high-sounding statement of rights. It is these the king had subverted, ergo independence was the logical consequence.
Rights rest, Jefferson began, on “the laws of nature and nature’s God” — that’s Locke’s natural rights. His memorable sentence can be laid out in a syllogism:
- all are equal (in political standing);
- all enjoy basic and enduring rights, namely “life, liberty and the pursuit of happiness”;
- the protection of these is the primary duty of government;
- therefore government is created and empowered “by the consent of the governed” through the ballot.
WRITING POLITICAL RIGHTS: The Federal Constitution
A dozen years later, many of those leaders themselves now had to govern. Indeed, they had to invent a government that could govern — in ways that protect the rights they’d been fighting for, yet bind a diverse and contentious people into a sustainable political order.
With independence secured, the new American nation had to figure out how to set up (“constitute”) a “more perfect union” — a governing structure that would, over the long haul, accomplish the purpose of honoring natural rights by guaranteeing political rights.
The preamble laid out an itemized list of what was needed: justice, order at home, safety from foreign threats, general prosperity, and above all, the “blessings of liberty.” A constitution, in short, written by representatives from the states, and in turn accepted (“ratified”) by the people of those states.
Let’s review those political rights embedded in the Constitution of 1787.
In its first Article, the new charter prescribed a House of Representatives “chosen every second year by the people." The right to vote is the first and most basic political right, gradually to be extended over the years. This “people’s house” would, with the Senate, be a “Congress” wielding “all legislative powers."
The second stage of establishing political rights is to say what governing authorities cannot do. This is the essence of constitutionalism: limiting the ruler’s power.
Accordingly, the eighth section of Article I lists 17 powers of Congress. The next sections lay out bans on government action, among them:
- no suspension of “habeas corpus” — the right if jailed to be promptly charged and tried
- no discriminatory taxes or commercial restrictions — the right to equal liability and opportunity in private economic pursuits
- no tapping the U.S. treasury without Congressional appropriation — the right to demand ethical and accountable public finance
- no “title of nobility,” because all citizens are equal under law
- no actions by individual states (like a foreign treaty) that invade the turf of the United States as a whole — put differently, the right not to be discriminated against by another state
- and yes, sadly, no ban on “importing” enslaved men and women before 1808 — a right to add to Americans in bondage. (Note, however, that this tacit authorization of chattel slavery implies an end to the slave traffic, and by extension the possible demise of the institution itself. In fact, Congress on cue banned the slave trade in 1808, the first step in the transatlantic movement — agonizingly slow to be sure— to stamp out human enslavement and evidence for Lincoln’s later argument that the Constitution was, at its core, an anti-slavery charter.)
Next, Article II establishes the offices of president and vice president. What we may construe as the people’s most significant right, in limiting presidential power, is the required oath to “preserve, protect, and defend the Constitution.” Failing that, he or she can be removed through “impeachment” (indictment) and conviction for “treason, bribery, or other high crimes and misdemeanors.”
The third Article, creating an independent judicial branch, specifies the right to a jury trial, held in the state where the alleged crime was committed.
Another crucial pair of rights appears in Article IV — each state must respect both the public acts and “privileges and immunities” of every other state. Then follows the more universal decree that the federal government must guarantee a “republican” (representative) government for all, while protecting against external or internal violence.
Such are the political rights built into the nation’s structure.
WRITING CIVIL RIGHTS: The Bill of Rights
The Federal Constitution grounded America’s structure of government in the people’s political right to a government that was 1) representative, or “of the people,” and 2) accountable, or “for the people." (It would become increasingly 3) democratic, or “by the people,” as explained in my essay in 2015.)
But it did not include a list of civil rights. This was a deliberate decision at the Convention of 1787 and quickly regretted. The delegates concluded that since the constitutions of all the thirteen states already contained such lists, a federal Bill of Rights wasn’t needed. The blowback was immediate and loud. The document’s supporters hastily promised to add those rights by the prescribed process of amendment.
Sure enough, the very first Congress offered what we now know as the Bill of Rights as a package. The states approved them in 1791.They are mostly phrased as restrictions — saying what the federal government can not do. Let’s review them briefly in simplified language.
1st Amendment: Congress can’t deny your freedom of expression. Specifically, there can be no official (“established”) American church, nor can anyone be barred from practicing a particular faith. No federal law can limit your public speech, oral or written (the “press”). No federal law can prevent “peaceably” gathering or demanding that government act (“petition”).
2nd Amendment: Duly authorized state forces (“militias”) can’t be disarmed.
3rd Amendment: You can’t be forced to house soldiers in your private home (something the British government had imposed on the colonies).
4th Amendment: You or your property can’t be searched or confiscated without court authority (a “warrant”) based on a likely crime.
5th Amendment: To be deemed responsible for a criminal act, you must be properly charged, and you can’t be charged twice for the same act. At your trial, you can’t be forced to testify (you can “take the Fifth”). And the government can’t jail you, seize your property or execute you unless all legal processes have been followed. Indeed, if your property must be taken for public use, you must be fairly paid.
6th Amendment: If put on trial, you must be told what the charges are. You must be promptly and publicly tried by a jury, you can be defended by a lawyer, and you (or your lawyer) can challenge your accusers face to face.
7th Amendment: Even in a non-criminal lawsuit, you have a right to a jury.
8th Amendment: Your bail and any fines must be reasonable and no sentence can be “cruel and unusual.”
9th Amendment: Just because the above list happens to omit a right doesn’t mean you don’t have it.
10th Amendment: If the Constitution doesn’t grant a power to the national government, then it’s “reserved” to the states or to the people themselves.
Do you know and claim, these rights? Good! Did you bristle at any of my paraphrases? Also good! These rights are not straightforward or uncontested. Just think about the Second Amendment! How to explain and apply these rights has often been fiercely debated, requiring courts to interpret them. Plus they can come into conflict with each other, requiring courts to balance them.
And yes, these rights, sadly, have too often not been honored for all.
RIGHTING WRONGS BY WRITING (MORE) RIGHTS: Amendments XI-XXVII
Seventeen more amendments have been added since the 1790s, often in clusters. So let’s go on to point out some additional or clarified rights that you enjoy.
IN THE EARLY REPUBLIC
11th Amendment (1798): Implies a right for someone to sue a state.
12th Amendment (1804): Implies a right for political parties to present candidates designated for president and vice-president. Without that requirement to specify, vice presidential candidate Aaron Burr almost pirated the presidency from Thomas Jefferson in 1800, as fans of the musical Hamilton well know.
AFTER THE CIVIL WAR
13th Amendment (1865): This one was huge: outlawing slavery once and for all.
14th Amendment (1868): This one was complex. The twofold intent was to clarify both 1) the citizenship status of the newly freed, fixing the notorious pre-war Dred Scott Supreme Court decision that declared Black people weren’t citizens, and 2) that states, no less than the federal government, must respect the civil rights of citizens. Here are the specifics:
- If you’re born in the United States, or properly naturalized, you’re a citizen of both your state and nation. Period.
- If a state denies any class of white male citizens the right to vote in a federal election, it can lose some of its representatives in Congress.
- If, having once sworn an oath of office, you then fought for the Confederacy, you forfeit your right to vote.
- If you were one of the bondholders of the now-defunct Confederate States of America, you’re out of luck — that debt will never be paid.
15th Amendment(1870): This one was emphatic. In case it was not crystal clear that the 14th Amendment meant what it said, every citizen (well, every adult male) enjoys the right to vote, even if formerly enslaved.
IN THE EARLY 1900s
16th Amendment (1913): Now we jump forward to when four transformative amendments were adopted in rapid succession. The first gave the federal government the right to collect income taxes.
17th Amendment: The next step in widening democracy was to mandate that the people in each state have the right to elect their two senators directly. Previously, state legislatures, mired in local party politics, chose senators.
18th Amendment (1918): And here’s one that didn’t take, because it denied a right. The fruit of nearly a century of intense crusading, spearheaded mostly by women, it banned the production and sale but not the consumption of beverage alcohol (drug stores, touting spiked “medicines,” flourished). But when the Depression hit, Americans wanted their right to drink restored, so the 21st Amendment (1933) repealed the 18th.
19th Amendment (1920): Another landmark of democracy, another success of a long-running crusade, and the last hurrah of early 20th century progressivism. Women, already empowered to cast ballots in many western states, including Washington, now had their right to vote secured throughout the country.
IN THE ACTIVIST 1960s
23rd Amendment (1961): Residents of our nation’s capital could never vote in a presidential election until this amendment granted to the District of Columbia electoral votes equal to what they’d have if they were a state.
24th Amendment (1964): The rights of Black citizenship and voting had been settled, right? Well, no. White supremacists invented mechanisms to circumvent the rights guaranteed in the Civil War amendments. One of these was a “poll tax,” a pay-to-play fee to allow you into a polling place. Poor people, especially poor Black people, presumably couldn’t afford it, so were effectively prevented from voting. This amendment banned that racist scheme.
26th Amendment (1971): If you can be drafted, you should be allowed to vote. So went the mantra in the midst of the Vietnam War. Congress responded, lowering the voting age from 21 to 18.
AND AN OUTLIER
27th Amendment (1992): This one delays a legitimate privilege. It prevents members of Congress from taking a statutory pay raise until after the next election — so they have to go before the voters before they get a fatter paycheck. Though technically not a right, this guardrail was submitted to the states as part of the original Bill of Rights. Unlike many later amendments, it specified no deadline for ratification. Unlike the rest of the Bill of Rights, this took two centuries to become part of the Constitution. It seems that Americans in the 1990s were more frustrated with Congressional pay versus performance than in the 1790s!
RIGHTS OR WRONGS?
In 1775, the Massachusetts militia took up arms to defend their rights, claiming they had no other recourse to right British wrongs. Twenty years later, after George Washington became the first president under the new Constitution of the new United States, a “Whiskey Rebellion” erupted among aggrieved farmers. Washington, insisting Americans now did have recourse, called out troops to demonstrate federal legitimacy. The Constitution-based authority and accountability which Washington asserted has played out over two centuries, as I’ve detailed, through a recurring process of amending the charter to right perceived wrongs.
So where does that leave us in our era, when civil rights — rooted in natural and political rights — take center stage in our national consciousness? How can we navigate the reality of acute polarization over those written rights, and claims across the political spectrum that they are at risk?
More specifically, is it still feasible to expect that our rights can be further clarified and protected through the process of Congressional action and court confirmation under an amendable Constitution?
Secondly, is it still possible for us, without individual or collective violence, to argue about these rights, in the pursuit of political resolution?
And thirdly, in order to preserve those rights, is the hard task of vigilant, informed and honest politics still worth it?
The Constitution of 1787 was created, according to its preamble, to preserve the blessings of liberty for “posterity." That’s us. So it was of us that Benjamin Franklin famously said, "We have given you a republic, if you can keep it.”