American Government POL 104A Marymount University Professor Dr. Joanne Tetlow Fall 2014

American GovernmentPOL 104AMarymount UniversityProfessor Dr. Joanne TetlowFall 2014

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The Declaration of Independence & the American Revolution

Most of the Declaration of Independence derives directly from the early state constitutionsearly state compacts, to be more preciseand thus from the covenant/compact tradition, English common law, and Whig political theory.

(Donald S. Lutz, Origins of American Constitutionalism, 114) 2

Part I - Historical sources of Declaration of Independence

- Covenant-Compact tradition- English common law- Whig political theory

Part II - Philosophical justifications for the American Revolution and Declaration of Independence- John Lockes Second Treatise on Government

- Absolute tyranny is not legitimate form of government- Dissolution of government: legislative altered OR breach of fiduciary trust 3

Part I I. Covenant-Compact Tradition

What is a covenant?

A legal formal agreement witnessed by the highest authority. A religious covenant is secured by Gods witness, or an oath.A political covenant is secured by the King or sovereign. A covenant does have legal status.4

Colonial Example: Religious CovenantThe Salem Covenant (1629)

We Covenant with the Lord and one with an other; and doe bynd our selves in the presence of God, to walke together in all his waies, according as he is pleased to reveale himselfe unto us in his Blessed word of truth.

Popular theocracy: government established by church members. Oath made individual member of church and a citizen of polity.5

What is a compact?

Mutual agreement that affects the entire community, or creates a community.

Created for the common good based on majority rule

A compact does not have legal status.

The Declaration of Independence as a social and political compact does not provide legal rights to citizens.

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Colonial Example: Political CompactProvidence Agreement (1637) -

We whose names are hereunder, desirous to inhabit the town of Providence, do promise to subject ourselves in active and passive obedience to all such orders or agreements as shall be made for the public good of the body in an orderly way, by the major consent of present inhabitants, masters of families, incorporated together in a Towne fellowship, and others whom they shall admit unto them only in civil things.

One of the first political compacts resting impliciting on popular sovereignty.7

Colonial Example: Political Compact & Political CovenantThe Mayflower Compact ( 1620)

In the Name of God, Amen. We whose Names are under-written, the Loyal Subjects of our dread Soveraign Lord King James, by the grace of God of Great Britain, France and Ireland, King, Defendor of the Faith &c. Having undertaken for the glory of God, and advancement of the Christian Faith, and the Honour of our King and Countrey, a Voyage to plant the first Colony in the Northern parts of Virginia; Do by these Presents, solemnly and mutually, in the presence of God and one another, Covenant and Combine our selves together into a Civil Body Politick, for our better ordering and preservation, and furtherance of the ends aforesaid: and by virtue hereof do enact, constitute, and frame, such just and equal Laws, Ordinances, Acts, Constitutions and Officers, from time to time, as shall be thought most meet and convenient for the general good of the Colony; unto which we promise all due submission and obedience. In witness whereof we have hereunto subscribed our Names at Cape Cod, the eleventh of November, in the Reign of our Soveraign Lord King James, of England, France and Ireland the eighteenth, and of Scotland, the fifty fourth, Anno Dom. 1620.8

What is a constitution?

Establishes the institutions of government and has legal status. Early colonial constitutions were compacts dominated by a constitution consisting of:(1) Preamble;(2) Bill of Rights;(3) Constitution.

As institutions of government grew, it was called a constitution.9

Colonial Example: ConstitutionPilgrim Code of L aw (1636)

Consent of the governedCreates political institutions, e.g., the office of governor and assistants, constables, all to be elected by freemenGeneral court was legislatureCovenant contains oaths sworn under God for governor, assistants, etc.

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Political Covenant & Bill of RightsSelf-definition element in political covenant differentiated into a Bill of Rights, which, prior to 1800 meant fundamental values rather than individual rights protected by government

Colonial Example: Massachusetts Body of Liberties (1641) - combination of Mosaic law and English common law11

Massachusetts Body of Liberties (1641)U.S. Bill of Rights contains twenty-six specific rights contained in the ten provisions of this documentRights were not inalienable and could be changed by legislature, but they were equal

Ninety-eight provisions, including trial by jury, prohibition of double jeopardy, etc., and the following:

94. If any man after legal conviction shall have or worship any other god, but the lord god, he shall be put to death. DUT. 13.6.10, DUT. 17.2.6, EX. 22.20

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Declaration of Independence (1776)Is it a covenant or a compact?

If it is a covenant, is it a political or religious covenant?

If it is a compact, is it a compact dominated by a constitution? 13

II. English common lawVirginia Charter (1606) all and every personsshall have and enjoy all liberties, franchises and immunitiesas if they had been abiding and borne within this our realme of Englande.

Liberties, franchises and immunities English common law, including provisions of the Magna Carta

Rule of Law and limited government fundamental principles

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Violations of English common law

(1) No standing armies in time of peace(2) Military subordinate to civil power(3) Trial by jury(4) No taxation without representation(5) Free trade15

III. Whig political theoryIdeas derived from English commonwealth tradition during the civil wars of the 1640s and 1650s. Whigs v. Tories

Theory of the American Revolution

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Whig political theory basic principles17

(1) Form of government - republican or representative. Anti-monarchical and anti-aristocratic,

because subjection to a monarch or aristocracy even ifbenevolent creates a dependency which eliminates freedom. Only a republican state is a free state

(2) End of government public good with individual interests subordinate to the good of the community of commonwealth

(3) Public Virtue people are trusted to choose the good, but in order to do that, they must have virtue. Community is primary instrument for teaching virtue

(4) Political liberty freedom to participate in government18

(5) Government and society - closely related, not separated

(6) Happiness - public not private happiness

(7) Egalitarian natural, social, and political equality19

Why did Whig political theory appeal to those supporting the American Revolution?

(1) Rejection of monarchy and aristocracy(2) Republicanism consent of the governed for the public good, and representation(3) Political liberty denied participation in parliament(4) Equality (5) People have public virtue because of religion (Protestant)20

Part II John Lockes Second Treatise on Government (1690)

Philosophical justifications for American Revolution and Declaration of Independence

(1) Argument #1

Absolute tyranny is no legitimate form of government21

A. George III is an absolute monarch or tyrant; therefore, the 13 colonies are in a state of nature vis--vis George III and British rule, and move to a state of war.

B. In the state of nature, the 13 colonies are as if free, equal, and rational individuals subject only to the law of nature (reason).

C. The 13 colonies leave the state of nature because it becomes a state of war and form a political society (or political compact) by unanimous consent through the Declaration of Independence.

D. After creating a political society or one body politic, a government is erected or established by majority will, e.g., Articles of Confederation (1781) replaced by the United States Constitution (1789)22

23State of Nature- individuals are free, equal, rationalState of War lack of political society and government creates conflict and insecurityPolitical Society (compact) to create a one body politic, or community by unanimous consent Government establish political institutions by majority will

(2) Argument # 2 Dissolution of government

The political authority of George III and British rule over the colonies may be dissolved because:

A. Legislative Altered ; orB. Breach of fiduciary trust24

A. Legislative Altered

First six charges of Declaration of Independence against George III:

- No deliberative process for public good;- Disrupt and interfere legislative by dissolving them and calling them at time not good for deliberation;- Placing conditions on laws passed;- Refuse to assent to laws; - Fail to enforce laws; - Laws made without consent of colonies25

B. Breach of Fiduciary Trust

All of the Declaration of Independence is a claim of breach of fiduciary trust between people and government, because George III (and Parliament):

- Violated property rights- Acted in arbitrary manner over lives, liberties, or fortunes of people, which turns people into slaves- Acted contrary to the public good

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People have right to resist and dissolve government when either legislative altered or breach of fiduciary trust, and erect or establish a new government.

Rebellion not in people, but in George III and Parliament who violated the purpose of government, i.e., act in the public good and protect natural rights of life, liberty, and property.

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Dissolution of government distinct from dissolution of society

Example: The government under the Articles of Confederation was dissolved, but the political society or body politic created under the Declaration of Independence was not.

To dissolve political society, conquest is necessary, although theoretically possible occur another way.28