A Summary of: The Politically Incorrect Guide™ to the Constitution
by Kevin R.C. Gutzman
Dr. Jimmy T. (Gunny) LaBaume
Chapter 1: What Made the Constitution: Revolution and Confederation
There were 26 British colonies in the New World when the Revolution began. Each had its own distinct history, purpose, and groups of people. Each had its own government which the colonists considered as analogous to the British government. Colonial charters described how the government of a particular colony worked and often included guarantees to the colonists of their rights.
The trouble begins…
Particularly the people of the first, largest and most populated colony (Virginia) enjoyed their status as Englishmen but not entirely. They had no representation in Parliament and could not export goods without shipping them through England. But this seemed to be a small price to pay for inclusion in the British Empire.
But then difficulty arose when Britain won the Seen Years’ War (1756-63) (also known as the French and Indian War). As a result of the war the British seized much of France ‘s colonial empire. But, it did so through the invention of modern deficit finance. In other words, it acquired a greater empire but also a huge debt to go with it.
From 1763 to 1775 the British repeatedly made efforts to extract money from the colonists. The colonists, on the other hand, had provided men, money and supplies to the war effort but were unwilling to be taxed directly—especially by a legislature in which they were not represented.
During the 1760s and 70s Britain continued to adopt various laws intended to make it easier to tax the colonists. But, the colonists’ response was an increasingly emphatic “No!”
“If this be treason, make the most of it”
Patrick Henry wanted Virginia to go on record as being opposed to the Stamp Act of 1765. (The resulting resolutions became known as the Virginia Stamp Act Resolves.)
Henry would have had the Burgesses resolve that “the General Assembly of the colony…(had) the exclusive power to lay taxes upon the colony; and…every attempt to vest such power in any other person…is illegal, unconstitutional, and unjust.” His final proposed resolution stoutly proclaimed that ”any person who shall, by speaking or writing, assert or maintain that any person or persons, other then the General Assembly…have any right…to impose…taxation…shall be deemed an enemy to…the colony.”
Clearly Henry believed that the Virginians had the right to govern themselves. But, his was a minority opinion. The Stamp Act Congress of 1765 used far more restrained language.
In the face of boycotts, intimidation of stamp agents, and formal protests, the British repealed the Stamp Act in 1766. But, they then passed the Declaratory Act which proclaimed that they had the authority to legislate for the colonies “in all cases whatsoever.”
In his Commentaries on the Laws of England (1765), Sir William Blackstone explained the concept of “sovereignty” as follows: In every society there must be a sovereign with the ultimate authority—e.g. one whose decisions are final. Historically, that had been royal sovereignty in the British Empire but Britain’s constitution resolved against that and now it was Parliament.
Jefferson stakes out America’s rights
Jefferson spelled out the colonists’ position in a pamphlet known as A Summary View of the Rights of British America. He said that King George was simply a functionary for the good of the people—i.e. the people’s chief officer. The colonies were founded by Britons exercising their natural rights to emigrate to an unsettled land. They had the right to establish new civil societies. Each part of the Empire (colony) had its own local legislature. The only political institution was a common monarch, George III. If the legislature of one of the colonies tried to coerce another colony, it was incumbent upon the king to intervene. Also, he could veto Parliament’s legislation if it violated the colonists’ rights.
Jefferson’s view of the British Empire: A federation of independent states
Jefferson’s view was that there was no national government ruling the Empire. Instead, it was governed by the assemblies in each dominion. Parliament was “a body of men foreign to our constitutions and unacknowledged by our laws.” The king maintained a common defense policy but the people ruled themselves in matters of local importance.
The king never accepted the colonists’ claims. Instead, he subscribed to Blackstone’s theory that Parliament was the sovereign over the whole Empire.
Gunsmoke—and fear of domestic tyranny
On April 19, 1775 (when the fighting began at Lexington) only a minority of colonists wanted independence. In the first place, they knew that even if they won they would be left with a victorious army and a conquering general—always a formula for military dictatorship. They also knew that if they left the British Empire they would be outside the protective tariff wall.
But then Thomas Paine moved the majority of the colonists from Loyalist (and undecided) into the Patriot camp with his publication of Common Sense in 1776.
Also in 1776, Virginia’s revolutionary convention adopted three resolutions and ran a Continental Union flag up the pole at the capitol. That night James Madison wrote that Virginia had established its independence. But Virginia was alone. So, its Convention instructed its representatives to the Second Continental Congress to secure an American declaration of independence.
A state is a state is a…country
John Adams declared Congress to be “a meeting place of ambassadors.” In fact, the word itself denotes assemblies of the representatives of sovereigns.
Richard Henry Lee moved that Congress should declare “that these United Colonies are, and of right ought to be, free and independent states…” The word state had a meaning in the 18th century that is lost today. To say that Virginia was a state, for example, was to put it on par with France or England.
Congress appointed a committee to draft a declaration that declared the colonies to be independent states. Politicians and historians claim that America was founded on the 2nd paragraph of the declaration but it wasn’t. In fact, the first three sections have no legal effect. They are what lawyers call “hortatory” language. It is the 4th section that is the effective one. It is the one that proclaims the colonies to be “free and independent states” with the rights to do anything any free country can do. And, as the war progressed, they behaved as if they were.
In 1777, Congress sent the Articles of Confederation out for ratification. These articles began, “Articles of Perpetual Union between…” and then went on to list all of the individual states. Further, Article II explicitly says, “Each state retains its sovereignty, freedom and independence…” Since the end of the war could not be foreseen, the articles specified no end date—i.e. there was no built in sunset provision.
Article V gave one vote to each state’s delegation, which would not have made sense if the states had been one nation or people. But since they were distinct and equally sovereign states, they were allowed equal weight in the federal councils. Once again, during that period of time, the word state connoted any sovereignty on the order of France or Spain. Finally, although the constitution of a national government could be amended by a national majority, Article XIII of the Articles of Confederation required the consent of all the states.
The elements of the Articles described above are not surprising. For years the colonists had insisted that only their colonial legislatures could tax them and that sovereignty was located in those legislatures. They believed that it was necessary to declare themselves “free and independent states” in order to defend their traditional English rights. The purpose of the Articles of Confederation was not to merge the 13 societies into one. It only formalized a military alliance and agreement to cooperate to the extent necessary to win the war.