A short history of constitutional liberalism in America

Abstract

American liberalism emerged before the most famous European liberal intellectuals put their pens to paper. It was grounded partly on liberal ideas that were in the air before those works were written, but mostly on the attractive communities generated by liberal institutions and policies. American liberalism is empirically, rather than theoretically, grounded. This paper uses excerpts from colonial and constitutional documents to demonstrate the long history of liberal institutions in the territories that became the United States. American liberalism is an evolutionary rather than an intellectual phenomenon.

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Notes

  1. 1.

    This point is not developed at length in this paper, because of space considerations. See Congleton (2011a, b, ch. 18), Nikolova (2017), and Nikolova and Nikolova (2017) for more detailed analyses. These labor-supply-based explanations do not conflict with other ethnic or geographical explanations, as in Sowell (1981) or Berkowitz and Clay (2012), but suggest that competition for labor was the main cause of the emergence of liberal political institutions in the territories that became the United States, and that the other factors were secondary. Other places with similar ethnicity or geographical characteristics were not nearly as liberal in their institutions as in the new English colonies.

  2. 2.

    For more on the politics of early American life, see Rothbard (1999) for a narrative told from a highly critical liberal perspective. For more on the social context in which governing institutions and reforms were adopted see Appleby (2000, 2005). These too could be supplemented by narrower histories of particular places and events. For overviews of day-to-day electoral politics in the colonies, see Brown (1955) or Brown and Brown (1964).

  3. 3.

    I take these to be uncontroversial historical facts and so provide no references. For those interested in more support for these claims and numerous references see Congleton (2011a, b). Nearly any reasonably thorough history of medieval Europe will also support these claims. Few general European histories do so because of space constraints, although most will develop a narrative consistent with the above. After 1600, an exception to this general characterization of Europe’s political and economic culture was the United Provinces of the Netherlands, a republic that was the most liberal place in Europe for the next century.

  4. 4.

    Both France and Spain had founded a few small settlements in North America in the sixteenth century as in St. Augustine and Quebec, but these are not important parts of the historical narrative for North America. French efforts failed in South Carolina and Florida, in part because of Spanish efforts to repel them. Settling the area north of Florida was evidently very difficult. Very high death rates in the early years were commonplace.

  5. 5.

    Henry Hudson, explored the area that subsequently became New Amsterdam and then New York, He was in the employ of the East India Company, rather than the West India Company, at the time that he discovered the fine natural harbors at the end of the river that would later bear his name.

  6. 6.

    The Plymouth colony is neglected here because it was absorbed by the Massachusetts colony in 1691. (This was partly because the Pilgrims had founded a colony in lands well to the north of those specified in their charter.).

  7. 7.

    In addition to companies, English kings also “gave” undeveloped land to persons to whom they were indebted to for extraordinary service or for money, as with Lord Baltimore, and several decades later with William Penn (paying off debts owed his father).

  8. 8.

    Monopoly, for example, was defended in the Dutch West Indies Company’s charter: “And we find by experience, that without the common help, assistance, and interposition of a General Company, the people designed from hence for those parts cannot be profitably protected and maintained in their great risk from pirates, extortion and otherwise, which will happen in so very long a voyage. We have, therefore, and for several other important reasons and considerations as thereunto moving, with mature deliberation of counsel, and for highly necessary causes, found it good, that the navigation, trade, and commerce, in the parts of the West-Indies, and Africa, and other places hereafter described, should not henceforth be carried on any otherwise than by the common united strength of the merchants and inhabitants of these countries; and for that end there shall be erected one General Company, which we out of special regard to their common well-being…” (http://avalon.law.yale.edu/17th_century/westind.asp).

  9. 9.

    The charters were not “national” constitutions in the sense that they were the supreme law of the land. English law was supposed to be supreme. Nonetheless, they created colonial governments (rule-making and enforcing bodies) that had significant autonomy and there were several long periods in which they were little monitored by English rulers or courts.

  10. 10.

    In the first days of the Virginia and Plymouth colonies, company ownership and management of their land grants generated significant problems—indeed starvation in their colonies. Starvation was ended by shifting to owner- rather than employee-based production methods and by the development of a strain of tobacco that could be grown in the colony and exported to England. The second charter for the Virginia colony (1609) granted all settlers older than 10 years old a share of stock and a grant of 100 acres of land on which they could farm. Starvation fell because of the stronger incentives to work for oneself and one’s family than under the former output-sharing rules. This success clearly demonstrated the relative merits of private ownership relative to centralized management in the colonies.

    See Bethell (1999, ch. 3) for a discussion of both early starvation and of the role of private property in solving this problem. For a short overview of reforms of property and law undertaken in the early days of the Virginia colony, see Rothbard (1999, ch. 3). Bethel notes that Edwin Sandys, treasurer of the London Company and former member of Parliament, evidently misunderstood the importance of the property reform, although Sandys was one of the most thoughtful and influential protoliberals of the early seventeenth century. For a biography of Sandys, see Rabb (1998).

  11. 11.

    There is some disagreement about the date at which the general assembly was first formed. Several authors use earlier dates, which would imply a colonial origin, rather than advice from the company’s office in London. The first meeting of the general assembly took place in 1619 and was evidently authorized by a document similar to the one quoted from. The date used here is from Yale University’s Avalon website. The treasurer of the London Company at the time was a former member of parliament named Edwin Sandys, who by the standards of early seventeenth-century England could be regarded as a liberal or protoliberal. He either accepted recommendations from Jamestown or suggested the reforms himself. It bears noting that it is likely that at least some parts of the 1621 ordinance were suggested by the colonists themselves, partly as an antidote to the first decade of more or less authoritarian rule by the company’s governors.

  12. 12.

    The addition of town representatives in Massachusetts was partly in response to “yardstick” competition. Other colonies, for example, Virginia and Bermuda, had already done so (Congleton 2011b).

  13. 13.

    See Riley (1906, ch. 1) for a short history of the first assemblies. See the Senate of Maryland website for a short history of its origin. (http://msa.maryland.gov/msa/mdmanual/05sen/html/senf.htm).

  14. 14.

    Pennsylvania eliminated its upper chamber in 1701. This was done at the same time that a Charter of Privileges was adopted by William Penn after he was encouraged to do so by “his” colonists. The charter protects freedom of religion, due process, and created the new unicameral assembly. It also allowed Delaware, then part of the Penn territories, to have its own assembly.

  15. 15.

    The Yale Law School maintains a very good collection of colonial charters and related documents on its http;//www.Avalon.law.yale.edu website. See also Lutz (1998) or Jones (1966).

    The West Jersey Charter was never fully implemented, because of various lawsuits among the colonies. See Rothbard (1999, ch. 54) for a discussion of the authorship and problems associated with implementing it. The point of the quote is not that the charter was implemented as written, but that it was written in explicitly liberal language, before Locke’s famous treatises were published. It was clearly an attempt to attract new residents to the colony. There was Tiebout (1956) “constitutional competition” among colonies and towns for residents.

  16. 16.

    At about this same time, Locke, working for his patron Lord Ashley (who had invested in the Carolina colony) helped draft the most medieval of the colonial frames of government. The Carolina charter provided for an established church (the Church of England) and a colonial hereditary nobility (with ranks of Palatine, Lords Proprietor, Landgrave, Cazique, and Baron). Lord Ashley’s influence in Carolina remains evident today in a wide variety of place names. A copy of the 1669 constitution for Carolina can be found at http://avalon.law.yale.edu/17th_century/nc05.asp.

  17. 17.

    Again, this is not to say that European ideas had no effect in the colonies in this period. Most of the residents in the colonies during seventeenth century were from Europe. However, it is to say that mainstream European ideas about governance did not work very well in the colonies, whereas liberal theories of government, property, and trade did. This was arguably more true of the northern colonies than the southern ones, possibly because of differences in rules for founding new towns (Congleton 2011b), but similar political and legal institutions were also present in southern colonies. Most were considerably more liberal than those in England and other parts of Europe. Indeed, Ashley’s attempt to create a new feudalism in the Carolina colony was a notable failure of mainstream European ideas about governance in the North American setting.

  18. 18.

    The sentiments expressed in seventeenth-century colonial documents were liberal in part because many of the persons most interested in American investments and emigration were from what would later be called the Whiggish or liberal part of the English political spectrum. The German Quakers of New York, New Jersey, and Pennsylvania also had liberal intuitions on a variety of issues, as did many of the settlers from the Netherlands. However, as noted above, liberal innovations could be sustained only if they produced attractive communities for those without strong ideological interests.

  19. 19.

    See Calabresi and Price (2012) for an excellent overview of the history of laws creating and/or constraining monopolies during the colonial period through modern times. Monopoly grants were for the most part limited to salt works, which were relatively capital-intensive enterprises, although there were also instances in which importers, exporters, and those constructing bridges were granted monopoly privileges.

  20. 20.

    By the mid-eighteenth century, most of the colonies had been taken over by the British Government. These governmental takeovers, however, for the most part respected the existing colonial charters. The charters themselves were being revised or re-interpreted by George III and his appointees.

  21. 21.

    Samuel Adams graduated from Harvard in 1740, John Adams from Harvard in 1758, Thomas Jefferson from William and Mary in 1762, and Gouverneur Morris from Kings College (now Columbia University) in 1768 receiving a master’s degree in 1773. Roger Sherman did not attend college but was admitted to the bar at the age of 33 and served in a variety of political and judicial position in Connecticut.

  22. 22.

    See Bailyn (1967) for evidence that they were also affected by European liberal or Whiggish scholarship. See Lebovics (1986) for discussion of John Locke’s influence, and Lutz (1984) for a discussion of the relative influence of European scholars on the constitutional debates.

  23. 23.

    The alliance/confederation was formally constituted under the first constitution of the United States called the Articles of Confederation, which was negotiated in 1776 and 1777 but not ratified until 1781.

  24. 24.

    See Congleton (2011a, b, ch. 18) for more details and references. In some cases, the colonial legislators did add significant new language on civil liberties.

  25. 25.

    Most governors were elected by the State legislatures at that time, although a few were directly elected. The process for electing the President can be regarded as a compromise between states preferring a “prime ministerial” system and those preferring direct elections.

  26. 26.

    All quotes are taken from the words of the original unamended constitution, which is available at: http://www.archives.gov/exhibits/charters/constitution_transcript.html.

  27. 27.

    Censorship was commonplace in late-eighteenth-century Europe for both political and religious texts. Penalties for treason were often severe. Thus, arguments for major reforms of the existing government were risky to make. In the previous century, the risk was sufficient that Locke initially published his Treatise on Government anonymously. A long list of books was banned in Catholic countries at this time. Indeed, Thomas Paine’s Common Sense was first published anonymously.

  28. 28.

    The Supreme Court, however, subsequently allowed licenses and other certifications to vary state by state.

  29. 29.

    Eleven states had ratified it by early 1789, which was two more than required for implementation. North Carolina ratified the constitution later that year and Rhode Island in 1790. (The degree of support varied widely.) The new constitution substantially revised the original Articles of Confederation, which had been used during the Revolutionary War and for the first few years after the war was formally ended by the Paris peace treaty of 1783.

  30. 30.

    Support for public education has long been an important part of the liberal reform agenda. For example, John Adams suggests that “Laws for the liberal education of youth, especially of the lower class of people, are so extremely wise and useful, that, to a humane and generous mind, no expense for this purpose would be thought extravagant.” (1776, Thoughts on Government. Included in Common Sense, A Summary View of the Rights of British America, Thoughts on Government and Important Early American Political Writing [2010, Kindle Locations 1455–56]).

  31. 31.

    It is sometimes argued that Protestantism was the source of the antislavery movement, and it is true that Protestants were among the leading members of the abolitionist movement. However, it should be kept in mind that Protestants were also among the leading suppliers of slaves to South America and the southern United States. It was the rise of liberalism, which was new, as opposed to Protestantism which was two centuries old that provides the better explanation for the breadth of the support for ending slavery in the places where it did occur. Of course, it also helped that slavery was a relatively unimportant factor in the local economies where the new laws were passed.

  32. 32.

    Monopoly privileges could also be addressed at the state level. Calabresi and Price (2012: 96–101) noted that 11 states had adopted antimonopoly provisions and four others provisions against exclusive privileges in their state constitutions by the mid- to late-nineteenth century. See also Calabresi and Agudo (2008).

  33. 33.

    It may be surprising that liberalism was commonplace in the South in spite of their defense of slavery. The South’s constitution included a directly elected House of Representatives, appointed Senate, indirectly elected President, Supreme Court, Bill of Rights, and similar taxing authority (article 1, Sect. 8). There were a few procedural changes. The President, for example, was elected by the states (one vote per slate of state electors, Article II Sect. 3) and limited to a single term of office. Protectionist tariffs were ruled out by the requirement that tariffs and other taxes be uniform (article 1, Sect. 8). Southerners evidently had a narrower concept of citizenship than Northerners. Qualifications for male suffrage, for example, were more restrictive in the south than in the north, although less restrictive than in most of Europe at that time. The constitution of the Confederate States of America (CSA) can be found at http://avalon.law.yale.edu/19th_century/csa_csa.asp.

  34. 34.

    198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937, JOSEPH LOCHNER, Plff. in Err., v. PEOPLE OF THE STATE OF NEW YORK. No. 292. Argued February 23, 24, 1905. Decided April 17, 1905.

  35. 35.

    Schlesinger’s (1956) otherwise very nice short essay on American liberalism seems to miss this point; that most contemporary policy debates take place between liberals of various stripes. For Americans, this confusion is generated by the American association of the world “liberal” with what this paper refers to as “left liberals” and the European use of the term “liberal” for what in England were termed “doctrinaire liberals,” although few European liberals are doctrinaire these days. Rawls’ (1993) book on liberalism suffers from the same confusion.

  36. 36.

    In Europe, left liberals often called themselves social democrats, where as doctrinaire liberals called themselves liberals. In the United States, the term liberal became associated with left liberals (moderate progressives) and doctrinaire liberalism became a strand of “conservatism.” Nonetheless, all liberals accepted and defended the grounding liberal institutions of their societies: equal protection of the law, representative governance based on broad (now adult) suffrage, and civil liberties that included private property and broad freedom of contract.

  37. 37.

    Most members of Europe’s new social democratic and labor parties were left liberals in this sense. They came to power after World War I in Europe after the expansion of suffrage, but there was little nationalization or redistribution. Instead, social insurance programs were expanded and labor laws revised. Their disappointed illiberal (socialist) members often broke off and formed new Communist parties. A more complete discussion of this is provided in several of the historical chapters of Perfecting Parliament (Congleton 2011a, b).

  38. 38.

    Suffrage law was controlled by the states during this period, subject to constitutional constraints. Women’s suffrage had existed in some colony/states during colonial times but was eliminated in the first years of the United States at roughly the same time that suffrage for foreigners, Indians, and blacks was curtailed. Suffrage movements in the post-civil war period gradually generated voting rights for women in about half of the states. This was most evident in the West—possibly as part of efforts to attract residents to their territories—but also included several states in the East and Midwest. States in the southeast had the most stringent standards for male suffrage and generally provided little or no suffrage for women.

  39. 39.

    It is interesting to note that similar constitutional reforms, especially with respect to men’s and women’s suffrage, were being adopted by liberal–social democrat coalitions in Europe at about this same time.

  40. 40.

    Temperance movements swept through Europe at the same time but normally resulted in new regulations on usage and sales of alcohol, rather than constitutional amendments. An amendment was deemed necessary in the United States because the courts had routinely blocked governments from interfering with freedom of contract during the nineteenth and early twentieth centuries, although several states had passed various regulations on alcohol sales.

  41. 41.

    Mises (1927/1985) wrote a book on the state of liberalism in 1927, which can be read as a lament for the decline of European liberalism in the 1920s. In the preference for its English translation of 1962 and reissue in 1985, Mises laments the modern American usage of the term “liberal.” The terms “neoliberal” and “classical liberal” were introduced in the post-war period to describe the post-war strands of doctrinaire and moderate liberalism. In the United States, left liberals and other leftists have recently begun using the term progressive again, which implies that the term liberal may revert to its older and more common usage worldwide.

  42. 42.

    Copies of inaugural addresses by the presidents of the United States are available at http://avalon.law.yale.edu/subject_menus/inaug.asp.

  43. 43.

    The importance of constitutional governance was often given more emphasis in nineteenth-century speeches. Consider, for example, G. Cleveland’s 1885 inaugural address. “In the discharge of my official duty I shall endeavor to be guided by a just and unstrained construction of the Constitution, a careful observance of the distinction between the powers granted to the Federal Government and those reserved….The Constitution which prescribes his [the president’s] oath, my countrymen, is yours; the Government you have chosen him to administer for a time is yours; the suffrage which executes the will of freemen is yours; the laws and the entire scheme of our civil rule, from the town meeting to the state capitals and the national capital, is yours. Your every voter, as surely as your Chief Magistrate, under the same high sanction, though in a different sphere, exercises a public trust. Nor is this all. Every citizen owes to the country a vigilant watch and close scrutiny of its public servants and a fair and reasonable estimate of their fidelity and usefulness. Thus is the people’s will impressed upon the whole framework of our civil polity—municipal, State, and Federal; and this is the price of our liberty and the inspiration of our faith in the Republic.”.

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Congleton, R.D. A short history of constitutional liberalism in America. Const Polit Econ 29, 137–170 (2018). https://doi.org/10.1007/s10602-018-9257-2

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Keywords

  • Liberalism
  • American constitutional history
  • Colonialism
  • Rule of law
  • Constitutional political economy

JEL Classification

  • B00
  • H1
  • H11
  • F54
  • D83
  • D71