Due Process of Law, #4: America’s Founding – The Capstone of the Age of Enlightenment

Declaration of Independence presented to 2nd Continental Congress 6-28-1776

1818 painting by John Trumbull
First draft of the Declaration of Independence being presented to the Second Continental Congress

By Jeff Rutherford

[Part 1 was called “Can a Law be Unlawful?”]
[Part 2 was called “What Makes a Government’s Actions Legit?”]
[Part 3 was called “Cicero and Aquinas Preserved Aristotle’s Flame”]

This series has been tracing the lineage of the concept of Due Process of Law from the dawn of the notion of individualism in ancient Greece, through the Roman Republic and Empire, the Dark Ages, the feudalism of Medieval Europe, and into Europe’s Age of Enlightenment.  Now Part 4 describes how these centuries of philosophical seeds migrated across the Atlantic and took root in the American colonies, forming the political basis for the American Revolution and influencing the structure of the American Republic.

Origins of American Constitutionalism - Donald LutzIn 1988, University of Houston political science professor Donald Lutz’ book The Origins of American Constitutionalism contained the results of a 10-year study of historic political writings during the American Founding era – 1760 to 1805.  The study identified and counted the most-cited sources of direct quotations in over 3000 of these Founding-era writings.  The single most quoted document was the Bible – 34%.  Among all other documents directly quoted, here were the top three most quoted individual philosophers from the European Enlightenment:

8.3% — Baron Charles de Montesquieu (1689-1755), French philosopher and lawyer.  Most quoted work: De l’Esprit des Lois (The Spirit of the Laws), 1748.

7.9% — Sir William Blackstone (1723-1780), British judge and law professor.  Most quoted work:  Commentaries on the Laws of England (4 volumes), 1765-1769.

2.9% — John Locke (1632-1704), a British physician and political philosopher.  Most quoted work:  Two Treatises of Government, 1689.

I have already quoted ideas from the cited works of Blackstone and Locke in Part 2, but Montesquieu is new to this narrative so let’s pause for a sample.  Regarding the necessity for reasoned and promulgated laws, here is an example viewpoint of the Founders’ most-quoted Enlightenment thinker:

MontesquieuMontesquieu:  “Under moderate governments, the law is prudent in all its parts, and perfectly well known, so that even the pettiest magistrates are capable of following it.  But in a despotic state, when the prince’s will is the law; though the prince were wise, yet how could the magistrate follow a will he does not know?  He [would] certainly follow his own.”

Was There an American Enlightenment?

Dr Bernard Bailyn todayPulitzer Prize-winning author and historian Bernard Bailyn, Ph.D., now nearly 93, was a Harvard history professor from 1949 until retiring from regular teaching in the 1990s, though he has continued to write and lecture as a renowned expert on Atlantic History.  He is a staunch opponent of 20th / 21st century Progressive revisionist history.  Here, I will draw upon two of Dr. Bailyn’s works from the 1960s, when he began to counter the emerging Progressive narrative that the American Revolution was little more than a simple rebellion against economic repression.

(photo credit)

The Age of Enlightenment is defined by historians to have included the American Revolution and Founding; the ratification of the U.S. Constitution marks the end of the Enlightenment period.  Yet rival history academics from both sides of the Atlantic continue debating whether America’s Founders contributed any “truly original ideas” to the Enlightenment.  A fourteen-page essay by Dr. Bailyn published in The American Historical Review of 1962, entitled Political Experience and Enlightenment Ideas in Eighteenth-Century America, left no doubt where his own research of pre-Revolution political pamphlets had led him on that question:

“The more we know about these American provincials the clearer it is that among them were remarkably well-informed students of contemporary social and political theory.  There never was a dark age that destroyed the cultural contacts between Europe and America. The sources of transmission had been numerous in the seventeenth century; they increased in the eighteenth.  There were not only the impersonal agencies of newspapers, books, and pamphlets, but also continuous personal contact through travel and correspondence.

“… The Americans were acutely aware of being innovators, of bringing mankind a long step forward. They believed that they had…succeeded [so well] in their effort to reshape circumstances to conform to enlightened ideas and ideals, that they had introduced a new era in human affairs. And they were supported in this by the opinion of informed thinkers in Europe.  …No one doubted that a revolution that threatened the existing order and portended new social and political arrangements had been made, and made in the name of reason.

“… Long-settled attitudes were jolted and loosened.  The grounds of legitimacy suddenly shifted. What had happened was seen to have been good and proper, steps in the right direction.  … Precisely because so many social and institutional reforms had already taken place in America, the revolutionary movement there, more than elsewhere, was a matter of doctrine, ideas, and comprehension.

“… In behalf of Enlightenment [philosophies,] the revolutionary leaders undertook to complete, formalize, systematize, and symbolize what previously had been only partially realized, confused, and disputed matters of fact.  Enlightenment ideas were not instruments of a particular social group, nor did they destroy a social order. They did not create new social and political forces in America. They released those that had long existed, and vastly increased their power. This completion, this rationalization, this symbolization, this lifting into consciousness and endowing with high moral purpose [the Enlightenment’s unfinished], confused elements of social and political change – this was the American Revolution.”

In 1967 Dr. Bailyn published his best-known book – and his first Pulitzer Prize winner:  The Ideological Origins of the American Revolution.  The book’s second chapter opened seemingly as an extension of his 1962 essay by summarizing how the political, social, religious, and economic ideas and pressures all combined, leading to a growing inevitability of historic change:

Book Cover - Ideological Origins of the American Revolution“The intellectual history of the years of crisis from 1763 to 1776 is the story of the clarification and consolidation under the pressure of events of a view of the world and of America’s place in it only partially seen before.  Elements of this picture had long been present in the colonies – some dated from as far back as the settlements themselves – but they had existed in balance, as it were, with other, conflicting views.  Expressed mainly on occasions of controversy, they had appeared most often as partisan arguments, without unique appeal, status, or claim to legitimacy.

Then, in the intense political heat of the decade after 1763, these long popular, though hitherto inconclusive [Enlightenment] ideas about the world and America’s place in it were fused into a comprehensive view, unique in its moral and intellectual appeal.  It is the development of this view to the point of overwhelming persuasiveness to the majority of American leaders and the meaning this view gave to the events of the time, and not simply an accumulation of grievances, that explains the origins of the American Revolution.

For this peculiar configuration of ideas constituted in effect an intellectual switchboard wired so that certain combinations of events would activate a distinct set of signals – danger signals, indicating hidden impulses and the likely trajectory of events impelled by them.  Well before 1776 the signals registered on this switchboard led to a single, unmistakable conclusion – a conclusion that had long been feared and to which there could be only one rational response.

Conclusion of Part 4

Having now firmly established the direct lineage of political philosophy that founded the United States of America, future additions to this series will continue tracing the twists and turns of Due Process of Law concepts through 2 1/3 centuries of Supreme Court case law and America’s numerous political eras.


About Necessary and Proper

Jeff believes in the Individual's ability to excel when liberty and freedom of choice are protected. Also believes in the Community's ability to take care of the vast majority of its own issues and needs when the federal government leaves the Community's resources and sphere of control alone. State and local choice produce better results than centralized federal control. https://necessaryandpropergovt.wordpress.com/
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2 Responses to Due Process of Law, #4: America’s Founding – The Capstone of the Age of Enlightenment

  1. Hey, Jeff!

    Goodness, you’ve been busy while I’ve been gone! Just spent the last ten minutes or so scrolling through some of your more recent posts and catching up.

    I’ve particularly enjoyed this series so far; indeed, I find it even more enjoyable because I just finished reading Stephen Ambrose’s book on Lewis: “Undaunted Courage.” Have you read it?

    Incidentally, the thing that stood out to me the most, and one which I hope you will address, is the blindness of some members of the Enlightenment with regard to their treatment of other people groups (specifically the African and Indian peoples).

    I’ve really enjoyed reading your recent posts, and I’m looking forward to keeping in better touch going forward. I’m finally getting back to writing!

    Liked by 1 person

    • Hi David. It’s been 4½ years since I last heard from you. Knowing that you exist again, I’ve resubscribed to your blog. Yes I’ve published 80 more articles since Oct 2014, but only 5 in the last 2½ years. I post something here on the blog when I have an urge to write a multi-point long-form essay, with graphics for emphasis. Otherwise, I’ve gotten into the lazy habit of posting my shorter linear thoughts on Facebook. I don’t know if & when I’ll take up the thread of this Due Process of Law string of essays again…..

      I have read (listened to) “Undaunted Courage”, and enjoyed it. At one point in that book, which I consumed as an audio book during my 2 hours of commuter driving time per day, I was delighted by a very unlikely coincidence. It was the point where Lewis and Clark divided into two teams temporarily in Nebraska. Clark took some men and headed west-southwest following the Platte River to see where it emerged from the Rockies onto the plains, while Lewis continued heading northwest up the Missouri River. At the exact point in the book where Clark’s party reached the place where the South Platte comes out of the mountains, I was driving over a bridge at that very place! I mean, the EXACT place. I don’t remember what year that was, but it was approximately 200 years after the Lewis & Clark Expedition.

      Anyway, I’m wondering how you connected my topic of the history of the concept of Due Process of Law to the Lewis & Clark Expedition. (?)

      On your question (“the blindness of some members of the Enlightenment with regard to their treatment of other people groups, specifically the African and Indian peoples”), here are some thoughts:

      I haven’t studied the viewpoints of the European thinkers from the Enlightenment period regarding slavery and territorial conquest. If you mean the American Founders who were devoted students of the Enlightenment philosophers, I can comment a bit on that. Also, I have a hunch you mean the American Indian people, not the people of India.

      Slavery was a worldwide norm at the time of the American colonies and the lead-up to the American Revolution. We tend to judge historical figures by applying today’s morals and modern social standards. That’s become very popular in the last few years as statues of Jefferson and Washington are defiled and removed, and as college campus buildings named after some of our Founders are renamed. But the American Founders recognized that slavery was morally wrong, and did their best to set in motion its extinction on the N. American continent. The U.S.A. should at least be given credit by today’s younger generations for being among the first countries to abolish slavery, instead of just being hated for having had slavery in the first place. The prevention of slavery didn’t happen during the actual founding of America, because the southern colonies already had slavery and were economically dependent upon slave labor, and unfortunately could not bring themselves to abolish it in the original Constitution that could be ratified by all the original states. The framers of the Constitution did their best to compromise in order to be able to form the U.S.A. under a practical and sustainable framework of government structure and laws. It’s easy to look back and project our modern sensibilities upon them and think they lacked courage, but that was an entirely different time in the advancement of Western Civilization.

      Regarding the treatment of the Native Americans, that was also not something to be totally proud of. But I don’t think that was quite the same as the practice of slavery. Rather, I think that was territorial conquest, which quite frankly was a normal part of human history. It is not viewed as acceptable today, but in the period of global colonization, it was normal. Even the tribes were guilty of it. The more brutal tribes like the Sioux, Comanche, Apache, Cherokee, and Lakota were constantly conquering the weaker tribes and claiming their land (and yes, even enslaving the vanquished tribes). That’s no less a legacy of conquest than the Europeans are “guilty” of as they colonized the eastern seaboard and then advance westward across N. America.

      What I’ve been studying and writing about in this series of articles applies once a government has been established. How should a government recognize and protect the natural rights of its citizens? What should be the process for creating morally valid laws? And for enforcing those laws? And for revising those laws?

      If I’ve missed the thrust of your inquiry, please let me know. If/when I continue this series of articles, I was going to start tracing the ups and downs of Due Process of Law through the history of the U.S.A. The main book that got me fascinated by these concepts and this legal history was “The Conscience of the Constitution — The Declaration of Independence and the Right to Liberty; 2014, by Timothy Sandefur”. I recommend it.

      If you’re interested in seeing my entire book list (past, present, and future readings), I have a page on this blog called Jeff’s Bookshelf. Take a look.

      – Jeff


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