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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