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Jefferson’s Mistake

Jefferson’s Declaration proved to be a powerful piece of revisionist literature.
Jefferson’s Mistake

History, if you subscribe to the wit of Mark Twain, doesn’t repeat, it rhymes. If you prefer the wisdom of William Faulkner, history doesn’t exist at all—the past is not even past. The recent turmoil in North Africa has proved that at least one of them was on to something, as American commentators across the political spectrum found in the Egyptian protests reflections of our own heritage. Consider Bill Kristol, who saw a bond, however attenuated, between the protesters in Cairo and “our own bold and far-sighted revolutionaries,” who 235 years ago severed ties with Great Britain and began their own democratic tradition, one “anchored even beyond the Constitution” in the Declaration of Independence.

Kristol was repeating a false but popular narrative: that the American War for Independence was a “revolution” in the modern sense and that the American liberal tradition is kindred in spirit to the democratic traditions of other free peoples. But as Russell Kirk once argued, the American Revolution was “a revolution not made but prevented.” Jefferson’s Declaration notwithstanding, our revolution was not rooted in the fanciful notions of natural rights but was a sustained effort to preserve liberties long secured by English law.

Enter The Constitutional Origins of the American Revolution, a timely book by Jack P. Greene and the latest in the New Histories of American Law series published by Cambridge. It’s timely because its topic is perennial: since Lincoln, politicians have endeavored to ground their vision for America’s future in the ideas of her past, particularly in those of her founding.

Origins, at a brief 198 pages, is singularly focused and easily read. Arguing that the tension between Britain proper (the “metropolis”) and her North American colonies (the “peripheries”) stemmed from competing interpretations of the British constitution, the book samples the relevant literature of the period. In doing so, it avoids detailing the string of events leading up to 1776. Indeed, the French and Indian War, the Stamp Act, the Townshend Acts, the Tea Act, and even the Glorious Revolution of 1688—which, as it was with Kirk, is central to Greene’s argument—aren’t substantively described at all. As a result, Greene’s audience will at least need a cursory understanding of Anglo-American history.

As he explains, metropolitan and peripheral Britons lived and operated under three separate constitutions. Within the constitution of Great Britain proper, certain rights and liberties, including the right to consent to taxation, were vested in all Britons, and a transition from monarchial to parliamentarian supremacy increasingly came to define the British concept of limited government. The constitution(s) of the several colonies, by way of custom and necessity, had impressed upon the colonists a notion of autonomy, at least in internal matters. Quoting Burke, Greene writes that in the decades following 1688, the colonies had formed “assemblies so exceedingly resembling a parliament, in all their forms, functions, and powers, that it was impossible they should not imbibe some opinion of similar authority.” Yet the third constitution—that of the empire as a whole—was largely undefined. How far did Parliament’s supremacy extend? What were the limits of the colonies’ autonomy? Were the Crown’s attempts to secure a more absolute power in the colonies legitimate?

Numerous and articulate attempts to answer these questions by the learned men of the age are well documented by Greene. Extracts from Dr. Johnson’s Taxation No Tyranny, John Dickinson’s Letters From a Farmer in Pennsylvania, Hamilton’s The Farmer Refuted, and Burke’s speech on American conciliation—among many, many other selections—present the Anglo-American problem as an easily understood arc. At the outset, the colonies enjoy a period of “lax administration,” in which promoting the “economic well-being of the empire in general and, not incidentally, [avoiding] political difficulties at home” are the central objectives of British colonial policy. But metropolitan writers soon begin arguing for increased authority over the colonies and, as the climax nears, a wave of colonial literature, while still in opposition to metropolitan encroachment, nevertheless concedes a “distinction between Taxation and Legislation” and resigns to “Confine the dispute to that of Taxation only.” Gradually, though, the literature reveals the seeds of extremity. Following the crisis over the Townshend Acts, Benjamin Franklin, in a letter to his son, wonders whether something might be made of the extreme positions held by the more “advanced thinkers” on each side—that Parliament either has the power to make all of the laws for the colonies or that it has absolutely no power to legislate over them.

Most interesting, perhaps, is the fact that the subject of Greene’s survey is wholly applicable to today’s political arena:

[The 18th-century colonist] lived under two governments, one imperial in scope and exercising full general powers over foreign affairs, war and peace, and external trade and the other a colonial government that ‘was peculiarly his own.’ Although the several colonial governments were by no means ‘in possession of complete authority,’ they had long exercised actual and virtually exclusive jurisdiction over almost all matters of purely local concern.

Sound familiar? The allocation of powers within our federal system, a recurring issue in American politics, is nothing if not an echo of the challenging constitutional arrangement of imperial Britain. Again history seems to repeat in not-so-subtle variations. And the past indeed is not past.

The strength of Greene’s book is also its weakness. The brief quotes that populate his survey offer no great insight into the minds of their authors and, alone, must make Greene’s argument for him. This minimal approach offers little in the way of analysis and lets two major questions go unanswered—despite being raised often, if sometimes implicitly. First, would earlier, sustained attempts by the metropolis to define the imperial constitution have prevented the colonists’ gradual turn toward independence? And second, why has the celebrated narrative of the Declaration of Independence come to define the origins of the American Revolution?

In fairness, these questions go unanswered because Greene is concerned only with documenting that the cause of the American Revolution was “the unintended consequence of a dispute about law.” As such, Origins is perhaps best read as a complement to other works on related topics. For instance, Greene writes:

When Thomas Jefferson and his colleagues in the Second Continental Congress produced the Declaration of Independence in the summer of 1776, they made extensive use of natural rights theory, and in that way the Declaration presented something of a departure from the impressive political tracts and state papers they had been producing over the previous twelve years. Natural rights theory had not been absent from that literature, but it had never been more than complimentary to their principal argument, which rested on law. Specifically, that argument, following logically from the colonists’ own heritage of legal and constitutional thought over the previous century and a half, was largely founded on the English jurisprudential conception of government as a limited government and of the British constitution as a constitution in which law set boundaries on the discretion or will of monarchs, judges and legislators—a conception that, even after the rise of the doctrine of parliamentary suprem acy, still had much vitality in Britain itself.

If a majority of the colonial literature between 1688-1776 advocated against metropolitan encroachment primarily on constitutional grounds, in what context should we view Jefferson’s Declaration? Turning again to Russell Kirk:

The Francophile Jefferson …was atypical of the men, steeped in Blackstone and constitutional history, who sat in the Continental Congress. Yet the Congress accepted Jefferson’s Declaration, unprotestingly. Why?

Because aid from France had become an urgent necessity for the Patriotic cause. The phrases of the Declaration, congenial to the philosophes, were calculated to wake strong sympathy in France’s climate of opinion; … those phrases achieved with high success precisely that result. It would have been not merely pointless, but counterproductive, to appeal for French assistance on the ground of the ancient rights of Englishmen; the French did not wish Englishmen well.

Thus we have a fuller picture. Competing interpretations of the three British constitutions led to the American Revolution, which was not a revolution in the modern sense. That our fight for independence is remembered today as a democratic revolution is due in no small part to the talented, faint-hearted Jacobin Jefferson, whose Declaration of Independence was intended to recast the Anglo-American dispute for the colonies’ exigent political gain.

In the end, of course, Jefferson’s Declaration proved to be a powerful piece of revisionist literature. After all, from Lincoln’s Gettysburg Address to Reagan’s incessant quoting of Thomas Paine, a succession of national leaders has cast American political theory in the mold of late Enlightenment thinking. George Will has said that the United States is James Madison’s country. But to say that it is Thomas Jefferson’s country is probably more accurate. He literally helped shape the nation; he built a proverbial, secular wall that still stands; and he left us with an abstract, philosophical legacy that has contributed to a deficiency in our historical perspective, the price of which is the erosion of Madison’s republican vision and eventual loss of our distinct culture.

Nevertheless, a century’s worth of literature, as Origins reveals, firmly places the constitutional origins of America not in abstract principles but in a sound legal tradition, one that separates us not just from the rest of the world but from most of the West. Understanding this tradition gives our culture distinct parameters, by which we can better preserve it. That is the importance of a book like Origins.

Origins is an impressive contribution to the study of legal history. Clear and succinct, its brevity will scare away neither the casual reader nor the beginning student, while its meticulously researched references will attract the seasoned scholar. Most importantly, its subject will be relevant as long as Americans continue to dispute the “ancient problem of how, in an extended polity, to distribute authority between the center and the peripheries.”

Stephen B. Tippins Jr. is an attorney in Georgia clerking for the Piedmont Judicial Circuit.

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