Constitutional Cause and Effect

On July 3, 1776, the people of Britain’s 13 American colonies were united by their connection to King George III. A day later, they were no longer subjects of a king but citizens of a free society. At that very moment, they were in a state of near complete freedom.

But what exactly did that mean? And is a state of absolute freedom sustainable for more than a relatively short period of time?

The revolutionary generation was therefore confronted immediately by a series of difficult questions. At the highest level of abstraction, they had to answer the following questions and many more:

• What kind of free society were the Americans to live with? Indeed, how did they understand what freedom is or should be?

• Without a king or national church, what would hold them all together in freedom?

• What sort of government was appropriate for a free society?

• How were the American people to constitute themselves as a nation or a people? What way of life would they pursue as uniquely theirs?

• Did they think their political forms and formalities would generate a particular soul-type or kind of human character? And, more specifically, did they think that a free society could generate some form of moral virtue and human excellence, and, if so, how would those virtues and excellences be generated?

The answer to the first question is relatively simple: they chose to create a free, constitutional republic. Alternatively, we might say that America’s Founding Fathers created and developed a new form of government that we may designate as self-government. Either way, the form of government they chose and implemented was new in the history of political philosophy and untried in the history of political practice. They discovered, developed, and implemented what Alexander Hamilton referred to in the ninth essay of The Federalist as a new and improved “science of politics”—a science of politics “either not known at all, or imperfectly known to the ancients.” Thus, the Founding of the United States was an experiment to determine whether republican self-government was possible in practice.

Based on what Hamilton referred to as “wholly new discoveries” in the science of politics, the American Founding qua experiment presented a philosophic and political break with the past. Gone from American-style government and politics were rulers such as kings, aristocrats, and priests. These kinds of men (i.e., rulers) and what they represented (i.e., order, hierarchy, and deference) were replaced by abstract principles grounded in reason and nature (as opposed to history), such as freedom, equality, rights, rule of law, separation of powers, representation, and constitutionalism.  

The Americans, Thomas Paine declared in Common Sense (1776), have it in their “power to begin the world over again,” which is precisely what they did. Fifteen year later, Paine announced in Rights of Man (1791) that America’s independence from Great Britain was accompanied “by a revolution in the principles and practice of governments.” The Declaration of Independence, the state constitutions and their bills of rights, and the federal Constitution and its Bill of Rights were the highest expressions and most important symbols of America’s revolutionary society. This new Enlightenment society and its various of governments were to be grounded in reason, nature, rights, freedom, and a new understanding of moral virtue and social order. America’s Founding Fathers were in the process of creating a novus ordo seclorum.

With the ratification of the United States Constitution in 1788 and then the launching of America’s first ever national government a year later, millions of Americans were about to experience a level of freedom unknown to any people anywhere. The framing and ratification of what I have called America’s laissez-faire Constitution created and expanded new spheres of freedom for millions of Americans and soon-to-arrive immigrants from Europe. In America, according to French immigrant J. Hector St. John de Crèvecœur in his Letters from an American Farmer (1782), “man is as free as he ought to be.”

In breaking their social and cultural ties with Great Britain and the rest of Europe, the Americans had to learn how to be free—free not so much from British political institutions but from the remnants of the old social ties that had formerly bound them together in an ordered society of inherited ranks and deference. This new society was dedicated to and founded upon the proposition that all men “are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.” As a result, a new social order was forming in America partly by design and partly without design. This new nation would no longer be a command-and-control society governed by a ruling elite of churchmen, aristocrats, and bureaucrats.

At the highest level of abstraction, several questions hung over the future of this new republic. First, where should the line be drawn between liberty and authority? Second, when does liberty become license? Third, when does authority become tyranny? Fourth, what kind of social order and way of life would emerge from a culture defined by political, social, and economic freedom? Fifth, could a free society promote and sustain the kind of moral virtue in its citizenry necessary to prevent social chaos. And finally, how could this new and free society promote moral virtue without government coercing its citizens to be good? In sum, how could moral, social, and political order emerge from freedom?

To answer these difficult questions, American constitution-makers had to confront a longstanding prejudice cum truism in political theory and practice, namely that freedom leads to chaos and that liberty leads to moral vice. In other words, how were the Americans to reconcile what had previously been thought of as irreconcilable, namely, freedom and order, liberty and virtue?

Fortunately, we have both the vantage and therefore the advantage of historical perspective to explore and hopefully answer all these questions. We know how it all turned out.

This much we know with certainty: during the post-Founding period, the American people developed a strong sense of national identity and loyalty without the directions and push of Church and State. Remarkably, American nationalism, unlike other forms of nationalism, was not defined by race, blood, ethnicity, religion, history, custom, prejudice, superstition, or the State. The national character was defined instead by a new kind of patriotism—a kind of patriotism that was determined less by place and race than by a shared commitment to certain ideas (e.g., freedom and rights) and a way of life (e.g. individualism and self-governance).

In coming to understand what America’s Founding Fathers created, we must also be able to explain the origin of and conditions for the free-enterprise revolution that exploded onto the American scene in the post-Founding period. We know, for instance, that America’s remarkable nineteenth-century industrial revolution was not the result of meddling politicians, political brain trusts, or economic planners. Underlying this growth and making it possible were deeper moral-constitutional-political causes. America’s economic revolution was, to be sure, the result of hundreds of thousands and then millions of ordinary men and women finding new outlets for their entrepreneurial skills and productive energies, but there were more fundamental causal forces that unleashed this outburst of wealth creation.

What made it all possible? What was the cause of American freedom, loyalty, unity, virtue, and productivity?

Our Working Hypothesis

This essay is about constitutional cause and effect. (Today’s essay is more about the cause than the effect. I will be discussing the effects of America’s laissez-faire Constitution on American society in future essays.) More specifically, this essay shall argue that the framing and ratification of the United States Constitution was the formal cause of the historically unique society that emerged from it, and, more particularly, of the moral, political, and economic revolution that defined nineteenth-century America.

At the highest level of abstraction, we can say that the American Revolution and then the Founding of the United States changed everything. This change was not immediate and convulsive as with the French Revolution, but it did trigger a fast-moving process that swept away the colonial ancien régime over the course of a generation or two and ushered in a new kind of society the likes of which had never been seen before.

When George Washington toured the southern states in the spring of 1791, he saw firsthand the cause-and-effect relationship between the Constitution and its moral-economic effect on the people of the South. The region, he wrote to a friend, “appears to be in a very improving state, and industry and frugality are becoming much more fashionable than they have hitherto been there.” Washington attributed this state of affairs to “the good effects of equal laws and equal protection.” Four years later, Thomas Tudor Tucker, a South Carolina physician and congressman, noted that the “true cause” of the “rapid growth” of American prosperity was the “wholesome operation of our new political philosophy” and the “new order of things that has obtained amongst us.”

How did this happen? How, in what way, did the Founders’ laissez-faire Constitution serve as the cause for the moral-social-cultural-political-economic revolution of the nineteenth century?

The principal goal of the American Founding was to create republican constitutions, republican governments, and a republican society. This meant that constitutions were to be separated from governments, and governments were to be separated from private spheres of action (e.g., moral, cultural, and economic). The idea was to deflate the role of government in society and to inflate the role of individual self-government. Thus, America’s founding generation came to view state power and its relationship to the private sphere in radically new ways. There was, in other words, to be a revolution in the forms and formalities of American government and politics, which in turn prompted a no less revolutionary change in the manners and mores of the American people. In the words of James Cheetham, editor of the Jeffersonian republican newspaper, the American Citizen, the “vital part of government” was the “self-management of self-concerns.”

The Constitution was itself a consequence with its own causes, but for our purposes we shall view it as a starting point. The institutionalization of freedom and man’s natural rights in the Framers’ laissez-faire constitution of 1788 was the primary causal force in fostering a new kind of American patriotism and moral virtue and in liberating the productive energies of the American people. The Constitution removed the traditional barriers to human action, and it created new and expanded spheres of freedom for men and women to think, choose, act, move, produce, and trade. In other words, they created governments limited and restrained in their exercise of power so that the people would be left free to exercise their rights and become morally self-governing.

Constituting Freedom

In an important sense, the Founding generation began with a political tabula rasa. When they cut ties with their King, their Parliament, and their British cousins, they were operating, certainly politically, from a clean slate. At the first Continental Congress in September 1774, Patrick Henry told his fellow delegates: “Government is dissolved. . . . We are in a State of Nature.” Several states, for instance, operated without legally functioning governments for several years.

Unlike French revolutionaries, the Americans did not attempt to eradicate their past by destroying all their inherited manners and mores and political institutions in one fell swoop. The Americans’ colonial governments were mostly vacated (particularly in the royal and proprietary colonies), and the new state constitutions and governments retained the best elements of their cultural and political inheritance, but they also discarded some of the moral, religious, cultural, and political vestiges of the old, status-based society that were outdated, deficient, unjust, or irrelevant relative to their new moral principles. As a point of comparison, for instance, they rejected New England’s seventeenth-century, semi-theocratic, Puritan regime as a legitimate form of government.

Post-1776 American revolutionaries began the process of liberalizing criminal law, eliminating primogeniture and entail in those states where it still existed, disestablishing state churches, and gradually abolishing slavery in the northern states. Several of the new, revolutionary state constitutions disconnected the traditional colonial assumption that high office and political power were privileges and rights afforded to gentry families and their offspring. The 1784 New Hampshire constitution declared, for instance, that “no office or place whatsoever in government, shall be hereditary—the abilities and integrity requisite in all, not being transmissible to posterity or relations.” Post-revolutionary Americans were not so much destroying their past as simply moving on.

These new state constitutions, while mirroring some aspects of their colonial governments, were fundamentally different from their antecedents. All remnants of their former association with Great Britain (e.g., royal appointments and vetoes) were removed from their new constitutions and governments. In most instances, American revolutionary state constitution-makers and then the Framers of the U. S. Constitution sought fewer government restraints so as to liberate the repressed energies of this impatient and ambitious people, particularly in the economic realm.

There was a general agreement amongst the Founding Fathers that the purpose of government was to guarantee freedom for all citizens to acquire, trade, bequeath or keep property, to choose their occupations, and to invest in and launch enterprises. The government created by “We the people” was therefore limited in what it could do. The Founders were proponents in one way or another and to one degree or another of economic freedom in its various manifestations (i.e., laissez-faire [“Let it happen’], laissez-nous faire [“Let us do”], laissez-passer [“Let pass”], laissez-travailler [“Let work”], and laissez-placer [“Let it be”]), which meant free markets, free enterprise, and as little government regulation of the economy as possible. More specifically, early republic American liberalism meant freedom to think, freedom to choose, freedom to work, freedom to invest, freedom to assume risks, freedom to choose an occupation, freedom to establish a business, freedom to produce, freedom to sell and trade, freedom to compete, freedom to spend, and freedom to acquire and keep.

The government created by the founding generation was, as I have indicated in the conclusion to “Order from Chaos,” what I called the “anti-regime, regime.” The purpose of government was not to mold the souls of its citizens as was the case for Plato and the Puritans, nor was it to make them equal or the same as it is today. This minimal, night-watchman government of the late-eighteenth and early-nineteenth century did not engage in wealth distribution; nor, for the most part, did it pass legislation either to make men better than they otherwise would be or to prevent them from making themselves worse than they would otherwise be. Nor was political power to be used to unite or make the American people patriotic. Instead, government’s proper role—it’s moral role—was to protect Americans at home and abroad and to otherwise leave them alone. In the words of George Logan from Pennsylvania (one of eighteenth-century America’s first followers of Adam Smith and the French physiocrats), “For a government to interfere in the occupations or in the private actions of citizens is not only unjust and impolitic but is highly dangerous to the liberties of the People.” Freedom—freedom from government and the freedom to pursue happiness—made men patriotic.

As is well known, the Founders’ laissez-faire constitution created a government that contained an internal system of constraints against the natural tendency of government to grow in the direction of Leviathanism. America’s Founding Fathers understood that, throughout history, concentrated government power had proven to be the chief instrument thwarting man’s freedom. They understood implicitly what Lord Acton would famously say a century later, that “power tends to corrupt, and absolute power corrupts absolutely.” The Founders knew, claimed South Carolina’s Thomas Tudor Tucker, that “the love of power is among the most ungovernable of human passions, and by the misfortunes of other nations they were taught, that to confine it within due and wholesome limits, is a science, in which mankind had made but little proficiency.” The trick, of course, was to establish a government with enough power to protect freedom, maintain order, administer justice, pay its debts, remove obstacles to the production and trade, and keep foreign foes at bay.

The Founders’ constitutional system included five principal elements that controlled the accumulation and abuse of power: one, a clear separation of the federal government’s legislative, executive, and judicial powers (see Articles I, II, and II); two, a limitation of the central government’s authority to specific, delegated powers (see Article I, sections 8 and 9); three, an implosion of political power away from the federal government to the states and to the people (Article I, sections 8 and 10, and Amendment X); four, modes of political representation that kept politicians close to the people (Article I , sections 2 and 3); and five, a prohibition against any rash alteration of the system as a whole (Article V).

Not surprisingly, then, the reach and power of the federal government before the Civil War was Lillipution and anemic. The federal government exercised very little power over the private affairs of the people. Its primary responsibilities were to protect the nation from foreign invasion, to preserve the peace, and to serve as an impartial arbiter adjudicating disputes among citizens. More specifically, the functions of government during this period were largely limited to protecting American citizens from unjust force, theft, fraud, as well as serving as a neutral arbiter in the enforcement of contracts. America’s most principled late eighteenth- and early nineteenth-century laissez-faire constitutionalists proposed a much more limited interpretation of the police power to regulate health, safety, and morals.

The Founders and their nineteenth-century political progeny understood that government and politics should be directed toward achieving the maximum amount of freedom for individuals that is consistent with the maintenance of social order. They understood that the life of freedom requires the establishment of justice and legal order, and that it is impossible for one man to be free if another can deny him the exercise of his freedom. The legal order and system of justice that came with America’s new constitutional republic served two related functions: first, to secure a man’s right to be let alone by others or government, and second, to protect the liberty and rights of individuals to acquire, keep, and trade property.

In the Founders’ new America, individual rights trumped the will of the community and the “common good.” Indeed, to the extent that concepts such as the “common good,” “general welfare, or “public interest” had any valid meaning in post-Founding America, they were meant to indicate the aggregation and protection of the rights of individuals. The “good” that was “common” to all Americans included freedom, justice, and protection. The Revolution and Founding had prepared Americans to apply the concept of rights to all aspects and realms of their lives, including politics, religion, society, culture, and economics. During the post-Founding era, for instance, the American people and their political and judicial representatives expanded the realm of individual freedom to the economic sphere.  And once they were able to limit State power and State action in economic matters, the American people established the principle that ruling authorities were not to meddle with the private economic transactions of private people.

Martin Van Buren, the eighth president of the United States, who served from 1837 to 1841, noted in a message to Congress, that all political “communities are apt to look to government for too much,” but his, he warned, “ought not to be.” Luckily for America, he continued, the “framers of our excellent Constitution . . . acted at the time on a sounder principle,” i.e., they “wisely judged that the less government interferes with private pursuits the better for the general prosperity.” The only legitimate domestic function of government, Van Buren noted, “is to enact and enforce a system of general laws commensurate with, but not exceeding, the objects of its establishment, and to leave every citizen and every interest to reap under its benign protection the rewards of virtue, industry, and prudence.”

Much beyond that, it should not go.

De-Legislating Freedom

The constitutional regime established in America during the revolutionary-founding period created new spheres of freedom for those hard-working Americans who were willing to dedicate themselves to improving their lives through industry, frugality, and enterprise. It was precisely because of America’s laissez-faire constitution that American society between 1790 and 1860 was undoubtedly the freest ever known in human history. Late eighteenth- and early nineteenth-century Americans were almost certainly the freest people in history because they were mostly left alone by their governments and because they were hyper-sensitive in protecting their rights. As a result, a new kind of entrepreneurial spirit was unleashed by the culture of freedom liberated by America’s individual-rights republic.

Post-Founding, antebellum America was not—to be sure—a pure, uncompromised laissez-faire government or society, but the general climate of opinion clearly favored economic liberty. The Founders’ laissez-faire constitutions were designed to prevent the federal and state governments from infringing on the people’s right to own property, engage in production and trade, and keep the fruits of their labor.

As Gustave de Beaumont, Alexis de Tocqueville’s American travelling companion, put it: “The new society in which we are does not at all resemble our European societies. It has no prototype anywhere. . . . It’s quite a remarkable phenomenon, a great people which has no army, a country full of activity and vigour where the action of the government is hardly perceived!” Beaumont was suggesting that government in America was barely seen, heard, or felt.

Likewise, Tocqueville observed the same thing about life in America during his trip with Beaumont: “Here freedom is unrestrained, and subsists by being useful to every one without injuring anybody. There is undeniably something feverish in the activity it imparts to industry and to the human spirit. . . . The fact is that this society is proceeding all alone and is lucky . . . to encounter no obstacles.” The feverish energy that Tocqueville witnessed was the result of the spirit of American freedom, which left men free to work and produce.

One of the happiest consequences of the absence of government (when a people is happy enough to be able to do without it, a rare event) is the ripening of individual strength which never fails to follow therefrom. Each man learns to think and to act for himself without counting on the support of any outside power which, however watchful it be, can never answer all the needs of man in society. The man thus used to seeking his well-being by his own efforts alone stands the higher in his own esteem as well as in that of others; he grows both stronger and greater of soul. . . . The most important care of a good government should be to get people used little by little to managing without it.

The moral effect of America’s laissez-faire government was, according to Tocqueville, to foster a new kind of man—a self-governing man—who lives rationally, honestly, and independently and who develops a kind of justly earned pride and magnanimity of soul.

This new reality-based approach to living and moral virtue incentivized, aided, and ultimately required of American men and women that they use their minds to confront reality directly, independently, and honestly. This fact, more than any other, led hundreds of thousands and then millions of common people to engage in invention, production, and commerce. Nineteenth-century Americans were further aided and abetted in their pursuit of happiness by a government and a system of justice that increased the likelihood that the wealth they had produced would not be taken from them.

As early as 1792, the Pennsylvanian George Logan noted in his Five Letters to the Yeomanry that history “does not furnish a single instance of Legislators interfering, and directing the occupations of citizens, but with injury.” America’s founding Legislators learned history’s lesson. They were therefore well advised, according to Logan, to limit their legislative activities to the passage of laws that define and protect individual rights and that are in accord with the moral and economic laws of nature. This meant that ordinary Americans in the United States should expect several degrees of separation from their politicians, which included the freedom to work, create, buy, sell, hire, invest, negotiate, trade, compete, and keep without the interference of government officials. The “leave us alone” philosophy was a way of life in America.

What this entailed in practice is that America’s laissez-faire governments were to leave individuals free to buy whatever and from whomever they want, to sell whatever and to whomever they want, to invest in whatever and with whomever they want, to hire or to work for whomever they want at whatever terms and wage is agreed upon, and, finally, to keep the fruits of their labor or investments. Governments were not be involved in the realm of economic activity other than to keep the market free and to adjudicate disputes when necessary. In Adam Smith’s words, every individual should be “perfectly free to pursue his own interest his own way, and to bring both his industry and capital into competition with those of any other man, or order of men.”

Statute law almost always got in the way and upset a self-regulating moral and market order. Most antebellum Americans assumed that laws fixing prices or interest rates, setting wages, controlling rents, granting artificial monopolies, and redistributing wealth upset the natural order of economic affairs. Ideally, American agriculture, manufacturing, and commerce should develop, they assumed, without the aid of special government loans, state and municipal bonds, subsidies, price supports, wage floors, rent control, exclusive corporate monopolies, tariffs, bounties, and land grants, etc. Thomas Jefferson made the point clear in a 1788 letter: “let things take their natural course without help or impediment.” Private enterprises should grow naturally and rise or fall based on the quality and price of their product.

The Founders and their political descendants believed that legislative interference with the free choice of individuals in the pursuit of their economic and spiritual values (as long as such choices do not violate the rights of others) could only bring mischief and oppression. Government ought not to make arbitrary laws, wrote George Logan, that interfere with the people “making all that they can” or from “employing their stock and industry in the way that they judge advantageous to themselves.” The “theory of such a government, he noted citing Adam Smith, “is falsehood and mockery” and the “practice is oppression.” Any government that limits individual choice and freedom of action is, he continued, “a manifest violation of the most sacred rights of mankind.”

A New Political Society

The Founders and their descendants understood that political power is an aggrandizing, self-perpetuating force that must be limited at its creation and that eternal vigilance must be practiced by the citizenry thereafter to prevent the appetite for power from growing by the eating. A generation later, William Leggett, editor of the New York Evening Post, summed up the Americans’ prevailing antebellum worldview with the following maxim, which he recommended “be placed in large letters over the speaker’s chair in all legislative bodies”: “DO NOT GOVERN TOO MUCH.” The political order created by the Founders and their progeny expanded the private sphere of individuals by contracting the public sphere.

Generally speaking (with a few notable exceptions), the reigning Night Watchman, laissez-faire theory of government initiated by America’s laissez-faire Constitution defined American government and politics for the first seventy years of the nation’s existence. Fast forwarding to the 1830s, Andrew Jackson’s veto of the Maysville Road bill and the rechartering of the Second Bank of the United States as well as his reductions in the army and navy were clearly attempts to limit the scope of government and to promote separation of economy and State.

As a result, most Americans rarely felt the coercive power of the federal government in their lives day to day. Government in the early republic was especially thin, light, and weak, and it was even less than that wherever people were living on a frontier. The further one moved from the center to the peripheries, the long arm of government receded. William Sampson, a recent émigré from Ireland, claimed that in leaving Ireland he and his wife were escaping “from the barbarous laws that would make their country their prison.” There, government’s coercive power was truly felt by the people. By contrast, when the Sampsons arrived in the United States, they found “The government here makes no sensation; it is round about you like the air, and you cannot even feel it.” In fact, government in America presented such a light touch that it displayed little energy in the execution of laws, such that only one constable with a staff was necessary to “march twenty prisoners.”

During the last decade of the eighteenth century and into the early decades of the nineteenth century, Americans were an independent lot who, according to Leggett, wanted little to “no government to regulate their private concerns; to prescribe the course and mete out the profits of industry.” They wanted “no fireside legislators; no executive interference in their workshops and fields.” In America, wrote the nineteenth-century individualist Josiah Warren, “Everyone must feel that he is the supreme arbiter of his own [destiny], that no power on earth shall rise over him, that he is and always shall be sovereign of himself and all relating to his individuality.”

America’s new-model man mostly just wanted to be left alone. And left alone he mostly was.

Combined government (i.e., local, state, and federal) spending as a fraction of national income fell dramatically during the decades leading to the Civil War, which in turn liberated ordinary Americans from oppressive taxes, duties, and other restrictive regulations. Between 1800 and 1929, for instance, total government spending was below 12 percent of the national income, and federal government spending amounted to something around three percent of national income. By contracting the sphere of government’s reach, the Americans were expanding the sphere of freedom for individual initiative. As a result, the Americans’ “let-alone” political philosophy clearly played an important role in the nation’s remarkable economic growth during the nineteenth century.

Conclusion

In the end, the new-world order created by America’s Founding Fathers asked only three things of its citizens: first, that they not violate each other’s rights; second, that they live self-starting, self-reliant, self-regulating, self-governing lives by practicing certain uniquely American virtues and character traits (e.g., independence, initiative, industriousness, frugality, enterprise, creativity, adventurousness, courage, and optimism); and third, that they deal with each other by means of persuasion and voluntary trade. In return, the free society made certain promises to those who lived by the American creed: it promised to protect all citizens’ freedom and rights from domestic and foreign criminals; it promised to govern by the rule of law; and it promised a sphere of unfettered opportunity that made possible their pursuit of material and spiritual values undreamt of in other societies.

What was happening morally, politically, and economically in late-eighteenth- and early-nineteenth century America was unlike anything else seen anywhere in the world. After declaring independence from the mother country, American pioneers began a process of declaring independence from their own national and then their state governments, and, finally, from each other as they migrated in ever-increasing numbers to the ever-moving western frontier, which continued to chase the setting sun until the close of the nineteenth century. Early nineteenth century society was dynamic, fluid, entrepreneurial, and, above all else, full of creative and productive energy. And that energy was about to be unleashed.

***A reminder to readers: please know that I do not use footnotes or citations in my Substack essays. I do, however, attempt to identify the author of all quotations. All of the quotations and general references that I use are fully documented in my personal drafts, which will be made public on demand or when I publish these essays in book form.