CHAPTER ELEVEN

A HISTORY of RIGHTS in EARLY AMERICA

WE AMERICANS TODAY talk all the time about rights—everyone has rights—and we believe that they trump all other claims and values. Much of the time we seem to regard our preoccupation with rights as something new, something recent, something that began with, say, the Warren Court and the civil rights movement. But our obsession with rights is not new at all. From the very beginning of our history we have been very rights conscious.

The history of rights in America began, as much of our history did, in England. It is not very fashionable these days to talk about the contributions of Western Europeans to American culture, but in the case of our preoccupation with rights, we owe most of our consciousness to our English heritage. The English had a concern for rights and a Bill of Rights long before our Bill of Rights of 1791. As Chief Justice Thomas Hutchinson told a Massachusetts grand jury in 1769, “The bare Mention of the Word Rights always strikes an Englishman in a peculiar manner.”¹ Medieval and early modern Englishmen valued their rights to their personal liberty and property—rights that were embedded in their common law. The common law had deeply held principles, including, for example, the notions that no one could be a judge in his own cause and that no one, even the king, could legally take another’s property without that person’s consent. These rights and liberties belonged to all the people of England, and they adhered in each person as a person. Their force did not depend on their written delineation; they existed in the customary or unwritten law of England that went back to time immemorial.

It was not just the people who had rights; the king did too, usually referred to as the king’s prerogatives. These prerogatives, or royal rights, to govern the realm were as old and sacred as the privileges and liberties of the people. In that distant medieval world, the king had sole responsibility to govern, to provide for the safety of his people, and to see that justice was done—that is, that the people’s rights were protected. The king’s courts were expected to adjudicate the law common to those courts and to the realm, hence the development of the term “common law.”

The king’s highest court of all—Parliament—arose sometime in the thirteenth century and was composed both of the feudal nobles that eventually became the House of Lords and of agents from the boroughs and counties of the realm that eventually became the House of Commons. Unlike the modern English Parliament, its medieval predecessor was convened by the king only sporadically and did not have as yet any direct responsibility for governing the country. Instead, its responsibility was mainly limited to voting supplies to the king to enable him to govern, presenting petitions to the king for the redress of popular grievances, and, as the highest court in the land, correcting and emending the common law so as to ensure that justice was done. This correcting and emending of the law was not regarded as legislation in any modern sense, for medieval men thought of law not as something invented but as something discovered in the customs and precedents of the past. The modern idea of law as the command of a legislative body was as yet inconceivable; indeed, law was equated with justice, and its purpose was to protect the rights of people from each other and from the king.

Thus the king had his rights to govern, and the people had their equally ancient and equally legitimate rights to their liberties and their property. Indeed, it is perhaps not too much to say that the whole of English constitutional history can be seen as a struggle between these two competing sets of rights. The courts, including the high court of Parliament, were supposed to adjudicate between these conflicting sets of rights. Because the king, in trying to fulfill his responsibility of governing the realm, often infringed upon the customary rights of the people, the English periodically felt the need to have the king recognize their rights and liberties in writing. These recognitions in the early Middle Ages took the form of coronation oaths and assizes and charters issued by the crown. In 1215 the barons compelled King John to sign what became the most famous written document in English history—the great charter, or Magna Carta. In it the king explicitly acknowledged many of the customary rights of the English people, including the right of a freeman not to be imprisoned, exiled, or executed “unless by the lawful judgment of his peers, or by the law of the land.” This meant a judgment by the common-law courts or by Parliament, the highest court in the land.

The succeeding centuries of English history saw more struggles over rights and more attempts by the English people to place limits on their kings. These struggles came to a climax in the seventeenth century. When, in 1627, King Charles I attempted to raise money by forced loans, five English knights resisted, and Charles had the resisters arbitrarily imprisoned. This in turn led to the popular reinvocation of the Magna Carta and the reiteration of the rights of a subject to his property and to no imprisonment without the legal judgment of his peers. In 1628 the House of Commons presented these grievances in a Petition of Right, which the king was compelled to accept.

Yet this hardly resolved the conflict between the rights of the king and the liberties of the people. Only after a bloody civil war and one king had been beheaded and another driven from his throne was the struggle between king and people finally settled, in the Glorious Revolution of 1688–1689. In 1688–1689 the Convention-Parliament set forth a Declaration of Rights that quickly became enshrined in English constitutionalism. In this listing of rights, which became a statute or a Bill of Rights when the new king, William III, approved them, Parliament declared illegal certain actions of the crown, including its dispensing with laws, using prerogative power to raise money, and maintaining a standing army without the consent of Parliament. At the same time, Parliament asserted certain rights and freedoms possessed by the English, including the right to bear arms, to petition the king, to have free elections and frequent Parliaments in which speech would be free, and to have no excessive bail or fines.²

It is important to understand that this delineation of rights in 1689 was an act of Parliament consented to by the king. The English Bill of Rights was designed to protect the subjects not from the power of Parliament but from the power of the king. Indeed, it was inconceivable that Parliament could endanger the subjects’ rights. Only the crown could do that. As the highest court in the land, Parliament was therefore the bulwark and guardian of the people’s rights and liberties; there was no point in limiting it. Consequently, there were no legal or constitutional restrictions placed on the actions of the English Parliament, and, despite the efforts of some British judges to invoke the declarations of the European Union, there are still none today, which makes the English Parliament one of the most powerful governmental institutions in the world.

So convinced were the English, in the decades following 1689, that tyranny could come only from a single ruler that they could hardly conceive of the people tyrannizing themselves. Once Parliament became sovereign, once the body that represented and spoke for them—the House of Commons—had gained control of the crown authority that had traditionally threatened their liberties, the English people lost much of their former interest in codifying and listing their personal rights. Since the people themselves now controlled the government, charters defining the people’s rights, and contracts between the people and government, no longer made sense. If the high court of Parliament represented or embodied the whole nation, then its judgments became in effect the sovereign commands of the whole nation, and what formerly had been adjudication now became legislation binding everyone and encompassing everyone’s rights. Since Parliament was the protector of the people’s rights, it could be no threat to them.

BY THE TIME OF the American Revolution, most educated Britons had become convinced that their rights existed only against the crown. Against their representative and sovereign Parliament, which was the guardian of these rights, they existed not at all. Although the American colonists did not have quite the same confidence in Parliament that the English at home did, they did equally fear the powers of the crown and saw their own local representative assemblies as the bulwarks of their rights. Like the English in relation to Parliament, very few colonists saw any need to protect their rights from their colonial assemblies. Following the Zenger trial in 1735, for example, no royal governor dared bring a case of seditious libel against anyone. But the colonial assemblies, which presumably spoke for the people, continued to punish individuals for seditiously libeling the legislatures under the common law. In other words, liberty of the press existed against the crown but not against the representatives of the people; any libel against them was ipso facto seditious.³

In the 1760s and 1770s, during the crisis that eventually tore apart the British Empire, the American colonists had the long English heritage of popular rights to draw upon. Like all Britons, they were familiar with the persistent struggle of the English people to erect written barriers against encroaching crown power. Their own colonial past was littered with written documents delineating their rights. From the “Laws and Liberties” of Massachusetts Bay in 1648 to New York’s “Charter of Liberties and Privileges” in 1683, the early colonial assemblies had felt the need to acknowledge in writing what William Penn called “those rights and privileges . . . which are the proper birth-right of Englishmen.” ⁴

As government and law stabilized in the eighteenth century, however, the need in the colonies for these sorts of explicit codifications of rights declined just as they had in the mother country. But the Englishman’s instinct to defend his rights against encroachments of the governmental power of the crown was always latently present and was easily aroused. And getting the ruler to recognize these rights on paper was part of that instinct. By the time of the imperial crisis, it was natural for colonists like Arthur Lee of Virginia to call in 1768 for “a bill of rights” that would “merit the title of the Magna Carta Americana.” ⁵

Indeed, as historian John Reid has reminded us, the colonial resistance movement of the 1760s and 1770s was all about the colonists’ defense of their rights as Englishmen.⁶ By the eve of the Revolution, the charters that the crown had granted to many of the colonies in the previous century had come to be seen as just so many miniature Magna Cartas, designed, as one New Englander declared, “to reduce to a certainty the rights and privileges we were entitled to” and “to point out and circumscribe the prerogatives of the crown.” Their several charters (or, where these were lacking, “their commissions to their governors have ever been considered as equivalent securities”) had become transformed into what, “from their subject matter and the reality of things, can only operate as the evidence of a compact between an English King and the American subjects.” These charters, continued Joseph Hawley of Massachusetts, were no longer franchises or grants from the crown that could be unilaterally recalled or forfeited: “Their running in the stile of a grant is mere matter of form and not of substance.” They were reciprocal agreements “made and executed between the King of England, and our predecessors,” contracts between ruler and people, outlining the rights of each but particularly the rights of the people.⁷

This imagined contract between the rights of the king and the people was not John Locke’s contract, which was a contract among the people to form a society; instead, it was the Whig contract that ran through much of eighteenth-century English thinking and justified the people’s obeying the prerogative decrees and edicts of the king. This contract was an agreement, legal or mercantile in character, between rulers and people—equal parties with equal sets of rights—in which protection and allegiance were the considerations. “Allegiance,” wrote James Wilson in 1774, “is the faith and obedience, which every subject owes to his prince. This obedience is founded on the protection derived from government: for protection and allegiance are the reciprocal bonds, which connect the prince and his subjects.” This allegiance was not the same as consent. “Allegiance to the king and obedience to the parliament,” said Wilson, “are founded on very different principles. The former is founded on protection, the latter on representation. An inattention to this difference,” said Wilson, “has produced . . . much uncertainty and confusion in our ideas concerning the connexion, which ought to subsist between Great Britain and the American colonies.”⁸

ALL OF THIS CONTRACTUAL IMAGERY between two equal parties, not to mention the familial imagery of a patriarchal king and the mother country, suggested that for many eighteenth-century Anglo-Americans the public and private realms were still largely indistinguishable. Indeed, the colonists never regarded the struggle between the rights of the crown and the rights of the people as one between public and private rights. For even as late as the eve of the Revolution, the modern distinction between public and private was still not clear. The people’s ancient rights and liberties were as much public as private, just as the king’s rights—his prerogatives—were as much private as they were public. So-called public institutions had private rights and private persons had public obligations. The king’s prerogatives, or his premier rights to govern the realm, grew out of his private position as the wealthiest of the wealthy and the largest landowner in the society; his government had really begun as an extension of his royal household. But in a like manner all private households or families—“those small subdivisions of Government,” one colonist called them—had public responsibilities to help the king govern.⁹

All of this meant that the colonists were used to a great deal of communal or “public” control and management of what we today would call “private” rights. Governments in this premodern colonial society regulated all sorts of personal behavior, especially the moral and religious behavior of people, without any consciousness that they were depriving people of their private liberty or rights. Of the nearly 2,800 prosecutions in the superior and general sessions courts of Massachusetts between 1760 and 1774, over half involved sexual and religious offenses, such as fornication and using profanity. Many of the other prosecutions involved drunkenness, slander, and various violations of decency and good manners. At the same time, the colonial governments spent very little time on what we today would call public matters. Royal governors did not have legislative policies, and assemblies did not enact legislative programs. Many of the governments’ activities were private, local, and adjudicative. The colonial assemblies still saw themselves more as courts making judgments rather than as legislatures making law. They spent a good deal of their time hearing private petitions, which often were the complaints of one individual or group against another. In historian William Nelson’s survey of the Massachusetts General Court in 1761 (“as typical a year as any,” he says), he could find “only three acts that were arguably legislative in the sense that they changed law or made new law.”¹⁰

Indeed, to the colonists the separation of legislative, executive, and judicial powers that we value so greatly was far from clear. Since there was no modern bureaucracy and few modern mechanisms of coercion—a few constables and sheriffs scarcely constituted a police force—it was often left to the courts to exercise what governmental coercion there was and to engage in an extraordinary number of administrative and even legislative tasks, usually drawing on the communities for help.

Much of this judicial or magisterial activity—in fact, much of the government—was carried on without direct compensation. No one as yet conceived of politics as a paid profession or a permanent civil service. Most officeholding was still regarded, with varying degrees of plausibility, as a public obligation that private persons “serving gratis or generously” owed the community.¹¹ Every private person in the society had an obligation to help govern the realm commensurate with his social rank—the king’s being the greatest because he stood at the top of the social hierarchy.

As legal historian Hendrik Hartog has written, all government in the colonial period was regarded essentially as the enlisting and mobilizing of the power of private persons to carry out public ends. “Governments,” writes Hartog, “did not so much act as they ensured and sanctioned the actions of others.”¹² If the eighteenth-century city of New York wanted its streets cleaned or paved, for example, it did not hire contractors or create a “public works” department; instead, it issued ordinances obliging each person in the city to clean or repair the street abutting his house or shop. In the same way, if the colony of Connecticut wanted a college, it did not build and run the college itself, but instead gave legal rights to private persons to build and run it—in short, creating what were called corporations.

Most public action—from the building of wharves and ferries to the maintaining of roads and inns—depended upon private energy and private funds. Governments were always short of revenue and instead tended to rely mostly on their legal authority to mobilize the community and compel private persons to fulfill public obligations. They issued sanctions against private persons for failure to perform their public duties, and they enticed private persons into fulfilling public goals by offering corporate charters, licenses, and various other legal immunities together with fee-collecting offices.¹³ Since the government, including the king, was only one property holder in a world of property holders, it could not take “private” property for “public” purposes without the consent of the owner of that property; in other words, it had no modern power of eminent domain.

The Revolution was designed to dramatically change all this. By creating republics, Americans brought into play the tradition of neo-Roman Whig thinking that emphasized the collective public liberty of the people .¹⁴ In stressing the power of the republican commonwealth in this way, Americans suddenly became much more conscious of private individual rights and interests that stood in opposition to the public good. Since the earlier mobilizing of “private” power for “public” ends was now viewed as “corruption”—that is, the exploitation of the “public” for “private” gain—it had to cease. It was now hoped that governments would no longer grant monopoly charters, licenses, and fee-collecting offices to private individuals in order to induce them to carry out public goals. Instead, the new republican leaders expected select individuals to become public servants working for the state and generally for a salary. State power in America began assuming some of its modern character as an autonomous entity capable of hiring agents to carry out public tasks. The Revolutionaries now claimed the primacy of the public good over all private individual rights and interests; indeed, it sought to separate the public from the private in a new manner and to prevent the former intrusion of private rights and interests into what was now seen as a distinct public realm. With such goals, Revolutionary Americans had to conceive of state power and individual liberty in radically new ways.

It would be difficult to exaggerate what this new idea of republican state power meant. No longer could government be seen as the exercise of someone’s personal authority, as the assertion of prerogative rights or of the rights of those with economic and social superiority. Rulers suddenly lost their traditional personal rights to rule, and personal allegiance as a civic bond became meaningless. The long-existing Whig image of government as a contract between rulers and ruled disappeared virtually overnight. The Revolutionary state constitutions eliminated the crown’s prerogatives outright or re-granted them to the state legislatures. These constitutional grants of authority, together with the expanded notion of consent underlying all government, gave the new state legislatures a degree of public power that the colonial assemblies had never claimed or even imagined. Although the new state assemblies, to the chagrin of many leaders, continued to act in a traditional courtlike manner—interfering with and reversing judicial decisions and passing private acts affecting individuals—they now became as well sovereign embodiments of the people with legislative responsibility for exercising an autonomous public authority.

In republican America, government would no longer be merely private property and private interests writ large as it had been in the colonial period. Public and private spheres that earlier had been mingled were now presumably to be starkly separated. Res publica became everything. The new republican states saw themselves promoting a unitary public interest that was to be clearly superior to the many private interests and rights of the people.

At the beginning of the Revolution, few Americans imagined that there could be any real conflict between this unitary public good expressed by the representative state legislatures and the rights of individuals. When in 1775 a frightened Tory warned the people of Massachusetts that a popular revolutionary legislature could become as tyrannical as the crown and deprive the people of their individual liberties, John Adams dismissed the idea out of hand. That the people might tyrannize themselves and harm their own rights and liberties was illogical, declared Adams. “A democratic despotism is a contradiction in terms.”¹⁵

With their new heightened sense of the public good, the Revolutionary republican legislatures were determined to bring what were seen as the private rights of selfish individuals under communal control. Many Americans now viewed with suspicion the traditional monarchical practice of enlisting private wealth and energy for public purposes. Especially objectionable was the issuing of corporate privileges and licenses to private persons. In a republic, it was said, no person should be allowed to exploit the public’s authority for private gain. Indeed, several of the states wrote into their Revolutionary constitutions declarations, like that of New Hampshire, that “government is instituted for the common benefit, protection, and security of the whole community, and not for the private interest or emolument of any one man, family, or class of men.” And some of the states, like North Carolina, declared that “perpetuities and monopolies are contrary to the genius of a State, and ought not to be allowed.” ¹⁶

Because they wanted to avoid any taint of corruption by allowing private individuals to undertake public tasks, the new republican state governments sought to assert their newly enhanced public power in direct and unprecedented ways—doing for themselves what they had earlier commissioned private persons to do. The state assemblies began legislating—making and changing law—as never before. Indeed, as Madison complained in 1787, the states passed more laws in the single decade following independence than they had in the entire colonial period. And these laws had less and less to do with private matters (moral and religious issues) and more and more with public matters (economic development and commercial convenience).

“Improvement” was on every Revolutionary’s mind, and most leaders naturally assumed that the new state governments would take the lead in promoting it. The states now carved out exclusively public spheres of action and responsibility where none had existed before. They drew up plans for improving everything from trade and commerce to roads and waterworks and helped to create a science of political economy for Americans. And they formed their own public organizations with paid professional staffs supported by tax money, not private labor. The city of New York, for example, working under the authority of the state legislature, now set up its own public workforce to clean its streets and wharves instead of relying, as in the past, on the private residents to do these tasks. By the early nineteenth century, as Hartog has told us in a brilliant work of legal history, the city of New York had become a public institution financed primarily by public taxation and concerned with particularly public concerns. Like other post-Revolutionary governments, New York City acquired what it had not had before: the modern power of eminent domain—the authority to take private property for the sake of the public good without the consent of the particular property owner.¹⁷

Many thought that the new state legislatures, as the representatives of the people, could do for the public whatever the people entrusted them to do. Some argued that the needs of the public could even override the rights of individuals. Did not the collective power of the people expressed in their representative legislatures supersede the rights of the few? Of course, under monarchy the people could legitimately defend their rights against encroachments from the prerogative rights and privileges of the king. But in the new republics, where there were no more prerogative rights, could the people’s personal rights meaningfully exist apart from the people’s sovereign power expressed in their assemblies? In other words, did it any longer make sense to speak of negative liberty where the people’s positive liberty was complete and supreme? To be sure, as the Pennsylvania constitution and other Revolutionary constitutions declared, “no part of a man’s property can be justly taken from him, or applied to public uses, without his consent,” but this consent, in 1776 at least, meant “that of his legal representatives.”¹⁸

IN 1776 IT WAS NOT at all clear that people had rights against their own representatives. Five states drew up bills of rights in 1776, and several other states listed the people’s rights in the bodies of their constitutions. But because the Revolutionary constitutions so circumscribed the governors or rulers, many of the states felt no need any longer to protect the people’s rights by separately listing them; their popular legislatures were surely no danger to individual liberties. This accounts for the confusion Americans in 1776 had in not being entirely sure against whom their state bills of rights were directed. In English history, declarations of rights had been directed against the crown and its prerogatives. But in republican America, where there was no longer any crown or any prerogatives, did bills of rights make sense? What was the need of protecting the people’s rights from themselves? Monarchies might become despotic, but democracies, when they ran to excess, could only become anarchical and licentious. Or so everyone since the ancient Greeks had assumed.

We know what happened. Within a decade, the democratic despotism and the threat to individual rights from popular legislatures that had seemed so illogical and contradictory to John Adams and other American Whigs in 1775–1776 had become only too real—at least for many gentry leaders. Consequently, many of these leaders were faced with the great constitutional dilemma of limiting popular government and protecting private property and individual rights without, at the same time, denying the sovereign public power of the majority of the people.

This dilemma led some Americans to think freshly about a number of constitutional issues, including those that justified the creation of a new federal Constitution in 1787. Most difficult of all was the formulating of a defense of individual rights and liberties against the people themselves—against Parliament, so to speak. There were no precedents for this in English history or in their own colonial histories. And they had to do all this in the face of their own republican revolutionary ideology—their belief in the autonomous power of the republican community to determine the public good.

It was not easy limiting the popular legislatures without denigrating the people and everything the American Revolution had been about. If the people weren’t capable of protecting their own rights and liberties, then what was the value of republican government? Many realized only too keenly that the violations of individual rights in the 1780s did not arise because the people had been forsaken by their legislative representatives, but, as a Boston newspaper declared, those violations occurred because the people’s “transient and indigested sentiments have been too implicitly adopted.”¹⁹

James Madison certainly agreed. The rampaging legislatures of the 1780s, he said in 1787, were not acting against the will of the people; they were acting on behalf of that will. Unfortunately, the legislators were only too representative, only too democratic, reflecting only too accurately the narrow views and parochial outlooks of their constituents. Good republicans had not expected this at the outset of the Revolution. “According to Republican Theory,” said Madison, “Right and power being both vested in the majority, are held to be synonimous.” But experience since 1776 had shown the contrary. “Wherever the real power in a Government lies,” he told his friend Thomas Jefferson, residing in Paris, “there is the danger of oppression. In our Governments the real power lies in the majority of the Community, and the invasion of private rights is chiefly to be apprehended, not from any acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the constituents.” As we have seen, that was why for Madison the crisis of the 1780s was truly frightening. The legislative abuses and the many violations of individual rights, he said, “brought into question the fundamental principle of republican Government, that the majority who rule in such governments are the safest Guardians both of public Good and private rights.” ²⁰

From his post in France, Jefferson scarcely grasped what Madison was saying. His confidence in the people was too great for him ever to question their judgment. Instead, in his mind he drew a distinction between the representative legislatures and the people themselves. Jefferson had no doubt that all officials in government, even the popularly elected representatives in the lower houses of the legislatures, could act tyrannically; “173 despots would surely be as oppressive as one,” he said of the Virginia House of Delegates in 1785. “An elective despotism was not the government we fought for.”²¹ But this kind of tyranny was not really the people’s fault. Jefferson always thought that the people themselves, if undisturbed by demagogues like Patrick Henry, would eventually set matters right. He saw little potential conflict between positive and negative liberty, between the people at large and individual rights. He was one of those who paid no attention to what Madison called that “essential distinction, too little heeded, between assumptions of power by the General Government, in opposition to the will of the constituent body, and assumptions by the constituent body through the Government as the organ of its will.”²² For Jefferson, it could never be the people themselves but only their elected agents that were in error.

Whatever doubts American leaders had privately about the virtue or good sense of the people, few of them by 1787 were willing to express such doubts publicly. Questioning the judgment of the people themselves had become too politically risky for most. Hence publicly, at least, they began drawing the same distinction between the people and their elected delegates as Jefferson had, and sought to exploit that distinction in their efforts to curb the state legislatures. Indeed, that distinction became the basis of all the major arguments mounted by the defenders of the new Constitution in 1787–1788, or the Federalists, as they called themselves. Confronted with arguments from the opponents of the Constitution, or the Anti-Federalists, that raised the question of where sovereignty—the final supreme indivisible lawmaking authority—would lie under the new Constitution, the Federalists, as we have seen, denied that sovereignty would be taken away from the state legislatures and given to the Congress. Unlike Britain, where sovereignty rested with the king-in-Parliament, sovereignty in America, they said, belonged to no institution of government, including the so-called houses of representatives, or even to all of the institutions together; it remained with the people themselves. In America, representative government could never fully embody the people.

By opening up and exaggerating the distinction between the sovereign people and their elected governments, the Federalists tended to homogenize political power and turn all government officials, in both the state and federal governments, into equally mistrusted agents of the people. Once people came to regard all political power as essentially similar, once they came to view all governmental officials, whether executive, judicial, or even legislative, as, in Jefferson’s words, “three branches of magistracy,” equally mistrusted, then it became possible to protect individual rights from the popularly elected legislatures without doing violence either to the Americans’ republican theory or even to their English heritage. For hadn’t the English always sought to protect their rights from the magistracy of the crown?²³

Leaders anxious about individual liberties and the rights of property could now identify the popular legislatures with the former monarchical or magisterial power (which is what they meant by the term “democratic despotism”), and they could invoke the traditional language of the rights of the English in these new republican circumstances.

Not every American, of course, was willing to follow this line of thinking, and many opponents of the Constitution rose in defense of the peculiar popular character of the state legislatures and denied that their will could be limited in any way. After all, they represented the people. But now the Federalists had a ready answer to this traditional argument. In The Federalist, Alexander Hamilton rebuked these defenders of the state legislatures by caustically observing that “the representatives of the people, in a popular assembly, seem sometimes to fancy that they are the people themselves.” And he went on to suggest ways the people’s rights embodied in the constitutions could be protected from the legislatures—by relying on other agents of the people, the courts. Since the people created constitutions, not the legislatures, it could never “be supposed,” he said, “that the constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.” ²⁴

Already many others besides Hamilton had begun looking to the once-feared judiciary as a principal means of restraining the rampaging and unstable popular legislatures. Why not? It was just another kind of agent of the people, after all, ideally situated to protect the people’s rights against the oppressive actions of some of their other agents in the legislatures. As early as 1786, William Plummer, a future U.S. senator and a governor of New Hampshire, concluded that the very “existence” of America’s elective governments had come to depend upon the judiciary: “That is the only body of men who will have an effective check upon a numerous Assembly.” ²⁵

Thus was launched the massive rethinking out of which in a matter of decades emerged America’s strong independent judiciary, a judiciary that became primarily concerned with protecting individual rights. In the years following the Revolution, judges shed their earlier broad and illdefined political and magisterial roles and adopted ones that were much more exclusively legal. They withdrew from politics, promoted the development of law as a mysterious science known best by trained experts, and restricted their activities to the regular courts, which became increasingly professional and less burdened by popular juries. Many of those who were suspicious of democracy thought that this withdrawal from politics made the judiciary a far better protector of the rights of individuals than the popular legislatures could ever hope to be. As early as 1787, Alexander Hamilton argued in the New York assembly that the state constitution prevented anyone from being deprived of his rights except “by the law of the land” or, as a recent act of the assembly had put it, “by due process of law,” which, said Hamilton, in an astonishing and novel twist, had “a precise technical import”: these words were now “only applicable to the process and proceedings of the courts of justice; they can never be referred to an act of legislature,” even though the legislature had written them.²⁶

The view expressed by Hamilton did not, of course, immediately take hold. The attorney general of North Carolina, for example, argued in 1794 that the clauses of the state constitution referring to due process and the law of the land were not limitations on the legislature; they were “declarations the people thought proper to make of their rights, not against a power they supposed their own representatives might usurp, but against oppression and usurpation in general . . . by a pretended prerogative against or without the authority of law.” Thus the phrase that no one could be deprived of his property except by the law of the land meant simply “a law for the people of North Carolina, made or adopted by themselves by the intervention of their own legislature.” This view was accepted by the North Carolina superior court.²⁷

It is not surprising that the argument Hamilton put forth in 1787 was opposed by others, for his argument was truly extraordinary, to say the least—one of the first of many imaginative readings in our history to be given to that important phrase “due process of law.” Parliament, which included the House of Commons, had always protected the rights of the English, including their property rights, from the crown’s encroachments. That was what the Bill of Rights of 1689 had been all about. But the English had never thought it necessary to protect these rights from the power of the people themselves—that is, from the legislative power of Parliament. Blackstone had agreed that one of the absolute rights of an individual was “the right of property: which consists in the free use, enjoyment and disposal of all his acquisitions, without any control or diminution, save only by the laws of the land.” ²⁸

Of course, for Blackstone the laws of the land included those laws enacted by the legislature (Parliament). Not so any longer for Hamilton and many other Americans. As far as many Americans were concerned, the legislatures had become legally or constitutionally no different from the former crown. But, as brilliant as some of the Federalists’ arguments were, it was never easy to see popularly elected legislatures as threats to individual rights. And since the Federalists tended to be conventional supporters of strong government, they themselves were confused. Because their opponents, the Jeffersonian Republicans, had so often invoked the “rights of man” against the oppressions of government, some Federalists could only conceive of retaliating in traditional terms—by seeking a strengthening of government against the licentiousness of the people whose rights had run amok. But other shrewder Federalists saw that they might be better off appropriating the rights talk of their Jeffersonian opponents and using it in their own behalf against the popular power of the state legislatures. Indeed, they perceived that the liberties of individuals—that is, negative liberty—could actually be turned against positive liberty or self-government. In the United States, the laws of the land were not just what the popular legislatures commanded; indeed, some laws, it seemed, were not under the purview of the legislatures at all.

Many Federalists now argued that the laws of the land concerning individual rights belonged exclusively to the courts. And the reason they belonged exclusively to the courts was that they involved private matters, not public, and private matters concerning individual rights required adjudication, not legislation. As legal historian William Nelson has pointed out, the courts in the early Republic became eager to leave “to legislatures the resolution of conflicts between organized social groups”—that is, conflicts of politics—and instead to concentrate on protecting the rights of individuals.²⁹

Those Federalists and even those Republicans who were worried about democratic despotism and the legislative abuses of private rights argued that the popular state legislatures should stick to the great public responsibilities of being a republic and not “take up private business, or interfere in disputes between contending parties,” as the colonial assemblies had habitually done. The evils of such legislative meddling were “heightened when the society is divided among themselves;—one party praying the assembly for one thing, and opposite party for another thing. . .. In such circumstances, the assembly ought not to interfere by any exertion of legislative power, but leave the contending parties to apply to the proper tribunals [that is, to the judiciary] for a decision of their differences.” ³⁰

These efforts to separate private issues from public ones, to remove some questions from legislative politics and transform them into contests of individual rights, contributed to the emergence of a powerful independent judiciary in the early Republic. Almost overnight the judiciary in America became not only the principal means by which popular legislatures were controlled and limited but also the most effective instrument for sorting out individual disputes within a private sphere that the other institutions of government were forbidden to enter.

BY CARVING OUT an exclusively public sphere for the promotion of republican state power, the Revolutionaries had necessarily created a private sphere as well—a private sphere of individual rights that was to be the domain solely of judges. The idea that there was a sphere of private rights that lay absolutely beyond the authority of the people themselves, especially in a republican government, was a remarkable innovation. Few colonists had ever believed that there were individual rights that could stand against the united will of the community expressed in its representative assemblies. But the Revolution had prepared Americans to accept this innovation in their conception of rights. And it had done so with its radical commitment to the right of religious freedom. Once Americans were able to limit state authority in religious matters—an area of such importance that no state had hitherto ever denied itself the power to regulate—they set in motion the principle that there were some realms of private rights and individual liberties into which executives and legislatures had no business intruding. If formerly public religious corporations created by the state became private entities immune from further state tampering, then why couldn’t other formerly public corporations be treated in a like manner?³¹

Indeed, that’s what happened, as the economy of the early Republic became privatized, which meant turning public responsibilities into private rights. As Oscar and Mary Handlin, Louis Hartz, and others pointed out six or seven decades ago, the new Revolutionary states had expected to involve themselves directly in the economy. But the states attempted to do more than they could handle. As Hartz wrote in reference to Pennsylvania, “[T]he objectives of the state in the economic field were usually so broad that they were beyond its administrative powers to achieve.”³² And not just beyond its administrative powers, but its fiscal powers as well. Because the new democratically elected legislatures were often unwilling to raise taxes to pay for all that the governmental leaders desired to do, the states were forced to fall back on the traditional premodern monarchical practice of enlisting private wealth to carry out public ends. Instead of doing the tasks themselves, as many devout republicans had expected, the states ended up doing what the crown and all premodern governments had done, granting charters of incorporation to private associations and groups to carry out a wide variety of endeavors presumably beneficial to the public: in banking, transportation, insurance, and other enterprises. The states did not intend to abandon their republican responsibility to promote the public good; they simply lacked the money to do it directly. And, of course, there were many private interests that were only too eager to acquire these corporate privileges.

Yet because of the republican aversion to chartered monopolies, the creation of these corporations did not take place without strenuous opposition and heated debate. As a consequence, these corporations were radically transformed. The popular state legislatures began giving out these charter rights freely to a variety of clamoring interests, religious groups as well as business groups. If a group in Boston received a bank charter, then a group in Newburyport wanted one too; and then other groups in both cities requested and received bank charters as well. Before long there were chartered banks all over the state of Massachusetts. Not only did the number of corporations rapidly multiply, but their earlier monopolistic privileged character changed as well. Whereas all the colonies together had chartered only about a half dozen business corporations, the new states began creating them in astonishing numbers, numbers that were unmatched anywhere else in the world. From an exclusive privilege granted at the behest of the state to a few highly visible, socially distinguished recipients to carry out a public purpose, corporate charters eventually became an equal right available to virtually everyone. The states issued 11 charters of incorporation between 1781 and 1785, 22 more between 1786 and 1790, and 114 between 1791 and 1795. Between 1800 and 1817 they created nearly 1,800 corporate charters. With this multiplication not only was the traditional exclusivity of the corporate charters destroyed, but the public power of the state governments was also dispersed. If “government, unsparingly and with an unguarded hand, shall multiply corporations, and grant privileges without limitation,” then, declared a concerned Governor Levi Lincoln of Massachusetts, sooner or later “only the very shadow of sovereignty” would remain.³³

At the same time as these corporations increased in number and shed their exclusivity, they lost much of their earlier public character as well and were more and more regarded as private property. As private property—as rights vested by the legislatures in private individuals—these corporations now became exempt from further legislative interference. This idea that the corporate charter was a species of private property was expressed early. “In granting charters,” declared William Robinson in the Pennsylvania assembly in 1786 in defense of the charter of the Bank of North America, “the legislature acts in a ministerial capacity”; that is, it acted as the crown had acted in mobilizing private resources for public purposes. This bestowing of charters, said Robinson, “is totally distinct from the power of making laws, and it is a novel doctrine in Pennsylvania that they can abrogate those charters so solemnly granted.” There was a difference between laws and charters. Laws were general rules for the whole community; charters “bestow particular privileges upon a certain number of people. . .. Charters are a species of property. When they are obtained, they are of value. Their forfeiture belongs solely to the courts of justice.”³⁴ This argument did not convince the Pennsylvania assembly in 1786, but it was a brilliant anticipation of what was to come.

The more the state legislatures could be demonized as monarch-like tyrants, the more their grants could be regarded as rights vested in individuals that could not be taken back by the legislatures. “The proposition that a power to do, includes virtually, a power to undo, as applied to a legislative body,” wrote Hamilton in 1802, “is generally but not universally true. All vested rights form an exception to the rule.”³⁵ This protection of vested rights, as Edward S. Corwin once pointed out, became “the basic doctrine of American constitutional law.”³⁶ So much had legislative grants seem to have become contracts that Senator Gouverneur Morris used the analogy to oppose the Jeffersonian Republicans’ elimination of the circuit court positions created by the Federalists’ Judiciary Act of 1801. When you give an individual the right to make a toll road or bridge, said Morris, “can you, by a subsequent law, take it away? No; when you make a compact, you are bound by it.”³⁷ This thinking prepared the way for the argument that corporations were actually contracts immune from state tampering by the contract clause in Article I, Section 10 of the Constitution, a position eventually endorsed by the Supreme Court in the Dartmouth College case in 1819.

Of course, many resisted these efforts to turn chartered corporations into species of private property. Jefferson may have been especially dedicated to equal rights, but he did not believe that a corporate charter was one of those rights. To his dying day he never accepted the idea that corporations were private property that could not be touched or modified by the legislative body that chartered them. That idea, he said, “may perhaps be a salutary provision against the abuses of a monarch, but is most absurd against the nation itself.” Others agreed. “It seems difficult to conceive of a corporation established for merely private purposes,” declared a North Carolina judge in 1805. “In every institution of that kind the ground of the establishment is some public good or purpose to be promoted.” ³⁸ This increasing stress on the need for a “public purpose” behind the state’s activity, however, only worked to further privatize the business corporations. Eventually people felt compelled to distinguish between corporations such as banks, bridges, and insurance companies that were now considered private because they were privately endowed, and those such as towns or counties that remained public because they were tax-based. Even in Massachusetts, which retained its established church until 1833, religious dissenters transformed religious corporations into private voluntary associations that acted beyond the state but were entitled to legal recognition and protection by the state.³⁹

There was a curious paradox in these developments. Just as the public power grew in these years of the early Republic, so too did the private rights of individuals. Those who sought to protect the rights of individuals did not deny the public prerogatives of the states. Instead, they drew boundaries around the rights of private individuals, including business corporations, which judges eventually transformed into private, rights-bearing “persons.” In fact, the heightened concern for the private vested rights of persons was a direct consequence of the enhanced public power the republican Revolution had given to the states and municipalities. The bigger the public domain, the bigger the private domain of private rights had to be to protect itself. Although the power of the federal government certainly declined in the decades following Jefferson’s election as president, the public authority and the police powers and regulatory rights of the states and their municipalities grew stronger.

Separating the political from the legal, the public from the individual, actually allowed for more vigorous state action as long as that action served what was called a “public purpose.” Individuals may have had rights, but the public had rights as well—rights that grew out of the sovereignty of the state and its legitimate power to police the society. The state of New York, for example, remained deeply involved in the society and economy. Not only did the state government of New York distribute its largess to individual businessmen and groups in the form of bounties, subsidies, stock ownership, loans, corporate grants, and franchises, but it also assumed direct responsibility for some economic activities, including building the Erie Canal.⁴⁰ Even when the states, lacking sufficient tax funds, began dissipating their modern public power by reverting to the premodern practice of enlisting private wealth to carry out public ends by issuing increasing numbers of corporate charters, they continued to use their ancient police power to regulate their economies. Between 1780 and 1814, the Massachusetts legislature, for example, enacted a multitude of laws regulating the marketing of a variety of products—everything from lumber, fish, tobacco, and shoes, to butter, bread, nails, and firearms. The states never lost their inherited responsibility for the safety, economy, morality, and health of their societies.⁴¹ The idea that there was a public good that could interfere with some private rights remained very much alive.

Despite all this state police power legislation and municipal regulation, however, it was usually left to the courts to sort out and mediate the conflicting claims of public authority and the private rights of individuals. The more the state legislatures enacted statutes to manage and regulate the economy, the more judges found it necessary to exert their authority in order to do justice between individuals and to make sense of what was happening. Following the lead of William Blackstone and Lord Mansfield in eighteenth-century England, American judges in the early Republic interpreted the common law flexibly in order to mitigate and correct the harm done by the profusion of conflicting statutes passed by unstable democratic legislatures.⁴² Judges were often able to play down the importance of precedents and to emphasize instead reason, equity, and convenience in order to bring the law into accord with changing commercial circumstances.⁴³

They were able to do this and to expand their authority by transforming many public issues of the economy into private ones, turning political questions into questions of individual rights that could only be judicially determined. If an enterprising and improving society needed certainty in the law, then the courts seemed more capable than popular legislatures in assuring it. The success of the courts in promoting commercial and economic development in the early Republic was due in large part to their ability to separate the legal issues of individual rights from the tumultuous and chaotic world of democratic politics. As Chief Justice John Marshall said in his Marbury decision of 1803, some questions were political; “they respect the nation, not individual rights,” and thus were “only politically examinable” by elected legislatures. But questions involving the vested rights of individuals were different; they were in their “nature, judicial, and must be tried by the judicial authority.” ⁴⁴ But these efforts to protect the rights of individuals from political abuse were not just Federalistinspired. Even the strongly Jeffersonian Virginia court of appeals in 1804 took the position that the state legislature could do many things, but it could not violate private and vested rights of property.⁴⁵

In the late 1780s, Madison had yearned for some enlightened and impartial men who would somehow transcend the interest-group politics that plagued the state legislatures. In The Federalist No. 10 he had used judicial imagery in describing the problems of America’s legislative politics. Madison accepted the fact that the regulation of different commercial interests had become the principal task of modern legislation. This meant, he wrote, that in the future the spirit of party and faction was likely to be involved in the ordinary operations of government. Since in traditional fashion he continued to think of all legislative acts as “so many judicial determinations, not indeed concerning the rights of single persons, but concerning the rights of large bodies of citizens,” he could only conclude pessimistically that legislators would become “both judges and parties at the same time.” The best solution he could offer to prevent these parties from becoming judges in their own causes and violating the rights of individuals and minorities was to enlarge the arena of politics so that no party could dominate, thus allowing only disinterested and impartial men to exercise power and make decisions. He hoped against hope that the new elevated federal government might assume a judicial-like character and become a “disinterested and dispassionate umpire in disputes between different passions and interests” within the individual states.⁴⁶ By the early decades of the nineteenth century, he, along with many other Americans, came to the conclusion that perhaps the judiciary was the only governmental institution that even came close to playing this role. It is a conclusion that in our history we have reached time and time again.

AFTERWORD TO CHAPTER II

This paper is actually a revised composite of several different lectures and articles. It began as a lecture at the American Antiquarian Society in October 1991 celebrating the bicentennial of the Bill of Rights. This lecture was later published in the Proceedings of the American Antiquarian Society, 101, Part 2 (1992), 255–274. Some of the material in that paper found its way into the McCorkle Lecture given at the University of Virginia School of Law in March 1999, and was later published as “The Origins of Vested Rights in the Early Republic” in the Virginia Law Review, 85 (1999), 1421–1445. This article was in turn heavily revised and presented as a lecture at Colgate University in 2001 and published as “The History of Rights in Early America” in The Nature of Rights at the American Founding and Beyond, edited by Barry Alan Shain (Charlottesville: University of Virginia Press, 2007), 233–257. Anyone interested in the development of rights in early America can do no better than to consult the other papers in this volume, all written by distinguished political scientists and historians.