Our Foundations of Freedom

"Experience must be our only guide. Reason might mislead us." So said John Dickinson at the Constitutional Convention in 1787, some 237 years ago this month.

As we celebrate the birth of the United States Constitution, Dickinson's admonition is critical to understanding our Founding Fathers' thoughts that served as the basis for our constitutional government.

Our Constitution, revered my many, detested by some and imitated worldwide, has stood the test of time. Even with disputes about its meaning and debates about its interpretation, its framework for government still works.

This document was not the product of political scientists or academicians with surveys and samples of how to form a government. Rather, the Constitution was an expression of the colonial experience based on the British structure of government which had enabled the American colonies to develop. Indeed, the constitutional framework was a distillation of the best of the British view of society, rule of law and government, stripped of the dross of monarchy, parliamentary overreach and the elitism of a ruling class.

Our founding fathers had been educated in English schools permeated by practical views of liberty, constitutional government and the common law. From the framework of how the colonies were governed and how colonial society was ordered, there was little innovation; the colonies mirrored the best practices of British society.

Most of the colonists would have been content to remain loyal subjects had Parliament not aggressively attempted to regulate colonial life and enforce impractical legislation on commerce and trade. The mercantile system, for all its economic faults, benefited the mother country by transferring great wealth, but as the cost of maintaining an empire grew, Britain was not content to reap the benefits of trade and sought to impose direct taxation.

The result was to unite what had been 13 separate and distinct colonies, challenge them to consider self-government and foment a revolution that resulted in independence. And, while achieving independence was celebrated wildly, cooler heads realized that with military victory, the easy part was over and now began the hard part of governing.

From the end of the Revolution until the enactment of the Constitution, great debates resounded throughout the colonies to determine how the states might act in concert, what their inter- relationship would be and how they would trade with other countries.

During all these debates, discussions and decisions, no one proposed a new or innovative system of governance. Rather, they harkened back to the tried and true of the colonial experience and used that as the basis for their Government.

One overriding concern was to clearly define how any new government would work. If there was one problem that stood out, it was that the English Constitution was not written down. Even today, students of government are shocked to learn that the English Constitution is not expressed in words on a page, but it is comprised of various traditions, court rulings and legislation from tensions between Parliament and the Monarchy.

Not having a written constitution was a liability when the colonists argued about their "rights" in the dialogue that created the various misunderstandings with Parliament. What rights did they have? The colonies were formed from separate charters granted by the reigning monarch, but the charters weren't documents that created or defined rights. From the colonist's viewpoint, Parliament was a nuisance, but at several thousand miles away, it could do little. And what it could do, the colonists ignored, until they sent troops!

But once the states were in charge, defining government took the English traditions and attempted to express them in a minimal sense as a framework going forward. Initially, most of the constitutional work took place on the state level with each state working to reduce to writing how their government would be organized. This was much easier since the states and their various communities of interest had existed before the Revolution and their institutions of government were already expressed in some form.

The unique challenge was how to create a national government. The Continental Congress had some authority, but Washington's victory was achieved despite that body. Articles of Confederation were tried, but these failed miserably to create a cohesive government to produce stability and foster economic growth. The states initially prospered, but having 13 separate taxes, trade restrictions and currency retarded interstate growth, and with no organized national defense and no comprehensive foreign policy, the division of states' power would limit progress and ultimately liberty.

So, in creating a national government, any number of issues had to be addressed. Resolving disputes between the various states and deciding questions about power in government required an exemplar; an appeal to something to support an idea. The delegates had two choices. They could base their new government on their previous experience and use these patterns and practices to develop a national government, or they could appeal to philosophy and the enlightenment theories of government, rights and liberty.

Dickinson's expression conveyed his belief that government based on any theoretical notion was unsound. Rather, he suggested that the new government must be based on practical ideas that worked and resolved problems. He did not view the Constitution as a lab experiment in combining various theories to achieve a result; rather, he wanted a form of government to provide a foundation for the states and the people of each state to produce a framework of limited government, expansive liberty and economic prosperity. In short, he did not see the Constitution as giving rights, but as defining rights already enjoyed and which the colonists had previously experienced.

If there was anything unique in our Constitution, it was creating three co- equal branches that would intentionally limit the power of government. The national government was designed to respect rights that already existed, not create ill-defined rights that could never be enforced.

Dickinson's admonition rings true today. Rather than be guided by theories, academic speculation or international reports, responsible government should look to past experiences and benefit from the tried and true.

Will Sellers is a graduate of Hillsdale College and an Associate Justice on the Supreme Court of Alabama. He is best reached at jws@willsellers.com.