Human rights in America, 1776-1849: rediscovering the states' contribution.

• Author: Dippel, Horst

WHY RIGHTS OF MAN?

Individual possession of rights beyond the reach of any governmental power was not an invention of the American Revolution. The perception of being situated in a centuries-old common law tradition, reaching back at least to Magna Carta, (1) had helped to create a legal culture which rested on the conviction that the liberties of the individual had a solid legal foundation. The English revolutions during the seventeenth century had largely contributed to the impression that the Englishman was secure in his rights as they were confirmed in such highly appreciated laws as the Habeas Corpus Act of 1679, (2) the Bill of Rights of 1689, (3) and the Act of Settlement of 1701. (4)

The American perception of the English legal tradition, together with its interpretation by British courts, lawyers, the European discourse on natural law, (5) and above all John Locke, (6) put a stamp on the American Revolution. Debates over Britain's policies towards its American subjects soon resulted in a general discussion on the responsibilities of government and its obligations towards the individual. (7) Gerald Stourzh has aptly called this process the evolution from the fundamentalizing of human rights to their constitutionalization. (8)

As early as 1776, Americans had set out to apply this framework of legal and political ideas to the constitutionalization of human rights. As an increasing number of colonists throughout all ranks understood it, historical and political experience delivered one of their main arguments and contributed to a situation in which the controversial British policies were increasingly contested, not on political grounds but on a principled basis of law. (9) James Wilson, a founding father, the first law professor at the College of Philadelphia, and an associate justice of the Supreme Court of the United States (10) developed the argument further: Did man, when he left the state of nature, surrender his natural rights only to acquire security as a feeble compensation guaranteed by a superior power? "Government," he answered, "should be formed to secure and to enlarge the exercise of the natural rights of its members; and every government, which has not this in view, as its principal object, is not a government of the legitimate kind." (11) More than ten years earlier, the famous Essex Result of 1778 expressed similar ideas: when man enters society he does not surrender his inalienable rights, but only his alienable rights for the common good. (12) "The supreme power therefore can do nothing but what is for the good of the whole; and when it goes beyond this line, it is a power usurped." (13)

But which rights does man possess? Against which power must they be protected? What are the principal results of the first seventy-five years of the constitutionalization of the rights of man in America? And finally, in what way did the American declarations of rights differ from the French Declaration of the Rights of Man and Citizen of 1789? In order to answer these questions, all American declarations of rights of the period will be analyzed and considered both as a unitary corpus of documents and in their historical evolution. (14)

WHICH RIGHTS OF MAN?

Between 1776 and 1849, seventy-eight constitutions were officially drafted in the United States, of which twenty-one were never put into practice. (15) Of the fifty-seven constitutions adopted, 10% failed to contain any reference to a single human right. (16) Furthermore, 20% of the remaining fifty-one constitutions addressed only a fairly limited number of rights. (17) The last of these constitutions before mid-century to do so were the 1845 constitution of Louisiana and the 1846 constitution of New York. The omission of a declaration of rights could constitute a reason for rejecting a proposed constitution, as was the case in Massachusetts in 1778. (18) More importantly, the necessity of a declaration of rights became manifest in the debates over the ratification of the Federal Constitution in 1787 and 1788. (19) Only the promise to add a declaration of rights secured ratification of the document. (20) In turn, the first ten amendments to the Federal Constitution--popularly known as the Bill of Rights--were adopted in 1791 to make good on this promise.

The American discourse on human rights produced its first constitutional document with the Declaration of Rights of Virginia on June 12, 1776. (21) The example was so convincing that most of the other states decided also to adopt a similar declaration. Only New Jersey did not do so until 1844, and Georgia, New York, South Carolina, and Louisiana, relied on a restricted number of rights in their successive constitutions up to the Civil War. (22) The number of these rights included in their respective constitutions varied between six (in New York as of 1777 and Georgia as of 1789) and twenty-two (in New York as of 1846), with an average of around ten rights for the rest of the states.

After the Virginia Declaration of Rights only the Articles of Confederation of 1777, the original text of the Federal Constitution of 1787 (according to common understanding), and two of the four Texas constitutions (before the incorporation of the state into the United States, those of 1827 and 1835) did not declare any human rights. (23) By 1849, when California adopted its first state constitution, (24) a total of forty-one American constitutions contained a declaration of rights. (25) Generally, each of these constitutions declared approximately thirty different rights, (26) while three of them--the constitutions of Maryland of 1776 and of New Hampshire of 1784 and 1792--boasted more than forty. (27)

The various rights expressed in the American state constitutions may be divided into three groups. First, those stipulations that declared "first principles;" (28) second, rights actively conferred to the people or, more precisely, to the individual, such as political rights, social rights, economic rights, and others; and third, protection passively granted to the individual mostly through restrictions introduced in the political, social, economic, and juridical domain. As to the fifty-one American constitutions of the period, which declared human rights to any extent, 3% of the stipulations belong to the "first principles" group, 48% are considered rights actively conferred to the individual, while 49% of the total granted protection to the individual. (29)

As a rule, the American declaration of rights, predisposed by the time-honored common law tradition, (30) abstained from extensive exposures of lofty principles lacking meaningful legal consequences. Rather, the American declaration of rights were characterized by a dual limitation on the powers of the government. The individual was granted specific rights protected through recourse to legal action, and the government's power was limited to secure the individual's enjoyment of the blessings of liberty. (31) It was this double limitation of government that characterized the American declarations of rights.

WHICH POWER TO GUARD AGAINST?

The overall emphasis of the American declarations of rights indicates which government power, within the system of separation of powers, these declarations were primarily directed against. The American debate on human rights had made obvious that to secure these rights was a precondition for, if not synonymous with legitimate power. But which of the three government powers was apt to be the guarantor of these rights, and against which of these powers with their inherent aspirations and pretensions was special protection needed?

The initial idea, readily assumed today, of a grand design to limit the power of the legislature through special protection granted to the individual requires a more thorough evaluation. Any analysis of the Virginia Declaration of Rights will lead to distinctly different results. Virginia's Declaration of Rights, of which 42% of the stipulations granted the individual protection, contained prohibitions of "exclusive or separate emoluments or privileges," separation of powers, rotation in office, security of property, government by consent, rules against the suspending of laws "without consent of the representatives of the people," a "well-regulated militia," "that standing armies, in time of peace, should be avoided," strict subordination of the military to the civil power, and a right to uniform government. (32) None of these stipulations can be interpreted as restricting the legislature's power or as completely prohibiting the legislature from acting. In fact, the opposite is true: "[M]agistrates are [the people's] trustees and servants, and at all times amenable to them." (33) The members of the executive branch were made accountable to the people, not the lawmakers or judges. (34) Virginians understood, from a long-standing tradition in political philosophy, that the greatest danger of despotic government emanated from the executive. (35)

The Maryland Declaration of Rights of August 14th, 1776, second in importance only to Virginia among the early declarations, did not change the general tendency. (36) To be sure, the percentage of the stipulations granting protection rose to almost sixty. (37) Furthermore, only one clause remained appealing to "first principles," the sovereignty of the people. But of all the new stipulations of rights conferred and protections granted in Maryland--eighteen in addition to the twenty-six original stipulations in Virginia and to the four newly inserted in New Jersey (38)--only two can be regarded as restrictions on the power of the legislature. These restrictions included the prohibition of ex post facto laws and bills of attainder. (39)

In the summer of 1776, there seems to have been a widespread consensus that a potential threat of despotic power loomed from the executive. Many believed that the proper remedy to combat this power could only come from the...