Although the line between protected and illegal speech would always be somewhat controversial, we do know that the Founders regarded freedom of speech generally, and freedom of the press particularly, as a wide ranging right.
Although his name is not well known, John Dickinson was perhaps the most prolific and authoritative writer of the revolutionary generation. And after Washington, he was the first to take up arms in defense of the new nation.
Dickinson’s language on freedom of the press is a bit unwieldy for the 21st century American, so I will not repeat it here. Instead, I will present a paraphrased version of a scholar’s interpretation of Dickinson’s words.
Freedom of the press is not merely a self-expressive right, but a truth-seeking right based on natural law and the fundamental “goods” and happiness that every person is entitled to pursue.
This freedom will persuade those in government to work for the common good, and not for their own advantage, lest they be exposed, humiliated or shamed by the press. In other words, freedom of the press will promote public virtue, and encourage those in authority to put aside their passions and conduct themselves as true representatives of the people.
Dickinson recognized from his own journalistic work how the American people in the various states, in widely differing occupations, and whose lives were almost unimaginably dissimilar, had begun to come together in one American nation!
This was in large part due to the unifying reportage of the press, which elicited in Americans common concerns that transcended their widely disparate everyday lives.
How far we have come.
American Independence
The Declaration of Independence lists 27 reasons why Americans declared their independence form the King of England. The Declaration referred to the Laws of Nature and of Nature’s God, stating that “All Men are created equal, that they are endowed by their Creator with certain unalienable rights…” This notion was revolutionary, as kings did not believe everyone was created equal. They believed in “the divine right of kings,” that the Creator gives rights to the king, and the king dispenses them at his discretion to whoever he wishes.
The Declaration of Independence concludes with the following words, “And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our lives, our fortunes, and our sacred honor.”
Lest anyone believe these to be idle words…. John Hancock was an early signer, stating as he signed, “The price on my head has just doubled.” Ben Franklin was not being cute or clever when he said, “We must hang together or most assuredly we shall hang separately.”
Fifty-six men signed the Declaration. Many sacrificed their prosperity for their posterity. Of the 56 signers:
11 had their homes destroyed;
5 were hunted and captured;
17 served in the military; and
9 died during the war.
Some of the most tragic anecdotes:
Thomas McKean wrote that he was “hunted like a fox by the enemy, compelled to remove my family five times in three months.”
Richard Stockton signed and was dragged from his bed in the night and jailed.
Edward Rutledge, Thomas Heyward, Jr., and Arthur Middleton, all under the age of 35, were made prisoners at the Siege of Charleston.
Abraham Clark had two sons tortured and imprisoned on the British starving ship Jersey.
The British plundered the home of Francis Lewis and carried away his wife, Elizabeth, putting her in prison. The British sought to make an example of her, so they denied her food, a change of clothing and a bed. She was treated so harshly that she died shortly after being released.
Agreeing to be a signer of the Declaration of Independence was definitely not for the faint of heart.
The Founders on Immigration
The principles of the American Founding conferred a right to emigrate from the land of one’s birth. But that didn’t confer the right to immigrate to any place of one’s choosing. Thus the principal of consent, as conceived by the Founders, requires the following explanation:
If “all men are created equal,” then consent must be reciprocal among the parties involved. According to the 1782 Massachusetts Constitution, “the body politic is formed by a voluntary association of individuals…” It is a social compact by which every member of a political community must consent to live…with the other members of the community.
In other words, just as the individual must consent to live within the community, the community must consent to the membership of each individual.
The people have delegated to Congress the power to fix the terms under which America will consent to an immigrant becoming a member of the American political community. If the immigrant wishes to become a citizen and chooses to abide by those conditions, then citizenship will be conferred upon him.
Beyond that, mutual consent is demanded by the principle of natural equality. If an immigrant can impose himself on the community, without meeting the conditions set forth by the people’s representatives, then the relationship is not one of equals. Rather, the immigrant is establishing himself as superior to the members of the community, as he has the power to dictate the terms of his presence without the community’s consent. Anything less than mutual consent amounts to an act of force.
Summed up, while the Founders’ principles maintain a right to emigrate from one’s native country, they do not confer an automatic right to immigrate to any particular political community, unless that community consents to that individual’s presence.
The American Evolution of Thought on Freedom of Religion
The original settlers of America did not subscribe to the notion of “freedom of religion.” In fact, the official denomination in Virginia was the Church of England, an episcopal form, which was established from 1606 to 1786. This constituted “establishment” of religion, establishment here as defined in a subsequent edition of Noah Webster’s dictionary. This is how the first amendment of our nation’s constitution, in referring to religious freedom, came to use the word “establishment” of religion as something from which the federal government would be prohibited.
Establishment also meant that settlers were required to take the “oath of supremacy,” wherein the King of England is “the only Supreme Governor of the realm … in all Spiritual or Ecclesiastical things,” and whereby church attendance was mandatory. Furthermore, in 1623 the Virginia House of Burgesses passed an ordinance dictating that the Sabbath would not be “profaned” by work or travel. The fine for disobedience was a pound of tobacco.
It wasn’t until the times just prior to the Revolutionary War that large segments of the population had come to represent a variety of denominations.
U.S. Supreme Court Justice Hugo Black wrote in 1962 that there had been established Churches in at least eight of the thirteen original colonies. He continued by stating that the successful revolution against England had been accompanied by the gain in strength of various religious groups that opposed the established Church. They obtained the enactment of the “Virginia Bill for Religious Liberty,” drafted by Thomas Jefferson, which placed all such groups on equal footing.
This Virginia state law became the model for the first amendment’s religious freedom guarantee.
Factions and the Danger they Pose to Our Republic
In Federalist 10 James Madison, as Publius of course, addressed factions, which may well be one explanation for the dangerous government overreach we see today. Republican government was deemed far superior to a democracy for its checks on factions.
A faction is a party of persons having a common end or goal in view. The faction may employ subversive methods to promote their selfish or partisan interests, especially in matters of state. In the case of a minority faction, Republican government will ensure the failure of the faction to impose their rules on others. So Madison concentrated his commentary on the far greater threat posed by majority factions.
It’s a complicated topic when viewed in depth. But in this case, size matters. In other words, a sufficiently large Republic will defeat the will of the faction if it is detrimental to the whole because of the merit of the people’s representatives. Or so the founders thought.
But if Republican government is a government of the people, by the people and for the people, how could we have gotten terrible policies like Obamacare or open borders?
Here is one thought: We have representatives of the people, meaning one of us. They are by the people, meaning elected by us. But are they for the people? Or are they for the Party? If our representatives have become so corrupted that they act for the Party instead of for the people, then our republic may soon cease to be a republic.
Is there hope? The Tea Party was a good start, that resulted in the election of some representatives with integrity, not the least of which was the election of President Trump. Perhaps we need to continue to follow the Tea Party’s populist example.
What the Founders said (in part) about the House of Representatives
At the time of the founding, there were numerous public concerns about the make-up of the House of Representatives, the so-called “people’s house.” One of these questions asked how the body could avoid drawing members from the upper class, a class of citizens having the least in common with the masses, a class likely to sacrifice the needs of the many to satisfy the enrichment of the few.
In Federalist 57, under the pen name Publius, James Madison did not attempt to convince his countrymen that their assumptions regarding the class of their future leaders were wrong. Instead, he wrote of five safeguards that would make these concerns moot.
First, the people will have elected these officials for their exemplary character and qualifications. Second, having been elected by the people, these representatives will harbor gratitude and affection toward their constituents. Third, pride and vanity will urge elected leaders to maintain a government which will reflect well on them. Fourth, a requirement for frequent elections will keep representatives aligned with the needs and desires of the people.
To add a final pillar of strength and certainty to the mix, Madison added a fifth and final restraint on the corruption of representatives: They would be permitted to pass no law that would not also apply to themselves.
Madison stated that without this last obligation, “every government degenerates into tyranny.”
Perhaps it can be said that the founders were idealistic. They were also clearly aware of the fact.
What the Founders Had to Say about Impeachment
As many of you may know, the Federalist Papers were commentaries from the time of our founding, written by Alexander Hamilton, James Madison and John Jay, all under the pseudonym Publius. At the time, there was much anxiety, misconception and disagreement among the early American populace over what the drafters of our constitution had in mind. So the Federalist Papers were authored for publication is the news media in order to offer insight into the various topics being considered for inclusion in the constitution, and to dispel the wide array of rumors and myths circulating that had people so concerned.
Federalist #65, written by Hamilton, addresses impeachment, a timely subject. Some scholars consider it to be one of the least well thought out matters of the constitution-drafting process, as Hamilton actually admits within the commentary that essentially the Convention may not have come up with the best plan for impeachment, that better proposals may exist, and that the document should be ratified anyway. This expressed uncertainty is by all accounts wholly uncharacteristic of the Federalist Papers. So this was a very unusual and curious admission by Hamilton.
In a nutshell, Federalist 65 talks about the dangers of impeachment being dominated by parties or factions that are more or less favorable to the accused, rather than dispassionately considering the individual’s guilt or innocence. So a body elected specifically for this purpose was considered a dangerous idea, as well as logistically impractical.
The Supreme Court was also dismissed as a solution, since the number of judges sitting on it seemed too few to “doom to honor or infamy the most distinguished characters of the community.” The Court was also deemed a poor choice because if guilt is determined then that same Court would decide the subsequent civil and criminal proceeding. That deprived the accused of an independent second trial.
Ultimately the drafters opted for a process similar to the British model, wherein the House of Commons would propose the impeachment, and the House of Lords would decide upon it.