Part of an ongoing series examining the writings of the United States’ founders, and what we might still learn from their vision of a new and radical nation.
Examining Constitutional Liberty and Arbitrary Power By Joseph Warren
Delivered as a speech in Boston, 1772—fifteen years before the drafting of the official U.S. Constitution—Joseph Warren examines what a “free constitution” should be, explains the benefits of such a constitution, and asks how a free constitution might be maintained and preserved. The one aspect on which Warren bases everything is the idea that humans are social creatures, an idea that he (and likely all of us) take to be self-evident. With the idea of humans as social creatures in place, Warren suggests that, despite the natural shortcomings of humanity, a free constitution need only work toward one goal.
Warren does not delve into the specifics of human shortcomings, save only to remind the audience that “civil government [is] an institution which hath its origin in the weakness of individuals,” a statement about the need for agreed upon, governmental laws and regulations in society. However, these weaknesses, whatever they might be, are a small concern, so long as the ultimate goal of a free constitution is “the strength and security of all” [emphasis mine]. Warren argues that if this principle is the foundation on which a free constitution is built, and toward which the people are working, that society will certainly be prosperous and happy. Warren further stresses the importance of building and maintaining that free constitution by offering the Roman Empire for example. Warren states, “Noble attachment to a free Constitution … raised Ancient Rome from the smallest beginnings to that bright summit … it was the loss of this which plunged her from that summit into the black gulf of infamy.” Warren warns that such a fate could befall any society and that “public happiness depends on a virtuous and unshaken attachment to a free Constitution.”
But what does Warren mean by a “free constitution.”
Law Is Not Law Without Consent
While his definition of working toward strength and security for all remains a bit vague throughout, Warren does offer some engaging examples of what he envisions. First: If a law both infringes on the rights of individuals, and is a law those same individuals do not consent to obey, that law is inherently unconstitutional. Warren states that any citizen “shall be governed by no laws but those to which he, either in person or by his representatives, hath given his consent.” By proclaiming this, Warren emphasizes that it is not always the majority which should make and define laws; if a law affects the lives of a particular group of people—even if they are in the minority—but that minority has not given their consent to obey that law, that law is, under Warren’s definition, antithetical to a free constitution.
Warren wrote this speech while the colonies were still under British rule, and uses the unfair property taxation of his province as an example of a specific group being forced to obey laws they themselves did not enact. He states that he is uncertain how “the inhabitants of this province can be called free subjects, when they are obliged to obey implicitly such laws as are made for them by men three thousand miles off.” But this raises the question, does Warren suggest that minority groups have special privileges in regards to the law? Taken alone, this speech doesn’t give enough clarity to say for certain one way or the other, but what information is here points to an almost definite no to that question. Let’s examine that information.
In Warren’s own example of property taxes, his lament is not only that the people of his province didn’t have a say in establishing the property laws, but also that these laws directly affected property owners in the colonies in a way that gave them fewer property rights than property owners living in other parts of the British Empire. One specific group of property owners was forced to obey a law to which they did not consent, and which gave them fewer rights than other property owners of the British empire. Thus, property owners were equal in name, but unequal according to the law. Under a truly free constitution, this would not be possible.
One modern example of inequality under the law can be pulled from the fight for marriage equality.
The fight for marriage equality was a fight to redefine a law. Those in favor of marriage equality wanted to extend existing rights to individuals who, by their nature, could not in good conscience practice marriage rights in the form those rights existed. Those opposed to marriage equality wanted to define the law in such a way that those who could already marry would keep their existing rights, while the rights of a minority would be further limited. Under both definitions, only the minority who could not yet marry would be affected by the change; under both definitions, the majority who already could marry would be unaffected. If the law, as defined by the opponents, were adopted, the individuals actually governed by that law would be the same individuals who did not consent to that law. All individuals may fall in love—equal in name—but some will be given fewer rights to practice that love than others—unequal under the law. Setting other arguments aside, the opponent’s version of the law, under Warren’s definition of consent, would have been unconstitutional.
Military as a Force for Unequal Power
Warren’s speech is also concerned with the infamous Boston Massacre of 1770. British Soldiers had been occupying Boston as a means to coerce citizens into paying unfair taxes to Britain. Warren suggests that military force against the people weakens a free constitution, because it is antithetical to the foundational principle. A government would only use military occupation as a means of coercion against its own citizens if that government were trying to silence and ignore the concerns and desires of the people. And a populace forced to do anything by the army of their own government will not and cannot feel strengthened and secure. The use of military force in this way is thus inherently a violation of the foundational principle and ultimate goal of a free constitution.
For this reason, Warren asks why it would ever be in the best interest of the government to use military force as a means of coercing citizens into obeying a law. Warren goes so far as to say, “I know not of any gains which can be wrung from us by oppression, which they may not obtain from us by our own consent.” Going back to his base point, Warren argues that citizens will desire to work alongside a government that both respects them and prioritizes their well being. He furthermore implies that only a government which has abandoned this base principle would ever use military force in the same way the British did in Boston, before the massacre of 1770. How a government uses its military can be a sign of both approaching threats to a free constitution and of coming tyranny.
While Warren is certainly not anti-military, he is concerned with the military as an institution, and how that institution can so easily be misappropriated by despotic authorities. Of the military as an institution, Warren states that “they are instructed implicitly to obey their commanders, without inquiring into the justice of the cause they are engaged to support … they are ever to be dreaded as the ready engines of tyranny and oppression.” From this quote, the reader can see Warren’s apprehension toward a military taught to obey for the sake of obedience alone. What solution there is to the problem of an over institutionalized military, Warren does not explicitly say; however, the argument could be made from Warren’s speech that a government founded on and adhering to a free constitution would never face this problem; using the military to uphold unjust laws or asking them to take uninformed actions—since the soldiery would need to consent to the actions they are being asked to take—is unconstitutional under Warren’s definition.
But if a despotic leadership should arise, what can the citizens do to protect the free constitution under which they are governed? Warren’s answer is twofold, and quite simple: reason and unity.
The Responsibility of the Populace
On the concept of reason, Warren implies that reason means a fair, thoughtful, nonviolent (so long as possible) solution. This implication comes from his praise to the Bostonians after the Boston Massacre. Warren shows great respect that, despite the immediate desire for revenge against the British troops, the citizens were able to find a method of removing the troops from Boston that did not result in further bloodshed. Warren suggests that all matters be so resolved, where possible, when he pleads to his audience: “Follow not the dictates of passion, but enlist yourselves under the sacred banner of reason.”
Reason has, so it seems, come under attack in the contemporary political landscape of the U.S. The ubiquity of conspiracy theories and belief in long debunked scientific hypotheses will be a much discussed legacy of the internet age; couple this with a presidential administration that sowed seeds of doubt in science and education, and no great mind is needed to see that the road back to a rational thinking populace is sure to be a long one. Unfortunate that Warren’s second point of protecting a free constitution—a point which seems inextricable from reason in Warren’s view—is also lacking among the current U.S. population.
Unity. Unity is of the utmost importance in protecting a free constitution. While Warren does give the example of the Bostonians unifying to find a peaceful solution to ending the military occupation of their town, he otherwise takes unity to be self-evident. But perhaps taking unity as a self-evident aspect of a strong and healthy society is a lesson in itself. Politics are inherently divisive. But that does not mean we are incapable of unifying on Warren’s foundational principle of a free constitution, the strength and security of all. Division need not be something destructive. The critics of a law can, through reason and a unified purpose, help sharpen and refine that law into something that strengthens and gives security to all citizens of society. But division that turns a people against themselves is always dangerous. As the biblical axiom goes: “If a house is divided against itself, that house will not be able to stand” (Mark 3:25, ESV).
Warren offering only one, primary goal toward which a free constitution must aim seems, at first, oversimplified. However, the principle is a sound lens through which the populace can view the actions of both the government and themselves. Does this action, this statement, this new law, etc. help ensure the strength and security of all? Furthermore, Warren’s treatment of unity and reason as the best defense against any power that would seek to undermine a free constitution is, in my opinion, absolutely correct. Reason uncovers truth, and unity achieves goals.
The modern day United States faces many internal difficulties that its citizens are being forced to address. But as a citizen of the U.S., despite its problems, I want to see this nation succeed, to finally become what our founders said they wanted it to be—which throughout its history, it never actually has been. I want for this country, what Warren says he wants for it at the conclusion of his speech:
“May our land be a land of liberty, the seat of virtue, the asylum of the oppressed, a name and a praise in the whole earth, until the last shock of time shall bury the empires of the world in one common undistinguished ruin!”
Cover Image: The Death of General Warren at the Battle of Bunker Hill by John Trumbull