Founding America: Documents from the Revolution to the Bill of Rights

[Thistle]

It is, isn't it? I am currently working through the Pennsylvania constitution of September 28, 1776. I'm not too far into it yet, but I think there will be some interesting differences between this and the Virginia constitution. In the introduction to this chapter, the editor of the book characterized the Virginia constitution as more typical and the Pennsylvania constitution as more radical.

I'll be interested to read your comments about that.

I'm curious how these fit together. Why is it okay for state legislators to elect a Senator, but not for the national legislature to elect a President?

When I think about the way the separation of powers work at one level there seems to be a civic trinity. The states are sovereign in one way, the federal government is sovereign in a slightly different way, and the citizen is sovereign in a third way. The states seem to express sovereignty as the primary lawgiver on the one hand and the elector of one of the houses of the bicameral Federal legislature. The individual expresses sovereignty by voting both for state and federal offices including the executive branch uniquely and asserting rights against both the state and the federal government. And the federal government expresses sovereignty through mechanisms like the supremacy clause. These divided expressions of sovereignty have a strong appeal in preventing too much power from accumulating at any one place.

It seems like you'd either want the "self cleansing cycle" in both cases, or see it as unnecessary in either of them. But I'm not a historian or anything, so I could be missing something.

For all of the lionizing of FDR it was the judgment of the majority of people that his unprecedented reign in the White House was on the hole not optimal. Further because other people who wanted to be president were prevented, people who are in other positions of power like congressmen and senators that it was achievable to pass a constitutional amendment to insert a term limit. Congressional term limits thus far have failed because congressmen and senators have an interest in not being term limited out. This is why it was particularly disappointing when this was the only promise in the "contract with America" that failed to be passed through the house. The key voice in torpedoing congressional term limits out of the contract of America after the Republicans were placed in the majority was Dick Army. He did not run for reelection but opened up a lobbying business and became filthy rich, making a lot of Republicans exceedingly cynical about the people they vote for on what there seemed like fairly hollow promises. This is precisely why Donald Trump was able to find a willing audience among Republicans on an anti-establishment agenda. Dick Armey reversing on congressional term limits alerted republican voters that hollow campaign promises were a major problem and there after many examples of this kind of "Betrayal" seem to be reinforced by campaign issues never getting solved but providing fighter for campaign after campaign after campaign. Further driving this point home, abortion (unpopular with Republicans for 50 years) only gets resolved satisfactorily (from the perspective of Republican voters) after Donald Trump actually pursued policies that resulted in a different Supreme Court position. This again carries an inference that a lot of the issues are not being resolved because it serves the interest of the power elite to not resolve them. Republican voters make this observation of Democrats politicians also, but Democrat politicians are not betraying Republican voters, Republican politicians are. Thus, you get a coalition of Democrat and Republican never Trump constituents within the power lead that very plausibly lend credence to the deep state narrative which seems to be vindicated in the current policy of law fair against Donald Trump vis-à-vis the 2024 election cycle.

Yes, agreed.

 

[Komodo]

That's an interesting example you gave about Pat Robertson. I don't remember the issue. Was he offering an argument in support of refusing Haitian refugees to immigrate to the United States? Although I do remember quite accidentally running into him and Reagan national Airport when he was actually running for president, I believe it was in 96? We ended up in such close proximity that he glad handed me as you might expect a presidential candidate to do.

Robertson's comments came after Haiti had suffered a huge earthquake with horrendous casualties. Though I don't remember his exact words, it seemed he was saying we needed to understand this "history" (the pact with the devil) to understand why these things happened to them.

Also, don't want to abandon this thread, but it's just become too hard to keep trying and re-trying to post without getting the Oops!ies.

 

[Thistle]

Robertson's comments came after Haiti had suffered a huge earthquake with horrendous casualties. Though I don't remember his exact words, it seemed he was saying we needed to understand this "history" (the pact with the devil) to understand why these things happened to them.

Also, don't want to abandon this thread, but it's just become too hard to keep trying and re-trying to post without getting the Oops!ies.

I had that issue last week. It's extremely frustrating particularly when you put some thought into what you are trying to say.

 

[Torin]

Robertson's comments came after Haiti had suffered a huge earthquake with horrendous casualties. Though I don't remember his exact words, it seemed he was saying we needed to understand this "history" (the pact with the devil) to understand why these things happened to them.

Also, don't want to abandon this thread, but it's just become too hard to keep trying and re-trying to post without getting the Oops!ies.

That's understandable, but I hope you find a way to participate eventually. Your comments have been great.

I will say, both for you and for @Thistle, that the Pennsylvania constitution has some very interesting provisions. (I'm not done with it yet.)

 

[Torin]

This post will discuss the Pennsylvania constitution as it was enacted on September 28, 1776.

The document has three parts. First, there is an introductory paragraph explaining why a new constitution is needed, which I won't cover since it repeats familiar complaints. Then there are two much longer sections, entitled respectively (1) "The Declaration of Rights of the Inhabitants of the Common-Wealth, or State of Pennsylvania" and (2) "Plan or Frame of Government for the Commonwealth or State of Pennsylvania."

The document is signed "Benj. Franklin, Prest."

1. The Declaration of Rights

The first part of the Pennsylvania constitution states the rights that people have. This is not "mere theory" with no real world impact though, since it is stated in the "Plan or Frame of Government" that this Declaration of Rights is legally binding (section 46). This is a difference from both the Virginia Declaration of Rights and the American Declaration of Independence, which both state rights, but do not have this direct legal force.

There are sixteen numbered paragraphs in this declaration of rights, some of which state multiple rights.

The very first point listed affirms what I assume the founders took to be core rights. It begins, "all men are born equally free and independent, and have certain natural, inherent, and inalienable rights." It lists life, liberty, and the pursuit of property, happiness, and safety as rights (but without limiting the rights to those alone). The language in this first point is, clearly, very similar to the American Declaration of Independence. It is also similar to the Virginia Declaration of Rights, as you may recall from above.

The next right listed is freedom of religion (paragraph 2). However, it seems that Pennsylvanians at this time may have failed to acknowledge some of the rights of atheists. There is a right here to worship God or not as one pleases, but it does not say that the rights of atheists may not be abridged. It reads, in part, as follows: "nor can any man, who acknowledges the being of a God, be justly deprived or abridged of any civil right as a citizen, on account of his religious sentiments [...]." The only fair reading of this, to my mind, is that atheists can be deprived of civil rights simply because they are atheists.

The third and fourth points state that Pennsylvania is self governing and that power comes exclusively from the people. The fifth point says that the people have the right to revolt against a government that violates their rights, and the sixth point says that the people have the right to elect their leaders or to reduce them to a private station at times, by regular elections. Point seven adds that elections must be free.

The eighth point advocates taxation and involuntary conscription "when necessary." It allows for conscientious objectors not to be conscripted, but only if they pay a fee. (Oh well.)

Points 9 through 11 provide rights at trial, rights against general warrants, and the right to a jury during civil trials. Next there are some familiar rights that will appear later in the US Bill of Rights. Point 12 provides rights to free speech and a free press, and point 13 provides a right to bear arms and forbids standing armies. Skipping ahead a bit, point 16 provides rights to assembly and petition.

As declarations of rights go, this is decidedly hit and miss - in my opinion.

What do you think about this part of the Pennsylvania constitution, folks?

2. The Frame of Government

This is a longer and more concrete part of the Pennsylvania constitution. It lays out the institutions that will compose this government and the powers that they will have. This "Plan or Frame of Government" is divided into 47 sections.

The Pennsylvania constitution described a legislature with one house, a collective executive branch consisting of a president with a council, and a judiciary branch. I can see why the editor of the anthology described this constitution as "radical." This is really different from our current government or from the Virginia constitution of 1776 (summarized earlier). I'm really curious how well such a government worked out practically.

Voting requirements were apparently more lax under this constitution than they were in Virginia. Pennsylvania required that a man who wanted to vote be free, 21 years of age, and a resident of Pennsylvania for a year, and that they had paid taxes in the last year. Virginia had a property requirement, which is obviously a higher bar.

There was a residency requirement of two years to be elected, and no one could hold office in the legislature for more than four years in a seven year period. Elections for the assembly were to be annual.

Very interestingly, the legislature of Pennsylvania had no power to amend its constitution. Amending the constitution was reserved to a separate "council of censors," which was convened regularly in seven year intervals. The "censors" were supposed to make sure that the constitution had been preserved, and they had the power to censure and impeach officials as well as amend the constitution.

The assembly of Pennsylvania took two oaths. The second of these oaths required all of the members of the assembly to be Bible believing Christians, who affirmed the Old and New Testaments to be divinely inspired. I have to wonder if Benjamin Franklin, who presided over the formation of this constitution, would be allowed to sit on this assembly. In any event, no other religious test for office was permitted in Pennsylvania than this oath.

The Pennsylvania constitution made several provisions for publicizing the proceedings of the assembly. The public was to be admitted to observe the house in session, and the minutes of the house were to be kept and published. All of the laws were to be published for public debate before being voted on. In one idiosyncratic provision, people were supposed to be able to use the printing presses for free so long as they were publishing about the government (section 35).

The executive council was elected by freemen, just like the legislative assembly. This seems like a really bad idea - I don't think our executive branch would function well today if the President's cabinet was elected like Congress is. Also like the assembly, this executive council had a rotation requirement which required them to step down every few years.

The President and Vice President were elected by the assembly and executive council, by joint ballot. In other words, the people voted for the assembly and council, and those two bodies then voted for the President and Vice President. That's an oddly cumbrous system to me... I'm not sure what the advantage would have been of doing it quite that way, even accounting for the founders' distrust of Athens-style "democracy."

Section 20 vests various executive powers in the President, Vice President, and executive council - together. In other words, there's no sense here that the President is "in charge" of the executive branch. It's basically a second legislature with different powers and responsibilities, as far as I can tell.

The judiciary is led by a supreme court, whose justices serve for terms of seven years. There is a provision for trial by jury, and a prohibition of debtors' prisons, excessive bail, and excessive fines. As for punishments, "visible punishments" are encouraged on the theory that they will deter crime, which will make executions less necessary and common (!).

There are some paternalistic provisions as well. Public schooling is provided for, and virtue and vice laws are explicitly recommended.

Overall: This is a weird and unusual governing document! I am super curious how this worked out in practice!

 

[Torin]

That was an adventure. I wonder how such a constitution came about. Could it possibly have worked?

I got the feeling at times that Benjamin Franklin had too much power over whatever proceedings led to this. Some of the stranger provisions read like they were written in his style.

 

[Thistle]

This post will discuss the Pennsylvania constitution as it was enacted on September 28, 1776.

The document has three parts. First, there is an introductory paragraph explaining why a new constitution is needed, which I won't cover since it repeats familiar complaints. Then there are two much longer sections, entitled respectively (1) "The Declaration of Rights of the Inhabitants of the Common-Wealth, or State of Pennsylvania" and (2) "Plan or Frame of Government for the Commonwealth or State of Pennsylvania."

The document is signed "Benj. Franklin, Prest."

1. The Declaration of Rights

The first part of the Pennsylvania constitution states the rights that people have. This is not "mere theory" with no real world impact though, since it is stated in the "Plan or Frame of Government" that this Declaration of Rights is legally binding (section 46). This is a difference from both the Virginia Declaration of Rights and the American Declaration of Independence, which both state rights, but do not have this direct legal force.

There are sixteen numbered paragraphs in this declaration of rights, some of which state multiple rights.

The very first point listed affirms what I assume the founders took to be core rights. It begins, "all men are born equally free and independent, and have certain natural, inherent, and inalienable rights." It lists life, liberty, and the pursuit of property, happiness, and safety as rights (but without limiting the rights to those alone). The language in this first point is, clearly, very similar to the American Declaration of Independence. It is also similar to the Virginia Declaration of Rights, as you may recall from above.

The next right listed is freedom of religion (paragraph 2). However, it seems that Pennsylvanians at this time may have failed to acknowledge some of the rights of atheists. There is a right here to worship God or not as one pleases, but it does not say that the rights of atheists may not be abridged. It reads, in part, as follows: "nor can any man, who acknowledges the being of a God, be justly deprived or abridged of any civil right as a citizen, on account of his religious sentiments [...]." The only fair reading of this, to my mind, is that atheists can be deprived of civil rights simply because they are atheists.

The third and fourth points state that Pennsylvania is self governing and that power comes exclusively from the people. The fifth point says that the people have the right to revolt against a government that violates their rights, and the sixth point says that the people have the right to elect their leaders or to reduce them to a private station at times, by regular elections. Point seven adds that elections must be free.

The eighth point advocates taxation and involuntary conscription "when necessary." It allows for conscientious objectors not to be conscripted, but only if they pay a fee. (Oh well.)

Points 9 through 11 provide rights at trial, rights against general warrants, and the right to a jury during civil trials. Next there are some familiar rights that will appear later in the US Bill of Rights. Point 12 provides rights to free speech and a free press, and point 13 provides a right to bear arms and forbids standing armies. Skipping ahead a bit, point 16 provides rights to assembly and petition.

As declarations of rights go, this is decidedly hit and miss - in my opinion.

What do you think about this part of the Pennsylvania constitution, folks?

2. The Frame of Government

This is a longer and more concrete part of the Pennsylvania constitution. It lays out the institutions that will compose this government and the powers that they will have. This "Plan or Frame of Government" is divided into 47 sections.

The Pennsylvania constitution described a legislature with one house, a collective executive branch consisting of a president with a council, and a judiciary branch. I can see why the editor of the anthology described this constitution as "radical." This is really different from our current government or from the Virginia constitution of 1776 (summarized earlier). I'm really curious how well such a government worked out practically.

Voting requirements were apparently more lax under this constitution than they were in Virginia. Pennsylvania required that a man who wanted to vote be free, 21 years of age, and a resident of Pennsylvania for a year, and that they had paid taxes in the last year. Virginia had a property requirement, which is obviously a higher bar.

There was a residency requirement of two years to be elected, and no one could hold office in the legislature for more than four years in a seven year period. Elections for the assembly were to be annual.

Very interestingly, the legislature of Pennsylvania had no power to amend its constitution. Amending the constitution was reserved to a separate "council of censors," which was convened regularly in seven year intervals. The "censors" were supposed to make sure that the constitution had been preserved, and they had the power to censure and impeach officials as well as amend the constitution.

The assembly of Pennsylvania took two oaths. The second of these oaths required all of the members of the assembly to be Bible believing Christians, who affirmed the Old and New Testaments to be divinely inspired. I have to wonder if Benjamin Franklin, who presided over the formation of this constitution, would be allowed to sit on this assembly. In any event, no other religious test for office was permitted in Pennsylvania than this oath.

The Pennsylvania constitution made several provisions for publicizing the proceedings of the assembly. The public was to be admitted to observe the house in session, and the minutes of the house were to be kept and published. All of the laws were to be published for public debate before being voted on. In one idiosyncratic provision, people were supposed to be able to use the printing presses for free so long as they were publishing about the government (section 35).

The executive council was elected by freemen, just like the legislative assembly. This seems like a really bad idea - I don't think our executive branch would function well today if the President's cabinet was elected like Congress is. Also like the assembly, this executive council had a rotation requirement which required them to step down every few years.

The President and Vice President were elected by the assembly and executive council, by joint ballot. In other words, the people voted for the assembly and council, and those two bodies then voted for the President and Vice President. That's an oddly cumbrous system to me... I'm not sure what the advantage would have been of doing it quite that way, even accounting for the founders' distrust of Athens-style "democracy."

Section 20 vests various executive powers in the President, Vice President, and executive council - together. In other words, there's no sense here that the President is "in charge" of the executive branch. It's basically a second legislature with different powers and responsibilities, as far as I can tell.

The judiciary is led by a supreme court, whose justices serve for terms of seven years. There is a provision for trial by jury, and a prohibition of debtors' prisons, excessive bail, and excessive fines. As for punishments, "visible punishments" are encouraged on the theory that they will deter crime, which will make executions less necessary and common (!).

There are some paternalistic provisions as well. Public schooling is provided for, and virtue and vice laws are explicitly recommended.

Overall: This is a weird and unusual governing document! I am super curious how this worked out in practice!

Yes, the Pennsylvania constitution seems much more Roman in its construct. The Roman senate would elect two consuls who would operate like a president on alternating months and they would be replaced by two new consuls at the end of their term.

On your point about atheists I don't think that you can demand positive language about a negation from a constitution. There's an infinite number of things that people can not believe in, and it would be impossible to mention them all in the process of guaranteeing everyone rights.

And as for whether Benjamin Franklin would have been precluding himself from service in Pennsylvania, I think he would find it amenable and practical to make some kind of civil stipulation to belief in the Bible, for purposes of civic order, regardless of any personal feelings to the contrary that he might have, owing to his potential academic doubts. Oddly, I don't think he would've found this a bar to service, or prejudicial, in anyway.

 

[Komodo]

The very first point listed affirms what I assume the founders took to be core rights. It begins, "all men are born equally free and independent, and have certain natural, inherent, and inalienable rights." It lists life, liberty, and the pursuit of property, happiness, and safety as rights (but without limiting the rights to those alone). The language in this first point is, clearly, very similar to the American Declaration of Independence. It is also similar to the Virginia Declaration of Rights, as you may recall from above.

In the preamble to this, Franklin says that this declaration/constitution is being issued in order that the "principles of liberty and free government may be recognized and unalterably established" (my emphasis). Not only is this rather utopian, it's in tension with the proposition just two paragraphs later, that "For the advancement of these ends [i.e. their 'peace, safety and prosperity'] they ["the people"] have at all times an inalienable and indefeasible right to alter, reform or abolish their government in such manner as they may think proper. "

This of course is almost identical to the language of the DOI. It raises the question here, however, of how a principle can be "unalterably established" if the government instituted to establish it can be abolished. It reminds me of the story of how Kurt Godel escaped Nazi Germany and applied for U.S. citizenship. In preparation for his citizenship exam he studied the U.S. constitution, and mentioned to Einstein (who was sponsoring him) that the existence of an amendment process necessarily meant that no aspect of the constitution, however fundamental it might seem, was immune to legal alteration or abolition. Einstein advised him to keep that to himself during the application process. So Godel passed the exam, came before the judge to take the citizenship oath, and the judge said "I see you are a refugee from a dictatorship. Fortunately, you have come to a country whose Constitution insures that will never happen here." Godel's eyes lit up and he started to correct the judge, when Einstein dug his elbow into Godel's side and he reluctantly subsided.

Well, perhaps we can just write off "unalterably" as hyperbole.

More later, Oops permitting.

 

[Komodo]

[.. .]
On your point about atheists I don't think that you can demand positive language about a negation from a constitution. There's an infinite number of things that people can not believe in, and it would be impossible to mention them all in the process of guaranteeing everyone rights.

I don't think the point is that Franklin should have written "believers, atheists, agnostics, mystics (etc.) are all entitled to equal rights" but rather that he should have simply written "nor can any man be justly deprived or abridged of any civil right as a citizen, on account of his religious sentiments" rather than "nor can any man, who acknowledges the being of a God, be justly deprived or abridged of any civil right as a citizen, on account of his religious sentiments." I think Torin is correct in saying that this language implies that those who do not acknowledge the being of a God (i.e., atheists, agnostics) can be deprived of civil rights. Compare "no adult who has not been convicted of a felony, can be legally deprived of voting rights"; the implication is that adults who have been convicted of felonies can be legally deprived of voting rights.

 

[Thistle]

I don't think the point is that Franklin should have written "believers, atheists, agnostics, mystics (etc.) are all entitled to equal rights" but rather that he should have simply written "nor can any man be justly deprived or abridged of any civil right as a citizen, on account of his religious sentiments" rather than "nor can any man, who acknowledges the being of a God, be justly deprived or abridged of any civil right as a citizen, on account of his religious sentiments." I think Torin is correct in saying that this language implies that those who do not acknowledge the being of a God (i.e., atheists, agnostics) can be deprived of civil rights. Compare "no adult who has not been convicted of a felony, can be legally deprived of voting rights"; the implication is that adults who have been convicted of felonies can be legally deprived of voting rights.

I understand the clarity that your language brings to this discussion. I wouldn't presume to criticize your point but only point out that the understanding freedom of religion is based on a notion of freedom of conscience before God which is bottom of freedom of religion which implicitly includes the theology that says there is no God.

The two Greek words making up theology is Theo's which means God and logos which means words or talk. So if you say that there is no God that is your theology. In other words, you have something to say about God, and what you have to say is that he doesn't exist. If you go back to the founding of Rhode Island and Roger Williams he specifically incorporates atheism into his notion of freedom of religion, and also includes Islam and all the eastern religions as well.

 

[Komodo]

1. The Declaration of Rights

The first part of the Pennsylvania constitution states the rights that people have. This is not "mere theory" with no real world impact though, since it is stated in the "Plan or Frame of Government" that this Declaration of Rights is legally binding (section 46). This is a difference from both the Virginia Declaration of Rights and the American Declaration of Independence, which both state rights, but do not have this direct legal force.

There are sixteen numbered paragraphs in this declaration of rights, some of which state multiple rights.

The very first point listed affirms what I assume the founders took to be core rights. It begins, "all men are born equally free and independent, and have certain natural, inherent, and inalienable rights." It lists life, liberty, and the pursuit of property, happiness, and safety as rights (but without limiting the rights to those alone). The language in this first point is, clearly, very similar to the American Declaration of Independence. It is also similar to the Virginia Declaration of Rights, as you may recall from above.

The exact language here is kind of interesting, to me at least:

"All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness."

I was always taught that "Life, liberty and property" was the conventional triad of rights in this period, and that they're derived from John Locke, who (I just discovered) actually wrote that we generally had no right to impair "what tends to the preservation of the life, the liberty, health, limb, or goods of another"; which is not quite as elegant. ("Limb" seems weirdly specific; I guess the idea was that you couldn't impair someone else's heart or brain without threatening life, so it went without saying that you couldn't attack those, but you might damage a limb without threatening life, so it has to be specified that you can't do that either.) Jefferson of course drops "property" and adds "pursuit of happiness," while Franklin has all four. This might reflect a difference of opinion about whether the right to property really was quite as fundamental or exalted a principle as the other rights, or it could be that Jefferson thought it was redundant since it was covered under "pursuit of happiness." Franklin might have thought that the right to property had a stronger claim in a governing document with legal force than in one which just stated ideals. "Property" first appears in the federal constitution in the 5th amendment, which has the old triad (we can't be deprived of "life, liberty or property" without due process of law).

Franklin also adds "reputation"; I don't know of anywhere else where this is treated as one of our fundamental rights. It's something of a hard sell, I'd say, since "reputation" is a "good" which requires an imposition on others, in a way that "life/liberty/property/pursuit of happiness" do not. How do I have the right to have others consider me a person of good character, or to talk of me as a person of good character? That seems in obvious conflict with the right of freedom of speech, even with the right of freedom of thought.

 

[Torin]

"All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness."

Sorry, what are you quoting this from? I don't see quite that sentence in the Pennsylvania section on rights.

Jefferson of course drops "property" and adds "pursuit of happiness," while Franklin has all four. This might reflect a difference of opinion about whether the right to property really was quite as fundamental or exalted a principle as the other rights, or it could be that Jefferson thought it was redundant since it was covered under "pursuit of happiness." Franklin might have thought that the right to property had a stronger claim in a governing document with legal force than in one which just stated ideals. "Property" first appears in the federal constitution in the 5th amendment, which has the old triad (we can't be deprived of "life, liberty or property" without due process of law).

These are indeed interesting discrepancies, and I do think there's likely some well considered reason for them. However, we should keep in mind that the Pennsylvania constitution and the Declaration of Independence were both products of committees. It would be a mistake to assume that Jefferson, himself, regarded property as a less important right, simply because he was the author of the Declaration of Independence. Nevertheless, we could take (for example) "Jefferson" as a kind of shorthand for the committee that edited and approved Jefferson's draft, in which case the interesting question remains of why that committee chose those rights.

Franklin also adds "reputation"; I don't know of anywhere else where this is treated as one of our fundamental rights. It's something of a hard sell, I'd say, since "reputation" is a "good" which requires an imposition on others, in a way that "life/liberty/property/pursuit of happiness" do not. How do I have the right to have others consider me a person of good character, or to talk of me as a person of good character? That seems in obvious conflict with the right of freedom of speech, even with the right of freedom of thought.

Reputation is, to my mind, something you have a right to if you can acquire it fairly, like property.

You don't have a right to be handed a bunch of property, and by the same token, you don't have a right to brainwash other people into thinking well of you. However, once you've done the work to build up a good reputation, it is a violation of your rights to tarnish it with lies. This is the moral basis of libel and slander laws, which I think we probably agree are beneficial on the whole.

Naturally, it would be an error of me to assume that just because I justify the right to acquire a good reputation as above, Franklin (or the other founders) also justified it the same way. No such inference can be made, at least not with certainty.

 

[Torin]

I have stumbled upon this rather interesting list of precursors to our Bill of Rights:

Precursors to the Bill of Rights in the States (excerpts) | Natural Law, Natural Rights, and American Constitutionalism

www.nlnrac.org

 

[Thistle]

The exact language here is kind of interesting, to me at least:

"All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness."

I was always taught that "Life, liberty and property" was the conventional triad of rights in this period, and that they're derived from John Locke, who (I just discovered) actually wrote that we generally had no right to impair "what tends to the preservation of the life, the liberty, health, limb, or goods of another"; which is not quite as elegant. ("Limb" seems weirdly specific; I guess the idea was that you couldn't impair someone else's heart or brain without threatening life, so it went without saying that you couldn't attack those, but you might damage a limb without threatening life, so it has to be specified that you can't do that either.) Jefferson of course drops "property" and adds "pursuit of happiness," while Franklin has all four. This might reflect a difference of opinion about whether the right to property really was quite as fundamental or exalted a principle as the other rights, or it could be that Jefferson thought it was redundant since it was covered under "pursuit of happiness." Franklin might have thought that the right to property had a stronger claim in a governing document with legal force than in one which just stated ideals. "Property" first appears in the federal constitution in the 5th amendment, which has the old triad (we can't be deprived of "life, liberty or property" without due process of law).

Franklin also adds "reputation"; I don't know of anywhere else where this is treated as one of our fundamental rights. It's something of a hard sell, I'd say, since "reputation" is a "good" which requires an imposition on others, in a way that "life/liberty/property/pursuit of happiness" do not. How do I have the right to have others consider me a person of good character, or to talk of me as a person of good character? That seems in obvious conflict with the right of freedom of speech, even with the right of freedom of thought.

Very thoughtful comments. There is a tension between the concepts of honor and integrity. If you hold a man's "honor" sacrosanct then you have things like Aaron Burr shooting Alexander Hamilton in a duel. In a militaristic culture (and there's a lot of that in western civilization) honor is an extremely useful concept in mobilizing military action. In fact in English common law which we observe there is a concept of fighting words based on besmirching someone's honor. So if someone were to make disparaging remarks about your mother, presumably you could punch them in the face justifiably. This of course is extremely problematic because it might be that your mother is a dishonorable person who is accurately described by the comments made. That having been said, what little boy doesn't feel completely justified in laying someone who has slandered his mother among the sweet peas. I don't know this for certain but I expect that this exaltation of the notion of honor over integrity has something to do with the notions of chivalry or possibly even attributable to the Cavalier poets.

The problem is you've got to choose between honor and integrity. Integrity says that you have to own up to your own faults, and if you're going to do that, you're precluded from running around and defending your honor all the time. Now I don't really have an objection to honor being used in the military context where it means that the soldiers have lived up to the finest traditions of integrity to their mission, and training, and following the orders of their superior officers, ultimately the civil authority through the President of the United States. And even today I wouldn't want to under appreciate this utility of honor in the military setting. It was noted when we were pursuing the war on terror in the Middle East that if you ordered a US soldier to hold a piece of ground he would stay and defend that piece of ground until he was relieved. This is not generally true of soldiers from every country. My suspicion is that there is an element of honor in the willingness of US soldiers to obey orders simply because they were given and of course they were otherwise not illegal orders. But the notion of honor becomes problematic when it is personalized to the extent that you believe that you personally are owed some honorific consideration. Which is especially true if you're willing to enforce it.

To the question of pursuit of happiness and property being two different things that's an interesting thought. If money is the storage of time whereby we exchange our labor for value which can be expressed in the things that we own, it seems the question is answered in part by how you relate enterprise to happiness I suppose. Generally speaking I think it's true that men probably derive more happiness in the pursuit of some enterprise where women derive more happiness relationally. So it may be the protection of property and pursuit of happiness may be that the former is a subset of the latter.

 

[Komodo]

Sorry, what are you quoting this from? I don't see quite that sentence in the Pennsylvania section on rights.

This is what I got from searching "Pennsylvania Constitution text"; maybe it's an amended version?



More substantive post later, in response to the very interesting comments by yourself and @Thistle.

 

[Torin]

This is what I got from searching "Pennsylvania Constitution text"; maybe it's an amended version?

View attachment 5185

More substantive post later, in response to the very interesting comments by yourself and @Thistle.

Yes, that appears to be the 1968 version. There are definitely some similarities, but the wording has changed.

 

[Torin]

From the various texts we've discussed in this thread, a paradox occurs to me about the founders' concept of a right:

1. rights are natural, inherent, inalienable, and indubitable (etc.)

2. political power must come from the consent of the people to be legitimate

In other words, I'd think that if a right is inalienable, it ought to be protected regardless of whether anyone consents to its being protected or not. The consent is nice to have, but not necessary to the legitimacy of the rights protecting government. But this does not appear to have been the founders' point of view, since they repeatedly say that political power must come from the consent of the governed.

I would guess that the point of the consent principle is just that practically speaking, rights will not be protected if people don't consent to their being protected.

Does anyone have a different take on this? Am I overthinking, here?

 

[Torin]

The problem is you've got to choose between honor and integrity. Integrity says that you have to own up to your own faults, and if you're going to do that, you're precluded from running around and defending your honor all the time.

This is an interesting point. I don't know if you've read the classic novel The Three Musketeers, but I think it illustrates this tension really well. There are several occasions in the book where some musketeer or other has in fact done something wrong or sketchy, but refuses to acknowledge it because doing so would violate his sense of honor. Everyone in that book (at least in the sections I've read) has a strong sense of honor.

 

[Komodo]

From the various texts we've discussed in this thread, a paradox occurs to me about the founders' concept of a right:

1. rights are natural, inherent, inalienable, and indubitable (etc.)

2. political power must come from the consent of the people to be legitimate

In other words, I'd think that if a right is inalienable, it ought to be protected regardless of whether anyone consents to its being protected or not. The consent is nice to have, but not necessary to the legitimacy of the rights protecting government. But this does not appear to have been the founders' point of view, since they repeatedly say that political power must come from the consent of the governed.

I would guess that the point of the consent principle is just that practically speaking, rights will not be protected if people don't consent to their being protected.

Does anyone have a different take on this? Am I overthinking, here?

I think that's right, with maybe some quibbling. Inalienable rights ought to be protected, but Jefferson must have known -- how could he not? -- that even rights which are explicitly acknowledged and vigorously protected by governments will sometimes be violated. People do get murdered, after all, which conspicuously violates the right to life. So "inalienable rights" is a statement of the ideal. And governments ought to derive their power from the consent of the governed; or, "governments derive their just powers from the consent of the governed." But of course governments sometimes (like now, in 1776) are in violation of that. So that's another statement of an ideal.

The problem you note is that it is possible for one ideal to be in conflict with another: a government acting with the consent of the governed, which does not protect its people's inalienable rights. I'm not an expert on Jefferson by any stretch, but my offhand impression from what I do know about him is that he would have regarded this as an unlikely, even impossible scenario; he would have felt that people, acting freely, would act in their own reasonable self-interest, and so would never consent to give up their rights.

 

[Komodo]

Very thoughtful comments. There is a tension between the concepts of honor and integrity. If you hold a man's "honor" sacrosanct then you have things like Aaron Burr shooting Alexander Hamilton in a duel. In a militaristic culture (and there's a lot of that in western civilization) honor is an extremely useful concept in mobilizing military action. [. , ,]

Just a quick note (more later, I hope), because I don't want to leave your own thoughtful comments completely unaddressed. The assumptions and ideals of "honor culture" are, as you say, very prominent in western civilization, and in other times and places as well. (Samurai Japan, to take one clear example.) And they can sometimes be difficult for moderns like us to understand. Achilles boycotts the Trojan War, abandoning his comrades in battle, because he's been disrespected by Agamemnon, and he cannot tolerate this affront to his honor and status. The typical first reaction of many modern readers is that this is appallingly self-centered, and that viewpoint does get aired in the Iliad, but there's also the underlying assumption that Achilles is the greatest of warriors, is the son of a goddess, and as such of course he won't and maybe shouldn't put up with the kind of disrespect that the rest of us have to endure.

I've worked in academia most of my life, and sometimes got into arguments about the literary canon, particularly in response to objections that the reading lists were dominated by white males and therefore "monocultural." I said that the "while males" part was true, but "monocultural" was an exaggeration, and I pointed to the fact that the book which is the beginning of pretty much every "Western Culture" survey course is the product of a polytheistic military aristocracy, and everybody in class who's reading it is the product of a monotheistic capitalist democracy. That's a pretty significant cultural divide right there.

Speaking of the hyper-sensitivity to being 'dissed" which is one aspect of Honor Culture, there's a good deal of similarity there between Renaissance aristocrats and 20th-century street gangs, which is one reason it was possible to convert Romeo and Juliet into West Side Story.