By analyzing language one
can garner a good deal of what the motivations of people are. And that goes for the foundational documents
early settlers used to organize themselves politically. Reviewing those documents not only informs
one of the structural and procedural elements of those early governments, they
also contained the underlying values and beliefs of those settlers and, in
their way, give one the initial political biases they brought to the task of
their self-governance.
In turn, they betray what these people anticipated their
politics would be like or what possibilities they could, as polities, pursue. This was no small matter if one considers the
social and physical challenges these people faced. They were embarking on establishing a society
in a raw natural environment. How they
fashioned their collective decisions would play no small role in how successful
they would be.
Donald S. Lutz[1] presents
and reviews many of these early documents and prefaces the effort with a review
of the terms that repeatedly appear in those documents. The last posting shared and described a set
of those terms. That posting emphasized
the variance those documents expressed between the specific provisions
contracts contain and the more emotive, descriptive, and value laden content of
compacts and covenants.
That posting ends with the
hopeful role that “organic acts” can provide.
They are an “after-the-fact” sort of addition to a compact and a way to tailor
general compact-al concerns and resulting language to the demands of everyday
life and the need to establish reliable law.
Lutz introduces this concept by writing,
An “organic act” is one
that codifies and celebrates an agreement [such as an initial compact] or set
of agreements made through the years by a community. In this way, a “common law” comprising
legislative and judicial decisions made over a number of years can be codified,
simplified, and celebrated in dramatic form, thereby also renewing the consent-based
oath upon which obligation to the community rests. The early state constitutions adopted in 1776
could be viewed as organic acts as well as compacts as they usually summarized
and codified what the colonists of each state had [by the time of independence]
evolved over the previous 150 years.[2]
What this writer takes from
this description is that in a democratic-republican modeled arrangement there
is always room for change and the actors never feel they are beyond being
questioned or amended in their efforts.
Even the best of plans can be improved upon or abandoned if reality
indicates they should be. Yes, when it
comes to “constitutional” issues, the change should have more hurdles to overcome,
but its possibility is never beyond consideration.
And in terms of contracts
and their shortcomings, organic acts do not have reciprocal provisions – they
are not transactional instruments – since they reflect communal commitments in
the governance of a people. They,
therefore, can be considered extensions or “improvements” of original efforts.
This above description
introduced another term. That is
“agreement.” Here, the use of this term
falls mostly as one understands the term – an arrangement between or among
parties. Covenants and compacts are
agreements. But of importance to the
federalist mind is that agreements imply or spell out a sense of coordination,
collaboration, and cooperation. And, of
importance, is the connoted or implied element of free-willed consensus or, at
least, acceptance.
This last bit of language
should be remembered when a prominent religious or otherwise moral authority
attempts to impose moral views on a population that does not totally share in
its views or beliefs. Here, the track
record of Americans is not so consistent with this requisite. There have been extended periods in their
history when not only religiously based prohibitions have been imposed, but also
its legitimacy has not even been questioned.
Religion or other moral
systems can inform a federated body, but it cannot legalistically impose its
dictums on a federated arrangement like that of the US without providing a
secular justification for such imposition.
One readily thinks of attempts to do so when one considers any plans to
overturn the Roe v. Wade decision in its overturning of state laws
banning abortions.
And another quality of such
accords is that they encompass more than what a contract entails in terms of
its generality. To remind the reader,
contracts are specific in their elements or attributes, they denote reciprocal expectations
between or among the parties, and they usually have a specified time frame. Agreements can have such specification, but
not as a definitional requisite.
Another highlighted term is
“charter.” This term, to this writer,
offers a bit of confusion. While the
thrust of these documents reflect volition on the part of settlers and
resulting “citizenry,” charters are issued by high authority – usually a
monarch or some business entity which in the mercantile age were, in turn,
chartered by the Crown. Probably the
most famous charter was the Magna Carta.
Generally, charters were
issued to grant permission to commit some act(s) if the actor(s) meet certain provisions
– earlier in this review of these documents and history, the Puritans acquired
a charter to establish the Plymouth settlement claiming it to be a proposed commercial
enterprise. This was by all accounts
stretching the truth, but it worked not only for the Pilgrims of 1620, but for
subsequent Puritan groups that made the trip over the Atlantic.
To give the reader a range
of purposes for these charters, Lutz offers the following listing of goals for
which they were issued: grant pardon,
incorporate boroughs, universities, companies, and other corporations. They could also convey property from one
entity to another. In general, charters
took on a more contractual form by highlighting fairly specific anticipated
results from their issuances.
The last term this review
will describe is “constitution.” Derived
from the term, “constituent,” the concern here relates to what elements or
characteristics need to be present to make something what it is. For example, a constituent element of a novel
is words. They, therefore, communicate
the act or acts establishing, making, decreeing, or ordaining something by
those legitimately considered in authority to do so.
So, constitutions have two
attributes considered essential in their meaning – they are legitimately issued
by appropriate authority and they denote the resulting structure with implied
or denoted related processes of some created entity. Technically, the US Constitution
contains more than its “constitutional” elements. For example, the Preamble is not part of its
constitution (with small case “c”), but the document describing the Presidency
is.
For the purposes here, that
will suffice in terms of the terms this writer feels are important for the
reader to consider when reflecting on the compact-al qualities the US
Constitution has. Other terms that
Lutz reviews include “combination,” “frame,” “fundamentals,” “ordinance,” and
“patent.” The interested reader can
acquire a copy of Lutz’s edited book for the respective definitional notes he
shares.
This blog with the next
posting will pick up with the ongoing story line of how the US Constitution
came about. What one needs to keep in
mind, the emphasis of this review is focused on espoused values of these early
Americans with references to events as they relate to those values.
It will become necessary to
look beyond those values to actual behaviors, but the reader should keep in
mind that this writer does not believe such values equate to actual behavior
patterns. So, for example, while one can
ascribe lofty beliefs about freedom and equality and justice to the founding
generation, one can read of very self-centered behaviors being exhibited by
those very people.[3]
[1]
Donald S.
Lutz, “Introductory Essay,” Colonial Origins of the American
Constitution: A Documentary History,
edited by Donald S. Lutz (Indianapolis, IN:
Liberty Fund, 1998).
[2] Ibid., xxxi.
[3] For example, see Ray Raphael, A People’s History
of the American Revolution: How Common
People Shaped the Fight for Independence (New York, NY: Perennial, 2002).
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