Constitutional Curious – Part 7 – The Second Amendment – The Right to Bear Arms, Clarity & Controversy

Amendment II

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

1789

The right to bear arms is enshrined in the Bill of Rights. World wide the Second Amendment may be the single best known American right. Ironically, while the Second Amendment may be the simplest and most clearly defined of the first ten Amendments, for most of the last forty years it has also been the most litigated Amendment.

That the Second Amendment is “controversial” is, today, simply a given. In much of the same way that it is a given that worldwide, the Second Amendment may be the one “constitutional” thing that non Americans know about the United States. (Sadly, considering the recent academic turn away from strict constitutionalism —or serious history— it may also be the one amendment most current American students can quote.)

The controversy surrounding guns has probably contributed to the inherently shallow understanding most people have of the Second Amendment. The Second Amendment is about guns. It is also about the individual’s right to possess weapons. It is also about limited government, individual rights, national security, personal responsibility, community involvement and the rights and duties of citizenship.

To the founding fathers the right to bear arms was as integral to the American experiment as the right to peaceably assemble, the right to worship or not as chosen, and the right to free speech. The right to bear arms was seen as a protective right. A necessary right, not just a boon to 18th century gun nuts.

The United States was born in war. Yes, the United States was an idea, an ideal, a radical dream. But our nation was born in war and without widespread gun ownership (or more accurately widespread gun familiarity) the Revolution probably wouldn’t have happened and almost certainly wouldn’t have succeeded. Without widespread gun ownership the United States might not have survived the 19th century and may not have weathered the wars of the 20th century quite as well.

(From our first war to our most recent ongoing conflicts, one of the hidden strengths of our military has always been a vast population already familiar with guns and often already familiar with hunting in the woods. It is not hard to become an adequate shot, but it is a lot easier to become a good shot with practice and time. From the Revolutionary War on, the United States has had that edge on most of our enemies and most of our potential enemies. If you like the United States you can thank a soldier, but you may also want to thank a deer hunter.)

In recent years the conflict over the Second Amendment has evolved into a cultural battle, a battle between modernity and history. It has also devolved into a battle that is both emotionally charged and intellectually simplified. Much as the First Amendment is for all American citizens, the Second Amendment is also for all American citizens. You do not have to actively exercise a right to benefit from living in a country where you have the potential to exercise that right.

We do not have to exercise the right to free speech to benefit from the knowledge that we can choose to speak freely at any given time. Likewise the right to bear arms —for good or ill— impacts the lives of those who have never owned a gun. From a historical point of view gun access probably insured the survival of the U.S. (We often conflate gun ownership with gun access, but historically many Americans have grown up in households with guns without personally owning a gun. Think of a “family rifle” of the mid 19th century as being akin to a family car in 2019, many teenagers don’t own their own cars but nevertheless they learn to drive and become familiar with using a car because their families own a car.)

A history of gun access has thus played a role in the survival of the United States. It is highly unlikely that in future conflicts the United States will have to depend on citizen militias (well regulated or not) for defense. But simply because needs change is no reason to negate rights. The Second Amendment was never intentionally created as a fail safe to protect the government. Inherently no one involved with writing the constitution saw citizens as assets to be utilized. To suggest that 21st century Americans should do away with the right to bear arms because we assume that the government no longer needs citizen militias is to suggest that inherently all of our rights are negotiable. It also suggests that citizenship itself may be negotiable because, when a citizen begins to negotiate his or her own rights away the concept of citizenship itself is polluted.

You may not care about the Second Amendment, but if you throw away one right you do not care about you may find yourself in a few years facing the loss of a right you do care about.

Constitutional Curious – Part 6 – The First Amendment – Freedom of Speech, Freedom of Religion, Freedom of Assembly, Freedom to Petition

Amendment I

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

1789

“Though the practice of animal sacrifice may seem abhorrent to some, religious belief need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.”

–Justice Anthony Kennedy

Church of Lukumi Babalu Aye v. City of Hialeah, June 1993

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“A law that can be directed against speech found offensive to some portion of the public can be turned against minorities and dissenting views to the detriment of all… The First Amendment does not entrust that power to the government’s benevolence. Instead our reliance must be on the substantial safeguards of free and open discussion in a democratic society.”

–Justice Anthony Kennedy

Matal v. Tam, June 2017

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“The holding of meetings for peaceable political action cannot be prescribed.”

–Chief Justice Charles Evans Hughes

De Jonge v. Oregon, 1937

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“[A] private citizen exercises a constitutionally protected First Amendment right anytime he or she petitions the government for redress; the petitioning clause of the First Amendment does not pick and choose its causes. The minor and questionable, along with the mighty and consequential, are all embraced.”

–The Hon. Neil Gorsuch

Van Deelen v. Johnson, 2007

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Freedom of speech and freedom of religion are, today, freedoms most Americans have taken for granted for almost two hundred years. Freedom of religion, in particular, is so deeply woven into our national fabric that we rarely bother to argue about it. Of course Congress has not established a state sponsored religion. Of course we are free to practice any religion we choose —or none at all— we are Americans. Our faith has nothing to do with our government.

In fact, freedom of religion is so deeply ingrained in our national consciousness that if you asked the average American to describe a “First Amendment” issue he or she would probably say something about freedom of the press. Most major legal battles in the past few decades involving the First Amendment have involved the press. What is the line between free speech and libel? Does “the press” —a term that legally includes television, podcasters, documentarians, radio personalities, bloggers and, possibly, some internet platforms as well as the traditional print press— have the right to publish government secrets? Does the press have the right to publish documents that were “illicitly” obtained? Or photographs obtained as a result of trespassing? Is blasphemy free speech? Is pornography free speech? Is doxing a legitimate press practice?

In general the courts have, even in the most controversial instances, agreed that government has a limited right to limit free speech. (Even pornographers have been granted a wide latitude. In general, in recent decades, legally they have only been limited to “adult” forums.)

However, while most Americans are aware that the First Amendment protects “the press” —and, if we are tempted to forget, the press and an army of lawyers are eager to remind us— we often forget that the First Amendment also protects the individual’s right to free speech.

As individuals, as citizens, we have rights that are no less protected than those of a journalist. We also have rights —not privileges, rights— that would have been considered unimaginable in Western Europe in the late 18th century.

The rights the United States’ founders enshrined in the First Amendment of our Bill of Rights were “rights” no European of the 18th century had.

The press of Western Europe routinely had to deal with government censors. Printing an unapproved story, printing something a monarch or government official found offensive, could be considered an act of sedition or treason in the 18th century. The press of Eastern Europe was almost non existent in the 18th century, but there censors ruled with an iron fist. Tsarist Russia was notorious for censoring not just journalists, but novelists, academics, playwrights and poets as well. (The censorship of Tsarist Russia would become the building blocks of the even more brutal censorship of Soviet Russia. By one point in the 20th century roughly ten percent of the population of Soviet Russia would be imprisoned in forced labor camps.)

The United States’ commitment to the concept of the individual’s right to speak freely was almost completely unique in the 18th century. Sadly freedom of speech would remain unusual in most of the rest of the world for most of the next two centuries.

The United States’ willingness to allow —and encourage— citizens to publicly assemble (peaceably) or seek redress from the government was equally radical in the 18th century. One of the main causes of political violence in the Thirteen Colonies in the 1760s was because colonists had assembled to protest and colonial officials had reacted (sometimes violently) to suppress dissent.

Subjects of an 18th century monarch did not have a right to seek a redress of grievances. (There were ways an 18th century man or woman could seek redress, but it generally involved seeking a favor from those in power rather than an acknowledgement of any individual rights.)

The concept that the individual (regardless of status or connections) had specific individual rights —the right to speak, publish, assemble, worship or petition— were radical uniquely American concepts in the late 18th century. Sadly, over two hundred years later these are still (in much of the world) radical concepts and many Americans do not realize today that when we say whatever we want, blog, buy any book we want, protest or not, sign petitions, worship or not as we choose, that we are exercising rights that are enshrined in the Bill of Rights. Our rights are not universal rights, and in much of the world, for much of human history, the rights we take for granted —the rights we assume are universal— were privileges, not rights.

Perhaps the most startling of those rights —and the right least understood today— is the right to worship (or not) free from government interference. Faith is embedded in American culture and American history. (So is deism, agnosticism and atheism.) The United States is a country where religious belief matters, but is not mandatory and the faith you follow is not mandated or proscribed by the government. To Europeans of the 18th century the concept of a country with genuine religious diversity (without massive religious conflict) was utterly bizarre. And dangerous. In England in the 18th century (and today) the head of state was also the head of the state church. On the continent there were Catholic countries and Protestant countries and life was often extremely difficult for those who belonged to religious minorities. (A significant number of the private schools still extant in the United Kingdom were founded in the 18th and 19th centuries by members of “conformist” religious groups who wanted a non Church of England educational option.)

In the 21st century a significant portion of the “educated elite” of Western Europe have layered a fashionable distaste for belief onto a centuries long tradition of belief being sponsored or mandated by the state.

Diversity of faith and an intensity of actual belief without widespread religiously motivated violence is an almost uniquely American phenomenon.

Our willingness to believe, speak freely, argue, assemble and defend our rights is a testament to belief in the American experiment. When we decide that faith is dangerous, free speech too painful and public dissent is unacceptable we have lost what it means to be American, to be exceptional, to be individuals with shared rights and different experiences instead of cogs in a collective.

So the next time you hear someone say “you can’t say something” realize that you can. It is your constitutionally protected right. It is your choice. Just as it is your choice to believe or not.

Constitutional Curious — Part 5 — “The Constitution and the Bill of Rights: The Unlimited Potential of Limited Government"

“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

Constitutional Convention c. 1787

The idea of America was born in the ferment of ideas of the 18th century. The reality of the United States was crafted on parchment, argued over and finally ratified, between 1787 and 1791. Those years spanned the war of ideas that followed the actual shooting war of the American Revolution. 

The crafters of the Constitution and the Bill of Rights —the first 10 Amendments were written and ratified almost simultaneously to act as a defining benchmark of the rights of individual citizens and the limited role of government— probably shared more, in an intellectual sense, than any representative group of American politicians would ever again. But they still had deep ideological differences. 

In an economic sense the men who battled over the exact wording of the Constitution and the scope of the Bill of Rights could be loosely divided between agrarians and mercantilists. They earned their livings either through farming or commerce and light industry. (One of the great ironies of the politics of the 18th and early 19th centuries is that many of the loudest proponents of the idea that America as a nation should first, foremost and forever, be a nation of “yeoman farmers” rather than “urban mercantilists” were not men who farmed themselves. Instead they were men who had enslaved men, women and children of African descent do their farming for them. The urban mercantilist “elites” of late 18th century America were often self made men and women who built small businesses from scratch or built on modest inheritances. Benjamin Franklin was an apprentice printer made good in the raw young city of Philadelphia. Thomas Jefferson was the wealthy slaveholding plantation owner son of a wealthy slaveholding plantation owner.) 

The great political division that led to the compromise of a Constitution that was almost simultaneously amended, was the rift between “Federalists” and “anti-Federalists.” The roots of this argument are complex and the terms used —“Federalist” and “anti-Federalist”— deeply confusing, in part because those words would come to have different meanings as the United States evolved over the next two hundred years. In its simplest form the argument was the first chapter in our ongoing national argument to define the powers of the Federal government and the individual states versus the rights of the individual citizen. 

In general the Federalists of the late 18th century felt a strong federal government was a practical necessity. After a bloody war of independence they feared that a squabbling, disparate group of states without any strong federal government would make easy pickings for the imperialist governments of Europe. 

The anti-Federalists feared a strong federal government might chip away at the historical sovereignty of the different states (even as colonies Virginia and Massachusetts had been governed differently) and, worse, the individual rights of citizens who had endured a bloody revolt against a “tyrannical” monarchy simply to end up enduring a tyrannical centralized federal bureaucracy.

The Constitution and the Bill of Rights were the product of the compromise between the mercantilists and the agrarians, the Federalists and the anti-Federalists. 

Government would expand, but there would be strict legal limitations into how far government could control, or infringe on, the rights of citizens. Along with rights, citizens would have duties. (A primary duty would be the protection of those rights. Some of the fiercest courtroom battles and bloodiest actual battles the United States would ever witness would involve the ongoing effort to define and protect rights and duties.) It would be a balancing act with endless opportunities both for success and failure.

Constitutional Curious — Part 4 — “From Colony to Confederation: A Union of States, A Nation of Individuals"

“America is a land of wonders, in which everything is in constant motion and every change seems an improvement.”

“The practice which obtains amongst the Americans of fixing the standards of their judgement in themselves alone, leads them to other habits of mind. As they perceive that they succeed in resolving without assistance all the little difficulties which their practical life presents, they readily conclude that everything in the world may be explained and that nothing in it transcends the limits of the understanding."

“The revolution of the United States was the result of a mature and dignified taste for freedom, and not of a vague or ill-defined craving for independence.”

“A nation can not remain strong when every man belonging to it is individually weak.”

“Nothing conceivable is so petty, so insipid, so crowded with paltry interests, in one word, so anti-poetic as the life of a man in the United States.”

“In the United States it is not easy to make a man understand that his presence may be dispensed with; hints will not always suffice to shake him off. I contradict an American at every word he says to show him that his conversation bores me; he instantly labors with fresh pertinacity to convince me.”

“The great privilege of the Americans does not simply consist in their being more enlightened than other nations, but in their being able to repair the faults they may commit.” 

~Alexis de Tocqueville “Democracy in America” c. 1835

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The United States has from its inception as a “country” been a balancing act. We are a union of states, a nation of individuals. Our superficial differences have always been so vast that in 1787 the United States seemed like little more than a delusional experiment to “educated” outsiders. In 2019 the blogosphere —where, it seems, all the “educated” all-knowing Monday Morning quarterbacks spend their time sharing their predictions— is filled with naysayers eager to label the United States a “failed” experiment.

Opinions are, well, opinions. Some opinions are more valid than others. Personally, in my opinion, an opinion rooted in facts is generally more valid than an opinion based on feelings. (Or, worse, an opinion based on someone else’s feelings.)

The fact is that very few of the educated outside observers of 1787 knew enough about the colonies, the states or even a handful of representative Americans to have enough facts to base an opinion on anything other than feelings. I suspect —I don’t “know”— that relatively few of the naysayers of 2019 have enough grounding in the “facts” of America to form opinions about our country that are based on anything except feelings.

Data is not actual knowledge. And trends, especially the trends of 2019, are not necessarily representative. They aren’t necessarily real either. Twenty-first century “media influencers” still seem to believe they influence America as a whole rather than just the media. 

Historically it is better not to assume that simply because something was printed two hundred years ago and quoted ever since that it has a deeper meaning. Some quotes become perennial quotes not because they concisely explain an instant in time, but because they are good quotes.

Alexis de Tocqueville visited the United States barely half a century after the “experiment” began. Today he is still perhaps the most quotable “observer” of early 19th century post-colonial America. His book, “Democracy in America” is quotable, intriguing, sprinkled with strong opinions and snide witticisms, by turns deeply flattering and subtly condescending. Over one hundred and seventy years after it was first translated into English (de Tocqueville was a French national and wrote in French) it is still in print and still lauded as one of the best portraits of the early American state. It was also based on less than a year of actual on the ground observation.

Should we dismiss de Tocqueville for not really knowing America? His quotes seem to capture the spirit of America so perfectly. (At least sometimes.) Should we simply take all the observations of professional observers with a spoonful of salt? Most people, even if they don’t have a proverbial axe to grind, have preconceived opinions and are quick to make facts fit theories. (It is often much much easier to force a handful of facts to fit a theory than it is to come up with a more customized explanation for a series of events.)

What de Tocqueville did succeed in pinpointing is that the United States in its first half century, was very much a nation of individuals, a confederation of states. The United States was a nation with laws (and an occasional democratic impulse). Notably the United States was not a democracy. (As a Frenchman of a certain generation de Tocqueville understood the bloody chaos and eventual authoritarianism of a truly untempered democracy.) The sometimes crude, anti-hierarchical, block-headed and perpetually commercial attitude of the Americans of the 1830s may have grated on de Tocqueville’s aristocratic French nerves, but he admired the fact that Americans —despite their differences— somehow made it work.

Americans did make the Republic work. They would never give up arguing. There would be a bloody civil war. (As early as the 1830s de Tocqueville could see the gap widening between slave states and non slave states.) But, in general, the United States worked because of an acceptance of the idea that the country was a confederation and that individuals had unalienable rights. (By the middle of the 19th century a shooting war would break out over the question of states’ rights.) 

But, for its first half century, the United States succeeded by balancing the rights of the individual with the duties of the state and the powers of the confederation. Government, as it expanded in those early decades, provided practical services and protection to the individual citizens; a postal service, roads and a navy prepared to defend the sovereignty of American citizens and American ships on the high seas. 

The United States survived because early Americans were willing to focus on the larger picture rather than tear each other apart to create a “more perfect union” of complete agreement. A willingness to focus on the practical created the governing structure of the United States. A complex and near religious belief in the idea of America kept the heart of America beating through those first seventy years

Constitutional Curious — Part 3 — “From Rebellion to Revolution"

“For we must consider that we shall be as a city upon a hill. The eyes of all people are upon us. So that if we shall deal falsely with our God in this work we have undertaken, and so cause Him to withdraw His present help from us, we shall be made a story and a by-word through the world.” ~John Winthrop, 1630

There is always one clear moment when a war begins. But the first shot fired in a war is never really the moment a war begins; more accurately it is the moment when peace definitively dies.

The first “official” shot of the war that would become the War of American Independence was fired in New England in April of 1775. Ironically, and rather appropriately, the shooting began before there was any formal declaration of independence and long before there was any real plan. Historians see the 1760s as the lead-up to war. The war began with pamphlets, taxes, speeches, smugglers. Violence begat violence, grudges grew as feisty and independent minded colonists pushed back against a colonial bureaucracy imposed by distant England. 

But the roots of the uniquely American willingness to rebel without a plan, to believe wholeheartedly in both individual liberty and individual responsibility, did not emerge solely out of the 18th century era of reason, but instead was shaped by the enduring memory of the bullheaded, devout and fiercely religious world of the 17th century Puritans. Quite frankly, it was easy for a group of people to contemplate the impossible —rebellion against a monarch— if they already believed their only true legitimate judge in this world, or the next, was God. 

The America of the 1760s was a far cry from the America John Winthrop knew in the 1630s. It was, comparatively, far more cosmopolitan. It was wealthier. It was more violent. More prone to conflict —both internally and externally. But it was also, simultaneously, more staid and more easy going. Puritans of John Winthrop’s generation did not really seem to believe in a forgiving God, and they certainly rarely forgave themselves, but by the 18th century even the fiercely devout Congregationalists of Massachusetts had begun to contemplate the world in a more forgiving light. (Often a forgiving candle-light… the 18th century had brought luxury to the American born grandchildren of Puritans who had never even given themselves the luxury of forgiveness. But, despite the changes wrought by a century of industrious work, despite prosperity, luxury and the creeping impact of deism, Americans of the 18th century had somehow never lost John Winthrop’s belief that their ultimate —and only meaningful— judge was not of this earth.)

Despite the growing wealth of the colonies, the 1760s were years of turmoil in the 13 Colonies. Eighteenth century colonial Americans were scattered across a geographic area that dwarfed most of Western Europe. Most of Pennsylvania was still the “frontier” when Benjamin Franklin set up his first printing press. Even late in the 1760s Boston, New York and Philadelphia had the raw potential of young cities. 

The economic potential of this new era was not lost on the American born children and grandchildren of the first colonists. But the men and women of 18th century colonial North America were driven by much more than a desire for money.

Colonials of the 18th century did not have a common religion. (The defining characteristic of the Protestants was that they were schismatic in the extreme.) They did not have a common ethnic identity, a common language or even a common legal status. The “English” colonials of the coast may have been English speaking, but they were not all ethnically English. Instead they were a disparate group of English, Scots, Welsh, Scots-Irish and Irishmen. New York —originally New Amsterdam— was still, in its bones, more Dutch and Mohawk than it was English. Pennsylvania was a hotbed of religious dissidents from every possible Western European ethnic background —Philadelphia had become even odder by becoming the city that young strivers from Boston wanted to move to in order to escape the more rigid world of Boston. New England was less strictly Puritan than it had been half a century before, but it was still inhabited by people who had the radical courage to put more faith in God than Government. 

Bostonians may have fallen far from the Puritanism of the 1630s, but they still believed that their city had the potential to be what John Winthrop called a “city on a hill” —a state of mind and an ideal rather than merely a city. 

The Southern Colonials were more likely to be Anglican than their northern neighbors. Economically they were also more likely to be tied to Europe than a Northern farmer. The cash crops of the South —tobacco, indigo, sugar and rice— fetched big money in Europe. The great planters of the South lived like brutal miniature potentates in their own right. (The small planters, the freedmen and the men who owned no slaves, lived much less luxurious lives… but also often lives marked by a bloody contempt for any outside authority and a savage willingness to fight.) 

The Colonials had, superficially, very little in common with each other. The separate colonies were separate colonies. Massachusetts was not Virginia. Even Maryland was not Virginia. Legal codes varied from colony to colony. Religious practices differed too. The colonies were, legally, separate entities. 

However, although the Colonials of the 1760s were so very different from each other, it was their differences from the “mother country” of Britain that would help to unite them. Much as Colonial North America had almost accidentally developed a free press in the 18th century, the colonials of the 17th century had almost accidentally developed a sense of personal freedom tempered by a social responsibility that was almost unknown in Europe.

Diversity of religion in Europe had led to brutal wars, political upheaval and bloody riots. By contrast, in the 13 Colonies, extreme religious diversity seemed to primarily encourage the devout to look within themselves, recommit to their own faith and, perhaps, learn to define their faith better. (Yes, there would be minor acts of religiously motivated violence in what would become the United States. But, by the standards of contemporary Europe, religious violence in the colonies would be minor, erratic, and not really part of a cohesive story.)

The great irony of the 1760s is that a group of people who had learned to fight primarily with words about religion —when in Europe religious dissent fractured society and led to some actual wars— would stumble almost inevitably into a shooting war over a political principle that very few people in Europe seemed to understand.

The American Revolution shocked western Europe. (Its impact would have been profound if it had not quickly been overshadowed in Europe by the far bloodier French Revolution.) 

Even in the golden era of monarchs, the great leaders of Europe faced political turmoil in the 18th century. Sometimes it was a simple matter of succession. In Britain the battle between the House of Stuart and the House of Hanover was anything but simple. However, rebellion did not become revolution in early 18th century Europe. Prior to the 1760s there was no European model for an ideological and political revolt on the American model.

In the tumultuous 1760s Americans stumbled towards war without a model. Americans knew what war was… individual Americans had served Britain in the 7 Years War or endured the nameless bloody conflicts of life on the Frontier. But none of those wars had truly been ideological. Not for the people on the ground anyway.

The American Revolution would be different. The people on the ground —the people who fought, who did without, who marched through the snowy winter, who endured— cared deeply about their reasons for fighting and were willing to make real sacrifices, not symbolic sacrifices.

In the end the rebels would become revolutionaries because they endured. They endured the Winter at Valley Forge, they endured a winter march from Philadelphia to Trenton (for volunteers perhaps more brutal than the more famous and much longer unsupported marches of the war —it was a brutally cold December). The Swamp Fox, George Washington, General Von Steuben, Ethan Allen and Lafayette were genuine military heroes. Each a genius in his own way. But the genius of the rebellion, the success of the revolution, the existence of the United States, is not rooted in the blood of battle. The battle of ideology was already won before the shots were fired. 

Americans had already begun to believe that they had a different path, a different destiny. That in the end we answer to a God in heaven and not a King on Earth. (Or, worse yet, a bureaucrat appointed by a King.)

The revolution would not have succeeded without the bloody sacrifice of a long war, but the revolution would have died as a mere rebellion without the ideological revolution that had already reshaped the shared American mind before the first shot was fired.

Americans had already taken the first steps towards ideological independence over a century before the war for independence began.

Constitutional Curious — Part 2 — “Declaring Independence: An Unthinkable Necessary Revolt”

“it is their right, it is their duty, to throw off such Government, and to provide new guards for their future Security.”

“We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.”

“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.”

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Ink on a page. The American Revolution did not begin with Paul Revere’s midnight ride, or the shots heard round the world at Lexington and Concord. It did not begin with the Boston Tea Party. It didn’t even begin with Crispus Attucks’ blood pooling out on the cold ground. It didn’t begin with messy riots and accidental slaughter. It began with ink on a page.

Think about that for a moment. The unthinkable, unlikely, unnerving rebellion that begat the United States began with ink on a page. The scrape of a steel pen against an inkwell, the faint thud as a typesetter’s fast moving hands clipped lead type into a printer’s frame… those were the sounds of a revolt in the making in the 1760s.

In retrospect the American Revolution seems inevitable… something that simply happened in “the course of human events.” In fact, the signors of the Declaration of Independence described their actions as a “right” a “duty” and a “necessity.”

It is grand language. In our era archaic and poetic. In any era bold, astoundingly bold.

Words have power. Some words may as well be written in blood and carved in bone.

When the signors of the original Declaration of Independence pledged their “Lives” their “Fortunes” and their “Sacred Honor” to the cause of “future Security” they weren’t just indulging in a bit of poetry. They were signing a document that at the time was considered nothing short of an act of treason against their lawful monarch.

If their revolt was crushed their fortunes would be forfeited —homes, farms and businesses destroyed, looted and seized, wives and children homeless and destitute— their family names would be reviled —they could very well end up like Guy Faulkes, a failed anti-monarchist plotter of the early 17th century who to this day is burned in effigy by British schoolchildren— and their lives too would be forfeit. When captured, 18th century traitors were typically tortured before being executed.

On paper there is little about the signors of the Declaration of Independence to suggest that these men were radicals, gamblers or wild-eyed revolutionaries. By and large the early rebels were pragmatists. Sober hardworking farmers. Practical merchants. (I am speaking metaphorically of course. Most colonial North Americans liked a stiff drink. And the practical realities of trade in the 18th century included war, pirates, bad weather on sea and land and rapacious tax collectors everywhere.) The signors —they weren’t “Founding Fathers” yet, think of them as men with pens— were, by and large, successful. They weren’t desperate men on the edge of starvation, impoverished and ground down by a distant tyrannical monarch.

John Hancock may have been the richest man in the thirteen colonies. Few Londoners’ matched Hancock’s wealth. His fellow signors certainly didn’t, but they were all prosperous men. They were educated too, if not formally they were self educated. Some had travelled extensively. A few had already fought in a war —the “Seven Years War” or the “French & Indian War.”

They were colonials. They weren’t hicks. They understood the potential consequences of their actions. They understood the bloody human cost of war. They also understood that what they proposed had almost no modern precedent, and no successful modern precedent.

They were sailing into dangerous uncharted waters. Their eyes were open, they had options, they understood the likelihood of failure and the brutal punishments that were the likely consequences of their actions. And yet, they chose the unthinkable, necessary revolt.

Why? Ink on paper. It is that simple and that complex. Paper wasn’t cheap in Colonial North America. Ideas were precious and meant to be shared.

To a London trader the Colonies were a source of fur, hides, wide leaf tobacco and cheap grain. The Colonials were, well, Colonials. They sold raw goods, bought finished goods and fought messy frontier wars with the French. Other than that, unless you were a botanist or naturalist nothing very interesting happened in Colonial North America in the 1760s. At least… that was the view from London.

And, not for the first (or last) time the view from London was wrong. By the 1760s something truly remarkable had been happening in the Colonies for at least a generation. The literate, curious, self educated Colonials had almost accidentally developed a free press.

The 18th century was very much a century of print in the urban English speaking world. London had newspapers, gossip rags, political news, business news. Newspapers were big business in British cities. Fashionable people went to fashionable coffee shops in London in the 1760s to be seen reading newspapers by other fashionable people.

The Colonies barely had any coffee shops. Think about that, George Washington fought a war, forged an army, put steel into the idea of a citizen soldier and won a revolution almost wholly without the benefit of coffee shops.

But what the Colonies may have lacked in coffee shop society they more than made up for with taverns, newspapers and ideas. It was a perfect storm. The Colonials of North America in the 1760s were, by and large, the children, grandchildren and great grandchildren of radical religious dissidents. They were pre-disposed to put their faith in their “Creator” and not their monarch. They had also been, to a certain extent, intellectually overlooked by the mother country for half a century.

Economically the Colonies mattered. Strategically the Colonies mattered —particularly during the war with France. But intellectually very few people in the British government thought the Colonies mattered and hardly any seemed to think the Colonial press mattered. London printers had to deal with the continual presence of official government censors. By contrast, in general the American press’ primary interaction with the agents of the king involved paying (or complaining about) the tax on paper.

Intellectually at least, Americans were writing the arc of their rebellion for decades before a shot was ever fired. The war began with paper and ink. It began with ideas. And it is thus fitting that free speech, the concept of free speech, would be written into the foundation principles of this new nation. 

Without free speech, without ink on paper, without the ferment of ideas that spread through Colonial North America like a wildfire there would not have been a United States of America in 1787. If we give up on the concept of free speech today there may not be a United States of America in 2027. Free speech, free thought, the free flow of genuine ideas —not just data— are at the heart of what it means to be a citizen of the United States of America.

Constitutional Curious — Part 1 — “The Radical Roots of the United States”

The United States was forged in war. It was born in an idea: The radical idea that men should be citizens instead of subjects, and that people have "rights endowed by their creator" rather than favors gifted to them by a monarch. In the context of the 18th century the Declaration of Independence, The Constitution of the United States of America and the Bill of Rights (the first ten Amendments) may be the most radical documents ever crafted. The heart of 21st century conservatism is a commitment to preserve the exceptional commitment to individual rights and responsibilities "enumerated" in those documents over two centuries ago.

The United States is exceptional. We are not exceptional because we are capitalist. We are not exceptional because we are rich. We are not exceptional because we are religiously diverse. We are not exceptional because we are ethnically diverse. We are not exceptional because we are a "Republic."  We are not exceptional because we have a "democratic" process. We are not exceptional because we have never really had more than two serious political parties at any one time. We are not exceptional because we rolled to victory in two bloody World Wars. We are not exceptional because we are generous --although we are a very generous country. We are not exceptional because of the Grand Canyon, John Wayne, Rock 'n Roll, Marilyn Monroe, Mickey Mouse or Hollywood. We are exceptional because of our shared ideas. We are exceptional because we believe government exists for the people, the people don't exist for the government. We are exceptional in that we believe our rights are endowed by our creator.

The Constitution may preserve the individual's rights, but it does not endow us with rights. Instead the Constitution defines the rights of Government. Our rights, as citizens, are "unalienable."

That distinction is at the heart of what it means to be a citizen of the United States of America. That idea, that fragile, radical, exceptional idea, was at the heart of a rebellion that became a revolution. A revolution that gave birth to a country and a people.