Rabbi Joseph Fred Benson celebrates the Fourth of July by reflecting on the founding of the country based in the rule of law...
The great end of government and laws is human happiness; the rulers ought, therefore, to understand and know on what it consists; and the means of producing it.
— Hon. Jesse Root, “On the Principles and End of Government”
The summer of 1776 was quite productive in the annals of American intellectual and legal thought. The founding fathers not only drafted a bill of indictment and divorce from the Crown and Parliament at Westminster but also recognized that for the revolution to succeed, wisdom, virtue and government had to be the end goal.
On Friday, July 12, 1776, just eight days after John Hancock signed his name to the Declaration of Independence, a draft of the Articles of Confederation was presented to the Continental Congress. Article II stated:
The said colonies unite themselves so as never to be divided by any Act whatever, and hereby severally enter into a firm League of Friendship with each other, for their common Defence, the Security of their Liberties, and the mutual and general Welfare, binding the said colonies to assist one another against all Force offered or to attacks made upon them or any of them, on Account of Religion, Sovereignty, Trade, or any other Pretence whatever. [Emphasis added.]
Article II is a profound statement on the virtues of government. It is a bold statement of nationhood.
To a limited degree, the newly created sovereign states coveted their independence. Article III read: “Each Colony shall retain and enjoy as much of its present Laws, Rights and Customs, as it may think fit, and reserves to itself the sole and exclusive Regulation and Government of its internal police, in all matters that shall not interfere with the Articles of this Confederation.” Though respecting individual sovereignty, the newly created thirteen independent states acknowledged that for the United States to exist and thrive, there had to be a respect for a national government—a government that would speak with one voice for the nation. Article XII professed this value:
Every Colony shall abide by the Determinations of the United States,
Concerning the Services performed and Loses or Expenses incurred by
every Colony for the common Defence or general Welfare, and no Colony
or Colonies shall in any case whatever endeavor by Force to procure Redress
of any Injury or Injustice supposed to be done by the United States to such
Colony or Colonies in not granting such Satisfactions, Indemnifications,
Compensations, Retributions, Exemptions, or Benefits of any Kind, as such
Colony or Colonies mat think just or reasonable.
When reading Article XII, one notices that the full faith and credit of the United States was a priority to the Founding Fathers. If our young country had not spoken with a single voice concerning the financial matters of the nation, European powers hostile to Great Britain would not have come to our aid. We would have been defeated through the hubris of thirteen selfish states—and we were not.
When we read and study the Articles of Confederation that were introduced on that hot summer day in Philadelphia, other articles spoke to what we know as the Constitution of the United States. Article XIII reposed in the Congress of the United States the power to declare war and make peace. The United States and not the thirteen independent states had the sole power “to grant Commissions to any Ships or Vessels of War….” The granting of Letters of Marque or Reprisal was also vested in the national government. (Compare both to U.S. Const. art. I, section 8, clause 11.)
The Articles of Confederation transcended war and national defense, as well as foreign relations and went to bread-and-butter issues such as “[e]stablishing and regulating Post-Offices throughout all the United Colonies, on the Lines of Communication from one colony to another…” This provision in Article XVIII was incorporated into the Constitution of the United States. U.S. Const. art. I, Section 8, clause 17 states: “The Congress shall have the power [T]o establish Post-Offices and post Roads…” United States Postal Service v. Council of Greenburgh Civic Associations, the Court engaged the nation in a history lesson, writing:
Given the importance of the post to our early Nation, it is not surprising that when the United States Constitution was ratified in 1789, Art. I, § 8, provided Congress the power “To establish Post Offices and post Roads” and “To make all Laws which shall be necessary and proper” for executing this task. The Post Office played a vital yet largely unappreciated role in the development of our new Nation.…During this developing stage, the Post Office was to many citizens situated across the country the most visible symbol of national unity.
A century after the Articles of Confederation were debated in Congress, the Supreme Court in Ex parte Jackson held:
The power vested in Congress “to establish post-offices and post-roads” has been practically construed, since the foundation of the government, to authorize not merely the designation of the routes over which the mail shall be carried, and the offices where letters and other documents shall be received to be distributed or forwarded, but the carriage of the mail, and all measures necessary to secure its safe and speedy transit, and the prompt delivery of its contents. The validity of legislation describing what should be carried, and its weight and form, and the charges to which it should be subjected, has never been questioned.…The power possessed by Congress embraces the regulation of the entire Postal System of the country. The right to designate what shall be carried necessarily involves the right to determine what shall be excluded.
Since the founding of the republic, it has been practically construed that one of the cornerstones of our government has been to authorize not merely the designation of the routes over which the mail shall be carried and the offices where letters and other documents shall be received to be distributed or forwarded, but also the carriage of the mail and all measures necessary to secure its safe and speedy transit and the prompt delivery of its contents. The mail was not only a means of communication, but it was, at a basic level, a conduit of education. Newspapers, pamphlets and other sundry publications were transmitted by post for the civic benefit of the reader. (See e.g., Homer L. Calkin, “Pamphlets and Public Opinion during the American Revolution”; Arthur Scheer, To “Alarm the Publick Mind”: A Reexamination of Pamphlets and Newspapers in Philadelphia and the Early Republic; Joseph Fred Benson, An Untapped Source of Legal History: The Legal Newspaper of the Nineteenth Century. The legal newspapers of the nineteenth century not only addressed the issue of slavery, but also topics such as whether women should learn how to read.)
Last but not least, the Articles of Confederation have been a primary source in constitutional interpretation. In the landmark case McCulloch v. Maryland, the Marshall Court was called upon to decide whether the Constitution permitted the establishment of a national bank. Looking to the Articles of Confederation for guidance, Chief Justice Marshall observed that whereas Article II of the Confederation previously limited Congress to those powers “expressly” found within the four corners of our first constitution, the framers of our current Constitution also intended to include “implied powers.” Chief Justice Marshall wrote, “The men who drew and adopted this amendment [speaking of the limitations of powers contained in the Tenth Amendment] had experienced the embarrassments resulting from this word [“expressly”] in the articles of confederation, and probably omitted it to avoid those embarrassments.”
Contemporary examples of the Court looking to the Articles of Confederation for constitutional guidance are National Federation of Independent Businesses v. Sebelius (addressing the constitutionality of the Affordable Health Care Act and its regulations under the Commerce Clause. Justice Ginsburg in her concurring opinion returns to the constitutional era and the Articles of Confederation for guidance on the scope of congressional authority to enact health care legislation under the Constitution’s Commerce Clause. To this day, the Declaration of Independence and the early legislation of the Continental Congress serve to define who we are as a nation, a young country posited upon the rule of law.); McDonald v. City of Chicago (addressing the constitutionality of a municipal gun control ordinance under the Second Amendment); and Arizona v. United States (addressing the constitutionality of state law restrictions on immigration under the Supremacy Clause).
The Declaration of Independence was our divorce from English rule. The Articles of Confederation coming upon the heels of that great extra-legal document began to define us as a nation posited on the rule of law. And therein lies the magnificent beauty of these two documents that defined and continue to define our experiment in republican democracy.
As I do each July Fourth, I shall sit back on my sofa amid an evening repast and re-read the Declaration of Independence, rededicating myself to the principles our Founding Fathers held so dear.
Happy July Fourth!
Rabbi Joseph Fred Benson, a native of University City, Missouri, received an A.B. cum laude in English Legal History, American Legal History, and Political Science, American National Politics, with an emphasis in Constitutional Law, 1976; A.M. in American Legal History, with an emphasis in Constitutional Law, 1977; J.D., 1985, Saint Louis University; Semichah/Rabbinic Ordination, 2007, Saint Louis Beis Din/Rabbinical Court. He served as the first Supreme Court Archivist–Legal Historian to the Supreme Court of Missouri (2000–2015). In retirement, Rabbi Benson teaches Hebrew to adults in Jefferson City and officiates at life cycle events throughout Mid-Missouri. He is also a provocateur of articles appearing in the Missouri Lawyer’s Weekly, St. Louis Jewish Light, and the Catholic Missourian. His first article in JURIST appeared on July 4, 2020, titled “The Real Independence Day: July 2, 1776.”
Suggested citation: Joseph Fred Benson, Beyond the Declaration of Independence: Of Wisdom, Virtue, and Principles of Government, JURIST – Professional Commentary, July 4, 2023, https://www.jurist.org/commentary/2023/07/joseph-benson-principles-of-government/.
This article was prepared for publication by Hayley Behal, JURIST Commentary Managing Editor. Please direct any questions or comments to her at firstname.lastname@example.org
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