A Charter of Power Granted by Liberty

Nathaniel Chipman. Artist unknown.

Thomas Paine described the Constitution as “not a thing in name only; but in fact . . . . It is the body of elements, to which you can refer, and quote article by article; and which contains . . . every thing that relates to the complete organization of a civil government, and the principles on which it shall act, and by which it shall be bound.” Paine, Rights of Man, Foner, ed., Writings of Paine, I, 278.

James Wilson stated that the people’s grant of power to government was “the important distinction so well understood in America, between a Constitution established by the people and unalterable by the government, and a law established by the government and alterable by the government.” Wilson, “Lectures on Law,” Wilson, ed., Works of Wilson, I, 417-18; The Federalist, No. 53.

James Madison stated that in the United States, “a constitution had become . . . a charter of power granted by liberty rather than, as in Europe, a charter of liberty granted by power.” Gordon Wood, The Creation of the American Republic: 1776-1787, 601 citing Madison, Phila. National Gazette, Jan. 19, 1792, Hunt, ed., Writings of Madison, VI, 83-85.

Thomas Paine explained that Magna Carta and the English Bill of Rights were not constitutions, by this definition, but rather “they did not create and give powers to Government in the manner a constitution does.” Paine, Rights of Man, Foner, ed., Writings of Paine, I, 382-88, 379.

Nathaniel Chipman observed that: “Writers on government have been anxious on the part of the people to discover a consideration given for the right of protection . . . . While government was supposed to depend on a compact, not between the individuals of a people, but between the people and the rulers, this was a point of great consequence.” Chipman, Principles of Government, 110-11. In America, the compact was only among the people of the country, not between the people and the rulers, as was conventionally conceived.

In short, “the rulers had become the ruled and the ruled the rulers.” Gordon Wood, The Creation of the American Republic: 1776-1787, 602. This rethinking of the social compact that had come to be so pervasive in governing was a groundbreaking revelation. No longer would Americans agree on an individual basis with the government that so long as the government acted properly, the individual would permit the government to continue. Instead, Americans agreed amongst themselves that the government would continue.

This inevitably created a camaraderie amongst Americans. No longer would a government pass for dividing up the country, hoping to preclude any collective action in revolt. Rather, Americans, as a whole, would raise questions about government. Most of all, Americans were empowering themselves, always ensuring that if the government was no longer desirable, they would take it back.

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