On Liberty and the US Constitution

Mill and U.S. Constitution

None of the issues being raised today by the Occupy Wall Street (OWS) movement are new, but rather they date back to the very beginning of the United States. At the time the Constitution was written in 1787, human rights and civil liberties were far more constrained than they are in the 21st Century. Only white men with property had voting rights for example, while most states still had slavery and women and children were still the property of fathers and husbands. Only very gradually was the Constitution amended to grant equal citizenship and voting rights to all, and even the original Bill of Rights was added only because the Antifederalists threatened to block ratification. In comparison, the libertarianism of John Stuart Mill in his famous book On Liberty was very radical indeed, even in 1859 much less 1789. He insisted that individuals should be left totally free to do as they pleased so long as they did no harm to others. To that extent, he would have supported the rights of OWS to protest and dissent, and been highly critical of how the authorities were suppressing the movement on the flimsiest of pretexts. As a supporter of free markets, he would also have opposed the trillions in dollars in bailout money that large banks and corporations have received from governments. On the other hand, he probably would have found the ideas of many OWS supporters too radical or socialistic, but at the same time have defended their right to assemble and demonstrate. Even when the United States was founded, bankers and early capitalists like Alexander Hamilton also intended to use the federal government to support industry, commerce and finance, and for many decades, small farmers and labor opposed this program as undemocratic and threatening to the liberties of the common people. On the other hand, Southern slaveholders were hostile to these plans as well, but on the grounds that they might end up threatening slavery. This argument about the proper role of the federal government in the economy and its relationship with civil rights has recurred continually in U.S. history, from the 18th Century to the present.

John Stuart Mill's On Liberty (1859) was far more radical and libertarian than the Framers of the U.S. Constitution, which had changed very little between 1789 and 1859. As a utilitarian, Mill's central premise was that all individuals were free to do as they pleased without interference by the state as long as they did no harm to others. For this reason, he condemned slavery as the opposite of human freedom, which the writers of the Constitution most certainly did not. At the same time, he also opposed all state interference the trade, commerce and the free market beyond that necessary to protect public health and safety. By 1859 in fact, thanks to the cotton boom, the U.S. had more slaves than at any other time in its history (Mill 185). Mill also denounced the "despotic power of husbands over wives" and asserted than women should have equal rights to men, including voting rights (Mill 188). None of the Framers of the Constitution believed this, and even when black men received the vote in the 15th Amendment (1870) women were excluded. Not until the 19th Amendment in 1920 did women receive the vote in the United States. Since Mill argued that "the individual is not accountable to society for his actions, in so far as these concern the interest of no person but himself," he would have allowed no laws against narcotics, alcohol, gambling, prostitution or private sexual behavior among consenting adults (Mill 169). Nothing even remotely like this level of civil rights appears in the U.S. Constitution, and even in the 21st Century not all of these actions are still left to the free choice of individuals -- although the scope of personal liberty is certainly far wider than in the 18th and 19th Centuries.

Robert Dahl also pointed out that the original Constitution was not a particularly democratic document since Senators and presidents were not elected directly and slavery was permitted in the states. Only Alexander Hamilton among the Framers argued for an aristocracy and a monarchy, which the people would not have accepted, so this was one major limit on the range of possible constitutions. Another was federal and equality between the states, along with equal representation in the Senate. James Madison opposed this and argued for a national legislature based on population, but the smaller states would have refused to join the Union (Dahl 11). Therefore the Framers had to compromise on the issue, as they did over slavery, or the United States would not have existed. In order to ensure ratification, Hamilton, Madison and John Jay also had to agree to ten amendments that formed the original Bill of Rights or the Antifederalists would have blocked it. Eleven states ratified these in 1789-90, and to this day they remain the most popular part of the Constitution, including the First Amendment right of freedom of speech and religion. Over two hundred years these "have proved to be a veritable cornucopia of expanding rights necessary to a democratic order," including the 13th and 14th Amendments (1865 and 1868) that abolished slavery and granted equal citizenship to blacks, the 17th Amendment (1913) that required direct election of Senators, and the 26th Amendment (1971) that allowed 18-year-olds to vote (Dahl 27).

After the English North American colonies declared their independence in 1776, the conventional interpretation was that there were thirteen states wielding power over their citizens. So, after winning their independence and rewriting their constitution the new nation had to unify itself, put their ideals into practice, and form a stable United States. According to Jackson Turner Main, one of the most important influences was not simply the familiar division between Southern planters and Northern capitalists that finally broke down in to civil war in 1860, but also the hostility of the small farmers and frontiersman of the West to the elites on the East Coast. Even at that time, the westerners were influenced by radically democratic and populist ideas that made them very distrustful of the coastal gentry and merchants, and also caused them to overwhelmingly oppose the new Constitution of 1787. They also thought that it gave too much power to the executive and Senate, which were not elected by popular vote originally. This new framework for a national government had been carefully constructed compromise between the Northern and Southern elites that would give the new federal government stronger powers of taxation, regulation of commerce and military organization. All of these arguments about the powers of the federal government in relation to capitalism have continued to the present.

Even at that early date though, the Southern planters always feared a federal government with too much power of any kind, lest it 'interfere' with slavery, just as later supporters of segregation wanted to limit federal involvement in civil rights. Thus a second longstanding pattern in American politics was already in place even in the 1780s and 1790s. Alexander Hamilton, the founder of the New York Stock exchange and the Bank of New York, was the first Treasury Secretary under the Washington administration, and formulated economic plans that the Southern gentry strongly opposed: such as government subsidies for manufacturing, a protective tariff for industry and a Bank of the United States. Thomas Jefferson and James Madison founded the Democratic Republican Party to oppose these Federalist plans, and this third major controversy of the direction of economic development in the U.S. would play out well into the 19th Century and beyond. Hamilton was also antislavery and thought that the new industrial system would gradually lead to the extinction of the 'peculiar institution'.

George William van Cleve regarded the original Constitution as a 'slaveholders Union', as did many abolitionists in the 19th Century like Frederick Douglass and William Lloyd Garrison. As James Madison's notes to the Constitutional Convention revealed, the real compromise in 1787 was not between the big states and small states so much as between Northern and Southern elites. Without this, no federal government would have existed at all, except the 1781 Articles of Confederation that could not raise taxes, provide for a common defense or pay off the country's debts. This was not acceptable to elites in either section, since it made the U.S. weak and vulnerable to Britain or other European empire that was hoping the new country would fail. In this respect, the Founders were all classical realists in diplomacy and international affairs, not idealists. In 1770-90, the slave population of the U.S. grew by 50%, mostly by natural increase rather than importation of slaves from Africa, which was unlike the situation in Brazil and the West Indies (Van Cleve 103). In addition, slavery was already expanding into the Old Southwest even though Congress had banned it north of the Ohio River, and soon the great cotton boom would breathe new life into an institution that was widely thought to be in decay in 1787. By the beginning of the Civil War, there were over four million slaves in the U.S. And this institution was more profitable than ever. Even after it was officially destroyed in 1865, it continued in everything but name, usually in the form of sharecropping and tenant farming in the South that left most blacks in absolute poverty.

Although Thomas Jefferson was in Paris at the time the Constitution was written, he was on the whole skeptical of granting too much power to the central government, and politically skilled enough to rally Western farmers to join an Antifederalist coalition with the Southern planters in the 1790s. Jefferson was always a paradoxical character, given his deep hostility to banks, factories and corporations, but at the same time a defender of slavery and states' rights. Even so, he realized that the country under the Articles of Confederation was powerless to defend itself, pay its debts, negotiate commercial treaties or even keep the Mississippi River open to American navigation. Clearly something would have to be done, but only in such a way that the new federal government would never become strong enough to threaten slavery. Northern merchants and commercial interests wanted a new Navigation Act that would protect American shipping and trade, and the Southern leaders were prepared to grant this power as long as their special requirements were also met. Like Jefferson, they had also concluded that even though a strong central government was a great potential danger to slavery "the creation of such fiscal and military powers was essential" (Van Cleve 113).

Northern states were already moving to abolish slavery, either immediately of gradually, although it lingered in New York and New Jersey into the 1830s. Even their most openly antislavery delegates at the Convention, including Hamilton and Benjamin Franklin, avoided any mention of using the powers of the new federal government against it. That would have ended the Union before it even began (Van Cleve 109). In return for agreeing to the commerce clause of the Constitution, the Southern planters received the three-fifths clause, that allowed them to count their slaves as 60% of a white person and gave them that many more seats in the House of Representatives had the federal formula been restricted to the voting (i.e. white) population alone. In addition, Congress was forbidden to close the African slave trade until 1808 and the Northern states were bound by the fugitive slave clause to return any escaped 'persons bound to service' to their owners (Van Cleve 114).

Ratification of the Constitution proved very difficult and in the end it would not have been approved at all had James Madison and Alexander Hamilton not agreed to add a Bill of Rights. Western farmers and the frontier and backcountry regions of every state strongly opposed it as an elitist and undemocratic document, while most "gentleman of property" in the North and South worked hard for ratification (Main 7). White small farmers were the backbone of the Antifederalists in every part of the country and were heavily influenced by radical, democratic 'Commonwealth' writers of the 17th and 18th Centuries like Thomas Gordon, James Harrington and John Trenchard, who distrusted wealthy elites and concentrated political and economic power. This strain of populism ran deep in American politics and culture, as expressed by "Democritus" in Massachusetts who wrote that that the rich and powerful looked "upon their inferiors as their property" (Main 10). Benjamin Franklin, Thomas Jefferson and other Democratic Republicans -- as they came to be called in the 1790s -- also favored this ideology of democracy in the U.S. being based on small-property owners. In Virginia, New Hampshire, Massachusetts, and New York, a clear majority of the ratifying conventions opposed the Constitution, while North Carolina and Rhode Island refused to ratify it unless the Bill of Rights was added (Main 221). Wealthy planters, merchants, manufacturers and commercial farmers favored ratification, and also controlled most of the press at that time, shutting out the Antifederalists almost everywhere.