Preserving American Freedom

The Evolution of American Liberties in Fifty Documents

Declaring Independence, Establishing a Republic

By Pauline Maier, Massachusetts Institute of Technology

In 1763, at the end of the French and Indian War, the colonists of British North America were proud subjects of King George III. To be British, they believed, was to be free—to enjoy not only their God-given natural rights but a series of other "rights of Englishmen" that limited power and so prevented oppression. With freedom came all the good things in life: military success, commercial prosperity, even the longed-for state of being at peace, each under his own "vine and fig tree," as in the oft-quoted phrase from the Old Testament (Micah 4:4). And yet, in 1776 the colonies declared their independence from Britain and, further to secure their freedom, set out to establish a political order different from that of their ancestors—a republic in which there would be no inherited offices and all authority would derive from the people.

What were the colonists' "most Essential Rights & Liberties"? The Stamp Act Congress—a meeting of twenty-seven delegates from nine colonies (all but Virginia, New Hampshire, North Carolina, and Georgia) assembled at New York City—set out to answer that question in a set of resolutions passed on October 19, 1765. Above all, they insisted, the right of Englishmen to be taxed only with their consent "given Personally or by their own Representatives" was fundamental to their freedom. The colonists elected representatives only to their provincial legislatures; thus, only those legislatures could tax them. The Stamp Act of March 1765, by which Parliament imposed a series of new colonial excise taxes on newspapers and other publications, legal and commercial documents, dice and playing cards, was not "constitutionally imposed."

To defend their rights, the colonists did more than pass resolutions. By October 1765 their legislatures had unsuccessfully petitioned Parliament to reject the Stamp Act, and popular uprisings, real or threatened, had forced the stamp distributors to resign in one colony after another. Moreover, in late 1765 colonists in several port towns organized nonimportation associations, like the Philadelphia association of November 1765, to build support among the adversely affected "merchants and manufacturers of Great Britain" for repeal of the "unconstitutional" Stamp Act.

A long train of events separated the still-loyal resistance of 1765 from the decision for independence. A few weeks after war broke out at Lexington and Concord, Massachusetts, in April of 1775, a Second Continental Congress met in Philadelphia and gradually assumed governing power over the thirteen British colonies of mainland North America. Even then, the colonists dreamed of reconciliation, not independent nationhood. Over the next year, several events ate away at their loyalty, such as the king's refusal to respond to a carefully drafted petition for redress and his approval of a "Prohibitory Act" that said all colonial ships and ports were to be treated as those of enemy nations. Finally, in May of 1776, Americans learned that the king had negotiated agreements with German princes to hire soldiers to help put down their "rebellion." What could they do? Remain under the Crown and be crushed, or proclaim independence and seek the help of other countries to avoid being reduced to what the colonists called "slavery": a total submission to the authority of others?

On July 2, 1776, Congress approved a resolution "that these United Colonies are, and of right ought to be, free and independent States." Then it took up a draft Declaration of Independence prepared by a committee chaired by Thomas Jefferson and spent the better part of two days editing it before approving the text on the fourth of July and sending it to the printer John Dunlap. Congress ordered copies of the Dunlap broadside printing of the Declaration to be sent to the revolutionary governments of each state and to the commanding officers of the Continental Army. Several states had additional copies printed for local distribution so their people would know that the new United States of America had assumed a "separate and equal station" among "the powers of the earth." Entrepreneurial printers also produced copies for sale as keepsakes, as with the Historical Society of Pennsylvania's copy of the Declaration of Independence printed in Newport (and dated incorrectly June 13, 1776) by Solomon Southwick, who also printed the official Rhode Island copy of the Declaration.

Independence did not make the American Revolution revolutionary. That, as Thomas Paine later explained, depended upon the Americans' establishing a new system of government. Their decision to found a republic owed much to Paine's argument in Common Sense (January 1776) that Britain's much-praised, unwritten constitution was flawed by two major errors: monarchy and hereditary rule. British freedom, Paine insisted, depended only upon the "republican" part of its government—the elected House of Commons. By mid-1776, the Americans had had enough of earthly kings and discovered, to their surprise, that the people best able to govern them with respect for their rights were themselves.

The main features of American government evolved primarily on the state level through a series of constitutions written from 1776 to the 1780s. The country's central government underwent a similar transformation. The First and Second Continental Congresses were impermanent bodies, formed under duress. With independence in the offing, a more permanent form of alliance became necessary, and on June 12, 1776, Congress appointed a thirteen-man committee chaired by Pennsylvania's John Dickinson to draft a plan of confederation. Not much is known about the workings of the Dickinson committee except that it was dominated by Dickinson, who prepared a draft confederation whose "quaeries" (or questions) and extensive editorial changes suggest the complexity of that task and show the extensive alterations made either by Dickinson himself or on the insistence of other committee members.

The committee submitted a new and more finished version to Congress on July 12, 1776. Congress did not send the (much revised) Articles of Confederation to the states until November 1777. And only in March 1781, some seven months before the battle of Yorktown, did the Articles receive the required unanimous consent of the states and go into effect. Already newspaper essayists were calling the confederation inadequate for the needs of the Union. The incapacity of the confederation to enforce its powers on the states or to pay its bills led Congress finally to call a convention to meet in Philadelphia in May of 1787 for the "sole and exclusive" propose of proposing changes to the Articles of Confederation.

Despite that commission, the delegates quickly began designing an entirely new government based on fifteen resolutions proposed by the Virginia delegation in the convention's opening days. By July 26, the convention had revised and expanded the list to twenty-three resolutions that it submitted to a five-man "Committee of Detail," which used them in preparing a draft constitution while the other delegates took a much-needed ten-day vacation. The committee's report on August 6, when the convention reassembled, was almost identical to a final draft written by the Pennsylvania delegate and Committee of Detail member James Wilson, an eminent Philadelphia lawyer and statesman, with additional changes, mostly small and technical, in the handwriting of another committee member, John Rutledge of South Carolina.

The Committee of Detail made several substantive contributions to the Constitution's development. The convention itself made further changes as it revised and refined the document over the next six weeks. Then it went to specially elected state ratifying conventions that could ratify or reject the Constitution in the name of "We the People." Those conventions saw much to like and much to fear in the Constitution. It was better than the Articles of Confederation, but would the powerful new government it proposed threaten those essential rights for which Americans had fought a long and bloody war with Britain? By September 1788, eleven states had voted to ratify—two more than the nine needed to put it into effect—but five of them also recommended amendments. Only Virginia formally requested that a Bill of Rights be added, but all five asked for adjustments to the Constitution's provisions on representation and a modification of the comprehensive taxing powers granted Congress. Representation and taxation remained the central rights issues of the American Revolution.

The Constitution's most ardent defenders, such as George Washington and James Madison, were unwilling to compromise the new government's taxing powers, which they considered necessary for re-establishing the nation's credit. However, on Madison's urging, the First Federal Congress recommended twelve amendments, ten of which were ratified by the requisite number of state legislatures by the end of 1791. Nobody at the time called that truncated version of what several states demanded a "Bill of Rights," and few expected the amendments to have much of an impact. In time, however, it assumed that name and became a revered statement of rights basic to American freedom.

Those who had fought for the Constitution considered the powers it granted Congress and the limits on power built into the structure of the new government more important for the survival of the republic and of American freedom than a list of "parchment barriers" to oppression. All the republics of times past had failed; would the American republic follow that pattern? The new nation grew and prospered under the Constitution, but only after it had emerged, tattered but undefeated, from a second war with Britain did its future seem at all secure.

In the course of the War of 1812, the British attacked Washington, DC, burned the Capitol and other government buildings in late August of 1814, then sailed up the Chesapeake and bombarded Fort McHenry at Baltimore through the night of September 13–14. At dawn, the fort's flag announced that the bombardment had failed; Fort McHenry remained in American hands. The sight inspired a thirty-four-year-old lawyer, Francis Scott Key, to compose a poem. In his hands, the survival of Fort McHenry became a sign that the American republic would survive, and that "the star-spangled banner in triumph" would continue to wave over the inhabitants of a "land of the free" and "home of the brave," who were and would always be ready, like their ancestors, to fight for their freedom.

Pauline Maier (1939-2013) was the William R. Kenan Jr. professor of American history at MIT. Her book publications include American Scripture: Making the Declaration of Independence (1997) and Ratification: The People Debate the Constitution, 1787-1788 (2010).