Front and Center Vol 1 No  12 December, 2022

by James Danielson, PhD

So far in our consideration of American founding principles we have examined Magna Carta of 1215, and the English Bill of Rights, 1689, as documents advancing principles, like habeas corpus and due process of law, that would become important to American political tradition. The Virginia Bill of Rights is part of the Virginia Constitution of 1776 that Virginians adopted when they voted to secede from the British Empire a few weeks before publication of the Declaration of Independence. This document is a mature expression of American political thought in the Jeffersonian tradition. Several principles that inform this tradition are found in the Virginia Bill of Rights, but the rest we find contained in the Declaration of Independence, the Articles of Confederation, the Constitution of the United States, and artfully summed up by Thomas Jefferson in his first inaugural address.

Americans in the 18th century were in agreement that the purpose of moral and political reflection is action, and thus moral and political principles have meaning only when people act on them. When a president is inaugurated, he pledges to “preserve, protect, and defend the Constitution of the United States.” What does this mean? The oath is to protect and defend the Constitution of the United States, that is, to act in accord with the text of the Constitution, and to ensure that the constitutional officers serving at the pleasure of the president do the same. This assumes that Americans, including presidents, can read the Constitution and understand it for themselves. The document is not a mystery to be understood only by people of rare and esoteric training. It was debated and ratified by farmers and merchants as well as by lawyers. There is no clause in the Constitution that gives authority to the Supreme Court to interpret the Constitution for the rest of us. Before the Constitution was written and adopted, the states already had constitutions that were not superseded by it. Thus the meaning of the federal Constitution was intended to be understood in accord with the constitutions of the states that created the federal government. If the Constitution gave to the Supreme Court the authority to tell us what early Americans had ratified, the Constitution would have been rejected because the federal government would then be able to determine the limits of its own authority simply by “interpreting” the Constitution as a grant of endless power. If Americans are to ensure that the federal government observes the limits placed on it in the Constitution, then Americans in their localities and states must understand and act according to the principles of federalism contained within it.

Principles of federalism are firmly and clearly advanced in the Virginia Bill of Rights. Federalism in the United States is the idea that political power should be held as close to home as possible, that governing authority rests in the people of each state as sovereign political societies, and that therefore the federal government, established in our Constitution, is but an artificial corporation created by the sovereign states for specified and limited purposes, and nothing else. How do a people sustain a decentralized political order in the face of a federal government seeking ever to expand its power relative to the states and the people thereof? This question was constantly in the air during the ratification conventions in each state in 1788/89. Many people saw in the proposed constitution a document containing key passages that are sufficiently vague to be interpreted to give more power to Congress than was intended, to the detriment of the federal political order established in our first constitution, the Articles of Confederation and Perpetual Union.

Thomas Jefferson wrote a letter to James Madison explaining how the people of each state can prevent the federal government from expanding its powers beyond those delegated in the Constitution. Jefferson’s explanation was succinctly expressed to the people of Massachusetts by the estimable Mercy Otis Warren: “…resist the first approaches of tyranny, which at this day threaten to sweep away the rights for which the brave Sons of America have fought….” Usurpation is the exercise by any branch of the federal government of a power not delegated to it in the Constitution. Since the federal government is a creature of the states, the argument goes, any act of the federal government that is in fact a usurpation must immediately be dismissed by the people of the several states. To fail to do this at the appearance of any usurpation, however small or even desirable, will be destructive of liberty in the long run. Jefferson put it to Madison this way. “To take a single step beyond the boundaries thus specially drawn around the powers of Congress, is to take possession of a boundless field of power, no longer susceptible of any definition.”

The Virginia Bill of Rights begins thus: “All men are by nature equally free and independent and endowed with rights held by nature, which include life, liberty, property, and the pursuit of happiness and safety. These rights, because deriving from human nature, we cannot deprive future generations by any compact of government we make during our lifetimes.” Here we find an interesting assertion that sounds odd to 21st-century ears. The idea is that since we have our rights from human nature, we can no more surrender the rights of our nature than we can surrender our nature itself. Therefore, the political arrangements we establish must be entered into voluntarily. But since each generation shares equally in human nature, no generation may enter into any “compact of government” that binds subsequent generations without their consent.

In 1789, Thomas Jefferson sent a letter ostensibly to James Madison, but likely in fact to the Marquis de Lafayette, inviting him to join with Jefferson in a serious consideration of this principle: “The earth belongs in usufruct to the living. The dead have neither right nor power over it.” Usufruct defines a legal arrangement in which a person has the right to use a piece of land and enjoy the fruit of it without holding legal title to it. So Jefferson is saying that we who are alive enjoy the right to cultivate the earth and enjoy it, but the dead have that right no longer. What this meant, and it is the intent in the Virginia Declaration, includes the idea that when a generation passes, their governments should leave no debt behind them, for then the dead would assert power over the earth to the detriment of the liberty of the living. This is a discussion about one of the cornerstone principles of the American founding: liberty first. Patrick Henry would assert that we should have no attachment to any government above our attachment to liberty. As vice president, John C. Calhoun offered this toast at a dinner: “To the union. Next to our liberty, most dear. May her burdens and benefits always be shared equally.”

The Virginia Declaration contains a principle central to our founding and asserted in the Declaration of Independence, which is that all power derives from the people (of Virginia, in this case) and thus all magistrates and office holders are servants of the people. Government is established to protect the community and the rights of citizens. Thus whenever government fails in these regards, “a majority of the community has an indubitable, inalienable, and indefeasible right to reform, alter, or abolish it, in such manner as shall be judged most conducive to the public weal.”

A principle dear to 18th-century Virginians, that was altered in the Constitution of the United States, is that “No property shall be taken for public use without the consent of the owner.” The Constitution allows the taking of property for public use so long as the owner is given “just compensation,” but the Virginia Declaration forbids this. The owner must consent…liberty first.

Included in the Virginia Declaration is an important restriction on government taken from the English Bill of Rights of 1689. “That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Moreover, there shall be no general warrants for these were seen to be the exercise of arbitrary power, which is the definition of tyranny. Of course, the right to keep and bear arms is affirmed along with freedom of the press, and of religion, but the Declaration concludes in a most interesting way that expresses a view of a free people that would be embraced in every colony of British America. “That no free government, or the blessings of liberty, can be preserved to any people but by a firm adherence to justice, moderation, temperance, frugality, and virtue and by frequent recurrence to fundamental principles.”
Thomas Jefferson expressed this same view twenty-five years later in his first inaugural address, in which he lists what he calls “the essential principles of our government,” and ends with this: “These principles form the bright constellation, which has gone before us and guided our steps through an age of revolution and reformation. The wisdom of our sages, and blood of our heroes have been devoted to their attainment:—they should be the creed of our political faith; the text of civic instruction, the touchstone by which to try the services of those we trust; and should we wander from them in moments of error or of alarm, let us hasten to retrace our steps, and to regain the road which alone leads to peace, liberty and safety.”