Building of the American nation: Freedom is a habit



By contemporary standards the society that emerged from the revolution was radically democratic, in the sense of granting political franchise to a large majority of white men, and even in some cases to black men. Of course women and most blacks would have to wait many years for their due share in the political process.

While property qualifications remained in some places, inflation greatly reduced their effect on the size of the electorate. Several states gave the franchise to resident taxpayers rather than property holders. In addition to granting the vote, the new states made it much easier to exercise that right, by holding frequent elections and expanding the number of polling places. This was essential in a society of such diffuse settlement.

Adoption of the Virginia Bill of Rights

Adoption of the Virginia Bill of Rights

State governments from the mid 1770s onwards made bold advances in matters of declaring individual rights and ordering legal reforms, on the basis that social abuses were an English inheritance that should be abolished together with the power of the monarchy. Eight states had issued bills of rights as separate documents  by 1784, and four others incorporated such documents into their constitutions.

George Mason (1725 - 1792), "Father of the Bill of Rights"

George Mason (1725 – 1792), “Father of the Bill of Rights”

The pioneering Virginia Bill of Rights, adopted in June 1776, was an aggressive statement of natural rights theory, with the consequent assertion of all the basic rights that would eventually find their way into the US constitution: rights against double jeopardy and self-incrimination, high bail and excessive punishment; assertion of jury trial; and freedom  of the press. Religious issues were especially important here, and the Virginia document announced that ‘all men are equally entitled to the free exercise of religion according to the dictates of conscience’. In Pennsylvania the radical constitution of 1776 was equally humane, democratic and secular.

A detail from John Trumball's painting "Declaration of Independence"

A detail from John Trumball’s painting “Declaration of Independence”

Between 1775 and 1820 many aspects of American life were transformed by the breakdown of traditional orthodoxies and controls, and the application of democratic doctrine far outside the sphere of government and party politics. The implications of democratic ideals for military affairs were painfully evident in the War of 1812, when US campaigns regularly came to grief due to the nature of the popular militia.Well suited to resist invasion, the state forces were hopelessly inadequate for any more complex struggle, with their insistence on electing officers regardless of abilities.

The Bill of Rights

The Bill of Rights

They also carried out mass debate on controversial orders, and rejected those they disliked. This meant, for example, that forces returned home when they had fulfilled the strict terms of their engagement, no matter how inconvenient for the war effort, and they were extremely reluctant to venture outside American territory. Certainly republican government was in no danger from such forces, but nor could the United States hope to achieve the status of a significant military power.

The US senate chamber in 1868

The US senate chamber in 1868

In the law, meanwhile, the break with England permitted state legislatures and courts to experiment with easier divorce procedures and expanded property rights for married women; impressive for the time, though tentative by the standards of the 20th century. In 1790 Pennsylvania became the first jurisdiction anywhere to restrict the death penalty essentially to homicide, a trend that soon spread across the United States, and in the 1840s Michigan undertook the radical step of abolishing capital punishment altogether. The United States in the early 19th century was the first society in human history where commission of a serious crime generally led the perpetrator to prison rather than the gallows or block. Most states rapidly curbed and then abolished the process of imprisonment for debt, which had been the largest single cause for incarceration in colonial times, so remained so in England for over a century afterwards.

James Kent (1763-1847), the first American professor of Law

James Kent (1763-1847), the first American professor of Law

Legal liberalization was accompanied by a general distrust of English precedent, and indeed of formal legal mechanisms, and some states actually prohibited trained lawyers from serving on their supreme courts. This taste for innovation was all the greater in the ‘legal periphery’ of the new border states, from which daring experiments originated and spread to the major jurisdictions. Not until the conservative writings of jurist James Kent in the 1820s did American law acquire a well-defined body of precedent and case law that in effect stabilized the future course of legal development.

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