“Enlightenment Influences on the Framers of the Constitution”
UNLV Fall Semester
Professor Gregory Brown
October 5th, 2008
Immanuel Kant used the phrase, “Have courage to use your own reason!” to describe the countenance of the Enlightenment. This sentiment of Enlightenment spirit was exemplified by the Founding Fathers going to war with the most powerful nation of the time, England, to step out from the tyranny of the King. Subsequent to victory the Founding Fathers were charged with framing a new government at the Constitutional Convention of 1787. In forming the Constitution and the Bill of Rights, and thus our governmental framework, the Framers drew upon several ideals of the Enlightenment. Enlightenment issues of crime and punishment, social contract, and separation of governmental powers are echoed throughout the Constitution and Bill of Rights.
To establish justice is stated in the introduction of the Constitution as one of the central objectives the framers had. Additionally, five of the ten amendments in the Bill of Rights relate to criminal or punitive issues. In the Bill of Rights in particular, we see direct and indirect reflections of Enlightenment ideals. The Calas Affair of 1762 involved the torture and execution of a man, Jean Calas, in connection with the death of his son. Although evidence suggested Jean Calas could not have committed the crime, he was convicted largely on public sentiment against him based on the rumor he murdered his son because in order to prevent him from converting to Catholicism. Voltaire took up the case on the family’s behalf and over three years turned public sentiment around resulting in the case overturned by Parliament and restoration of the family’s honor., In the Sixth Amendment, the Framers intend to protect the accused against public sentiment by mandating they shall have “an impartial jury of the State” and the right “to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence”. While the language of the Sixth Amendment may not be in direct response to the Calas Affair, the amendment certainly reflects the ideals Voltaire held pertaining to justice.
The Eighth Amendment of the Bill of Rights reflects more direct influences of Enlightenment ideals. In particularly, the explicit admonishment of “cruel and unusual punishment” comes up often in Enlightenment writings. In his “Essay on Crimes and Punishments”, Cesare Beccaria writes the intent of punishment is to prevent further harm to society and “All severity beyond this is superfluous, and therefore tyrannical”. Another popular Enlightenment writing relating to the Eighth Amendment is Catherine the Great’s “Proposals for a New Law Code” of 1767. In code 123 she writes, “The Usage of Torture is contrary to all the Dictates of Nature and Reason; even Mankind itself cries out against it, and demands loudly the total Abolition of it.” Torture also comes up in Beccaria’s essay when addressing the treatment of individuals accused of crimes, “The torture of a criminal during the course of his trial is a cruelty”. The debate of whether cruel and unusual punishment in the Eight Amendment pertains to torture continues today. This subject came up in an interview of Supreme Court Justice Anthony Scalia this year on 60 Minutes. Justice Scalia says, “I don’t like torture” and “we have a law against torture” referring to the Eighth Amendment. When asked if the torture of prisoners in Abu Ghraib related to the “cruel and unusual punishment” language, Justice Scalia answers, “Has anybody ever referred to torture as punishment? I don’t think so.” By these statements we see that the question isn’t if the Eighth Amendment relates to torture in general; the question arises in whether torture is used as punishment or as an interrogation method. Relating to the arguments here, we are concerned only with the issue of torture as punishment and it is clearly regarded as “cruel and unusual punishment”. As Justice Scalia suggests, the Eight Amendment seems to pertain to punishment of prisoners which agrees Enlightenment views of Beccaria and Catherine the Great.
Presumed innocence is another issue relating to crime and punishment that Beccaria and Catherine the Great comment on. According to Beccaria, “No man can be judged a criminal until he be found guilty”. Catherine the Great comments on the issue further, “No Man ought to be looked upon as guilty, before he has received his judicial Sentence”. Interestingly, the notion that the accused is innocent until proven guilty in a court of law is not explicitly granted in either the Constitution or the Bill of Rights. However, the Framers seem to address the issue of presumed innocence implicitly in the Fifth Amendment with the following language, “No person shall…be deprived of life, liberty, or property, without due process of the law”. Not until 1895 was the right of presumed innocence for the accused solidified in a Supreme Court case, Coffin vs. United States, with the court concluding; “The evolution of the principle of the presumption of innocence, and its resultant, the doctrine of reasonable doubt, make more apparent the correctness of these views, and indicate the necessity of enforcing the one in order that the other may continue to exist.” Thus we have seen that Enlightenment views on crime and punishment are reflected in those of the Framers in the Bill of Rights and the Constitution. Another issue more widely discussed during the Enlightenment is that of social contract.
Social contract is the relationship between individuals forming a society. The central premise of social contract is that in order to ensure security and a civil society, individuals must forfeit some liberty. Two of the most prominent figures of the Enlightenment, Jean-Jacques Rousseau and John Locke, wrote extensively about social contract. Rousseau sums up the question social contract seeks to answer as, “Still, each man’s power and freedom are his main means of self preservation. How is he to put them under the control of others without damaging himself…?”. For the Framers, balancing liberty while providing security was perhaps the fundamental question in writing the Constitution. James Madison, who is commonly referred to as “The Father of the Constitution”, reflected on this dilemma of the Constitutional Convention “Among the difficulties encountered by the convention, a very important one must have lain in combining the requisite stability and energy in government, with the inviolable attention due to liberty”. We see the Enlightenment influence of social contract from the very beginning of the Constitution.
The introduction of the Constitution is essentially a declaration of social contract between the people:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution of the United States of America.
Rousseau also viewed social contract as a pact between people of a society where “the individual member alienates himself totally to the whole community together with all his rights”. In Rousseau’s mind this type of contract worked because all members of society surrendered their rights equally and “an offense against one of its members is an offence against the body politic”17. Reflecting Rousseau’s views when speaking on proposed amendments to the Constitution James Madison proposed “That there be prefixed to the constitution a declaration–That all power is orginally vested in, and consequently derived from the people”. Besides merely being a statement of social contract, we see examples of both the rights people of the United States are to yield to government, and duties of the government to ensure security written into the Constitution.
In Article I, the Framers set up a bicameral legislature made up of the Senate and the House of Representatives. The people were to elect members to the House of Representatives directly; and, although later changed to direct elections by the people, members of the Senate were “chosen by the Legislature”. By electing representatives to legislate on their behalf, the people are yielding powers to their Congressmen. Notable among these powers enumerated in the Constitution are power to; “Lay and collect Taxes”, declare war, “raise and support Armies” and Navy, borrow money, “regulate Commerce with foreign Nations, and among the several States”, and make laws. In yielding these rights to Congress, however, most of the population will experience more liberty by being free to pursue other interests and be more industrious instead of constantly being bogged down in legislation. This idea of representation is contrary to the notions set forth by Rousseau and more closely follows those of Locke. Rousseau said “Any law that the people have not ratified in person is void”. On the hand, Locke wrote “the first and fundamental positive law of all commonwealths is the establishment of the legislative power”. Thus Framers agreed with Rousseau that the power of social contract comes from the people; on the other hand, the form of the contract agrees more with Locke in that it is one between the people and government.
In return for the people yielding liberties as social contract mandates, the government is supposed to provide security and promote the general well being of society. In direct response to ensuring security the Framers wrote that the legislature shall “provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions”. Additionally, Congress has the power to “punish Piracies and Felonies committed on the high Seas”, organize and arm the militia, “raise and support Armies”, and “To provide and maintain a Navy” while the President acts as commander in chief of the army and navy. To promote economic well being the Congress is given the power to “regulate Commerce with foreign Nations, and among the several States” and to “coin Money”. For the social well being of society Congress was given the power “to promote the Progress of Science and useful Arts”. This last power given to Congress echoes the fundamental Enlightenment ideal of promoting knowledge and reason. While social contract involves the philosophical debate over people coming together to form a society; the Framers essentially had a blank slate in the type of government to establish. While the representative republic established by the Framers was revolutionary, the ideas behind it were heavily influenced by the Enlightenment.
During the era of the Enlightenment the countries of Europe were largely absolutist monarchies or, as in the case of England, parliamentary monarchies. King Louis XV of France was particularly authoritarian and had absolute power over the country. Despite this many of the leading figures of the Enlightenment came from France. Among them was Charles de Secondat, Baron de Montesquieu. Montesquieu’s writings on government and his system of checks and balances were heavily influential in Europe and the American Colonies. Historian Donald Lutz found Montesquieu was the most cited thinker of the 1770’s and 1780’s in the American Colonies. One of the most direct influences of Montesquieu in the Constitution is in the separation of powers of government.
According to Montesquieu there are three distinct powers of government; legislative, executive, and judiciary. Furthermore, he believed that “There would be an end to every thing” if these powers were shared by a single person or body. “When the legislative and executive powers are united in the same person, or in the same body of magistrates”, Montesquieu writes, “there can be no liberty” because such a body could “enact tyrannical laws” and “execute them in a tyrannical manner”. Judicial powers should be distinct from the legislative branch to prevent “arbitrary control” of making laws; additionally, if judicial powers were combined with the executive “the judge might behave with all the violence of an oppressor”. James Madison, who referred to Montesquieu as the “oracle” on the subject of separation of powers, emulates Montesquieu’s views by saying, “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny”. In the Constitution, we see product of Montesquieu’s influence on the Framers by the establishment of the Legislative, Executive, and Judicial branches of government in Articles I-III.
In addition to separating the powers of government, we see influence of Montesquieu in the checks the balances of the governmental branches written into the Constitution. Montesquieu wrote, “Were the legislative body to be a considerable time without meeting, this would likewise put an end to liberty”. We saw an example of this when Charles I prevented Parliament from meeting from 1629-1640 in response to Parliament’s resistance to his policies. To prevent such a situation the Framers wrote into the Constitution, “The Congress shall assemble at least once in every Year”. Another example of Montesqueiu’s influence is in the convening and adjournment of the legislative branch. Montesquieu felt that the “legislature should not assemble itself” and the executive should have the power to “regulate the time of convening, as well as the duration of those assemblies”. This power is mimicked in the Constitution where the President may “convene both Houses, or either of them” to decide on an issue he deems necessary, and “in Case of Disagreement between them…he may adjourn them to such a Time as he shall think proper”. One point where the Framers diverged from Montesquieu is in the power of the legislature over the executive. Montesquieu didn’t think the legislative branch should have the power to stop the executive or judge him should he act tyrannically. In contrast, the Framers gave Congress the right to impeach the President for “Treason, Bribery, or other high Crimes and Misdemeanors”. We see here that although the Framers drew from many of Montesquieu’s ideas, they did not merely copy them and insert them into the Constitution. The Founding Fathers rose against what they considered the Tyranny of King George, and thus were reluctant to entrust too much power in the executive branch.
Comparing the Constitution and the Bill of Rights to writings throughout the Enlightenment, we see numerous examples where those writings influenced the Framers. Enlightenment issues as diverse as crime and punishment, social contract, and separation of governmental powers are all reflected in early American political theory. Without the Enlightenment influences we have enumerated, it is doubtful the Founding Fathers would have revolted against tyranny and declared independence; and subsequently wrote the Constitution establishing a nation of their own.
Immanuel Kant, “What is Enlightenment? 1784”, Modern History Sourcebook. http://www.fordham.edu/halsall/mod/kant-whatis.html (Accessed on October 2, 2008)
Encyclopedia of World Biography. “Voltaire Biography”, http://www.notablebiographies.com/Tu-We/Voltaire.html (accessed on October 1, 2008)
Joseph McCabe, Toleration and Other Essays by Voltaire (New York: G P Putnam’s Sons, 1912), 11-17. http://files.libertyfund.org/files/349/Voltaire_0029.pdf (accessed on October 1st, 2008)
Cesare Beccaria, “Essay on Crimes and Punishments”, Modern History Sourcebook. http://www.fordham.edu/halsall/mod/18beccaria.html (Accessed on October 1, 2008
Catherine the Great, “Proposals for a New Law Code”, Modern History Sourcebook. http://www.fordham.edu/halsall/mod/18catherine.html (Accessed on October 1, 2008)
Lesley Stahl interview with Justice Anthony Scalia on 60 Minutes, April 27, 2008. Transcripts taken from http://www.cbsnews.com/stories/2008/04/24/60minutes/main4040290_page4.shtml (Accessed on October 1, 2008.
U.S. Supreme Court, Coffin vs. U.S., 156 U.S. 432 (1895) http://www.constitution.org/ussc/156-432.htm (Accessed October 1, 2008)
Jean-Jacques Rousseau, “The Social Contract, 1763” Modern History Sourcebook. http://www.fordham.edu/halsall/mod/Rousseau-soccon.html (Accessed on October 4, 2008)
The Federalist Papers, “37 Concerning the Difficulties of the Convention in Devising a Proper Form of Government by James Madison”. http://thomas.loc.gov/home/histdox/fedpapers.html (Accessed on October 2, 2008)
James Madison, “Proposed Amendments to the Constitution June 8th, 1789)”. http://odur.let.rug.nl/~usa/P/jm4/speeches/amend.htm (Accessed on October 5, 2008)
John Locke, Two Treatises of Government, (London 1824) 208. http://books.google.com/books?id=K1UBAAAAYAAJ&printsec=frontcover&dq=john+locke&lr=&as_brr=1&ei=HNTfSLO1M4fMtAPwioS1CQ#PPA208,M1 (Accessed on October 4, 2008)
Donald S. Lutz, “The Relative Influence of European Writers on Late Eighteenth-Century American Political Thought,” in The American Political Science Review, Vol. 78, No. 1, (March 1984), pp. 189-197.
Charles de Secondat, Baron de Montesquieu, “The Spirt of Laws, 1748” Modern History Sourcebook. http://www.fordham.edu/halsall/mod/montesquieu-spirit.html (Accessed on October 4, 2008)
The Federalist Papers, “47 The Particular Structure of the New Government and the Distribution of Power Among Its Different Parts by James Madison”. http://thomas.loc.gov/home/histdox/fed_47.html (Accessed on October 5, 2008)