Was the Revolutionary War an insurrection or a reclamation of rights?
In her delightful January 9 post about both Congress's and some Supreme Court justices' embarrassing behavior, Clarice Feldman questioned the general public's familiarity with American civics. With the reader's indulgence, I would like to tag on to that point with a little Civics 101.
The best starting point for understanding American Civics is the Crisis of July 5, 1776. You've never heard of that? Okay, let me explain.
On July 3, 1775, the Continental Congress adopted the Declaration of Independence, which declared that the thirteen erstwhile colonies "are and of right ought to be free and independent states ... absolved from all Allegiance to the British Crown." It was published on July 4, 1776. And then, on July 5, 1776, the thirteen new states faced a legal crisis.
What was the crisis? The crisis was what henceforth would be the controlling law to be applied in the new nation's courts to resolve disputes. On July 2, the colonists still viewed themselves as Englishmen governed by the common law of England. But on July 5, they were no longer English colonies, but were, instead, sovereign states. So what law would control civil disputes?
Within a few months, all thirteen colonies answered the question, and they all gave the same answer. For each colony, their law would be...the Common Law of England! And that remains the case today: the law of every one of the 50 U.S. states — except Louisiana — is the common law of England, as revised from time to time by state and federal constitutions or statute, and as augmented by decisions rendered by judges across America.
None of this contradicts the Constitution's declaration that it is the "supreme law of the land." Yes, the Constitution is the supreme law — meaning that, in the event of a conflict between the Constitution and other law, the Constitution prevails. But the reality is that the Constitution affects very, very, very few legal disputes, whereas almost all regularly occurring disputes can be resolved under the common law. Thus, the Constitution is the supreme law, but the common law is the fundamental law.
Image: John Trumbull's 1818 "Declaration of Independence." Public Domain.
The dénouement of the thirteen original states' July 5 crisis is revealing. Why, during a desperate war, would the colonies adopt their enemy's legal system? The answer is simple and straightforward: maintaining that legal system was the very purpose of the revolution! The colonists understood that "no taxation without representation," along with the rights of "life, liberty & property," and "consent of the governed" were all common law doctrines applicable to all Englishmen — but Parliament was denying the colonists those rights.
As George Washington remarked, "[t]he sword was our last resort for the preservation of our liberties." The whole point of the revolution was not to gain liberty but to keep it. The colonies already had liberty under the common law.
And here lies what we educators call "the teachable moment." A revolution and a rebellion are not the same thing. A revolution is a radical change of the locus of power. A rebellion is a rejection of law. Hence, the British were the rebels! The British sought to deprive the Americans of their benefits under the common law. The colonists were forced to change the locus of political power to retain for themselves the benefits of the common law. The American Revolution was thus a conservative revolution.
In addition to all the above, one of the principles of the common law was and is the doctrine of reciprocity, which provides simply that the duties of the government's protection of the citizens and the citizens' allegiance to the government are reciprocal. Thomas Jefferson described it as "a certain position in law that allegiance and protection are reciprocal, the one ceasing when the other is withdrawn."
This common law doctrine of reciprocity was the colonists' justification for the revolution. In terms of a principled stand against the Democrat attack on constitutional and legal norms, has it any application to the events of our time?