Commentary
Some people seem to think the Constitution’s framers simply made the whole thing up. “Why should we pay attention to what 55 dead white guys wrote 239 years ago?” they ask.
But the framers did not make it all up. The ideas behind the Constitution had been discussed and tested for a very long time.
Illustrating this is a document written nearly 20 years before the framers met in Philadelphia—a document that proclaims concepts later incorporated into the Constitution.
The document is a letter issued by the Massachusetts colonial house of representatives on Feb. 11, 1768. It is a circular letter—that is, it was sent to communicate the Massachusetts legislature’s opinions and to seek feedback from the legislatures of other colonies. Sam Adams proposed that the House of Representatives issue the letter, and he and James Otis shared authorship.
This was the time when the British Parliament was asserting the power to tax the American colonists. In 1765, Parliament imposed a stamp tax on the colonists, but furious opposition forced its repeal. When adopting the repeal measure, however, Parliament passed the Declaratory Act, reserving the prerogative to tax and regulate the Americans without their consent, “in all cases whatsoever.”
In 1767, Parliament enacted a bill imposing what were called the Townshend duties. These were a series of taxes on items imported into the colonies from Great Britain. The Massachusetts circular letter was written in opposition to the Townshend duties.
The letter was remarkable for two reasons. First, it was an early step toward inter-colonial committees of correspondence and ultimately toward American unity. Second, the letter reflected many of the ideas on which the framers built the Constitution.
The first of these ideas was the fundamental concept of constitutionalism. Then, as now, Britain had no single document denoted as a “constitution.” In those days, the term “constitution” invariably referred to a country’s general political system. It was in this sense that the Declaration of Independence used the word “constitution,” and in that sense, it was also used by the documents calling and empowering the 1787 Philadelphia Convention.
Although the British “constitution” was a hodgepodge of documents, customs, and taboos, the Massachusetts letter took that hodgepodge seriously.
The letter implicitly promised, for example, that the colonies would take only “constitutional measures” when resisting the Townshend duties. It referred to a “constitutional right” not to yield one’s property without consent, given either personally or by legislative representatives.
It further pointed out that Americans were not represented in Parliament, nor was it practical for them to be so. For Britain and America were “separated by an ocean of a thousand leagues.”
In a foreshadowing of the Declaration of Independence, the letter went beyond labeling America’s immunity from British taxation as a constitutional right and announced that it was a “natural right” as well. That is, it was a right derived from God and not subject to constitutional infringement.
Despite the malleability of the British constitution, the letter proclaimed that “in all free states the constitution is fixed, and as the supreme legislative derives its power and authority from the constitution, it cannot overleap the bounds of it without destroying its own foundation.”
This is a very American concept, and very much at odds with the British notion of Parliamentary supremacy.
The idea that laws are subject to constitutional limits was encouraged by the fact that each British colony had its own charter, and that laws passed in violation of that charter were void. The same concept underlies the Constitution’s creation of a federal government with only limited powers and the duty to treat as void any federal actions that exceed those powers.
The letter added that “the constitution ascertains and limits both sovereignty and allegiance, and therefore his Majesty’s American subjects, who acknowledge themselves bound by the ties of allegiance, have an equitable claim to the full enjoyment of the fundamental rules of the British constitution.”
The concepts of sovereignty and allegiance were also baked into the U.S. Constitution. Today, they are an essential part of the debate over the rights and privileges of illegal immigrants and their children.
The British government, like all governments, imposed financial exactions to raise revenue and financial exactions to assist in the regulation of commerce. Shortly before the Massachusetts letter was issued, John Dickinson published his famous “Letters from a Farmer in Pennsylvania,” in which he defined a “tax” as an exaction for the sole purpose of raising revenue.
The Massachusetts circular letter adopted that definition, referring to the Townshend Duties as imposed “with the sole and express purpose of raising a revenue.”
That distinction later became part of the Constitution. If Congress imposes monetary exactions solely for revenue, even if they have incidental effects on behavior, it acts under the Constitution’s Taxation Clause (Article I, Section 8, Clause 1). If it levies exactions for regulating commerce, it acts under the Commerce Clause (Article I, Section 8, Clause 3). Unfortunately, both in the 2012 Obamacare case and the 2026 tariffs case, the Supreme Court failed to understand this rule.
The Constitution provides for the payment of federal officers from congressional appropriations and sharply limits their other “emoluments.” (Article I, Section 6, Clause 3; Article I, Section 9, Clause 8; Article II, Section 1, Clause 7). The goal is to ensure that officers remain financially dependent on the American people.
The circular letter anticipated this constitutional policy. It denounced British efforts to render colonial officials dependent on Parliament rather than on colonial legislatures:
[We] have also submitted to consideration, whether any people can be said to enjoy any degree of freedom if the Crown, in addition to its undoubted authority of constituting a governor, should appoint him such a stipend as it may judge proper, without the consent of the people … and whether, while the judges of the land, and other civil officers … [have] salaries appointed for them by the Crown, independent of the people.”
The letter ended with a declaration of continued loyalty to the British king. But unbeknownst to its authors, their letter would become one element in the foundation of a Constitution that would govern a new nation.
Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.
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