What A Little-Known Colonial Pamphlet Tells Us About the Constitution
Between 1764 and the Declaration of Independence in 1776 Americans produced a rich series of pamphlets and resolutions listing their grievances against the central government of the British Empire. As I have pointed out before, reading those pamphlets is very helpful in understanding what the Constitution really means. And ignorance of them contributes to common constitutional mistakes.
These pamphlets are particularly useful in comprehending the Founders’ version of federalism. This is because the constitutional balance between states and federal government partly reflected what the Founders had wanted the balance to be between colonies and imperial government.
One of the most extraordinary of these pamphlets is little-known today, but it deserves much more attention. It is “The Votes and Proceedings of the Freeholders and other Inhabitants of the Town of Boston in Town Meeting assembled According to Law.” Historians refer to it as “The Boston Pamphlet.”
The Boston Pamphlet was the product of the Boston “committee of correspondence,” a group consisting of patriots such as James Otis and Sam Adams. The people of the Town of Boston formally approved the Pamphlet on November 20, 1772, whereupon they sent it to other Massachusetts towns for their consideration and response.
The Boston Pamphlet’s statement of natural rights anticipates the statement of natural rights expressed in the Declaration of Independence. The Pamphlet’s view of the limits on British power anticipates the balance the Framers struck in the Constitution.
Among the Boston Pamphlet’s statements of natural law are —
* All men have a “right to life, liberty, property.”
* In “Case of intollerable [sic] Oppression” people have the right to “leave the Society they belong to, and enter into another.”
* “Every natural Right, not expressly given up, or from the Nature of the social Compact necessarily ceded, remains.”
* It is absurd to argue that men “renounce their essential natural Rights, or the Means of preserving those Rights; when the grand End of civil Government from the very Nature of its Institution, is for the Support, Protection and Defence of those very Rights.”
Other portions of the document shed light on provisions in the Constitution. For example, the statement that the people have “the Right to support and defend [their natural rights] in the best Manner they can” is an important indication that the Second Amendment’s “right to keep and bear arms” includes a personal right of self-defense. Similarly, the statement that “every Man . . . has a Right peaceably and quietly to worship God, according to the Dictates of his Conscience,” supports the well-documented conclusion that the First Amendment requires the federal government to treat all religions equally, but does not protect irreligion. (Regretfully, for reasons too complicated to discuss here, the Boston Pamphlet excluded Catholics from protection; however, the First Amendment did not.)
In addition, the Pamphlet tells us that:
* Public officials are mere servants of those they serve—a primary tenet of Founding-Era political theory that underlies several constitutional provisions.
* “The Legislative has no Right to absolute arbitrary Power over the Lives and Fortunes of the People”—foreshadowing the limited nature of congressional authority.
* “There should be one Rule of Justice for Rich and Poor; for the Favourite at Court, and the Countryman at the Plough”—embodying the “equal protection” principle appearing in several parts of the original Constitution and strengthened by the Fourteenth Amendment.
* “The Supreme Power cannot justly take from any Man, any Part of his Property without his Consent, in Person or by his Representative”—foreshadowing legislative control over finance.
* The colonists “have and enjoy, all Liberties and Immunities of free and natural Subjects. . . as if they . . . were born within . . . [the] Realm of England”—foreshadowing the Privileges and Immunities Clause of Article IV.
* Complaining of how royal officials would “enter and go board any Ship, Boat, or other Vessel. . . and also in the day-time to go into any House, Shop, Cellar, or any other Place, where any Goods, Wares or Merchandizes lie concealed, or are suspected to lie concealed….” and “our Boxes, Trunks and Chests broke open, ravaged and plundered . . . ”—all giving meaning to the Fourth Amendment.
* Complaining of extending central control of the judicial system (and violating trial by jury) at the expense of local courts—thereby foreshadowing the limits on federal courts set forth in Article III and in the Bill of Rights.
* While implicitly conceding London’s control over commerce among units of the British Empire (as virtually all Americans did), still bitterly complaining of London’s efforts to restrict colonial manufacturing and local commerce—thus anticipating the limits on Congress’s Commerce Power.
Several of the governmental abuses recited in the Boston Pamphlet have returned. As the imperial government did then, the federal government now meddles in local judicial matters, restricts manufacture and intra-state transport, and engages in random searches and seizures.
There were at least two other ways the Boston Pamphlet foreshadowed the future. First, it accurately predicted that, “The Inhabitants of this Country, in all Probability, in a few Years, will be more numerous, than those of Great Britain and Ireland together. . . .”
And by noting that “The Colonists have been branded with the odious Names of Traitors and Rebels only for complaining of their Grievances,” the Boston Pamphlet anticipated the venom slung at the Tea Party patriots of our own time.