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Order vs. Liberty: The Alien and Sedition Acts

O n July 4, 1798, the citizens of the capital city of Philadelphia turned out in large numbers to celebrate the nation’s independence day. While militia companies marched through the streets, church bells rang, and artillery units fired salutes, members of the United States Senate were trying to conduct a debate on a critical bill. One senator noted “the military parade so attracted the attention of the majority that much the greater part of them stood with their bodies out of the windows and could not be kept to order.” Once they resumed their deliberations, however, the Federalist majority succeeded in gaining passage of an implausible bill, one quickly approved by the House of Representatives and signed on July 14 by President John Adams.

Ironically, as senators celebrated the freedom they had won from Britain, they approved a sedition bill that made it illegal to publish or utter any statements about the government that were “false, scandalous and malicious” with the “intent to defame” or to bring Congress or the president into “contempt or disrepute.” This bill, seemingly a violation of the Constitution’s First Amendment free speech protections, had a chilling effect on members of the Republican Party and its leader, Thomas Jefferson, who admitted that he feared “to write what I think.”

Support for this restrictive legislation had grown out of Federalist belief that the young nation was facing its gravest crisis yet, in the possibility of war with France and the spread of anti-immigrant feeling. The new law violated the beliefs of many Republicans, who regarded Federalists as reactionary defenders of privilege intent on bringing back the monarchy. Federalists saw their Republican opposites as irresponsible radicals eager to incite a social revolution as democratic as the one that had torn through France.

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Nothing divided Federalist from Republican more than their response to the French Revolution. Republicans applauded the revolutionaries’ destruction of aristocratic privileges, the overthrow of the monarchy, and the implementation of constitutional government. Yet, Federalists saw the same dramatic changes as the degeneration of legitimate government into mob rule, particularly during the bloody “Reign of Terror” when “counterrevolutionaries” lost their lives on the guillotine.

Federalist fears deepened as they watched the new French republican government encourage wars of liberation and conquest in Belgium, Switzerland, Holland, and the Italian peninsula. Rumors were rampant in 1798 about a possible French invasion of America, one that allegedly would be supported by American traitors and a population of French émigrés that had grown to more than 20,000.

The nation’s rapidly growing immigrant population deeply troubled Federalists. One Pennsylvania newspaper argued that “none but the most vile and worthless” were inundating the country. William Shaw, the president’s nephew, arguing that “all our present difficulties may be traced” to the “hordes of Foreigners” in the land, contended America should “no longer” be “an asylum to all nations.” Federalists worried about the 60,000 Irish immigrants in the new nation, some of whom had been exiled for plotting against British rule. These malcontents, they argued, along with French immigrants, and a sprinkling of British radicals like the liberal theologian and scientist Joseph Priestley, presented a grave challenge to the nation. The Federalists feared that the extremist ideas of the dissenters would corrupt and mobilize the destitute.

The British government, even more terrified than the Americans that ideas from the radical French regime might spread, had been at war with France for five years, trying to contain it. Both nations had seized neutral American ships headed to their enemy’s ports. President Adams initiated a two-pronged plan to stop the French from seizing any further ships. He sent three emissaries to negotiate with the French government, and he worked to push bills through Congress to increase the size of the navy and army. Federalist revulsion at anything associated with France reached a peak in spring 1798 when word arrived in Philadelphia that three French agents, identified only as X, Y, and Z, had demanded a bribe from the American diplomats before they would begin negotiations.

Insulted by the French government, convinced that war was inevitable, and anxious over a “dangerous” alien population in their midst, Federalists in Philadelphia were ready to believe any rumor. They saw no reason to doubt the warning in a letter found outside the president’s residence in late April. It supposedly contained information about a plot by a group of Frenchmen “to sit [sic] fire to the City in various parts, and to Massacre the inhabitants.” Hundreds of militiamen patrolled the city streets as a precaution, and a special guard was assigned to the president’s home. John Adams ordered “chests of arms from the war-office,” as he was “determined to defend my house at the expense of my life.”

In such a crisis atmosphere, Federalists took action to prevent domestic subversion. They supported four laws passed in June and July 1798 to control the threats they believed foreigners posed to the security of the nation and to punish the opposition party for its seditious libel.

Two of these laws represented the Federalist effort to address perceived threats from the nation’s immigrant groups. The Alien Enemies Act permitted the deportation of aliens who hailed from a nation with which the United States was at war, while the Alien Friends Act empowered the president, during peacetime, to deport any alien whom he considered dangerous.

Although some historians acknowledge that there were legitimate national security concerns involved in the passage of the two alien acts, others conclude that the two additional pieces of legislation were blatant efforts to destroy the Republican Party, which had gained many immigrant supporters.

The Naturalization Act extended the residency requirement for citizenship from five to 14 years. For a few politicians, such as Congressmen Robert Goodloe Harper and Harrison Gray Otis, even this act was insufficient. They believed that citizenship should be limited to those born in the United States.

Apart from its limitations on speech, the Sedition Act, the last of the four laws, made it illegal to “unlawfully combine or conspire together, with intent to oppose any measure or measures of the government.” While the First Amendment to the U.S. Constitution established that Congress couldn’t pass laws “abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble,” there had been little discussion about the amendment’s precise meaning since its adoption seven years earlier.

In 1798 many Federalists drew upon Commentaries on the Laws of England written by Sir William Blackstone–the man considered by the framers of the Constitution to be the oracle of the common law–for their definition of liberty of the press. Blackstone wrote, “liberty of the press . . . consists in laying no previous restraints upon publications.” However, if a person “publishes what is improper, mischievous, or illegal, he must take the consequences of his own temerity.” In other words, if a person spoke or wrote remarks that could be construed as seditious libel, they weren’t entitled to free speech protection.

According to the Federalists, if seditious libel meant any effort to malign or weaken the government, then the Republican press was repeatedly guilty. Republican papers, claimed the Federalists, such as the Philadelphia Aurora, the New York Argus, the Richmond Examiner, and Boston’s Independent Chronicle printed the most scurrilous statements, lies, and misrepresentations about President Adams and the Federalist Party.

The president’s wife, Abigail, complained bitterly about journalistic “abuse, deception and falsehood.” Particularly galling to her were the characterizations of her husband in editor Benjamin Bache’s Aurora. In April 1798 Bache called the president “old, querulous, Bald, blind, crippled, Toothless Adams.” Bache, she argued, was a “lying wretch” given to the “most insolent and abusive” language. He wrote with the “malice” of Satan. The First Lady repeatedly demanded that something be done to stop this “wicked and base, violent and calumniating abuse” being “leveled against the Government.” She argued that if journalists like Bache weren’t stopped, the nation would be plunged into a “civil war.”

At the same time, Federalists were hardly models of decorum when describing Republicans. Their opponents were, one Federalist wrote, “democrats, mobocrats and all other kinds of rats.” Federalist Noah Webster characterized Republicans as “the refuse, the sweepings of the most depraved part of mankind from the most corrupt nations on earth.”

Although President Adams neither framed the Sedition Act nor encouraged its introduction, he certainly supported it. He issued many public statements about the evils of the opposition press. Adams believed that journalists who deliberately distorted the news to mislead the people could cause great harm to a representative democracy.

Letters and remarks of John and Abigail Adams made passage of a sedition bill easier, but the task of pushing it through Congress fell to Senator James Lloyd of Maryland and Congressmen Robert Goodloe Harper and Harrison Gray Otis. Although it passed by a wide margin in the Senate, the bill barely gained approval in the House of Representatives, where the vote was 44 to 41. To win even that small majority, Harper and Otis had to change the original bill in significant ways. Prosecutors would have to prove malicious intent, and truth would be permitted as a defense. Juries, not judges, would determine whether a statement was libelous. To underscore its political purpose, the act was to expire on March 3, 1801, the last day of President Adams’ term of office.

Prosecutions began quickly. On June 26, even before the Sedition Act was passed, Supreme Court Justice Richard Peters issued a warrant for the arrest of Benjamin Bache. Bache, the most powerful of all the Republican newspaper editors, was charged with “libeling the President and the Executive Government in a manner tending to excite sedition and opposition to the laws.” Less than two weeks later, federal marshals arrested John Daly Burk, editor of the New York newspaper Time Piece, for making “seditious and libelous” statements against the president. Neither faced trial, however. Bache died in Philadelphia during the yellow fever epidemic of September 1798, and Burk, who wasn’t a citizen, agreed to deportation if charges were dropped. He then fled to Virginia to live under an assumed name.

During the next two years 17 people were indicted under the Sedition Act, and 10 were convicted. Most were journalists. Included among them were William Duane, who had succeeded Benjamin Bache as editor of the Aurora; Thomas Cooper, a British radical who edited a small Pennsylvania newspaper; Charles Holt, editor of a New London, Connecticut, newspaper; and James Callender, who had worked on the Aurora before moving to Virginia’s Richmond Examiner. Like Benjamin Bache, Callender delighted in condemning the president.

The Federalists didn’t target only journalists. They went after other individuals, including David Brown of Dedham, Massachusetts, who spouted anti-government rhetoric wherever a crowd gathered. Brown was arrested in April 1799, charged with “uttering seditious pieces” and helping to erect a liberty pole with a placard that read “A Speedy Retirement to the President. No Sedition bill, No Alien bill, Downfall to the Tyrants of America.”

Incredibly, even an inebriated Republican, Luther Baldwin of Newark, New Jersey, became a victim. Following the adjournment of Congress in July 1798, President Adams and his wife were traveling through Newark on their way to their home in Quincy, Massachusetts. Residents lined the streets as church bells rang, and ceremonial cannon fire greeted the party. As the procession made its way past a local tavern owned by John Burnet, one of the patrons remarked, “There goes the President and they are firing at his a__.” According to the Newark Centinel of Freedom, Baldwin added that, “he did not care if they fired thro’ his a__.” Burnet overheard the exchange and exclaimed, “That is seditious.” Baldwin was arrested and later convicted of speaking “seditious words tending to defame the President and Government of the United States.” He was fined $150, assessed court costs and expenses, and sent to jail until he paid the fine and fees.

The most outrageous case, however, involved Congressman Matthew Lyon, a Republican from Vermont. This fiery Irishman was one of the sharpest critics of President Adams and the Federalists. He had even engaged in a brawl on the House floor with Federalist Roger Griswold. Convinced that the Federalists intended to use the Sedition Act to silence their congressional opposition, Lyon confided to a colleague that it “most probably would be brought to bear upon himself first victim of all.”

While not the initial victim, Lyon quickly felt the wrath of the majority party. In the summer of 1798, he wrote an article criticizing President Adams’ “continual grasp for power” and his “unbounded thirst for ridiculous pomp, foolish adulation, and selfish avarice.” During his fall re-election campaign, Lyon also quoted from a letter that suggested Congress should dispatch the president to a “mad house” for his handling of the French crisis. In October, a federal grand jury indicted Lyon for stirring up sedition and bringing “the President and government of the United States into contempt.”

United States Supreme Court justices, sitting as circuit court judges, presided in the sedition trials. These judges, all Federalists, rejected the efforts of defendants and their counsel to challenge the law’s constitutionality. Samuel Chase, who sat in three of the cases, clearly was on a mission. “There is nothing we should more dread,” he argued, “than the licentiousness of the press.”

Chase and the other judges handed down tough sentences. While none imposed the statute’s maximum penalties of a $2,000 fine or a jail sentence of two years, they often sent the guilty to jail. Most of the convicted endured three- or four-month sentences. James Callender, however, served nine months, and David Brown twice as long. The average fines were about $300, although Luther Baldwin’s fine was $150 and Matthew Lyon’s was $1,000.

As the trials progressed, two Republican Party leaders, Thomas Jefferson and James Madison, tried to overturn the Sedition Act. Concluding that the Bill of Rights couldn’t prevent abuses of power by the federal government, the two men collaborated on a set of protest resolutions asserting that the government was a compact created by the states and that citizens, speaking through their state legislatures, had the right to judge the constitutionality of actions taken by the government. In this instance, they called upon the states to join them in declaring the Alien and Sedition Acts to be “void, and of no force.”

While only Kentucky and Virginia endorsed the resolutions, the efforts of Jefferson and Madison encouraged Republicans to make the Alien and Sedition Acts major issues in the campaign of 1800. Voter anger over these bills, along with higher taxes and the escalating federal debt resulting from increased defense spending, gave Republicans a majority in the House of Representatives. The Federalists lost almost 40 seats, leaving the new Congress with 66 Republicans and only 40 Federalists.

There were other unexpected results from the passage of the Sedition Act. Clearly, Federalists had hoped to stifle the influence of the fewer than 20 Republican newspapers published in 1798. Some, like John Daly Burk’s Time Piece, did cease publication; others suspended operation while their editors were in jail. However, circulation increased for the majority of the periodicals. Most discouraging to the Federalists, particularly as the campaigns for the 1800 election got under way, was the fact that more than 30 new Republican newspapers began operation following passage of the Sedition Act.

Not even prison stopped Republican Congressman Matthew Lyon. The most visible target of the Federalists, Lyon conducted his re-election campaign from his jail cell in Vergennes, Vermont. Considered a martyr by his supporters, Lyon regularly contributed to this image through letters and newspaper articles. “It is quite a new kind of jargon to call a Representative of the People an Opposer of the Government because he does not, as a legislator, advocate and acquiesce in every proposition that comes from the Executive,” he wrote. In a December run-off election, Lyon won easily.

By 1802, in the wake of the Federalist election defeat, the Alien Friends Act, the Sedition Act, and the Naturalization Act had expired or been repealed. The Alien Enemies Act remained in effect, but no one had been prosecuted under its provisions because the United States hadn’t declared war on France, a necessary condition for the law’s implementation. After winning the presidency in the 1800 election, Thomas Jefferson pardoned all those convicted of violating the Sedition Act who remained in prison.

By virtually every measure, the Federalist effort to impose a one-party press and a one-party government on the fledgling nation had failed. Ironically, the Sedition Act prompted the opposition to expand its view of free speech and freedom of the press. In a series of essays, tracts, and books, Republicans began to argue that the First Amendment protected citizens from any federal restraint on the press or speech. Notable among them was a pamphlet entitled An Essay on the Liberty of the Press, published in 1799 by George Hay, a member of the Virginia House of Delegates. Hay argued “that if the words freedom of the press have any meaning at all they mean a total exemption from any law making any publication whatever criminal.” In his 1801 inaugural address, Thomas Jefferson echoed Hay’s sentiments, stressing the necessity of preserving the right of citizens “to think freely and to speak and to write what they think.”

For most, the arguments of Hay and Jefferson have prevailed, although even the Republicans were willing to acknowledge that states could and should impose speech restrictions under certain conditions. Moreover, there have been occasions, most notably during World War I, when the federal government declared that free expression was secondary to military necessity. In an effort to suppress dissent and anti-war activity in 1917, Congress passed the Espionage Act, a law that made it a felony to try to cause insubordination in the armed forces or to convey false statements with intent to interfere with military operations. It was followed by the Sedition Act of 1918, which banned treasonable or seditious material from the mail. Under this provision the mailing of many publications, including the New York Times as well as radical and dissident newspapers, was temporarily halted.

In the 200 years since the passage of the Alien and Sedition Acts, each generation of Americans has struggled to determine the limits of free speech and freedom of the press. In large part, it has been a dilemma of reconciling freedom and security with liberty and order. For the Federalist Party in 1798, however, the answer was simple; order and security had to prevail.

Larry Gragg, professor of history at the University of Missouri-Rolla, is the author of two books on the Virginia Quakers and the Salem witch crisis.

this article first appeared in American history magazine

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Liberty And Order: A Clear But Delicate Balance

• James V. DeLong • 10/02/2001
• Telecommunications

In Defense of Freedom, an ad hoc group ("coalition" was thought to imply too much chumminess) of 130 organizations of wildly v

Delong Op-Ed in National Review Online

In Defense of Freedom, an ad hoc group ("coalition" was thought to imply too much chumminess) of 130 organizations of wildly varying basic views recently released a 10-point statement on the importance of defending civil liberties. Unanimity was possible only because the statement was all generalizations. "We can, as we have in the past, in times of war and of peace, reconcile the requirements of security with the demands of liberty," and so on.

These lofty sentiments are universally shared, but they provide little specific guidance. Suppose five people with Middle Eastern names board an airplane and the guard looks extra at their bags — racial profiling or common sense? The FBI wants wiretaps to cover a person rather than a single telephone — minor adaptation to the wireless era or octopus-like expansion of power? Should information on financial transactions collected by the government to cut off economic support to terrorists be passed on to the IRS or the drug enforcers? None of these issues were dealt with at the group's press conference, which was wise, since the occasion would have dissolved in mutual antipathies.

When not overly general, discussion tends to be ensnared in minutiae of civil-liberties jurisprudence. Constitutionally, the government can tap telephone calls only with a warrant issued upon "probable cause." However, it can upon mere suspicion install devices to capture the telephone numbers dialed. So how should capture devices be used on e-mail, where they pick up more than just the telephone numbers? Should the government get the deep link? The subject line? The issue is hotly debated.

A prime reason for the oscillation between the hopelessly abstract and the numbingly specific is that the authorities are charged with two different tasks, and, to anyone of common sense, the balance between liberty and order is different in each context.

One task is the investigation of crimes such as the recent attacks. This is a criminal case, and the normal principles apply — however horrendous the crime, it is as important that the innocent not be punished as that the guilty be called to account. Even here, however, our principles begin to bend. What might be regarded as probable cause for a warrant in the case of another crime, even a serious one, is not necessarily the same as probable cause in this case, as any sensible judge deciding on a warrant would recognize.

A second task is a combination of the prevention of further attacks and conduct of foreign affairs. We are at war, but we are having a problem figuring out who with. It is the job of the security agencies to find out. We also have good reason to believe that our foe is planning further actions. Most of us would rather not die, and if capturing the deep links on e-mails will save us, we would like to get the information, and be damned to minutiae of civil-liberties law. As anyone who did not go to law school understands immediately, prevention presents different issues than does prosecution.

What one thinks of any proposal depends on which function one has in mind. For example, civil-liberties groups are appalled that the FBI wants information on students who are from the Middle East or have had flight training. In the context of prevention, collecting such information is a sensible quick screen. But one's attitude changes if the effort turns into a dragnet for minor criminal violations, or the beginning of systematic surveillance.

Clearly, at the moment we need to focus on prevention, but we need — and lack — both legal doctrines and law-enforcement practices that recognize the extraordinary nature of the situation, and that allow some information to be collected and used only for prevention, or, if used for prosecution at all, used only in the context of terrorism.

The first need is for the government to recognize that prevention is indeed a different and special function, a state of mind which is not so far evident. For example, analogizing the antiterrorist effort to other criminal-justice "wars," such as the War on Drugs, is a mistake. How can one trust people who are indifferent to the distinction between preventing terrorism and preventing pot, or who refuse to recognize what a civil-liberties disaster that war is?

Nor has the government recognized the importance of keeping the law-enforcement community from using terrorism to expand its powers generally. The first-draft antiterrorist bill would have expanded asset forfeiture, which is already a cesspool of corruption, in all criminal cases, regardless of the connection to terrorism. The draft would also have made into special terrorist offenses some crimes that have nothing to with terrorism, such as illicit computer entry or firearms violations.

We also need to focus on institutional competence. Anyone who has worked for the government knows that every agency assumes its own competence and dedication. All failures are due to insufficient power or money. A crisis provides the chance to get more of both, immediately, and old wish lists are promptly resurrected.

This dynamic is already operating. FBI personnel were aware of suicide bombings in Israel, in possession of multiple reports of people connected with terrorist cells taking flight lessons, fully informed of a 1995 plot to blow up a number of airliners, and even familiar with the Tom Clancy novel is which a kamikaze pilot crashes an airliner into the Capitol. Yet officials given a specific report from a flight school that a man with known links to terrorists wanted lessons on how to steer a 767, but not to take off or land, "had no context in which his odd request made sense," according to the Washington Post.

The bureau's immediate response to the disaster is that it needs more driftnet power to collect more information about e-mail, computer keystrokes, or encrypted messages, and needs to shed irksome restrictions on warrants and wiretaps. This is unpersuasive, when the agency cannot coordinate and process what it already has.

Deep concern about the basic competence of other agencies is also in order. The FBI had Hanson but the CIA had Aldrich Ames. The CIA just revealed that the head of its Cuban desk was a spy. The INS cannot account for dozens of computers, including many holding secret information, an announcement that tracks a similar confession by the FBI a few months ago. The former head of the FAA gave the familiar "who could have imagined it?" to the use of an airliner as a bomb.

Again, emergency prevention powers may be needed; we are stuck with the organizations we have, and prevention is urgent. But nothing long term should be granted until there has been thorough organizational reform. Any new power should be limited by time and use restrictions.

A focus on prevention also highlights a need for error correction. For example, it is clear that people of Middle Eastern descent, especially non-citizens, will receive closer attention. This is common sense, not racial profiling. If the IRA becomes active in the U.S., the Irish will get special scrutiny.

We can fairly ask those subjected to this to tolerate it. But there is a quid pro quo. They must be treated courteously, efficiently, and apologetically, not only because of the demands of human decency and democratic values, but out of pragmatism. Middle Easterners are vital to the struggle because of their special knowledge. Many are in the U.S. because they prefer this society to that of their origin, and their experience makes them acutely aware of the stakes.

Those who get caught in the net unjustly should also be compensated generously for any harm they suffer. If the government holds someone as a material witness, all right — but pay his salary to his family. And if it ruins his business, pay him for it. Continuing judicial review of detention should ensure that investigators do not inhume their mistakes in jails.

An interesting parallel is Korematsu, the Supreme Court case upholding the government's 1942 order that Japanese Americans leave the West Coast. One can make a case that, contrary to all respectable opinion, the case was rightly decided. But a large reservation is necessary. Largely due to the dynamics of bureaucracy, the order was not rescinded even when it became obvious to the most cretinous both that Japan did not have the logistics to invade the U.S. and that any security risks in the evacuee population had been identified. The evacuees were not compensated for massive financial losses, and their welfare became a low-priority during the war, which left many of them stuck in internment camps.

These failures do not fit into the formal categories of the law, so they are never regarded as violations of civil liberties. All focus has been on the original order, as if once that is found to be valid the legal system has no further interest. But the subsequent failures, much more than the original decision, are cause for national embarrassment. A focus on prevention would emphasis that power need not be all or nothing; its exercise can be made highly conditional on ameliorating any injustices.

At a recent discussion, one participant commented: "I hope all of you who are so concerned about the details of civil liberties are aware that we are about one incident away from having very few." He is right, which makes it imperative that we hunt down and kill every vapid cliché and get serious about protecting civil liberty.

Copyright © 2001 National Review Online

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New exhibit

The first amendment, the declaration, the constitution, and the bill of rights.

by Jeffrey Rosen and David Rubenstein

At the National Constitution Center, you will find rare copies of the Declaration of Independence, the Constitution, and the Bill of Rights. These are the three most important documents in American history. But why are they important, and what are their similarities and differences? And how did each document, in turn, influence the next in America’s ongoing quest for liberty and equality?

There are some clear similarities among the three documents. All have preambles. All were drafted by people of similar backgrounds, generally educated white men of property. The Declaration and Constitution were drafted by a congress and a convention that met in the Pennsylvania State House in Philadelphia (now known as Independence Hall) in 1776 and 1787 respectively. The Bill of Rights was proposed by the Congress that met in Federal Hall in New York City in 1789. Thomas Jefferson was the principal drafter of the Declaration and James Madison of the Bill of Rights; Madison, along with Gouverneur Morris and James Wilson, was also one of the principal architects of the Constitution.

Most importantly, the Declaration, the Constitution, and the Bill of Rights are based on the idea that all people have certain fundamental rights that governments are created to protect. Those rights include common law rights, which come from British sources like the Magna Carta, or natural rights, which, the Founders believed, came from God. The Founders believed that natural rights are inherent in all people by virtue of their being human and that certain of these rights are unalienable, meaning they cannot be surrendered to government under any circumstances.

At the same time, the Declaration, the Constitution, and the Bill of Rights are different kinds of documents with different purposes. The Declaration was designed to justify breaking away from a government; the Constitution and Bill of Rights were designed to establish a government. The Declaration stands on its own—it has never been amended—while the Constitution has been amended 27 times. (The first ten amendments are called the Bill of Rights.) The Declaration and Bill of Rights set limitations on government; the Constitution was designed both to create an energetic government and also to constrain it. The Declaration and Bill of Rights reflect a fear of an overly centralized government imposing its will on the people of the states; the Constitution was designed to empower the central government to preserve the blessings of liberty for “We the People of the United States.” In this sense, the Declaration and Bill of Rights, on the one hand, and the Constitution, on the other, are mirror images of each other.

Despite these similarities and differences, the Declaration, the Constitution, and the Bill of Rights are, in many ways, fused together in the minds of Americans, because they represent what is best about America. They are symbols of the liberty that allows us to achieve success and of the equality that ensures that we are all equal in the eyes of the law. The Declaration of Independence made certain promises about which liberties were fundamental and inherent, but those liberties didn’t become legally enforceable until they were enumerated in the Constitution and the Bill of Rights. In other words, the fundamental freedoms of the American people were alluded to in the Declaration of Independence, implicit in the Constitution, and enumerated in the Bill of Rights. But it took the Civil War, which President Lincoln in the Gettysburg Address called “a new birth of freedom,” to vindicate the Declaration’s famous promise that “all men are created equal.” And it took the 14th Amendment to the Constitution, ratified in 1868 after the Civil War, to vindicate James Madison’s initial hope that not only the federal government but also the states would be constitutionally required to respect fundamental liberties guaranteed in the Bill of Rights—a process that continues today.

Why did Jefferson draft the Declaration of Independence?

When the Second Continental Congress convened in Philadelphia in 1775, it was far from clear that the delegates would pass a resolution to separate from Great Britain. To persuade them, someone needed to articulate why the Americans were breaking away. Congress formed a committee to do just that; members included John Adams from Massachusetts, Benjamin Franklin from Pennsylvania, Roger Sherman from Connecticut, Robert R. Livingston from New York, and Thomas Jefferson from Virginia, who at age 33 was one of the youngest delegates.

Although Jefferson disputed his account, John Adams later recalled that he had persuaded Jefferson to write the draft because Jefferson had the fewest enemies in Congress and was the best writer. (Jefferson would have gotten the job anyway—he was elected chair of the committee.) Jefferson had 17 days to produce the document and reportedly wrote a draft in a day or two. In a rented room not far from the State House, he wrote the Declaration with few books and pamphlets beside him, except for a copy of George Mason’s Virginia Declaration of Rights and the draft Virginia Constitution, which Jefferson had written himself.

The Declaration of Independence has three parts. It has a preamble, which later became the most famous part of the document but at the time was largely ignored. It has a second part that lists the sins of the King of Great Britain, and it has a third part that declares independence from Britain and that all political connections between the British Crown and the “Free and Independent States” of America should be totally dissolved.

The preamble to the Declaration of Independence contains the entire theory of American government in a single, inspiring passage:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.—That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,—That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

When Jefferson wrote the preamble, it was largely an afterthought. Why is it so important today? It captured perfectly the essence of the ideals that would eventually define the United States. “We hold these truths to be self-evident, that all men are created equal,” Jefferson began, in one of the most famous sentences in the English language. How could Jefferson write this at a time that he and other Founders who signed the Declaration owned slaves? The document was an expression of an ideal. In his personal conduct, Jefferson violated it. But the ideal—“that all men are created equal”—came to take on a life of its own and is now considered the most perfect embodiment of the American creed.

When Lincoln delivered the Gettysburg Address during the Civil War in November 1863, several months after the Union Army defeated Confederate forces at the Battle of Gettysburg, he took Jefferson’s language and transformed it into constitutional poetry. “Four score and seven years ago our fathers brought forth on this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal,” Lincoln declared. “Four score and seven years ago” refers to the year 1776, making clear that Lincoln was referring not to the Constitution but to Jefferson’s Declaration. Lincoln believed that the “principles of Jefferson are the definitions and axioms of free society,” as he wrote shortly before the anniversary of Jefferson’s birthday in 1859. Three years later, on the anniversary of George Washington’s birthday in 1861, Lincoln said in a speech at what by that time was being called “Independence Hall,” “I would rather be assassinated on this spot than to surrender” the principles of the Declaration of Independence.

It took the Civil War, the bloodiest war in American history, for Lincoln to begin to make Jefferson’s vision of equality a constitutional reality. After the war, the Declaration’s vision was embodied in the 13th, 14th, and 15th Amendments to the Constitution, which formally ended slavery, guaranteed all persons the “equal protection of the laws,” and gave African-American men the right to vote. At the Seneca Falls Convention in 1848, when supporters of gaining greater rights for women met, they, too, used the Declaration of Independence as a guide for drafting their Declaration of Sentiments. (Their efforts to achieve equal suffrage culminated in 1920 in the ratification of the 19th Amendment, which granted women the right to vote.) And during the civil rights movement in the 1960s, Dr. Martin Luther King, Jr. said in his famous address at the Lincoln Memorial, “When the architects of our republic wrote the magnificent words of the Constitution and the Declaration of Independence, they were signing a promissory note to which every American was to fall heir. This note was a promise that all men—yes, black men as well as white men—would be guaranteed the unalienable rights of life, liberty, and the pursuit of happiness.”

In addition to its promise of equality, Jefferson’s preamble is also a promise of liberty. Like the other Founders, he was steeped in the political philosophy of the Enlightenment, in philosophers such as John Locke, Jean-Jacques Burlamaqui, Francis Hutcheson, and Montesquieu. All of them believed that people have certain unalienable and inherent rights that come from God, not government, or come simply from being human. They also believed that when people form governments, they give those governments control over certain natural rights to ensure the safety and security of other rights. Jefferson, George Mason, and the other Founders frequently spoke of the same set of rights as being natural and unalienable. They included the right to worship God “according to the dictates of conscience,” the right of “enjoyment of life and liberty,” “the means of acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety,” and, most important of all, the right of a majority of the people to “alter and abolish” their government whenever it threatened to invade natural rights rather than protect them.

In other words, when Jefferson wrote the Declaration of Independence and began to articulate some of the rights that were ultimately enumerated in the Bill of Rights, he wasn’t inventing these rights out of thin air. On the contrary, 10 American colonies between 1606 and 1701 were granted charters that included representative assemblies and promised the colonists the basic rights of Englishmen, including a version of the promise in the Magna Carta that no freeman could be imprisoned or destroyed “except by the lawful judgment of his peers or by the law of the land.” This legacy kindled the colonists’ hatred of arbitrary authority, which allowed the King to seize their bodies or property on his own say-so. In the revolutionary period, the galvanizing examples of government overreaching were the “general warrants” and “writs of assistance” that authorized the King’s agents to break into the homes of scores of innocent citizens in an indiscriminate search for the anonymous authors of pamphlets criticizing the King. Writs of assistance, for example, authorized customs officers “to break open doors, Chests, Trunks, and other Packages” in a search for stolen goods, without specifying either the goods to be seized or the houses to be searched. In a famous attack on the constitutionality of writs of assistance in 1761, prominent lawyer James Otis said, “It is a power that places the liberty of every man in the hands of every petty officer.”

As members of the Continental Congress contemplated independence in May and June of 1776, many colonies were dissolving their charters with England. As the actual vote on independence approached, a few colonies were issuing their own declarations of independence and bills of rights. The Virginia Declaration of Rights of 1776, written by George Mason, began by declaring that “all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.” 

When Jefferson wrote his famous preamble, he was restating, in more eloquent language, the philosophy of natural rights expressed in the Virginia Declaration that the Founders embraced. And when Jefferson said, in the first paragraph of the Declaration of Independence, that “[w]hen in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another,” he was recognizing the right of revolution that, the Founders believed, had to be exercised whenever a tyrannical government threatened natural rights. That’s what Jefferson meant when he said Americans had to assume “the separate and equal station to which the Laws of Nature and of Nature’s God entitle them.”

The Declaration of Independence was a propaganda document rather than a legal one. It didn’t give any rights to anyone. It was an advertisement about why the colonists were breaking away from England. Although there was no legal reason to sign the Declaration, Jefferson and the other Founders signed it because they wanted to “mutually pledge” to each other that they were bound to support it with “our Lives, our Fortunes and our sacred Honor.” Their signatures were courageous because the signers realized they were committing treason: according to legend, after affixing his flamboyantly large signature John Hancock said that King George—or the British ministry—would be able to read his name without spectacles. But the courage of the signers shouldn’t be overstated: the names of the signers of the Declaration weren’t published until after General George Washington won crucial battles at Trenton and Princeton and it was clear that the war for independence was going well.

What is the relationship between the Declaration of Independence and the Constitution?

In the years between 1776 and 1787, most of the 13 states drafted constitutions that contained a declaration of rights within the body of the document or as a separate provision at the beginning, many of them listing the same natural rights that Jefferson had embraced in the Declaration. When it came time to form a central government in 1776, the Continental Congress began to create a weak union governed by the Articles of Confederation. (The Articles of Confederation was sent to the states for ratification in 1777; it was formally adopted in 1781.) The goal was to avoid a powerful federal government with the ability to invade rights and to threaten private property, as the King’s agents had done with the hated general warrants and writs of assistance. But the Articles of Confederation proved too weak for bringing together a fledgling nation that needed both to wage war and to manage the economy. Supporters of a stronger central government, like James Madison, lamented the inability of the government under the Articles to curb the excesses of economic populism that were afflicting the states, such as Shays’ Rebellion in Massachusetts, where farmers shut down the courts demanding debt relief. As a result, Madison and others gathered in Philadelphia in 1787 with the goal of creating a stronger, but still limited, federal government.

The Constitutional Convention was held in Philadelphia in the Pennsylvania State House, in the room where the Declaration of Independence was adopted. Jefferson, who was in France at the time, wasn’t among them. After four months of debate, the delegates produced a constitution.

During the final days of debate, delegates George Mason and Elbridge Gerry objected that the Constitution, too, should include a bill of rights to protect the fundamental liberties of the people against the newly empowered president and Congress. Their motion was swiftly—and unanimously—defeated; a debate over what rights to include could go on for weeks, and the delegates were tired and wanted to go home. The Constitution was approved by the Constitutional Convention and sent to the states for ratification without a bill of rights.

During the ratification process, which took around 10 months (the Constitution took effect when New Hampshire became the ninth state to ratify in late June 1788; the 13th state, Rhode Island, would not join the union until May 1790), many state ratifying conventions proposed amendments specifying the rights that Jefferson had recognized in the Declaration and that they protected in their own state constitutions. James Madison and other supporters of the Constitution initially resisted the need for a bill of rights as either unnecessary (because the federal government was granted no power to abridge individual liberty) or dangerous (since it implied that the federal government had the power to infringe liberty in the first place). In the face of a groundswell of popular demand for a bill of rights, Madison changed his mind and introduced a bill of rights in Congress on June 8, 1789.

Madison was least concerned by “abuse in the executive department,” which he predicted would be the weakest branch of government. He was more worried about abuse by Congress, because he viewed the legislative branch as “the most powerful, and most likely to be abused, because it is under the least control.” (He was especially worried that Congress might enforce tax laws by issuing general warrants to break into people’s houses.) But in his view “the great danger lies rather in the abuse of the community than in the legislative body”—in other words, local majorities who would take over state governments and threaten the fundamental rights of minorities, including creditors and property holders. For this reason, the proposed amendment that Madison considered “the most valuable amendment in the whole list” would have prohibited the state governments from abridging freedom of conscience, speech, and the press, as well as trial by jury in criminal cases. Madison’s favorite amendment was eliminated by the Senate and not resurrected until after the Civil War, when the 14th Amendment required state governments to respect basic civil and economic liberties.

In the end, by pulling from the amendments proposed by state ratifying conventions and Mason’s Virginia Declaration of Rights, Madison proposed 19 amendments to the Constitution. Congress approved 12 amendments to be sent to the states for ratification. Only 10 of the amendments were ultimately ratified in 1791 and became the Bill of Rights. The first of the two amendments that failed was intended to guarantee small congressional districts to ensure that representatives remained close to the people. The other would have prohibited senators and representatives from giving themselves a pay raise unless it went into effect at the start of the next Congress. (This latter amendment was finally ratified in 1992 and became the 27th Amendment.)

To address the concern that the federal government might claim that rights not listed in the Bill of Rights were not protected, Madison included what became the Ninth Amendment, which says the “enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” To ensure that Congress would be viewed as a government of limited rather than unlimited powers, he included the 10th Amendment, which says the “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Because of the first Congress’s focus on protecting people from the kinds of threats to liberty they had experienced at the hands of King George, the rights listed in the first eight amendments of the Bill of Rights apply only to the federal government, not to the states or to private companies. (One of the amendments submitted by the North Carolina ratifying convention but not included by Madison in his proposal to Congress would have prohibited Congress from establishing monopolies or companies with “exclusive advantages of commerce.”)

But the protections in the Bill of Rights—forbidding Congress from abridging free speech, for example, or conducting unreasonable searches and seizures—were largely ignored by the courts for the first 100 years after the Bill of Rights was ratified in 1791. Like the preamble to the Declaration, the Bill of Rights was largely a promissory note. It wasn’t until the 20th century, when the Supreme Court began vigorously to apply the Bill of Rights against the states, that the document became the centerpiece of contemporary struggles over liberty and equality. The Bill of Rights became a document that defends not only majorities of the people against an overreaching federal government but also minorities against overreaching state governments. Today, there are debates over whether the federal government has become too powerful in threatening fundamental liberties. There are also debates about how to protect the least powerful in society against the tyranny of local majorities.

What do we know about the documentary history of the rare copies of the Declaration of Independence, the Constitution, and the Bill of Rights on display at the National Constitution Center?

Generally, when people think about the original Declaration, they are referring to the official engrossed —or final—copy now in the National Archives. That is the one that John Hancock, Thomas Jefferson, and most of the other members of the Second Continental Congress signed, state by state, on August 2, 1776. John Dunlap, a Philadelphia printer, published the official printing of the Declaration ordered by Congress, known as the Dunlap Broadside, on the night of July 4th and the morning of July 5th. About 200 copies are believed to have been printed. At least 27 are known to survive.

The document on display at the National Constitution Center is known as a Stone Engraving, after the engraver William J. Stone, whom then Secretary of State John Quincy Adams commissioned in 1820 to create a precise facsimile of the original engrossed version of the Declaration. That manuscript had become faded and worn after nearly 45 years of travel with Congress between Philadelphia, New York City, and eventually Washington, D.C., among other places, including Leesburg, Virginia, where it was rolled up and hidden during the British invasion of the capital in 1814.

To ensure that future generations would have a clear image of the original Declaration, William Stone made copies of the document before it faded away entirely. Historians dispute how Stone rendered the facsimiles. He kept the original Declaration in his shop for up to three years and may have used a process that involved taking a wet cloth, putting it on the original document, and creating a perfect copy by taking off half the ink. He would have then put the ink on a copper plate to do the etching (though he might have, instead, traced the entire document by hand without making a press copy). Stone used the copper plate to print 200 first edition engravings as well as one copy for himself in 1823, selling the plate and the engravings to the State Department. John Quincy Adams sent copies to each of the living signers of the Declaration (there were three at the time), public officials like President James Monroe, Congress, other executive departments, governors and state legislatures, and official repositories such as universities. The Stone engravings give us the clearest idea of what the original engrossed Declaration looked like on the day it was signed.

The Constitution, too, has an original engrossed, handwritten version as well as a printing of the final document. John Dunlap, who also served as the official printer of the Declaration, and his partner David C. Claypoole, who worked with him to publish the Pennsylvania Packet and Daily Advertiser , America’s first successful daily newspaper founded by Dunlap in 1771, secretly printed copies of the convention’s committee reports for the delegates to review, debate, and make changes. At the end of the day on September 15, 1787, after all of the delegations present had approved the Constitution, the convention ordered it engrossed on parchment. Jacob Shallus, assistant clerk to the Pennsylvania legislature, spent the rest of the weekend preparing the engrossed copy (now in the National Archives), while Dunlap and Claypoole were ordered to print 500 copies of the final text for distribution to the delegates, Congress, and the states. The engrossed copy was signed on Monday, September 17th, which is now celebrated as Constitution Day.

The copy of the Constitution on display at the National Constitution Center was published in Dunlap and Claypoole’s Pennsylvania Packet newspaper on September 19, 1787. Because it was the first public printing of the document—the first time Americans saw the Constitution—scholars consider its constitutional significance to be especially profound. The publication of the Constitution in the Pennsylvania Packet was the first opportunity for “We the People of the United States” to read the Constitution that had been drafted and would later be ratified in their name.

The handwritten Constitution inspires awe, but the first public printing reminds us that it was only the ratification of the document by “We the People” that made the Constitution the supreme law of the land. As James Madison emphasized in The Federalist No. 40 in 1788, the delegates to the Constitutional Convention had “proposed a Constitution which is to be of no more consequence than the paper on which it is written, unless it be stamped with the approbation of those to whom it is addressed.” Only 25 copies of the Pennsylvania Packet Constitution are known to have survived.

Finally, there is the Bill of Rights. On October 2, 1789, Congress sent 12 proposed amendments to the Constitution to the states for ratification—including the 10 that would come to be known as the Bill of Rights. There were 14 original manuscript copies, including the one displayed at the National Constitution Center—one for the federal government and one for each of the 13 states.

Twelve of the 14 copies are known to have survived. Two copies —those of the federal government and Delaware — are in the National Archives. Eight states currently have their original documents; Georgia, Maryland, New York, and Pennsylvania do not. There are two existing unidentified copies, one held by the Library of Congress and one held by The New York Public Library. The copy on display at the National Constitution Center is from the collections of The New York Public Library and will be on display for several years through an agreement between the Library and the Commonwealth of Pennsylvania; the display coincides with the 225th anniversary of the proposal and ratification of the Bill of Rights.

The Declaration, the Constitution, and the Bill of Rights are the three most important documents in American history because they express the ideals that define “We the People of the United States” and inspire free people around the world.

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Liberty and Order: The First American Party Struggle

• Lance Banning (editor)

An anthology of primary sources which documents the first great party struggle in American history between the Federalists and the Anti-Federalists over the proper construction of the new Constitution, political economy, the appropriate level of popular participation in a republican polity, and foreign policy.

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Liberty and Order: The First American Party Struggle, ed. and with a Preface by Lance Banning (Indianapolis: Liberty Fund, 2004).

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Locke On Freedom

John Locke’s views on the nature of freedom of action and freedom of will have played an influential role in the philosophy of action and in moral psychology. Locke offers distinctive accounts of action and forbearance, of will and willing, of voluntary (as opposed to involuntary) actions and forbearances, and of freedom (as opposed to necessity). These positions lead him to dismiss the traditional question of free will as absurd, but also raise new questions, such as whether we are (or can be) free in respect of willing and whether we are free to will what we will, questions to which he gives divergent answers. Locke also discusses the (much misunderstood) question of what determines the will, providing one answer to it at one time, and then changing his mind upon consideration of some constructive criticism proposed by his friend, William Molyneux. In conjunction with this change of mind, Locke introduces a new doctrine (concerning the ability to suspend the fulfillment of one’s desires) that has caused much consternation among his interpreters, in part because it threatens incoherence. As we will see, Locke’s initial views do suffer from clear difficulties that are remedied by his later change of mind, all without introducing incoherence.

Note on the text: Locke’s theory of freedom is contained in Book II, Chapter xxi of An Essay Concerning Human Understanding . The chapter underwent five revisions in Locke’s lifetime [E1 (1689), E2 (1694), E3 (1695), E4 (1700), and E5 (1706)], with the last edition published posthumously. Significant changes, including a considerable lengthening of the chapter, occur in E2; and important changes appear in E5.

1. Actions and Forbearances

2. will and willing, 3. voluntary vs. involuntary action/forbearance, 4. freedom and necessity, 5. free will, 6. freedom in respect of willing, 7. freedom to will, 8. determination of the will, 9. the doctrine of suspension, 10. compatibilism or incompatibilism, select primary sources, select secondary sources, additional secondary sources, other internet resources, related entries.

For Locke, the question of whether human beings are free is the question of whether human beings are free with respect to their actions and forbearances . As he puts it:

[T]he Idea of Liberty , is the Idea of a Power in any Agent to do or forbear any Action, according to the determination or thought of the mind, whereby either of them is preferr’d to the other. (E1–4 II.xxi.8: 237)

In order to understand Locke’s conception of freedom, then, we need to understand his conception of action and forbearance.

There are three main accounts of Locke’s theory of action. According to what we might call the “Doing” theory of action, actions are things that we do (actively), as contrasted to things that merely happen to us (passively). If someone pushes my arm up, then my arm rises, but, one might say, I did not raise it. That my arm rose is something that happened to me, not something I did . By contrast, when I signal to a friend who has been looking for me, I do something inasmuch as I am not a mere passive recipient of a stimulus over which I have no control. According to some interpreters (e.g., Stuart 2013: 405, 451), Locke’s actions are doings in this sense. According to the “Composite” or “Millian” theory of action, an action is “[n]ot one thing, but a series of two things; the state of mind called a volition, followed by an effect” (Mill 1974 [1843]: 55). On this view, for example, the action of raising my hand is composed of (i) willing to produce the effect of my hand’s rising and (ii) the effect itself, where (ii) results from (i). According to some interpreters (arguably, Lowe 1986: 120–121; Lowe 1995: 141—though it is possible that Lowe’s theory applies only to voluntary actions), Locke’s actions are composite in this sense. Finally, according to what we might call the “Deflationary” conception of action, actions are simply motions of bodies or operations of minds.

Some of what Locke says suggests that he holds the “Doing” theory of action: “when [a Body] is set in motion it self, that Motion is rather a Passion, than an Action in it”, for “when the Ball obeys the stroke of a Billiard-stick, it is not any action of the Ball, but bare passion” (E1–5 II.xxi.4: 235—see also E4–5 II.xxi.72: 285–286). Here Locke is clearly working with a sense of “action” according to which actions are opposed to passions. But, on reflection, it is unlikely that this is what Locke means by “action” when he writes about voluntary/involuntary actions and freedom of action. For Locke describes “a Man striking himself, or his Friend, by a Convulsive motion of his Arm, which it is not in his Power…to…forbear” as “acting” (E1–5 II.xxi.9: 238), and describes the convulsive leg motion caused by “that odd Disease called Chorea Sancti Viti [St. Vitus’s Dance]” as an “Action” (E1–5 II.xxi.11: 239). It would be a mistake to think of these convulsive motions as “doings”, for they are clearly things that “happen” to us in just the way that it happens to me that my arm rises when someone else raises it. Examples of convulsive actions also suggest that the Millian account of Locke’s theory of action is mistaken. For in the case of convulsive motion, there is no volition that one’s limbs move; indeed, if there is volition in such cases, it is usually a volition that one’s limbs not move. Such actions, then, cannot be composed of a volition and the motion that is willed, for the relevant volition is absent (more on volition below).

We are therefore left with the Deflationary conception of action, which is well supported by the text. There are, Locke says, “but two sorts of Action, whereof we have any Idea , viz. Thinking and Motion” (E1–5 II.xxi.4: 235—see also E1–5 II.xxi.8: 237 and E4–5 II.xxi.72: 285); “Thinking, and Motion…are the two Ideas which comprehend in them all Action” (E1–5 II.xxii.10: 293). It may be that, in the sense in which “action” is opposed to “passion”, some corporeal motions and mental operations, being produced by external causes rather than self-initiated, are not actions. But that is not the sense in which all motions and thoughts are “called and counted Actions ” in Locke’s theory of action (E4–5 II.xxi.72: 285). As seems clear, convulsive motions are actions inasmuch as they are motions, and thoughts that occur in the mind unbidden are actions inasmuch as they are mental operations.

What, then, according to Locke, are forbearances? On some interpretations (close counterparts to the Millian conception of action), Locke takes forbearances to be voluntary not-doings (e.g., Stuart 2013: 407) or voluntary omissions to act (e.g., Lowe 1995: 123). There are texts that suggest as much:

sitting still , or holding one’s peace , when walking or speaking are propos’d, [are] mere forbearances, requiring…the determination of the Will . (E2–5 II.xxi.28: 248)

However, Locke distinguishes between voluntary and involuntary forbearances (E2–5 II.xxi.5: 236), and it makes no sense to characterize an involuntary forbearance as an involuntary voluntary not-doing. So it is unlikely that Locke thinks of forbearances as voluntary not-doings. This leaves the Deflationary conception of forbearance, according to which a forbearance is the opposite of an action, namely an episode of rest or absence of thought. On this conception, to say that someone forbore running is to say that she did not run, not that she voluntarily failed to run. Every forbearance would be an instance of inaction, not a refraining.

In E2–5, Locke stipulates that he uses the word “action” to “comprehend the forbearance too of any Action proposed”, in order to “avoid the multiplying of words” (E2–5 II.xxi.28: 248). The reason he so stipulates is not that he literally takes forbearances to be actions (as he puts it, they “pass for” actions), but that most everything that he wants to say about actions (in particular, the distinction between voluntary and involuntary actions, and the account of freedom of action) applies pari passu to forbearances (see below).

Within the category of actions, Locke distinguishes between those that are voluntary and those that are involuntary. To understand this distinction, we need to understand Locke’s account of the will and his account of willing (or volition). For Locke, the will is a power (ability, faculty—see E1–5 II.xxi.20: 244) possessed by a person (or by that person’s mind). Locke explains how we come by the idea of power (in Humean vein, as the result of observation of constant conjunctions—“like Changes [being] made, in the same things, by like Agents, and by the like ways” (E1–5 II.xxi.1: 233)), but does not offer a theory of the nature of power. What we are told is that “ Powers are Relations” (E1–5 II.xxi.19: 243), relations “to Action or Change” (E1–5 II.xxi.3: 234), and that powers are either active (powers to make changes) or passive (powers to receive changes) (E1–5 II.xxi.2: 234). In this sense, the will is an active relation to actions.

Locke’s predecessors had thought of the will as intimately related to the faculty of desire or appetite. For the Scholastics (whose works Locke read as a student at Oxford), the will is the power of rational appetite. For Thomas Hobbes (by whom Locke was deeply influenced even though this was not something he could advertise, because Hobbes was a pariah in Locke’s intellectual and political circles), the will is simply the power of desire itself. Remnants of this desiderative conception of the will remain in Locke’s theory, particularly in the first edition of the Essay . Here, for example, is Locke’s official E1 account of the will:

This Power the Mind has to prefer the consideration of any Idea to the not considering it; or to prefer the motion of any part of the body to its rest. (E1 II.xxi.5: 236)

And here is Locke’s official E1 account of preferring:

Well, but what is this Preferring ? It is nothing but the being pleased more with the one , than the other . (E1 II.xxi.28: 248)

So, in E1, the will is the mind’s power to be more pleased with the consideration of an idea than with the not considering it, or to be more pleased with the motion of a part of one’s body than with its remaining at rest. When we lack something that would deliver more pleasure than we currently experience, we become uneasy at its absence. And this kind of uneasiness (or pain: E1–5 II.vii.1: 128), is what Locke describes as desire (E1–5 II.xx.6: 230; E2–5 II.xxi.31–32: 251) (though also as “joined with”, “scarce distinguishable from”, and a “cause” of desire—see Section 8 below). So, in E1, the will is the mind’s power to desire or want the consideration of an idea more than the not considering it, or to desire or want the motion of a part of one’s body more than its remaining at rest. (At E2–5 II.xxi.5: 236, Locke adds “and vice versâ ”, to clarify that it can also happen, even according to the E1 account, that one prefers not considering an idea to considering it, or not moving to moving.) [ 1 ]

In keeping with this conception of the will as desire, Locke in E1 then defines an exercise of the will, which he calls “willing” or “volition”, as an “actual preferring” of one thing to another (E1 II.xxi.5: 236). For example, I have the power to prefer the upward motion of my arm to its remaining at rest by my side. This power, in E1, is one aspect of my will. When I exercise this power, I actually prefer the upward motion of my arm to its remaining at rest, i.e., I am more pleased with my arm’s upward motion than I am with its continuing to rest. This is what Locke, in E1, thinks of as my willing the upward motion of my arm (or, as he sometimes puts it, my willing or volition to move my arm upward ).

In E2–5, Locke explicitly gives up this conception of the will and willing, explaining why he does so, making corresponding changes in the text of the Essay , even while leaving passages that continue to suggest the desiderative conception. He writes: “[T]hough a Man would preferr flying to walking, yet who can say he ever wills it?” (E2–5 II.xxi.15: 241). The thought here is that, as Locke (rightly) recognizes, my being more pleased with flying than walking does not consist in (or even entail) my willing to fly. This is in large part because it is necessarily implied in willing motion of a certain sort that one exert dominion that one takes oneself to have (E2–5 II.xxi.15: 241), that “the mind [endeavor] to give rise…to [the motion], which it takes to be in its power” (E2–5 II.xxi.30: 250). So if I do not believe that it is in my power to fly, then it is impossible for me to will the motion of flying, even though I might be more pleased with flying than I am with any alternative. Locke concludes (with the understatement) that “ Preferring which seems perhaps best to express the Act of Volition , does it not precisely” (E2–5 II.xxi.15: 240–241).

In addition, Locke points out that it is possible for “the Will and Desire [to] run counter”. For example, as a result of being coerced or threatened, I might will to persuade someone of something, even though I desire that I not succeed in persuading her. Or, suffering from gout, I might desire to be eased of the pain in my feet, and yet at the same time, recognizing that the translation of such pain would affect my health for the worse, will that I not be eased of my foot pain. In concluding that “ desiring and willing are two distinct Acts of the mind”, Locke must be assuming (reasonably) that it is not possible to will an action and its contrary at the same time (E2–5 II.xxi.30: 250). [ 2 ]

With what conception of the will and willing does Locke replace the abandoned desiderative conception? The answer is that in E2–5 Locke describes the will as a kind of directive or commanding faculty, the power to direct (or issue commands to) one’s body or mind: it is, he writes,

a Power to begin or forbear, continue or end several actions of our minds, and motions of our Bodies, barely by a thought or preference of the mind ordering, or as it were commanding the doing or not doing such or such particular action. (E2–5 II.xxi.5: 236)

Consonant with this non-desiderative, directive conception of the will, Locke claims that

Volition , or Willing , is an act of the Mind directing its thought to the production of any Action, and thereby exerting its power to produce it, (E2–5 II.xxi.28: 248)

Volition is nothing, but that particular determination of the mind, whereby, barely by a thought, the mind endeavours to give rise, continuation, or stop to any Action, which it takes to be in its power. (E2–5 II.xxi.30: 250)

Every volition, then, is a volition to act or to forbear , where willing to act is a matter of commanding one’s body to move or one’s mind to think, and willing to forbear is a matter of commanding one’s body to rest or one’s mind not to think. Unlike a desiderative power, which is essentially passive (as involving the ability to be more pleased with one thing than another), the will in E2–5 is an intrinsically active power, the exercise of which involves the issuing of mental commands directed at one’s own body and mind.

Within the category of actions/forbearances, Locke distinguishes between those that are voluntary and those that are involuntary. Locke does not define voluntariness and involuntariness in E1, but he does in E2–5:

The forbearance or performance of [an] action, consequent to such order or command of the mind is called Voluntary . And whatsoever action is performed without such a thought of the mind is called Involuntary . (E2–4 II.xxi.5: 236—in E5, “or performance” is omitted from the first sentence)

Locke is telling us that what makes an action/forbearance voluntary is that it is consequent to a volition, and that what makes an action/forbearance involuntary is that it is performed without a volition. The operative words here are “consequent to” and “without”. What do they mean? (Henceforth, following Locke’s lead, I will not distinguish between actions and forbearances unless the context calls for it.)

We can begin with something Locke says only in E1:

Volition, or the Act of Willing, signifies nothing properly, but the actual producing of something that is voluntary. (E1 II.xxi.33: 259)

On reflection, this is mistaken, but it does provide a clue to Locke’s conception of voluntariness. The mistake (of which Locke likely became aware, given that the statement clashes with the rest of his views and was removed from E2–5) is that not every instance of willing an action is followed by the action itself. To use one of Locke’s own examples, if I am locked in a room and will to leave, my volition will not result in my leaving (E1–5 II.xxi.10: 238). So willing cannot signify the “actual producing” of a voluntary action. However, it is reasonable to assume that, for Locke, willing will “produce” a voluntary action if nothing hinders the willed episode of motion or thought. And this makes it likely that Locke takes a voluntary action to be not merely temporally consequent to, but actually caused by, the right kind of volition (Yaffe 2000; for a contrary view, see Hoffman 2005).

Understandably, some commentators have worried about the problem of deviant causation, and whether Locke has an answer to it (e.g., Lowe 1995: 122–123; Yaffe 2000: 104; Lowe 2005: 141–147). The problem is that if I let go of a climbing rope, not as a direct result of willing to let it go, but as a result of being discomfited/paralyzed/shaken by the volition itself, then my letting go of the rope would not count as voluntary even though it was caused by a volition to let go of the rope. The solution to this problem, if there is one, is to claim that, in order for an action to count as voluntary, it is not sufficient for it to be caused by the right kind of volition: in addition, it is necessary that the action be caused in the right way (or non-deviantly) by the right kind of volition. Spelling out the necessary and sufficient conditions for non-deviant causation is a steep climb. Chances are that Locke was no more aware of this problem, and was in no better position to answer it, than anyone else was before Chisholm (1966), Taylor (1966) and Davidson (1980) brought it to the attention of the philosophical community.

Locke’s view, then, is that an action is voluntary inasmuch as its performance is caused by a volition. The volition, as we have so far presumed, must be of the right kind. For example, Locke would not count the motion of my left arm as voluntary if it were caused by a volition that my right arm move (or a volition that my left arm remain at rest). Locke assumes (reasonably) that in order for an action A to be voluntary, it must be caused (in the right way) by a volition that A occur (or, as Locke sometimes puts it, by a volition to do A ).

What, then, on Locke’s view, is it for an action to be involuntary ? Locke says that an involuntary action is performed “without” a volition. This might suggest that an action of mine is involuntary only when I have no volition that the action occur. Perhaps this is what Locke believes. But it is more reasonable to suppose that Locke would also count as involuntary an action that, though preceded by the right kind of volition, is either not caused by the volition or caused by the volition but not in the right way. [ 3 ]

Some commentators have worried that Locke’s “locked room” example is a problematic illustration of his theory of voluntariness, at least as applied to forbearances (e.g., Lowe 1986: 154–157; Stuart 2013: 420). Locke imagines a man who is “carried, while fast asleep, into a Room, where is a Person he longs to see and speak with”, but who is “there locked fast in, beyond his Power to get out: he awakes, and is glad to find himself in so desirable Company” and “stays willingly” in the room. Locke makes clear that, on his view, the man’s remaining in the room is a voluntary forbearance to leave (E1–5 II.xxi.10: 238). But one might worry that if the man is unable to leave the room, then it is false to say that his volition not to leave causes his not leaving. At best, it might be argued, the man’s not leaving is overdetermined (Stuart 2013: 420). But, as some authors have recently argued, cases of overdetermination are rightly described as involving two (or more) causes, not a single joint cause or no cause at all (see, e.g., Schaffer 2003). On such a view of overdetermination, it is unproblematic for Locke to describe the man in the locked room as caused to remain both by his volition to remain and by the door’s being locked. [ 4 ]

Another problem that has been raised for Locke stems from his example of a man who falls into a river when a bridge breaks under him. Locke describes the man as willing not to fall, even as he is falling (E1–5 II.xxi.9: 238). The worry here is that Locke holds that the objects of volition are actions or forbearances, so the man would need to be described as willing to forbear from falling. But, it might be argued, falling is not an action, for it is something that merely happens to the man, and not an exercise of his agency; so his willingly forbearing from falling would be willingly forbearing from something that is not an action, and this is impossible (Stuart 2013: 405). The answer to this worry is that falling is an action, according to Locke’s Deflationary conception of action, which counts the motion of one’s body in any direction as a bona fide action (see Section 1 above).

Some commentators think that Lockean freedom (or, as Locke also calls it, “liberty”) is a single power, the power to do what one wills (Yolton 1970: 144; D. Locke 1975: 96; O’Higgins 1976: 119—see Chappell 1994: 103). However, as Locke describes it, freedom is a “two-way” power, really a combination of two conditional powers belonging to an agent, that is, to someone endowed with a will (see Chappell 2007: 142). (A tennis ball, for example, “has not Liberty , is not a free Agent”, because it is incapable of volition (E1–5 II.xxi.9: 238).) In E1, Locke’s definition reflects his conception of the will as a power of preferring X to Y , or being more pleased with X than with Y . But in E2–5, Locke’s definition reflects his modified conception of the will as a power to issue commands to one’s body or mind (see Section 2 above):

[S]o far as a Man has a power to think, or not to think; to move, or not to move, according to the preference or direction of his own mind, so far is a Man Free . (E2–5 II.xxi.8: 237) So that the Idea of Liberty , is the Idea of a Power in any Agent to do or forbear any particular Action, according to the determination or thought of the mind, whereby either of them is preferr’d to the other. (E2–5 II.xxi.8: 237) Liberty is not an Idea belonging to Volition , or preferring; but to the Person having the Power of doing, or forbearing to do, according as the Mind shall chuse or direct. (E2–5 II.xxi.10: 238) Liberty …is the power a Man has to do or forbear doing any particular Action, according as its doing or forbearance has the actual preference in the Mind, which is the same thing as to say, according as he himself wills it. (E1–5 II.xxi.15: 241)

The central claim here is that a human being (person, agent) is free with respect to a particular action A (or forbearance to perform A ) inasmuch as (i) if she wills to do A then she has the power to do A and (ii) if she wills to forbear doing A then she has the power to forbear doing A (see, e.g., Chappell 1994: 103). [ 5 ] So, for example, a woman in a locked room is not free with respect to the act of leaving (or with respect to the forbearance to leave) because she does not have the power to leave if and when she wills to leave, and a woman who is falling (the bridge under her having crumbled) is not free with respect to the forbearance to fall (or with respect to the act of falling) because she does not have the power to forbear falling if she wills not to fall (E1–5 II.xxi.9–10: 238). (Locke describes agents who are unfree with respect to some action as acting under, or by, necessity—E1–5 II.xxi.8: 238; E1–5 II.xxi.9: 238.) But if the door of the room is unlocked, then the woman in the room is able to stay if she wills to stay, and is able to leave if she wills to leave: she is therefore both free with respect to staying and free with respect to leaving.

Notice that freedom, on Locke’s conception of it, is a property of substances (persons, human beings, agents). This simply follows from the fact that freedom is a dual power and from the fact that “ Powers belong only to Agents , and are Attributes only of Substances ” (E1–5 II.xxi.16: 241). At no point does Locke offer an account of performing actions or forbearances freely , as if freedom were a way of performing an action or a way of forbearing to perform an action. (For a contrary view, see LoLordo 2012: 27.)

Locke does write that

[w]here-ever any performance or forbearance are not equally in a Man’s power; where-ever doing or not doing, will not equally follow upon the preference of his mind directing it, there he is not Free . (E2–5 II.xxi.8: 237)

The “follow upon” language might suggest a counterfactual analysis of the claim that an agent has the power to do A if she wills to do A , namely, that if she were to will to do A then she would do A (e.g., Lowe 1995: 129; Stuart 2013: 407—for a similar account that trades the subjunctive conditionals for indicative conditionals, see Yaffe 2000: 15). The counterfactual analysis is tempting, but also unlikely to capture Locke’s meaning, especially if he has a Deflationary conception of action/forbearance (see Section 1 above). It might happen, for example, that I am prevented (by chains or a force field) from raising my arm, but that if I were to will that my arm rise, you would immediately (break the chains or disable the force field and) raise my arm. Under these conditions, I would not be free with respect to my arm’s rising, but it would be true that if I were to will that my arm rise, then my arm would rise. So Locke’s dual power conception of freedom of action is not captured by any counterfactual conditional or pair of counterfactual conditionals.

Does Locke think that there is a conceptual connection between freedom of action and voluntary action? It might be thought that freedom with respect to a particular action requires that the action be voluntary, so that if an action is not voluntary then one is not free with respect to it. In defense of this, one might point to Locke’s falling man, whose falling is not voluntary and who is also not free with respect to the act of falling (Stuart 2013: 408). But the falling man’s unfreedom with respect to the act of falling is not explained by the involuntariness of his falling. In general, it is possible for one’s action to be involuntary even as one is free with respect to it. Imagine that you let your four-year old daughter raise your arm (just for fun). According to Locke’s conception of voluntariness, the motion of your arm is not voluntary, because it is not caused by any volition of yours (indeed, we can even imagine that you do not even have a volition that your arm rise). But, according to Locke’s conception of freedom, you are most certainly free with respect to your arm’s rising: (i) if you will that your arm rise, you have the power to raise it, and (ii) if you will that your arm not rise, you have the power to forbear raising it.

Voluntariness, then, is not necessary for freedom; but it is also not sufficient for freedom, as Locke’s “locked room” and “paralytick” cases show. The man in the locked room wills to stay and talk to the other person in the room, and this volition is causally responsible for his staying in the room: on Locke’s theory, his remaining in the room is, therefore, voluntary. But the man in the locked room “is not at liberty not to stay, he has not freedom to be gone” (E1–5 II.xxi.10: 238). The reason is that even if the man wills to leave, he does not have the power to leave. Similarly, if the paralyzed person wills to remain at rest (thinking, mistakenly, that he could move if he willed to move) and his remaining at rest is caused (at least in part) by his volition not to move, then his “sitting still…is truly voluntary”. But in this case, says Locke, “there is want of Freedom ” because “a Palsie [hinders] his Legs from obeying the determination of his Mind, if it would thereby transferr his Body to another Place” (E2–5 II.xxi.11: 239): that is, the paralyzed person is unable to move even if he wills to move.

Thus far, we have been focusing on freedom with respect to motion or rest of one’s body . But, as we have seen, Locke thinks that actions encompass acts of mind (in addition to acts of body). So, in addition to thinking that some acts of mind are voluntary (e.g., the mental acts of combining and abstracting ideas involved in the production of abstract ideas of mixed modes—E2–5 II.xxxii.12: 387–388), Locke thinks that we are free with respect to some mental actions (and their forbearances). For example, if I am able to combine two ideas at will, and I am able to forbear combining two ideas if I will not to combine them, then I am free with respect to the mental action of combining two ideas. It can also happen that we are not free with respect to our mental acts:

A Man on the Rack, is not at liberty to lay by the Idea of pain, and divert himself with other Contemplations. (E4–5 II.xxi.12: 239)

In this case, even though the man on the rack might will to be rid of the pain, he does not have the power to avoid feeling it. [ 6 ]

Is the will free? This question made sense to Scholastic philosophers (including, e.g., Bramhall, who engaged in a protracted debate on the subject with Hobbes), who tended not to distinguish between the question of whether the will is free and the question of whether the mind or soul is free with respect to willing, and, indeed, some of whom thought that acts cannot themselves be free (or freely done) unless the will to do them is itself free. But, according to Locke, the question, if literally understood, “is altogether improper” (E1–5 II.xxi.14: 240). This follows directly from Locke’s account of the will and his account of freedom. The will is a power (in E2–5, the power to order the motion or rest of one’s body and the power to order the consideration or non-consideration of an idea—see Section 2 above), and freedom is a power, namely the power to do or not do as one wills (see Section 4 above). But, as Locke emphasizes, the question of whether one power has another power is “a Question at first sight too grosly absurd to make a Dispute, or need an Answer”. The reason is that it is absurd to suppose that powers are capable of having powers, for

Powers belong only to Agents , and are Attributes only of Substances , and not of Powers themselves. (E1–5 II.xxi.16: 241)

The question of whether the will is free, then, presupposes that the will is a substance, rather than a power, and therefore makes no more sense than the question of whether a man’s “Sleep be Swift, or his Vertue square” (E1–5 II.xxi.14: 240). To suppose that the will is free (or unfree!) is therefore to make a category mistake (see Ryle 1949: chapter 1).

The fact that it makes no sense to suppose that the will itself is free (or unfree) does not entail that there are no significant questions to be asked about the relation between freedom and the will. Indeed, Locke thinks that there are two such questions, and that these are the questions that capture “what is meant, when it is disputed, Whether the will be free” (E2–5 II.xxi.22: 245). The first (discussed at E1–5 II.xxi.23–24) is whether agents (human beings, persons) are free with respect to willing-one-way-or-another; more particularly, whether agents are able, if they so will, to avoid willing one way or the other with respect to a proposed action. The second (discussed at E1–5 II.xxi.25) is whether agents are free with respect to willing-a-particular-action. The majority of commentators think that Locke answers both of these questions negatively, at least in E1–4 (see Chappell 1994, Lowe 1995, Jolley 1999, Glauser 2003, Stuart 2013, and Leisinger 2017), and some think that Locke then qualifies his answer(s) in E2–5 in a way that potentially introduces inconsistency into his moral psychology (e.g., Chappell 1994). Other commentators think that Locke answers the first question negatively for most actions, but with one important qualification that is clarified and made more explicit in E5, and that he answers the second question positively, all without falling into inconsistency (Rickless 2000; Garrett 2015). What follows is a summary of the interpretive controversies. In the rest of this Section, we focus on the first question. In the next, we focus on the second question.

In E1–4, Locke states his answer to the first question thus:

[ A ] Man in respect of willing any Action in his power once proposed to his Thoughts cannot be free . (E1–4 II.xxi.23: 245)

His argument for the necessity of having either a volition that action A occur or a volition that action A not occur, once A has been proposed to one’s thoughts, is simple and clever: (1) Either A will occur or A will not occur; (2) If A occurs, this will be the result of the agent having willed A to occur; (3) If A does not occur, this will be the result of the agent having willed A not to occur; therefore, (4) The agent necessarily wills one way or the other with respect to A ’s occurrence (see Chappell 1994: 105–106). It follows directly that “in respect of the act of willing , a Man is not free” (E1–4 II.xxi.23: 245). For, first, “ Willing , or Volition [is] an Action” (E1–5 II.xxi.23: 245—this because actions comprise motions of the body and operations of mind, and volition is one of the most important mental operations—E1–5 II.vi.2: 128), and, second, freedom with respect to action A , as Locke defines it, consists in (i) the power to do A if one wills to do A and (ii) the power not to do A if one wills not to do A . Thus, if an agent does not have the power to avoid willing one way or the other with respect to A (even if the agent wills to avoid willing one way or the other with respect to A ), then the agent is not free with respect to willing one way or the other with respect to A .

In his New Essays on Human Understanding (ready for publication in 1704, but not published then because that was the year of Locke’s death) Gottfried Leibniz famously questions premise (3) of this argument:

I would have thought that one can suspend one’s choice, and that this happens quite often, especially when other thoughts interrupt one’s deliberation. Thus, although it is necessary that the action about which one is deliberating must exist or not exist, it doesn’t follow at all that one necessarily has to decide on its existence or non-existence. For its non-existence could well come about in the absence of any decision. (Leibniz 1704 [1981]: 181)

Leibniz’s worry is that, even if one is thinking about whether or not to do A , it is often possible to postpone willing whether to do A , and the non-occurrence of A might well result from such postponement. Under these conditions, it would be false to say that A ’s non-occurrence results from any sort of volition that A not occur. Leibniz illustrates the claim with an amusing reference to a case that the Areopagites (judges on the Areopagus, the highest court of appeals in Ancient Athens) were having trouble deciding, their solution (i.e., de facto , but not de jure , acquittal) being to adjourn it “to a date in the distant future, giving themselves a hundred years to think about it” (Leibniz 1704 [1981]: 181).

It is something of a concern, then, that Locke himself appears committed to agreeing with Leibniz’s criticism of his own argument, at least in E2–5. For in E2–5 (but not in E1) Locke emphasizes his acceptance of the doctrine of suspension, according to which any agent has the “power to suspend the execution and satisfaction of any of its desires”, during which time the will is not yet “determined to action” (E2–5 II.xxi.47: 263). That is, Locke acknowledges in E2–5, even as he does not remove or alter the argument of II.xxi.23 in E2–4, that it is possible to postpone willing with respect to whether to will one way or the other with respect to some proposed action (see Chappell 1994: 106–107).

However, Locke makes changes in E5 that have suggested to some commentators how he would avoid Leibniz’s criticism without giving up the doctrine of suspension. Recall Locke’s answer to the first question:

[A] Man in respect of willing any Action in his power once proposed to his Thoughts cannot be free. (E1–4 II.xxi.23: 245)

Here, now, is Locke’s restatement of his answer in E5:

[A] Man in respect of willing , or the Act of Volition, when any Action in his power is once proposed to his Thoughts , as presently to be done, cannot be free. (E5 II.xxi.23: 245—added material italicized)

The crucial addition here is the phrase “as presently to be done”. In E5, Locke is not saying that it is with respect to willing one way or the other with respect to any proposed action that an agent is not free: what he is saying is that it is with respect to willing one way or the other with respect to any proposed action as presently to be done that an agent is not free. Some actions that are proposed to us are to occur at the time of proposal : as I am singing, a friend might propose that I stop singing right now . Other actions that are proposed to us are to occur at a time later than the time of proposal : at the beginning of a long bicycle trip, a friend might propose that we take a rest once we have reached our destination. Locke is telling us in E5 that premise (3) is supposed to apply to the former, not to the latter, sort of actions. If this is right, then it is no accident that Locke’s own illustration of the argument of II.xxi.23 involves “a Man that is walking, to whom it is proposed to give off walking” (E1–5 II.xxi.24: 246).

So, as Locke incipiently recognizes as early as E1 but explicitly underlines in E5, his initial answer to the first question is an overgeneralization, and needs to be restricted to those actions that are proposed to us as presently to be done (see Rickless 2000: 49–55; Glauser 2003: 710; Garrett 2015: 274–277). But it is also possible that Locke comes to recognize, and eventually underline, a second restriction. At the moment, I am sitting in a chair. In a few minutes, my children will walk in and propose that I get up and make dinner. I am busy, my mind is occupied, so I will likely postpone (perhaps only for a few minutes) making a decision about whether to get up. The result of such postponement is that I will not get up right away, but this will not be because I have willed not to get up right away. Again, it seems that premise (3) is false, for reasons similar to the ones described by Leibniz. But this time, the relevant action (getting up) is proposed as presently to be done. Locke’s E5 emendations do not explicitly address this sort of example.

However, in E2–5, but not in E1, Locke emphasizes the fact that in his “walking man” example, the man either “continues the Action [of walking], or puts an end to it” (E2–5 II.xxi.24: 246). This suggests a different restriction, on top of the “as presently to be done” restriction. It may be that Locke is thinking that premise (3) applies, not to actions of all kinds, but only to processes in which one is currently engaged. The walking man is already in motion, constantly putting one leg in front of the other. When it is proposed to him that he give off walking, he has no option but to will one way or the other with respect to whether to give off walking: if he stops walking, this will be because he willed that his walking cease; and if he continues to walk, this will be because he willed that his walking continue. Either way, he must will one way or the other with respect to whether to stop walking. By contrast, when I am sitting in my chair, I am not engaged in a process: I am (or, at least, my body is) simply at rest. It is for this reason that it is possible for me to avoid willing with respect to whether to get up right now: processes require volition to secure their continuation, but mere states (non-processes) do not (see Rickless 2000: 49–55; for a contrary view, see Glauser 2003: 710).

Locke’s considered answer to the first question, then, is this: (i) when an action that is a process in which the agent is currently engaged is proposed as presently to be continued or stopped, the agent is not free with respect to willing one way or the other with respect to its continuing, but (ii) when an action is not a process in which the agent is currently engaged or is proposed as to be done sometime in the future, then it is possible for the agent to be free with respect to willing one way or the other with respect to its performance or non-performance. Given that, as Locke puts it in E5, the vast majority of voluntary actions “that succeed one another every moment that we are awake” (E5 II.xxi.24: 246) are (i)-actions rather than (ii)-actions, it makes sense for him to summarize his answer to the first question as that it is “in most cases [that] a Man is not at Liberty to forbear the act of volition” (E5 II.xxi.56: 270). But, as Locke also emphasizes, one has the ability, at least with respect to (ii)-actions, to suspend willing. So there is no inconsistency at the heart of Locke’s theory of freedom in respect of willing.

The second question regarding the relation between freedom and the will that Locke takes to be significant is “ Whether a Man be at liberty to will which of the two he pleases , Motion or Rest ” (E1–5 II.xxi.25: 247). Consider a particular action A . What Locke is asking is whether an agent is free with respect to the action of willing that A occur . For example, suppose that I am sitting in a chair and that A is the action of walking to the fridge. Locke wants to know whether I am free with respect to willing the action of walking to the fridge.

Most commentators think that Locke’s answer to this question is NO. The main evidence for this interpretation is what Locke says about the question immediately after raising it:

This Question carries the absurdity of it so manifestly in it self, that one might thereby sufficiently be convinced, that Liberty concerns not the Will. (E5 II.xxi.25: 247)

It is tempting to suppose that the thought that “Liberty concerns not the Will” is the thought that agents are not free to will, and that Locke is saying that we are driven to this thought because the second question is absurd, in the sense of demanding a negative answer.

But it is difficult to make sense of what Locke goes on to say in II.xxi.25 if he is interpreted as answering the second question negatively. Section 25 continues:

For to ask, whether a Man be at liberty to will either Motion, or Rest; Speaking, or Silence; which he pleases, is to ask, whether a Man can will , what he wills ; or be pleased with what he is pleased with. (E1–5 II.xxi.25: 247)

Locke says that the second question reduces to another that can be put in two different ways: whether a man can will what he wills, and whether a man can be pleased with what pleases him. (The reason it can be put in these two different ways, at least in E1, is that Locke there adopts a desiderative theory of willing, according to which willing an action is a matter of being more pleased with the action than with its forbearance.) But asking whether a man can will what he wills, or whether a man can be pleased with what he is pleased with, is similar to asking whether a man can steal what he steals. And the answer to all of these questions is: “OF COURSE!”

It is obvious that whatever it is that a man actually steals he can steal. Similarly, it is obvious that whatever it is that a man actually wills (or is actually pleased with) is something that he can will (or can be pleased with). The reason is that it is a self-evident maxim (just as self-evident as the maxim that whatever is, is—see E1–5 IV.vii.4: 592–594) that whatever is actual is possible. Locke, it seems, wishes to answer the second question in the affirmative!

This raises the issue of what Locke could possibly mean, then, when he describes the second question as “absurd”. One possibility is that, for Locke, a question counts as absurd not only when the answer to it is obviously in the negative (think: “Is the will free?”), but also when the answer to it is obviously in the affirmative (think: “Is it possible for you to do what you are actually doing?”). But it also raises the issue of why Locke would think that the second question actually reduces to an absurd question of the latter sort. One possible solution derives from Locke’s theory of freedom of action. As we have seen, Locke thinks that one is free with respect to action A if and only if (i) if one (actually) wills to do A , then one can do A , and (ii) if one (actually) wills not to do A , then one can avoid doing A . Applying this theory directly to the case in which A is the action of willing to do B , we arrive at the following: one is free with respect to willing to do B if and only if (i) if one (actually) wills to will to do B , then one can will to do B , and (ii) if one (actually) wills to avoid willing to do B , then one can avoid willing to do B . Suppose, then, that willing to will to do an action is just willing to do that action, and willing to avoid willing to do an action is just not willing to do that action. In that case, one is free with respect to willing to do B if and only if (i) if one (actually) wills to do B , then one can will to do B , and (ii) if one (actually) avoids willing to do B , then one can avoid willing to do B . Given that actuality obviously entails possibility, it follows that (i) and (ii) are both obviously true. This is one explanation for why Locke might think that the question of whether one is free with respect to willing to do B reduces to an absurd question, the answer to which is obviously in the affirmative. It may be for this reason that Locke says that the question is one that “needs no answer” (E1–5 II.xxi.25: 247).

Locke goes on to say, at the end of II.xxi.25, that

they, who can make a Question of it [i.e., of the second question], must suppose one Will to determine the Acts of another, and another to determinate that; and so on in infinitum . (E1–5 II.xxi.25: 247)

It is unclear what Locke means by this. One possibility, consistent with the majority interpretation that Locke provides a negative answer to the second question, is that Locke is providing an argument here for the claim that the proposition that it is possible to be free with respect to willing to do an action leads to a vicious infinite regress of wills. The thought here is that being free with respect to willing to do an action, on Locke’s theory, requires being able to will to do an action if one wills to will to do it; that being free with respect to willing to will to do an action then requires being able to will to will to do it if one wills to will to will to do it; and so on, ad infinitum . But another possible interpretation, consistent with the minority interpretation that Locke provides an affirmative answer to the second question, is that Locke’s argument here is not meant to target those who answer the question affirmatively, but is rather designed to target those who would “make a question” of the second question, i.e., those who think that the answer to the second question is un obvious, and worth disputing. These people are the ones who think that willing to will to do A does not reduce to willing to do A , and that willing to avoid willing to do A does not reduce to avoiding willing to do A . These are the people who are committed to the existence of an infinite regress of wills, each determining the volitions of its successor. According to Locke, who accepts the reductions, the infinite regress of wills can’t get started (see Rickless 2000: 56–65; Garrett 2015: 269–274).

The next important question for Locke is “what is it determines the Will” (E2–5 II.xxi.29: 249—the question is also raised in the same Section in E1). Locke gives one answer to this question in E1, and a completely different answer in E2–5. The E1 answer is that the will is always determined by “ the greater Good ” (E1 II.xxi.29: 251), though, when he is writing more carefully, Locke says that it is only “the appearance of Good, greater Good” that determines the will (E1 II.xxi.33: 256, E1 II.xxi.38: 270). Regarding the good, Locke is a hedonist:

Good and Evil…are nothing but Pleasure and Pain, or that which occasions, or procures Pleasure or Pain to us. (E1–5 II.xxviii.5: 351—see also E1–5 II.xx.2: 229 and E2–5 II.xxi.42: 259)

So Locke’s E1 view is that the will is determined by what appears to us to promise pleasure and avoid pain.

When in 1692 Locke asks his friend, William Molyneux, to comment on the first (1690) edition of the Essay , Molyneux expressly worries that Locke’s E1 account of freedom appears to “make all Sins to proceed from our Understandings, or to be against Conscience; and not at all from the Depravity of our Wills”, and that “it seems harsh to say, that a Man shall be Damn’d, because he understands no better than he does” (de Beer 1979: 601). Molyneux’s point is well taken, and Locke acknowledges as much in his reply (de Beer 1979: 625). The source of the problem for the E1 account is that, with respect to the good (at least in the future), appearance does not always correspond with reality: it is possible for us to make mistakes about what is apt to produce the greatest pleasure and the least pain. Sometimes this is because we underestimate how pleasurable future pleasures will be (relative to present pleasures) or overestimate how painful present pains are (relative to future pains); and sometimes this is because we just make simple mistakes of fact, thinking, for example, that bloodletting will ease the pain of gout. As Molyneux sees it, we are not responsible for many of these mistakes, and yet it seems clear that we deserve (divine) punishment for making the wrong choices in our lives (e.g., when we choose the present pleasures of debauchery and villainy over the pleasures of heaven). Our sins, in other words, should be understood to proceed from the defective exercise of our wills, rather than from the defective state of our knowledge.

Part of Locke’s answer in E2–5 is that what determines the will is not the appearance of greater good, but rather “always some uneasiness” (E2–4 II.xxi.29: 249—the word “uneasiness” is italicized in E5). “Uneasiness” is Locke’s word for “[a]ll pain of the body of what sort soever, and disquiet of the mind” (E2–5 II.xxi.31: 251). On this view, then, our wills are determined by pains (of the mind or of the body). How this answer is supposed to address Molyneux’s concern is not, as yet, entirely clear.

What, to begin, does Locke mean by “determination”? On a “causal” reading, for a will W to be determined by X is for X to cause W to be exercised in a particular way. One might say, for example, that fear of the tiger caused Bill to choose to run away from it, and, in one sense, that Bill’s volition to run away from the tiger was determined by his fear of it. On a “teleological” reading, for a will W to be determined by X is for the agent to will the achievement or avoidance of X as a goal. One might say, for example, that the pleasure of eating the cake determined my will in the sense of fixing the content of my volition (as the volition to acquire the pleasure of eating the cake) (see Stuart 2013: 439; LoLordo 2012: 55–56).

It would be anachronistic to suppose that Locke is using the word “determine” as we do today when we discuss causal determinism (see the entry on causal determinism ). And the desire to avoid anachronism might lead us to adopt the teleological interpretation of determination. But there are many indications in E2–5 II.xxi that Locke has something approaching the causal interpretation in mind. Locke’s picture of bodies, both large and small, is largely a mechanistic one (though he allows for phenomena that can’t be explained mechanistically, such as gravitation, cohesion of body parts, and magnetism): bodies, he writes, “knock, impell, and resist one another,…and that is all they can do” (E1–5 IV.x.10: 624). And there are indications that this mechanistic model of corporeal behavior affects Locke’s model of mental phenomena. Throughout the Sections of II.xxi added in E2–5, Locke talks of uneasiness moving the mind (E2–5 II.xxi.29: 249; E2–5 II.xxi.43–44: 260), setting us upon a change of state or action or work (E2–5 II.xxi.29: 249; E2–5 II.xxi.31: 251; E2–5 II.xxi.37: 255; E2–5 II.xxi.44: 260), working on the mind (E2–5 II.xxi.29: 249; E2–5 II.xxi.33: 252), exerting pressure (E2–5 II.xxi.32: 251; E2–5 II.xxi.45: 262), driving us (E2–5 II.xxi.34: 252; E2–5 II.xxi.35: 253), pushing us (E2–5 II.xxi.34: 252), operating on the will, sometimes forcibly (E2–5 II.xxi.36: 254; E2–5 II.xxi.37: 255; E2–5 II.xxi.57: 271), laying hold on the will (E2–5 II.xxi.38: 256), influencing the will (E2–5 II.xxi.38: 256; E2–5 II.xxi.39: 257), taking the will (E2–5 II.xxi.45: 262), spurring to action (E2–5 II.xxi.40: 258), carrying us into action (E2–5 II.xxi.53: 268), and being counterbalanced by other mental states (E2–5 II.xxi.57: 272; E2–5 II.xxi.65: 277). It is difficult to read all of these statements without thinking that Locke thinks of uneasiness as exerting not merely a pull, but also a push, on the mind.

Locke’s view, then, seems to be that our volitions are caused (though not, perhaps, deterministically, i.e., in a way that is fixed by initial conditions and the laws of nature) by uneasinesses. How is this supposed to work? As Locke sees it, either “all pain causes desire equal to it self” (E2–5 II.xxi.31: 251) or desire is simply identified with “ uneasiness in the want [i.e., lack] of an absent good” (E2–5 II.xxi.31: 251). So the desire that either is or is caused by uneasiness is a desire for the removal of that uneasiness, and this is what proximately spurs us to take means to secure that removal.

Locke provides evidence from observation and from “the reason of the thing” for the claim that it is uneasiness, rather than perceived good, that determines the will. Empirically, Locke notes that agents generally do not seek a change of state unless they experience some sort of pain that leads them to will its extinction. A poor, indolent man who is content with his lot, even one who recognizes that he would be happier if he worked his way to greater wealth, is not ipso facto motivated to work. A drunkard who recognizes that his health will suffer and wealth will dissipate if he continues to drink does not, merely as a result of this recognition, stop drinking: but if he finds himself thirsty for drink and uneasy at the thought of missing his drinking companions, then he will go to the tavern. That is, Locke recognizes the possibility of akratic action, i.e., pursuing the worse in full knowledge that it is worse (E II.xxi.35: 253–254). (For more on Locke on akrasia, see Vailati 1990, Glauser 2014, and Moauro and Rickless 2019.)

Regarding “the reason of the thing”, Locke claims that “we constantly desire happiness” (E2–5 II.xxi.39: 257), where happiness is “the utmost Pleasure we are capable of” (E2–5 II.xxi.42: 258). Moreover, he says, any amount of uneasiness is inconsistent with happiness, “a little pain serving to marr all the pleasure” we experience. Locke concludes from this that we are always motivated to get rid of pain before securing any particular pleasure (E2–5 II.xxi.36: 254). Locke also argues that absent goods cannot move the will, because they don’t exist yet; by contrast, on his theory, the will is determined by something that already exists in the mind, namely uneasiness (E2–5 II.xxi.37: 254–255). Finally, Locke argues that if the will were determined by the perceived greater good, every agent would be consistently focused on the attainment of “the infinite eternal Joys of Heaven”. But, as is evidently the case, many agents are far more concerned about other matters than they are about getting into heaven. And this entails that the will must be determined by something other than the perceived greater good, namely, uneasiness (E2–5 II.xxi.38: 255–256). (For interesting criticisms of these arguments, see Stuart 2013: 453–456.)

So far, Locke has argued that the wrong turns we make in life do not usually proceed from defects in our understandings. What spurs us to act or forbear acting is not perception of the greater good, but some uneasiness instead. This answers part, but not the whole, of Molyneux’s worry. What Locke still needs to explain is why agents can be justly held responsible for choices that are motivated by uneasinesses. After all, what level of pain we feel and when we feel it is oftentimes not within our control. Locke’s answer relies on what has come to be known as the “doctrine of suspension”.

Having argued that uneasiness, rather than perception of the greater good, is what determines the will, Locke turns to the question of which of all the uneasinesses that beset us “has the precedency in determining the will to the next action”. His answer:

that ordinarily, which is the most pressing of those [uneasinesses], that are judged capable of being then removed. (E2–5 II.xxi.40: 257)

Locke therefore assumes that uneasinesses can be ranked in order of intensity or strength, and that among all the uneasinesses importuning an agent, the one that ordinarily determines her will is the one that exerts the greatest pressure on her mind. The picture with which Locke appears to be working is of a mind that is the playground of various forces of varying strengths exerting different degrees of influence on the will, where the will is determined by the strongest of those forces.

Notice, however, Locke’s use of the word “ordinarily”. Sometimes, as Locke emphasizes, the will is not determined by the most pressing uneasiness:

For the mind having in most cases, as is evident in Experience, a power to suspend the execution and satisfaction of any of its desires, and so all, one after another, is at liberty to consider the objects of them; examine them on all sides, and weigh them with others. (E2–5 II.xxi.47: 263)

This is the doctrine of suspension. On this view, we agents have the “power to suspend any particular desire, and keep it from determining the will , and engaging us in action” (E2–5 II.xxi.50: 266). As Locke makes clear, this power to prevent the will’s determination, that is, this power to avoid willing, is absent when the action proposed is to be done presently and involves the continuation or stopping of a process in which one is currently engaged (see Section 6 above). But when it comes to “chusing a remote [i.e., future] Good as an end to be pursued”, agents are “at Liberty in respect of willing ” (E5 II.xxi.56: 270). [ 7 ]

Some commentators (e.g., Chappell 1994: 118) think that, at least in E5, Locke comes to see that the doctrine of suspension conflicts with his answer to the question of whether we are free to will what we will (raised in II.xxi.25). This is because they take Locke’s answer to the latter question to be negative, and take the doctrine of suspension to entail a positive answer to the same question, at least with respect to some actions. But there are good reasons to think that there is no inconsistency here: for Locke’s answer to the II.xxi.25 question is arguably in the affirmative (see Section 7 above). [ 8 ]

Commentators also wonder whether the doctrine of suspension introduces an account of freedom that differs from Locke’s official account, both in E1 and in E2–5. The problem is that Locke says that “in [the power to suspend the prosecution of one’s desires] lies the liberty Man has”, that the power to suspend is “the source of all liberty” (E2–5 II.xxi.47: 263), that it is “the hinge on which turns the liberty of intellectual Beings” (E2–5 II.xxi.52: 266), and that it is “the great inlet, and exercise of all the liberty Men have, are capable of, or can be useful to them” (E2–5 II.xxi.52: 267). These passages suggest that Locke takes freedom to be (something intimately related to) the power to suspend our desires, a power that cannot simply be identified with the two-way power that Locke identifies with freedom of action at II.xxi.8 ff. (see Yaffe 2000: 12–74).

But there is a simple interpretation of these passages that does not require us to read Locke as offering a different account of freedom as the ability to suspend. The power to suspend is the power to keep one’s will from being determined, that is, the power to forbear willing to do A if one wills to forbear willing to do A . This is just one part of the freedom to will to do A , according to Locke’s definition of freedom of action applied to the action of willing to do A . (The other part is the power to will to do A if one wills to will to do A .) Thus if, as Locke seems to argue in II.xxi.23–24, we are (except under very unusual circumstances) free with respect to the act of willing with respect to a future course of action, then it follows immediately that we have the power to suspend. Locke’s claims about the power to suspend being the source of all liberty and the hinge on which liberty turns can be understood as claims that the power to suspend is a particularly important aspect of freedom of action as applied to the action of willing. What makes it important is the fact that it is the misuse of this freedom that accounts for our responsibility for actions that conduce to our own unhappiness or misery.

How so? Locke claims that the power of suspension was given to us (by God) for a reason, so that we might “examine, view, and judge, of the good or evil of what we are going to do” (E2–5 II.xxi.47: 263) in order to discover

whether that particular thing, which is then proposed, or desired, lie in the way to [our] main end, and make a real part of that which is [our] greatest good. (E2–5 II.xxi.52: 267)

When we make the kinds of mistakes for which we deserve punishment, such as falling into gluttony or envy or selfishness, it is not because we have, after deliberation and investigation, perhaps through no fault of our own, acquired a mistaken view of the facts; it is because we engage in “a too hasty compliance with our desires” (E2–5 II.xxi.53: 268) and fail to “hinder blind Precipitancy” (E2–5 II.xxi.67: 279). What matters is not that we have failed to will the forbearing to will to go to the movies or clean the fridge. What matters is that we have failed to will the forbearing to prosecute our most pressing desires, allowing ourselves to be guided by uneasinesses that might, for all we know, lead us to evil. If we have the power to suspend the prosecution of our desires (including our most pressing desire), then we misuse it when we do not exercise it (or when we fail to exercise it when its exercise is called for). So, not only is Locke’s doctrine of suspension consistent with his account of the freedom to will, it also provides part of the answer to Molyneux’s worry:

And here we may see how it comes to pass, that a Man may justly incur punishment…: Because, by a too hasty choice of his own making, he has imposed on himself wrong measures of good and evil…He has vitiated his own Palate, and must be answerable to himself for the sickness and death that follows from it. (E2–5 II.xxi.56: 270–271) [ 9 ]

Compatibilism is the thesis that free will is compatible with causal determinism, and incompatibilism is the thesis that free will is incompatible with causal determinism. Is Locke a compatibilist or an incompatibilist?

The fact that Locke thinks that freedom of action is compatible with the will’s being determined by uneasiness might immediately suggest that Locke is a compatibilist. But, as we have seen ( Section 8 above), it is illegitimate to infer compatibility with causal determinism from compatibility with determination of the will by uneasiness. Still, the evidence strongly suggests that Locke would have embraced compatibilism, if the issue had been put to him directly. Freedom of action, on Locke’s account, is a matter of being able to do what one wills and being able to forbear what one wills to forbear. Although we sometimes act under necessity (compulsion or restraint—E1–5 II.xxi.13: 240), the mere fact (if it is a fact) that our actions are determined by the laws of nature and antecedent events does not threaten our freedom with respect to their performance. As Locke makes clear, if the door to my room is unlocked, I am free with respect to the act of leaving the room, because I have the ability to stay or leave as I will. It is only when the door is locked, or when I am chained, or when my path is blocked, or something else deprives me of the ability to stay or leave, that I am unfree with respect to the act of leaving. Determinism by itself represents no threat to our freedom of action. In this respect, Locke is a forerunner of many other compatibilist theories of freedom, including, for example, those of G.E. Moore (1912) and A.J. Ayer (1954). (For a contrary view, see Schouls 1992: 121. And for a response to Schouls 1992, see Davidson 2003: 213 ff.)

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• Locke: Ethics entry in the Internet Encyclopedia of Philosophy , by Julie Walsh.

agency | Collins, Anthony | compatibilism | determinism: causal | euthanasia: voluntary | free will | Hobbes, Thomas | Hume, David: on free will | incompatibilism: (nondeterministic) theories of free will | Locke, John | Locke, John: moral philosophy | Masham, Lady Damaris

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American History for Truthdiggers: Liberty vs. Order (1796-1800)

Editor’s note: The past is prologue. The stories we tell about ourselves and our forebears inform the sort of country we think we are and help determine public policy. As our current president promises to “Make America great again,” this moment is an appropriate time to reconsider our past, look back at various eras of United States history and re-evaluate America’s origins. When, exactly, were we “great”?

Below is the 10th installment of the “American History for Truthdiggers” series, a pull-no-punches appraisal of our shared, if flawed, past. The author of the series, Danny Sjursen, an active-duty major in the U.S. Army, served military tours in Iraq and Afghanistan and taught the nation’s checkered, often inspiring past when he was an assistant professor of history at West Point. His war experiences, his scholarship, his skill as a writer and his patriotism illuminate these Truthdig posts.

Part 10 of “American History for Truthdiggers.” / See: Part 1 ; Part 2 ; Part 3 ; Part 4 ; Part 5 ; Part 6 ; Part 7 ; Part 8 ; Part 9 .

“Liberty, once lost, is lost forever.” —John Adams in a letter to his wife, Abigail (1775)

“[A social division exists] between the rich and the poor, the laborious and the idle, the learned and the ignorant. … Nothing, but force, and power and strength can restrain [the latter].” —John Adams in a letter to Thomas Jefferson (1787)

Two quotes from the same person. Barely a decade between the two utterances. How can a man be so conflicted? John Adams, who helped lead the revolution against British “tyranny,” would later become a president apt to suppress dissent and restrict a free press at home. Well, Adams was a complicated man, and the United States was—and is—a complicated nation.

As John Adams succeeded the quintessential American hero, George Washington, becoming the second president of the United States, division pervaded the land and a debate raged in both the public and private space: Shall we have liberty or order? Could a people expect a measure of both?

Adams, though an early patriot leader and the nation’s first vice president, had neither the notoriety nor the unifying potential of a George Washington. And he knew it. Ill-tempered, insecure and highly sensitive, Adams appeared unsuited for the difficult task at hand. The body politic was fracturing into opposing factions—his own Federalists and the Jeffersonian Republicans—while the country itself was swept to the brink of war, first with Britain and then with revolutionary France.

Looking back, the ending seems preordained: Of course the republic could never have failed, we are prone to believe. Only this was far from a certainty, and the outcome was a near-run thing. America nearly came apart in the crisis of 1798-99.

Divided at the Onset: Republicans, Federalists and Conspiracies Against Liberty

Even a quick glance at the electoral map from 1796 demonstrates not only how close was the contest, but how divided were the various regions. Indeed, even in this first truly contested election (Washington’s two terms seemed predestined) one notes an emerging sectional division between a Federalist North and a Republican South. Remember that this was an era in which most Northern states had begun to phase out slavery, whereas the South developed an increasingly slave-dependent society. The Federalists dominated in the North, especially along the coast. John Adams was a Massachusetts man, Jefferson a Virginia planter. The division is striking—as though the next century’s Civil War was fated from the start. It wasn’t, of course; nothing truly is, but no doubt the seeds were there at the onset.

The North, in addition to having a smaller enslaved population, was highly commercial and increasingly urbanized. The South remained an agrarian slave society. Still, slavery was not the main division in the second half of the 1790s. Liberty itself was the defining concern—liberty’s exact contours and the limits of dissent.

Not that the election of 1796 bore much resemblance to our modern contests. Both candidates stayed home, neither actively campaigned and each left it to friends, allies and sympathetic newspapermen to make their respective cases. Nonetheless, Adams and Jefferson—once and future friends—epitomized exceedingly divergent governing philosophies.

Adams lacked the vigor and extremist positions of some Federalists (notably Alexander Hamilton) but believed fervently in the need for a strong, central government to calm and control the tempers of the states and the public alike. Once an ambassador in London, he tended to favor the British in their ongoing worldwide war with France.

Jefferson, conversely, distrusted centralized power and never overcame his youthful revolutionary hatred for all things British. It was Jefferson, recall, who remarked during Shays’ Rebellion in Massachusetts that “a little rebellion” now and again was “a good thing.” He had been ambassador to Paris and remained faithful in his support of revolutionary France.

So divided were the American people over this ongoing, destructive war in Europe that ardent Republicans took to wearing liberty caps—stocking-like headgear favored by French republicans—and French-style tricolor cockades on their hats. Federalists, usually sympathetic to the former mother country, responded in kind by adopting a black  cockade with a white button to differentiate themselves from the Francophile Republicans. Attire as much as ideology, it seemed, divided Americans into two camps.

And, in a system that may seem farcical to modern readers, Jefferson—who was narrowly defeated—would therefore become Adams’ vice president . Imagine Hilary Clinton (“Lock her up!”) serving beside President Trump. The expectation in the day was that country would—for good gentlemen, at least—precede party loyalties. That assumption was wrong more often than not.  Indeed, until the later adoption of the 12th Amendment, the Constitution stipulated that the second highest vote-getter would serve as vice president.

The political culture, too, was absurdly different from our own day. Personal honor was a deadly serious matter, and dueling (sometimes, though rarely, to the death) constituted an elaborate political ritual to protect reputations. Fistfights broke out on the floor of Congress. It all made sense in an odd way. In the tumultuous 1790s, neither side saw the opposition as possessing a credible dissent. Rather, the fight appeared existential —with the other side representing a threat to liberty or order itself! Federalists used the once pejorative (but gradually more acceptable) term “democrat” to describe their unseemly, anarchic Republican foes. To Jefferson’s Republicans, Adams and his ilk were not “federal” in any sense of the word; rather, they were monarchists, aristocrats even, and the enemies of liberty!

Such was the volatile setting when outright war with France nearly broke out.

The First War on Terror: Immigration, Sedition and the ‘ Quasi-War’

“The time is now come when it will be proper to declare that nothing but birth shall entitle a man to citizenship in this country.” — Federalist Congressman Robert Goodloe Harper

“[The Alien Act] is a most detestable thing … worthy of the 8 th or 9 th century … dangerous to the peace and safety of the United States.” —Vice President Thomas Jefferson (1798)

Imagine a nation at “war” with a revolutionary ideology. Not a full-fledged, declared war, but a seemingly endless conflict against an amorphous entity thought to imperil the very fiber of the republic. Fear abounds—fear of foreigners, of subversives within. Elected leaders begin to restrict immigration, to deport aliens and to police the untrustworthy media. Nothing short of avid patriotism is acceptable in the midst of the ongoing crisis. Americans are at each other’s throats.

The time I’m describing has long since passed, two centuries in the rearview mirror, long before anyone heard the name Donald Trump. Still, the comparison—and the alarmism of our present—is instructive.

In 1798, revolutionary France—to which Americans arguably owed their independence—and the United States were brought to the verge of war. The French seized U.S. ships en route on the high seas to trade with Britain, still a top commercial partner for American merchants. When President Adams sent envoys to discuss the matter, they were belittled and dictated to by three French agents. The agents were later described by the envoys as Mr. X, Y and Z, and each had demanded humiliating apologies and bribes as a precondition to even begin negotiations. Adams recalled his envoys, and the American people seethed with anger. The bribery demand was particularly galling, and one American envoy, according to a later newspaper account, declared that the U.S. would spend “millions for defense, but not one cent for tribute!”

The Federalists felt vindicated. Indeed, the party would win elections up and down the Atlantic Coast in this period. Alarmist factions within the Federalist ranks began to question the very patriotism and loyalty of the “ fifth column ” of Republicans. Riots broke out in Philadelphia between pro-French and pro-British factions, and Republican newspaper editors were attacked. Conspiracy theories and exaggeration of threats abounded. As tensions rose, President Adams called for a day of prayer and fasting as a show of national unity. One particularly onerous rumor spread during the fast: Republican insurgents, so said the scare-mongers, planned to burn the U.S. capital. 

As the war drums beat, Adams asked Congress to sanction a Quasi-War with France, what Adams called “the half war,” and indeed the resolution passed. Merchant ships were armed and the military budget soared, though hysteria spread faster than actual combat at sea. Hard-line Federalists feared civil war and seemed to spy treasonous French agents around every corner. Nativism and fear pervaded the land. It is likely to be so during a war scare.

What followed was a veritable constitutional crisis—perhaps this nation’s first. Fear of foreign French intriguers, and their Irish allies, expanded like wildfire. In response, Congress first passed the Naturalization Act, which extended the wait before applying for citizenship from five to 14 years. Then, the Alien “Friends Act” gave the president the extraordinary power to expel, without due process, any alien he judged “dangerous to peace and safety.” It must be said that no aliens were actually expelled by Adams, but the accumulation of so much discretion and power in the executive branch terrified Republicans.

Even more worrisome were the subsequent attacks on the “disloyal” press—meaning Republican or non-Federalist newspapers. This was a remarkable power to grant the federal government, seeing as newspapers were the central medium of communication and the glue that held together partisan factions of the day. The actual text of the Sedition Act, read today, is chilling. The legislation declared it a crime to:

Write, print, utter or publish … any false, scandalous, and malicious writings against the Government of the United States, or either House of the Congress of the United States, with the intent to defame the said government, or either House of Congress, or the President, or to bring them … into contempt or disrepute, or to excite against them … the hatred of the good people of the United States.

How could it be, the modern reader might ask, that an elected body could so restrict the beloved freedom of the press less than two decades after a revolution was waged in defiance of tyranny? And, indeed, the vote on the matter was highly contested and narrow: 44-41 in the House of Representatives.

Vice President Jefferson, a fierce opponent of the bill, no doubt took notice that the defamation of the vice president was conspicuously absent from the text of the Sedition Act. He saw the bill for what it was: a thinly veiled “suppression of the Whig [Republican] presses.” What, after all, many Republicans asked, had we just fought a war for , if not for freedom of speech and of the press?

This time, unlike in the Alien Act, the legislation was quickly put to use by Federalist courts. Twenty-five people were arrested, 17 indicted and 10 convicted (some jailed). Most were neither spies nor traitors, but rather Republican-sympathizing newspapermen. The government even arrested Benjamin Franklin Bache (grandson of the esteemed Founder), who died of yellow fever before his trial. The Sedition Act expired at the end of Adams’ administration, but its specifics were not declared unconstitutional until a case was brought forward by The New York Times in the 1960s !

This was politics, not national security, and the Republicans knew it. Some of those jailed styled themselves martyrs of liberty. One, Matthew Lyons, successfully ran for Congress from within his prison cell. Partisan loyalties had divided an administration and brought the nation to verge of civil war.

Seeds of Secession: Jefferson, Madison and the Virginia/Kentucky Resolutions

“A little patience, and we shall see the reign of witches pass over, their spells dissolve, and the people, recovering their true sight, restore the government to its true principles.” —Vice President Thomas Jefferson referring to the Sedition Act in a letter to John Taylor (1798)

The beleaguered Republicans would not go down without a fight. Despite the suppression of the press, the actual number of Republican-leaning newspapers exploded. And, though the resurgent Federalists controlled the Congress in Philadelphia, prominent Republicans turned to the state legislatures to oppose the Alien and Sedition Acts . As the tensions rose, so did the rhetoric. Many opponents of the bills took to referring to the federal government as a “foreign jurisdiction.” This is not dissimilar to the language employed today by some libertarian ranchers in the American West and some militiamen.

Jefferson himself believed that the federal government—of which he was vice president!—had become “more arbitrary, and [had] swallowed more of the public liberty than even that of England.” James Madison, an old and true Jefferson ally, left retirement and entered the Virginia Legislature. Now, Jefferson the disgruntled vice president and Madison the lowly state representative set to work making the case for the unconstitutionality of the Alien and Sedition Acts.

They did not, interestingly, turn to the federal courts. These they saw as Federalist-dominated, and besides, the modern conception of judicial review was not yet established. Instead, in a far more devious, though potentially problematic way, Madison and Jefferson drafted state “resolutions” for Kentucky and Virginia, which made the extraordinary claim that state governments could rightfully declare federal legislation they deemed unconstitutional to be “void and of no force.” Essentially, states could nullify federal law because, as the asserted, the Constitution was but a “compact” between the many states.

Kentucky and Virginia urged the other states to pass similar resolutions, though none saw fit to do so. Still, this was a remarkable moment that set a dangerous precedent. Imagine Vice President Pence secretly drafting an Indiana resolution that declared a prominent piece of President Trump’s agenda to be null and void! Furthermore, unfortunately, Jefferson’s and Madison’s attempts to protect civil liberties blazed a perilous path. The concept of nullification and, finally, of Southern secession would spring from the same lines of argument the two esteemed Founders set forth in the Virginia and Kentucky Resolutions. Civil war, of course, was the unforeseen result.

Good Men, Bad Politicians: John Adams and the Peace That Ended a Presidency

“Armies, and debts, and taxes are the known instruments for bringing the many under the domination of the few.” — James Madison (1795)

In addition to legislation meant to ensure “order,” Adams and the Federalists actively prepared the nation for war. Adams, for one, was doubtful that France could or would ever invade, but he preferred that the nation be prepared. Other ultra-Feds, like Hamilton, saw opportunities for the power and expansion of the federal government during the war scare.

More naval funding was authorized in one year than in all previous congresses to date. And, ultimately, a country that had once vehemently opposed standing armies now raised a “New Army,” 12,000 men  strong. Pushing for this rapid expansion was Alexander Hamilton, who more than any other Founder desired a European-style fiscal-military state. In fact, Hamilton wanted to lead said army, though he settled for second-in-command to the largely ceremonial leadership of George Washington (again called out of retirement).

War hysteria quickly got out of hand. Republicans feared, not without some merit, that the true purpose of this “New Army” was to suppress the political opposition. Indeed, most of the officers appointed to the new force were of Federalist leaning. But Hamilton had even more grandiose notions than domestic oppression. He saw opportunities aplenty in the case of a war he seems to have truly desired. War with France, he argued, would allow the seizure of Louisiana, Florida and maybe even distant Venezuela from France and Spain!

President Adams, though, had far more common sense, and retained enough of the revolutionary “spirit of ’76,” to deny Hamilton the supreme command and the empire that the man so desired. “Never in my life,” Adams later recalled, “did I hear a man [Hamilton] talk more like a fool.” In a letter to a colleague, Adams went so far as to declare Hamilton “the greatest intriguant in the World—a man devoid of every moral principle—a Bastard.”

George Washington, too, quickly lost interest in the military expansion and soon returned to Mount Vernon, and eventually tensions and the war scare eased. But the main catalyst for peace was President Adams himself. Adams retained some of his fear of standing armies, loathed Hamilton and knew war was the last thing the new nation needed.

Thus, without consulting his Cabinet and in opposition to his own party agenda, Adams sent a peace mission to France. This action cooled the Quasi-War and averted a civil crisis. It was not, however, a prudent political move. The actions of Adams inadvertently divided his once ascendant Federalist Party just before the election of 1800—when he would again face off against his vice president, Jefferson.

A (flawed) patriot more than a politician, Adams dismissed the Hamiltonians in his Cabinet and secured the Treaty of Mortefontaine, bringing to an end the Quasi-War with France. Unfortunately for Adams the paltry politician, word of this diplomatic coup did not reach American shores until he had been defeated in the 1800 balloting.

Liberty or Order: The Eternal Debate

“The Federalists of the 1790s stood in the way of popular democracy as it was emerging in the United States, and thus they became heretics opposed to the developing democratic faith.” —Historian Gordon Wood (2009)

It never ends, the debate. Even now, it is as though Adams and Jefferson were still alive, battling for the possession of our American souls. The relevant issues from the 1790s are as plentiful as they are astounding. So many of the questions of yesteryear are precisely those that Americans grapple with in 2018.

How free should the press be? What constitutes libel? How should government treat leakers (think Snowden or Manning) and whistleblowers? And what of immigration? Are foreigners a threat to the body politic? Do we need a “big, beautiful” wall? Should some migrants (i.e. Swedes) be more welcome than others (Arabs or Muslims)?

The Patriot Act, warrantless surveillance, torture, race, ethnicity, the bounds of protest (see the NFL-kneeling dispute ), the “crooked” media, drones, Guantanamo, the scope of federal and executive power. It’s all there, isn’t it? Adams and Jefferson, if suddenly brought back to life in today’s United States, would not be able to fathom an iPhone but would no doubt be ready to weigh in on debates regarding searches and seizures of those devices. On one level we’ve come so far, on another … not so much.

The common denominator in all of this seems to be war—war or the fear provoked by war and the threat of it. It matters not whether the U.S. wages a Quasi-War with France on the high seas or fights a shapeless enemy like “terror” across the Greater Middle East. The questions remain, the passions flare. We divide into camps, armed—sometimes literally—and oriented on our domestic enemies. Today’s “liberals” are not seen as misguided although valued countrymen but as traitorous weaklings ready to sell out America. “Conservatives” aren’t folks standing for time-tested values but instead are fascist authoritarians bent on tyranny.

It all seems so far off the rails. And it is dangerous.

Through modern eyes, we are apt to see this division as a unique and exceptional feature of contemporary politics. But, oh no, it was always thus.

To learn more about this topic, consider the following scholarly works:

James West Davidson, Brian DeLay, Christine Leigh Heyrman, Mark H. Lytle and Michael B. Stoff, “Experience History: Interpreting America’s Past,” Chapter 9: “The Early Republic, 1789-1824” (2011).

Gordon Wood, “The Significance of the Early Republic,” Journal of the Early Republic 8, No. 1 (Spring 1988).

Gordon Wood, “Empire of Liberty: A History of the Early Republic, 1789-1815” (2009).

Maj. Danny Sjursen, a regular contributor to Truthdig, is a U.S. Army officer and former history instructor at West Point. He served tours with reconnaissance units in Iraq and Afghanistan. He has written a memoir and critical analysis of the Iraq War, “ Ghost Riders of Baghdad : Soldiers, Civilians, and the Myth of the Surge.” He lives with his wife and four sons in Lawrence, Kan. Follow him on Twitter at @SkepticalVet and check out his new podcast, “ Fortress on a Hill ,” co-hosted with fellow vet Chris “Henri” Henrikson.

The views expressed in this article are those of the author, expressed in an unofficial capacity, and do not reflect the official policy or position of the Department of the Army, Department of Defense, or the U.S. government.

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Classic Kirk: a curated selection of Russell Kirk’s perennial essays

Russell Kirk wrote that every nation has an idea or mission, and that for America it is the reconciling of liberty with law. In the following essay, he observes that, “No commonwealth ever has attained perfect order, justice, and freedom for everybody, and the Framers did not expect to achieve perfection of human nature or government. Yet they did expect ‘to form a more perfect union’ and to exceed other nations of their time, and of earlier eras, in establishing a good political order.”

Kirk proposes four characteristics to assess the soundness of any constitution — written or unwritten — and specifically explores why the U.S. Constitution has succeeded, making an argument that the Constitution functions as a conservative framework for the Republic. 

Conserving Order, Justice, and Freedom

This essay originated as a lecture at the Heritage Foundation in 1987 and was later published in a collection titled Rights and Duties ( Spence Publishing Company, 1997).

I N THE SPRING OF 1789, with the inauguration of President Washington and Vice President Adams, the federal government commenced to function under the Constitution of the United States. That Constitution had been designed by its Framers, in 1787, to conserve the order and the justice and the freedom to which Americans had grown accustomed. And most of the time, during the two centuries since George Washington took his oath of office, the Constitution has succeeded as a restraint upon arbitrary power, rash innovation, and what Tocqueville called “the tyranny of the majority.” In short, the American nation has prospered under a conservative constitution.

First, some words of definition. What is meant by this term con­stitution? In politics, constitution signifies a system of fundamental institutions and principles, a body of basic laws, for the governing of a commonwealth. It is a design for permanent political order.

Every society develops a constitution of some sort. For without a regular pattern of basic law, a people could not live together in peace. Lacking a tolerable constitution, they never would know personal safety or protection of their property or the love of neighbor. Even savage tribes may be said to be governed by simple constitutions, expressed in custom and convention.

The Constitution of the United States was and is rooted in the experience and the thought of earlier times—which is a major reason why the American Constitution has not perished or been supplanted by some different political system. No civilization could survive for a great while if somehow its political constitution should be swept away and no tolerable new constitution substituted. Deeply rooted, like some immense tree, the American Constitution grew out of a century and a half of civil social order in North America and more than seven centuries of British experience.

The general public thinks of a constitution as a written document. But actually constitutions may be wholly or partially unwritten—that is, not comprehended in a single document, but instead made up of old customs, conventions, charters, statutes, and habits of thought. The British Constitution, ill understood by most Americans, is the principal surviving example of this sort. And even the Constitution of the United States is not wholly set down on paper.

For it has been said that every country possesses two constitutions, existing side by side, yet distinct. One of those two is the formal written constitution of modern times; the other constitution is the old “unwrit­ten” one of political compromises, conventions, habits, and ways of living together that have developed among a people over the centuries. Thus, for instance, certain important features of America’s national political structure are not even mentioned in our written Constitution. What does the written Constitution of the United States say about political parties? Nothing; yet political parties direct the course of our national affairs. What does our written Constitution say about the president’s cabinet, with its secretaries of state, treasury, agriculture, defense, education, and the like? Next to nothing; yet the executive branch of the federal government could not function without that cabinet. What does our Constitution say about presidential primary elections, nowadays the principal means for nominating candidates for the presidential office? Nothing whatsoever; yet the primaries have quite supplanted the method of selecting presidents intended by the Constitution’s Framers.

The aim of a good constitution is to achieve in a society a high degree of political harmony, so that order and justice and freedom may be maintained. No commonwealth ever has attained perfect order, justice, and freedom for everybody, and the Framers did not expect to achieve perfection of human nature or government. Yet they did expect “to form a more perfect union” and to exceed other nations of their time, and of earlier eras, in establishing a good political order.

Over the centuries, political constitutions have come into existence in a variety of ways. They may be decreed by a king or an emperor; they may be proclaimed by some conqueror or tyrant; they may be given to a people by religious prophets, as Moses gave laws to the wandering Israelites; they may be designed by a single wise man, as Solon gave the Athenians a new constitution early in the sixth century before Christ; they may grow out of the decisions of judges and popular custom, as did the English common law; they may be agreed upon by a convention. Those constitutions which have been accepted willingly by the leaders of a people generally have been the constitutions that have endured for a tolerable length of time.

But humankind being restless and quarrelsome, and because for the past three centuries the conditions of society have altered mightily in many countries, few constitutions have lasted a great many years. Nearly all the national constitutions that were promulgated in Europe after the First World War had collapsed by the end of the Second World War, if not earlier; most of the new constitutions proclaimed in Europe, Asia, and Africa not long after the Second World War already have been tossed aside or else do not really function. The elaborate constitution of the old Soviet Union was ignored in practice from the time it was drawn up.

For it has been said that every country possesses two constitutions, existing side by side, yet distinct. One of those two is the formal written constitution of modern times; the other constitution is the old “unwrit­ten” one of political compromises, conventions, habits, and ways of living together that have developed among a people over the centuries.

Of those constitutions which have endured for some generations or some centuries—the British Constitution being the most venerable of these—all have changed somewhat with the passage of time, neces­sarily. Yet enduring constitutions contain provisions and assumptions which are permanent, preserving a society’s continuity through many generations. The spirit of such a constitution resists the tooth of time. Such has been the Constitution of the United States.

So much by way of succinct definitions. We turn to the question of the Constitution’s conservatism.

In the sense that all constitutions are formed with the purpose of maintaining some sort of political order—or at least in that pretense— all constitutions are conservative. But the Constitution of the United States, over two centuries old, is especially and deliberately conservative of a social inheritance. This truth has been commented upon by several eminent observers from abroad.

Less than half a century after the Constitutional Convention of 1787, Alexis de Tocqueville described the United States Constitution as a work of political wisdom uniquely successful in maintaining in a healthy tension the claims of central authority and the claims of state and local freedom. He found in the Constitution restraints upon the egalitarian impulse, helping to preserve America from what he called “democratic despotism.” In his lengthy analysis of the Constitution’s articles, Tocqueville indeed points to several grave flaws, especially the possibility of presidential re-elections, with consequent dangers. But in general Tocqueville heartily approves the Constitution as a strong means for maintaining liberty under law—a device very different from the several French constitutions that had arisen and fallen in his own lifetime.

Throughout the first half of the nineteenth century, European and British observers often remarked with a degree of wonder the stability of the Americans’ constitutional structure, in contrast with the upheavals of 1830 and 1848 in Europe, and even in Britain the violence that preceded the Reform Bill of 1832 and the Chartist riots. But the approbation had some strong exceptions, notably that of Thomas Babington Macaulay. In 1857, old Lord Macaulay wrote to Henry S. Randall, the American biographer of Thomas Jefferson, that Jeffer­sonianism would bring about the ruin of the American Republic. The paper Constitution would be of no avail in an hour of social crisis. America, unlike Britain, having no ruling class of educated and propertied gentlemen accustomed to command and to restrain popular appetites, had no body of customs and usages that could allay popular discontent. This passage from Macaulay’s letter is well known:

It is quite plain that your government will never be able to restrain a distressed and discontented majority. For with you the majority is the government, and has the rich, who are always a minority, absolutely at its mercy. The day will come when, in the State of New York, a multitude of people, none of whom has had more than half a breakfast, or expects to have more than half a dinner, will choose a Legislature. Is it possible to doubt what sort of a Legislature will be chosen? On one side is a statesman preaching patience, respect for vested rights, strict observance of public faith. On the other is a demagogue ranting about the tyranny of capi­talists and usurers, and asking why anybody should be permitted to drink Champagne and to ride in a carriage, while thousands of honest folk are in want of necessities. Which of the two candi­dates is likely to be preferred by a working man who hears his children cry for more bread? I seriously apprehend that you will, in some such season of adversity as I have described, do things which will prevent prosperity from returning; that you will act like people who should in a year of scarcity, devour all the seed corn, and thus make the next year, not of scarcity, but of absolute famine. There will be, I fear, spoliation. The spoliation will increase the distress. The distress will produce fresh spoliation. There is nothing to stop you. Your Constitution is all sail and no anchor. As I said before, when a society has entered on this downward progress, either civilization or liberty must perish. Either some Caesar or Napoleon will seize the reins of government with a strong hand, or your republic will be as fearfully plundered and laid waste by barbarians in the twentieth century as the Roman Empire was in the fifth—with this difference, that the Huns and Vandals who ravaged the Roman Empire came from without, and that your Huns and Vandals will have been engendered within your own country by your own institutions. 1

What Macaulay predicted has not yet come to pass—although we have now in America a genuine proletariat of the sort Macaulay dreaded, though that proletariat as yet is a minority in any state. Is the American Constitution indeed “all sail and no anchor”? Four years after Macaulay wrote to Randall, the Union fell apart and the Constitu­tion, in effect, was suspended for four years. Yet whatever the weak­nesses of the Constitution, and by whatever favorable circumstances it has been assisted, still it has endured as a conservative power when every other country’s written constitution has been discarded or else revised out of recognition. It has been altered far less, over the gen­erations, than has the British Constitution. Much that Macaulay thought essential to the Constitution of England has been effaced. While the American Constitution, despite its Reconstruction Amend­ments, despite grand changes by decisions of the Supreme Court, remains long after Macaulay’s warning a barrier to radical alteration of American society.

By 1885, when Sir Henry Maine published Popular Government, it had become clear enough that the Constitution of the United States was more of a conservative power than the British Constitution had become. The august historical jurist allotted a fourth of his book to an examination of the American Constitution, and as Sir Ernest Barker remarked half a century later, for Maine it was ex America lux.

In Britain, by 1885, thoughtful men had taken alarm at the dis­semination of socialist ideas. The total exclusion of king or queen from politics, the diminishing of the authority of the House of Lords, the admitting to the franchise of most workingmen, the fact (first made plain by Walter Bagehot) that in effect Britain was now governed by a committee of the House of Commons called the cabinet—these and other large alterations in the old British Constitution had opened the way for the radical egalitarians. Separation of powers no longer pre­vailed in Britain: the House of Commons was supreme, judicial restraint upon Parliament never had existed, and altogether the British Con­stitution in the closing decades of the nineteenth century had lost many of the features that Montesquieu had praised at the middle of the eighteenth century.

“The Federal Constitution has survived the mockery of itself in France and in Spanish America,” Maine wrote. The American Con­stitution’s success, he went on, has been “great and striking.” 2 Especially Maine emphasized the conservative function of the Supreme Court, the indirect creation of Montesquieu, but also founded in part on English methods of adjudication.

Constitutional protections of property and contract, reinforced by Supreme Court rulings, are praised by Maine:

I have seen the rule which denies to the several States the power to make any laws impairing the obligations of contracts criticized as if it were a mere politico-economical flourish, but in point of fact there is no more important provision in the whole Con­stitution. Its principle was much extended by a decision of the Supreme Court [Dartmouth College v. Woodward, 1819] which ought now to interest a large number of Englishmen, since it is the basis of the credit of many of the great American Railway Incorporations. But it is this prohibition which in reality secured full play to the economical forces by which the achievement of cultivating the soil of the North American Continent has been performed; it is the bulwark of American individualism against democratic impatience and Socialistic fantasy. 3

Maine’s analysis of the root assumptions behind the American Constitution, and of the British origins of American constitutionalism, are as valid today as they were in 1885, three years before Maine’s death. No one ever understood The Federalist better than did Maine; and no writer better explains the Constitution’s conservative functions. His concluding sentences must suffice us here:

When the American Constitution was framed, there was no such sacredness to be expected for it as before 1789 was supposed to attach to all parts of the British Constitution. There was every prospect of political mobility, if not of political disorder. The signal success of the Constitution of the United States in stem­ming these tendencies is, no doubt, owing in part to the great portion of the British institutions which were preserved in it; but it is also attributable to the sagacity with which the American statesmen filled up the interstices left by the inapplicability of certain of the then existing British institutions to the emancipated colonies. This sagacity stands out in every part of The Federalist, and it may be tracked in every page of subsequent American history. 4

Three years after the publication of Popular Government, James Bryce, British ambassador to the United States from 1907 to 1913, brought out the first edition of his famous two volumes entitled The American Commonwealth, which were to pass through many editions and printings. In Bryce’s chapters one encounters the fullest recogni­tion of the conservative character of the American Constitution. The passages I shall quote here are from the edition of 1919.

Bryce describes two general types of constitutions, the “Flexible” and the “Rigid.” England’s constitution is flexible: “The Constitution of England is constantly changing, for as the legislature, in the ordinary exercise of its powers, frequently passes enactments which affect the methods of government and the political rights of the citizens, there is no certainty that what is called the Constitution will stand the same at the end of a given session of Parliament as it stood at the beginning.” 5 As Bryce points out, the first statesman clearly to understand this point was James Wilson, one of the principal framers of the Constitution of the United States. During the Pennsylvania debates on ratification of the Constitution drawn up in 1787, Wilson emphasized that the British Constitution existed wholly at the will of Parliament:

The idea of a constitution limiting and superintending the operations of legislative authority, seems not to have been accurately understood in Britain. There are at least no traces of practice conformable to such a principle. The British Constitution is just what the British Parliament pleases. When the Parliament transferred legislative authority to Henry VIII, the act transferring could not, in the strict acceptation of the term, be called unconstitutional. To control the powers and conduct of the legislature by an overruling constitution was an improvement in the science and practice of government reserved to the American States. 6

In a public lecture at the University of St. Andrews in Scotland, comparing the British and the American constitutions, I touched upon this somewhat perilous flexibility of positive law in the United King­dom: even the greatest statutes and charters would not be proof against a radical and reckless majority in the House of Commons today. I found that my British auditors were painfully aware, most of them, of this clear and present danger to the British Constitution. The shift of fifty or sixty seats in a general election might conceivably bring about “nationalization” of the land, abolition of the famous boarding schools, and the ruin of the British economy, not to mention other permanent damage to the rule of law in Britain.

But let us turn from the flexible constitution of Britain to the rigid constitution of the United States—for so Bryce styles the American Constitution, declaring that “As the English Constitution is the best modern instance of the flexible type, so is the American of the rigid type.” 7   In countries with rigid constitutions, Bryce tells us,

the laws and rules which prescribe the nature, powers, and functions of the government are contained in a document or documents emanating from an authority superior to that of the legislature. This authority may be a monarch who has octroyé a charter alterable by himself only. Or it may be the whole people voting at the polls; or it may be a special assembly, or combination of assemblies, appointed ad hoc. In any case we find in such countries a law or group of laws distinguished from other laws not merely by the character of their contents, but by the source whence they spring and by the force they exert, a force which overrides and breaks all conflicting enactments passed by the ordinary legislature. 8

Even a rigid constitution, Bryce remarks, must undergo gradual alteration. In his words, “No constitution can be made to stand un­susceptible of change, because if it were, it would cease to be suitable to the conditions amid which it has to work, that is, to the actual forces which sway politics. And being unsuitable, it would be weak, not rooted in the nature of the State and in the respect of the citizens for whom it exists; and being weak, it would presently be overthrown.” 9

The Constitution of the United States, however, remained suitable in 1914—and, one may add, remains suitable today—because it has changed and developed in response to national necessities.

Bryce lists three ways in which such change has occurred: formal amendment, interpretation, and usage. Altogether, he calculates, the constitutional changes which occurred in the United States between 1789 and 1914 were far smaller than those which the British Constitution underwent during the same century and a quarter. As he puts it, “So far, therefore, the Rigid Constitution has maintained a sort of equi­librium between the various powers, whereas that which was then supposed to exist in England between the king, the peers, the House of Commons, and the people (i.e., the electors) has vanished irrecover­ably.” 10

Bryce recognizes certain weaknesses, or potential weaknesses, in the American Constitution, reminding his readers that “To expect any form of words, however weightily conceived, with whatever sanctions enacted, permanently to restrain the passions and interests of men is to expect the impossible. Beyond a certain point, you cannot protect the people against themselves any more than you can, to use a familiar American expression, lift yourself from the ground by your own bootstraps.” 11 But he concludes his lengthy examination of the Ameri­can national government with hearty and specific praise of the conserva­tive character of the Constitution of the United States, the more noteworthy because Bryce was a pillar of British Liberalism:

Nevertheless the rigid Constitution of the United States has rendered, and renders now, inestimable services. It opposes ob­stacles to rash and hasty change. It secures time for deliberation. It forces the people to think seriously before they alter it or pardon a transgression of it. It makes legislatures and statesmen slow to overpass their legal powers, slow even to propose measures which the Constitution seems to disapprove. It tends to render the inevitable process of modification gradual and tentative, the result of admitted and growing necessities rather than of restless im­patience. It altogether prevents some changes which a temporary majority may clamour for, but which will have ceased to be demanded before the barriers interposed by the Constitution have been overcome.

It does still more than this. It forms the mind and temper of the people. It strengthens their conservative instincts, their sense of the value of stability and permanence in political arrangements. It trains them to habits of legality as the law of the twelve tables trained the minds of the educated Romans. It makes them feel that to comprehend their supreme instrument of government is a personal duty, incumbent on each one of them. It familiarizes them with, it attaches them by ties of pride and reverence to, those fundamental truths on which the Constitution is based. 12

Bryce’s sentences form a fitting conclusion to my remarks on the analysis of the American Constitution by observers from abroad. One might easily extend the citing from other visitors to the American Republic down to the present year.

TOCQUEVILLE, MAINE, AND BRYCE concluded that the Constitution of the United States was sound—and unique. Discernment of the con­servative virtues of the United States Constitution does not mean that America’s fundamental law may be transplanted readily to other lands: attempts at that generally have failed. As Tocqueville pointed out forcefully, the American constitution is the product of American mores, convictions, customs, and previous political experience; it was formed out of peculiar American circumstances; other democracies could not well adopt it. As Daniel Boorstin put this point more than forty years ago, “The Constitution of the United States is not for export.” 13 Nev­ertheless, in both Democratic and Republican national administrations, the Department of State and major media of opinion have behaved as if the troubled states of Asia, Africa, and Latin America, not to mention Europe, could readily frame constitutions very like that of the United States. Doubtless it would be well for “emergent nations” to take heed of the conservative spirit of the American Constitution. Yet it is not possible for the politicians of very different cultures to emulate thor­oughly the American framework of institutions, for their circumstances and necessities are very different from ours. Even if they were so to copy the details of the American Constitution, that house of cards would fall to its ruin within a few years, at most.

On what principles, then, may a constitution be assessed for sound­ness? Aside from the general object of protecting order, justice, and freedom, one may set down, I think, four primary characteristics of a desirable constitution.

First, a good constitution should provide for stability and continuity in the governing of a country. The subjects or citizens of a political state should be assured by their constitution that the administration of the laws and of major public policies will not change abruptly from one year to the next. What was lawful yesterday should not arbitrarily be declared unlawful tomorrow without formal and prudent amend­ment of the constitution. The people must be able to live their lives in the confidence that if they obey certain rules, they will not be made to suffer. Such a constitution encourages the growth of economic pros­perity, among other benefits. When a country’s constitution does not provide a reasonable degree of political stability and continuity; no man or woman may make major decisions without fear of unhappy consequences—as in the Soviet Union under Stalin or in Germany under Hitler.

Second, a good constitution should divide political power among different branches of government and should restrain government from assuming powers that belong to other social organizations, social classes, or individuals. A wise constitution may allocate certain powers to a central government and other powers to regional or local governments; or it may assign certain functions and prerogatives to each of the major branches of government—the executive, the legislative, the judicial. Certainly a prudent constitution will provide safeguards against arbi­trary and unjust actions by persons who hold power temporarily.

Third, a good constitution should establish a permanent arrange­ment by which holders of political authority are representative of the people they govern. To put this another way, under a constitutional order the people ought not to be ruled by a group or class of persons quite different from themselves, who do not at least have the best interests of the majority of the people at heart. This does not necessarily mean that a constitutional government has to be democratic, and still less that it necessarily must provide for one man, one vote. There have been decent constitutional systems, in various times and lands, that were monarchical, or aristocratic, or formed without popular elections. What matters is that the persons who make public decisions and hold political authority should represent the general public interest and usually be accepted by most of the people of a country.

Fourth, a good constitution should hold accountable the persons who govern a state or a country. That is, a governing class or body of public officials should be held responsible, under the constitution, for their actions while in public office, and should give an account of their performance when they leave office. Under a truly constitutional gov­ernment, no man or woman can be permitted to exercise arbitrary power—that is, to do much as he likes, without regard for laws or popular rights. All officials must be accountable to regular authorities­ to courts of law, to some representative or legislative body, to the voting public at election time, to fiscal inspectors, to such devices as impeach­ment and recall, to some other group or organization competent to judge of performance in office and, if need be, to remove even very powerful persons from office or to punish them for abuse of power or misuse of public funds.

Tocqueville, Maine, Bryce, and other European or British political critics found in the Constitution of the United States the four virtues discussed above. They discerned that the American Constitution was no declaration of abstractions, but instead a practical instrument for governance.

A sound national constitution does not lay down some system of theology or moral philosophy, even though certain constitutions drawn up since the French Revolution have been attempts to do precisely that. A constitution is a design for government, a general plan for the political order of a state. A constitution—that is, a good constitution—distinctly is not a treatise on political and economic and moral theory. Any constitution, or its framers, may be influenced by religious belief or philosophical principles, of course; yet the chief practical purpose of a political constitution ought not to be confused with the imparting of a religion or a philosophy. Although in every era the moral order of a culture affects the political order, it does not follow that preaching a moral creed in the constitution would be an effective method for improving public morality.

Thus the Constitution of the United States was adjudged sound in what it refrained from attempting, as well as praiseworthy in its conformity to the general principles of constitutional purpose. But in what sense was that Constitution unique?

The really distinctive feature of the Constitution was and is the Supreme Court, intended to be a conservative tribunal. Without the justices of the Supreme Court, Tocqueville found,

the Constitution would be a dead letter; it is to them that the executive appeals to resist the encroachments of the legislative body, the legislature to defend itself against the assaults of the executive, the Union to make the states obey it, public interest against private interest, the spirit of conservation against demo­cratic instability … The President may slip without the state suffering, for his duties are limited. Congress may slip without the Union perishing, for above Congress there is the electoral body which can change its spirit by changing the members….

But if ever the Supreme Court came to be composed of rash or corrupt men, the confederation would be threatened by anarchy or civil war . 14

Tocqueville goes on to emphasize the need for a strong and independent Supreme Court—a court of broad scope, the powers of which, if abused, must be highly dangerous. That peril, indeed, has come to pass during the latter half of the twentieth century, with the Court’s abandoning of Justice Frankfurter’s doctrine of judicial self-restraint, and its assumption of jurisdiction over matters formerly regarded as “political.”

To sum up this first chapter, whatever may be said for certain Supreme Court decisions since the Second World War, the Constitution continues to function today as a conservative framework for the Republic. The British Constitution now lies at the mercy of any majority in the House of Commons; and the British population, still a “deferential people” when Walter Bagehot wrote his famous book on the British Constitution, are by no means so attached nowadays to custom and convention as they then were.

Today, no other written constitution is very old, and few can be expected to endure very long. All constitutions drawn up in recent years pretend to be democratic, but some of them are whited sepulchres. Certain constitutions are mostly ideological pronunciamentos, full of sound and fury, signifying nothing; others are lengthy and tedious administrative documents, expressing in fundamental law what ought to be left to statute and administrative rules. Yet others are mere political facades, ignored in practice, all power actually being exercised by a ferocious party or a set of squalid oligarchs. What reasonable constitu­tions survive to our time are rooted, most of them, in the British con­stitutional experience—as is the Constitution of the United States.

The Framers of 1787, and President Washington in 1789, did not employ the word conservative to describe the Constitution they had shaped. That word did not become a term of politics until the first decade of the nineteenth century and was not much employed in North America until the 1840s. Nevertheless, the Constitution’s purpose was thoroughly conservative, and the succeeding chapters of this book are intended to make clear certain aspects of that conservative character.

• See H. M. Lydenberg, ed., What Did Macaulay Say about America ? (New York: New York Public Library, 1925). 
• Henry Maine, Popular Government (Indianapolis: Liberty Classics, 1976), p. 204. 
• Ibid, pp. 242-43.
• Ibid, pp. 253-54. 
• James Bryce, The American Commonwealth , new edition, vol. I (New York, Macmillan, 1919), p. 361. 
• James Wilson, quoted in Bryce, p. 361, n.
• Bryce, p. 362.
• Ibid., p. 361.
• Ibid., p. 362. 
• Ibid, p. 403. 
• Ibid, p. 407. 
• Ibid, p. 407-8.
• Daniel Boorstin, The Genius of American Politics (Chicago: University of Chicago Press, 1953), pp. 185-87. 
• Alexis de Tocqueville, Democracy in America , ed. J. P. Mayer (Garden City, N.J.: Doubleday, 1969), pp. 150-51. 

Copyright © The Russell Kirk Legacy, LLC

This is the seventh part in a series discussing the principles of the American founding, their embodiment in the United States Constitution, and the ways in which the Supreme Court has all too often negated these principles to the detriment of individual liberty. This article explores liberty vs. security.

Benjamin Franklin once famously remarked that “[t]hose who would give up essential liberty, to purchase a little temporary safety, deserve neither liberty nor safety.” Franklin understood the importance of the realities around liberty vs. security, and his words proved to be prescient. Many of the great struggles in American history have centered on the inherent tension between the security of the collective and the liberties due to each individual by virtue of God, nature, or through the operation of law. We can observe this strained relationship in real time. Whether it is the constitutionally questionable warrantless wiretapping in the wake of the September 11 terror attacks, controversial police shootings , or the current debate over the Second Amendment, the debate over liberty and security rages on. But despite these modern controversies, we can all agree that it would be patently unconstitutional for the U.S. government to imprison tens of thousands of Americans without charge based on nothing more than generalized fear and the color of the their skin. Right?

Not according to Franklin Delano Roosevelt.

Despite the manipulation of modern high school and college history textbooks, FDR was quite possibly the most constitutionally destructive president in American history (besides the topic of this blog post, you can, in addition to many others, see here , here , and here ). Empowered by Congress in the wake of the surprise attack by Japan on the U.S. base at Pearl Harbor in 1941, Roosevelt ordered the forced removal and imprisonment of over one hundred thousand men, women, and children of Asian ancestry. Sixty two percent of these luckless souls were  American citizens . Locked into barracks behind barbed wire fences, stripped of their possessions and property, and left to rot for the duration of World War II. And why did Roosevelt take this obviously unconstitutional action? For no other reason than that they were of Asian descent in the wake of a Japanese attack. Contrary to ad hoc rationalizations, there existed no actionable intelligence that any person of Asian ancestry posed any more danger to the U.S government, military, or citizenry, than you or me.

But Roosevelt ordered them imprisoned without charge or due process anyway.

But Fred Korematsu would not so easily be made a prisoner. Surgically modifying his face and changing his name in an attempt to avoid detection, Korematsu was eventually forced into hiding, after which he was quickly identified (as Japanese) and arrested. Korematsu felt, in line with what the Fifth Amendment requires, that “people should have a fair trial and a chance to defend their loyalty at court in a democratic way, because in this situation, people were placed in imprisonment without any fair trial.” Represented by the ACLU, Korematsu challenged his detention all the way to the Supreme Court. And did the High Court declare FDR’s obviously unconstitutional actions as such?

In one of the worst Supreme Court decisions in American history, the Court held that Korematsu’s (and the tens of thousands of other Asian prisoners) rights could be constitutionally sacrificed to FDR’s executive wartime powers. Even though, as previously discussed , the Court should have been required to apply the strictest constitutional scrutiny because the internment orders were based on race, the Court refused to do so. The Court even went so far as to deny that race was the motivating factor behind the orders, avoiding their constitutional duty as the primary protector of individual rights , writing: “Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire…because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily, and, finally, because Congress, reposing its confidence in this time of war in our military leaders—as inevitably it must—determined that they should have the power to do just this.” But Congress and the President do not get to decide which powers they should or should not have. Their power flows only from what is allowed or denied them by the Constitution . No more, no less. Thomas Jefferson once wrote : “In questions of power, let no more be heard of confidence in man, but bind him down from mischief by the chains of the constitution.” Government power as reflected in  Korematsu does not reflect this limited standard. Not only was Korematsu  one of the worst decisions in the history of the Supreme Court (and has never been explicitly overturned), but sanctioned one of the most shameful abuses of unconstitutional power in all of American history.

Thomas Jefferson also once wrote that he “would rather be exposed to the inconveniences attending too much liberty than those attending too small a degree of it.” I agree. When it comes to the question of liberty vs. security, contrary to the views of some in our society who would sacrifice our most essential liberties to secure some small promise of increased security, I think tolerating some insecurity may be the cost of living in a free society. Liberty, once lost, is rarely regained.

Part 1: Government is not the source of our rights

Part 2: Government power must be limited

Part 3: Individual rights trump government power

Part 4: Judges should do their jobs

Part 5: All rights were created equal

Part 6: All men are created equal

Part 7: Liberty vs. Security: Liberty is more important than security

Part 8: Absolute government power corrupts absolutely 

Part 9: The greatest threat to liberty

Part 10: The solution to unconstitutional government: Fight Back

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Liberty and Equality Today

When the delegates to the Constitution Convention were preparing to sign the new Constitution, Benjamin Franklin gave a speech to say why his fellow delegates should sign the Constitution. Franklin admitted that it was not a perfect document, and that he had his doubts about some parts of it. Nevertheless, he believed that it was a great framework of government that would protect the liberties of the people and was the best that could be obtained considering that they were fallible men. He and the other Framers affixed their signatures to the great document of freedom because of the promise it had to create a lasting republic on free principles.

It was a unique moment in world history that a scattered and diverse people in America could stop at a critical period to deliberate over a whole new government and the founding of a nation on a core set of principles. The promise of America in the vision of the Founders was that of liberty and equality in the Declaration of Independence and Constitution. The natural rights republic new concept was grounded upon principles that did not change with the passing of time or the changes in culture.  This novus ordo seclorum —“new order for the ages”—was not created for a particular race, privileged aristocratic social class, or member of an established religion, but for all equally.

With all of the promise of these enduring principles, America was a nation in which African-Americans suffered the horrors of slavery, women could not vote, and Native Americans were roundly denied almost any rights.

James Madison wrote in Federalist No. 51 that, “Justice is the end of government. It is the end of civil society. It ever has been, and ever will be, pursued, until it be obtained” (James Madison, Federalist No. 51 , 1788).

However, these groups were not living under a just government that protected their rights or fulfilled the purposes for which it was created. But, were the principles of natural justice themselves flawed, or were they applied by fallible men?

For nearly two hundred years, African-Americans, women, Native Americans, and other groups have fought to win equal rights by arguing that America should live up to these ideals.  They wanted the same right to participate equally in the American political system as citizens and enjoy the “American Dream.” They could have rejected that society and its principles for discriminating against them for so long. They could have worked outside the system for radical change or worked to destroy the system as has been done in other countries throughout modern history. However, they consistently appealed to the same principles that animated the Founders in creating the Declaration of Independence and Constitution, and used their right of free speech and freedom of assembly to argue for nothing less than full participation in American society and enjoyment of their equal rights as citizens and humans endowed with inalienable rights.

Even after the many successes the movements for liberty and equality achieved, the debate continued. Today, debates over gay marriage, affirmative action, and economic justice, and the role of the government in resolving these disputes, are still highly contentious. The debates often revolve around different views of what rights are embedded in the natural law as opposed to what might be just commonly held ideas by the majority. At other times, justice can be interpreted as individual conscience applied to society. Is this how the Founders understood natural law or justice? Of course, in any issue, there are contending sides who believe that they are arguing according to a principle. This is why free and open discourse employing reason must guide deliberation in a self-governing society and why reason must trump mere ideology.

Another change in recent American thinking about issues of diversity, equality, and liberty is a redefinition of idea of equality. The Founding vision equality of opportunity, where all have the same chance to employ their talents and merits, in American politics, economy, and society has been supplanted by an advocacy of an equality of outcomes.

Some believe that equal opportunity is often not enough because there are still those who are more successful than others and thus unequal. All people must be made equal by a government which regulates society and reverses centuries of discrimination by granting special favors to certain groups such as women, African-Americans, and Native Americans. Is this a proper understanding of equality? Does this create a more just society? Are certain groups entitled to special protections and favors by the government? Our republic and its free enterprise economy was founded upon the idea of equality under the law in which all had the same opportunity to pursue their happiness.

America has always been and continues to be a diverse country. One question that will confront all Americans is how to ensure that every citizen, regardless of skin color, sex, or religion, will enjoy the liberty and equality that the country was founded upon. Another question is whether Americans will continue to agree upon the fundamental principles upon which the country was founded and the meaning of those principles or whether we will be fragmented into groups with a narrow perspective and only look out for our own interests. The perennial challenge of liberty and equality are how to unite the goals of freedom and the common good.

What was so exceptional about the American Founding was that the nation offered an experiment for mankind in liberty and equality.

The Founders did not merely attack monarchy and aristocracy but looked to build a lasting republic on the principles best suited to human nature. They were not merely locked in their time and place in the eighteenth century but were far-seeing statesmen and lawgivers who framed an enduring Constitution for a lasting republic. Rather than evolving or changing with the times, the Constitution had immutable principles that would allow Americans to govern themselves down through the ages. It did not matter for the Founders what the diverse character of the citizenry was, but rather than they embraced the universal principles upon which America was founded.

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cruises from nyc to miami

The 5 best boats for traveling from new york to miami.

September 26, 2022

This article may contain affiliate links where we earn a commission from qualifying purchases.

‍ Are you looking for a boat for a New York-Miami trip? Look no further. In this article, we’ll review the 5 best boats for traveling from New York to Miami.

Which is the best boat for traveling from New York to Miami? Which type of boat should you buy for a sailing trip from New York to Miami? What should you consider when buying a boat for traveling from New York to Miami?

The best boats for traveling from New York to Miami are Corbin 39, Hallberg-Rassy 42F, Tayana Vancouver 42, Nordic 40 and Jeanneau Sun Odyssey 49. All these boats are adequately provisioned, spacious and sturdy enough to handle the long-distance trip from New York to Miami.

In this guide, we will take you through the best boats for traveling from New York to Miami. We will also walk you through some factors to consider when buying a boat for long-distance trips. So, if you are planning a boating trip from New York to Miami and you are confused as to which boat you should buy, then the answers are right here.

Our goal is to furnish our readers with accurate, relevant, helpful, and trustworthy information. And we have a robust editorial team in place, comprising renowned journalists and various industry experts, to help us meet this important goal. So, you can always trust us as a source of credible, reliable and up-to-date information.

Table of contents

Traveling from New York to Miami via sea is approximately 1,100 miles. And when it comes to sailing on the sea, especially over such long distances, you just can’t use any boat. You will need a water vessel that’s properly equipped and large enough, to navigate such conditions safely.

And this begs the question, which is the best boat for traveling from New York to Miami? Well, there are several options to consider, if you are planning to go from New York to Miami via boat.

The Best Boats for Traveling from New York to Miami

As mentioned above, there are several boat options to consider, if you are looking for one that you can use to travel from New York to Miami. The choice will vary from one person to the next, since people have different preferences. With that said, here are some of the best boats for traveling from New York to Miami.

The Corbin 39 is a stylish but yet highly functional boat. Also, it’s also a highly rare boat. Only a few of these boats were completely finished at the factory. Most of the others were sold as kits and then rebuilt by their owners. And this may explain why you will come across different interiors of these boats.

As you may expect, each interior is a reflection of the owner’s preferences, craftsmanship and creativity. So, if you decide to purchase this boat for your sailing trip, you should ensure you take a proper look throughout its interior to determine whether it aligns with your preferences. However, there are not many differences for the exterior, since the hull was sold as one piece.

With that said, the Corbin 39 is quite a spacious boat, making it ideal for long distance voyages. It can comfortably accommodate several passengers, making it a great choice for someone looking to sail with their friends and family.

It’s also one of the safest boats especially for sailing open waters.  Even if you happen to encounter rough sea conditions during your trip, you can expect this boat to keep you dry and comfortable. And while this boat is quite old, it remains highly dependable. It’s without a doubt, one of the best boats for traveling to Miami from New York.

Hallberg-Rassy 42F

The Hallberg-Rassy 42F is renowned for its outstanding sturdiness and top-notch build quality. Its design is highly efficient, meaning there’s almost no wasted space. And this means that this boat is specifically built with functionality in mind. Its exterior design is simple and efficient.

Its below-deck layout also follows the same efficient design. Everything has been positioned conveniently and strategically, making this boat easy to use. Also, its interior features high-quality materials. It also comes with several luxuries and provisions, designed to make your trip as comfortable as possible.

Also, this boat tracks extremely well. It’s highly stable and has a comfortable motion. It will make you safe and secure, regardless of where you are or the weather conditions that you will encounter during your voyage. Hence, it’s a great boat for those long distance trips in the sea, such as cruising from New York to Miami.

If you are looking for a no-frills but highly dependable boat for traveling from New York to Miami, then you should check out the Hallberg-Rassy 42F. While it may not be as stylish as some of the other boats out there, it’s built to get the job done. And, it doesn’t disappoint in this aspect.

Tayana Vancouver 42

The Tayana Vancouver 42 was birthed out of a collaboration between the renowned designed Robert Harris and Taiwanese boat making experts Ta Yang. It was one of the Vancouver series boats, with the others being Vancouver 27 and Vancouver 36. It features solid teak joinery and a canoe stern. The boat is 42 feet long, making it a practical, off-shore cruising boat.

The Tayana Vancouver 42 is available in three deck configurations. There’s a center cockpit version, a conventional aft cockpit as well as a pilothouse aft cockpit. Most of the boats that have been sold feature an aft cockpit followed by those with a center cockpit. Regardless of the configuration you choose, the Vancouver 42’s interior is exceptionally refined.

Most versions feature teat decks while its hull is made of solid fiberglass. Therefore, you can expect it to withstand almost anything that you come across during your cruising expedition. It can comfortably handle heavy weather, rough waters, and serious winds, thus keeping you on track. Also, you can expect this boat to keep you dry and comfortable.

As for the cost, you can expect to spend between $80,000 and $100,000 to get yourself this boat, depending on the age. But, you can get one at a much cheaper cost, especially the older ones. However, you must be ready to do some repairs if you decide to purchase one of the much older ones.

If you are in the market for a stable, dependable and highly versatile boat that you can use for traveling from New York to Miami, then you should check out the Nordic 40. As its name suggests, the Nordic 40 is a 40-foot boat, built for long distance trips and water adventures.

Considering its size versus its price, you can clearly see that you are getting value for your money. It’s not easy to come across a sailing boat this big at this price range. So, if you will be traveling with a large group, then the Nordic 40 will be the ideal choice for your expedition.

As highlighted earlier, when you are buying a boat for long distance trips, you need to ensure you get one that’s strong and sturdy. Fortunately, this is the case with the Nordic 40. It’s strong and sturdy. But at the same time, it’s nimble and lightweight. Hence, it’s capable of sailing fast and agilely when the conditions are friendly. On the other hand, it can also tough it out comfortably, if you happen to encounter severe conditions out there.

Besides its high reliability, this boat is also quite comfortable. It comes with adequate living and storage spaces. It also features a spacious shower, plenty of counter space, a huge refrigerator as well as spacious sleeping quarters. With the Nordic 40, you are getting a boat that’s not only good for sailing but also great for living in.

Jeanneau Sun Odyssey 49

If your budget can allow, then you should consider buying this boat. It’s a bit more expensive than most of the others in this list. But, you will get value for every dollar you spend on this boat. It’s large, luxurious and highly functional. It’s an extremely great boat for long distance cruises.

The Jeanneau Sun Odyssey 49 features a large cockpit with great, all-round performance. It’s one of those sailboats that can accomplish almost anything. One of its standout features is the dedicated sail lock, positioned in the bow. This dedicated sail lock is designed to provide a convenient and easy means of adjusting the height of the sale.

This boat also offers several options below deck. Its cabin features a twin aft design. However, you have the option of removing the bulkhead, thus transforming it into one large cabin. It also comes with a great navigation station below deck, which is a great feature. Its interior has several luxurious features and the space is more than adequate.

Considerations When Choosing a Boat for Traveling from New York to Miami

As mentioned earlier, sailing from New York to Miami is approximately 1,100 miles. So, when it comes to choosing a boat for this trip, you will need one that can comfortably handle long distances. Also, such a boat will need to meet various other key factors, to be considered a good fit for this trip. With that said, here are some factors to consider when choosing a boat for traveling from New York to Miami.

As you may expect, you are likely going to encounter dangerous waters and rough seas when you are sailing for several days in the open waters. And if your boat is not stable enough, then your safety will be at risk. With that in mind, you need to make sure you choose a boat that’s stable enough, to handle choppy waters.

A reliable method of assessing a boat’s stability is checking its hull type and width. If a particular boat has multiple hulls or has a wide hull, then it’s highly likely that it will be stable, and it can handle rough waters.

You can expect to be out there in the sea for a couple of days during your trip from New York to Miami. Consequently, you will need a boat large enough to accommodate all the supplies that you will need for all the days you will be out there. Ideally, the boat should be spacious both on the deck and in the cabin. The size you choose will also depend on the number of people you intend to bring along during your trip.

Besides having enough sleeping quarters for everyone, the boat should also be spacious enough for everyone to move around. You may sometimes find yourself in a situation where you will be forced to spend several days inside the boat due to bad weather. And if the boat is cramped, then the experience will be an unpleasant one.

Strength is also an important factor to consider when choosing a boat for your long distance trip. A boat with a strong, sturdy hull will endure rough conditions better, compared to one with a weaker hull.

Also, you will be much safer riding in a boat with a stronger hull. If possible, you should opt for a boat with metal reinforcing around the hull. While it may cost you more, the chances of returning home in one piece are much higher, compared to going on a trip with one that’s not reinforced.

Besides the hull, you should also pay close attention to other components of the boat such as the hull. The boat you choose for your trip should also have a sturdy mast. If the mast is weak, then there’s a possibility of the sail coming down. And once the sail comes down, there’s a possibility the boat will capsize, putting everyone at risk.

When it choosing a boat for your trip from New York to Miami, you need to choose one that you can comfortably navigate. When you are out there in the water, everything can possibly go wrong.

And if you are not well versed with the boat you are cruising with, the chances of making out alive will be slim. So, make sure you choose a boat that you can handle without issues. It will also be advisable to have someone extra on board who has voyaging experience.

Wrapping It Up

With the tips and recommendations we’ve provided in this guide, we hope that you will find the right boat, which you can use for your sailing trip from New York to Miami. Ultimately, the one that you choose will depend on your budget, your sailing experience as well as your preferences.

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About THE AUTHOR

Brian Samson

I have a deep love of houseboating and the life-changing experiences houseboating has brought into my life. I’ve been going to Lake Powell on our family’s houseboat for over 30 years and have made many great memories, first as a child and now as a parent. My family has a passion for helping others have similar fun, safe experiences on their houseboat.

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