Conservatives often refer to the American War of Independence as a revolution prevented, not made. This characterization generally is made in the context of arguments over human rights. Conservatives reject the ideological vision of the American cause as one tied to abstract, revolutionary notions of universal rights. Instead, conservatives point out that Americans both saw and presented themselves as defending “the rights of Englishmen” long recognized in the North American colonies against the encroachments and usurpations of an overreaching Parliament.
It would be unfortunate were observers to miss in this argument its roots in a deeper, more systemic understanding of political rights. The crucial underlying right Americans sought to protect during the Revolution was that of self-government. Often misconstrued as the stirrings of a nascent nationalism, the American attachment to self-government was bound up with older understandings of the requirements for virtue and ordered liberty. In both theory and practice Americans were adherents of an instinctive federalism, in which more primary local communities joined to form wider associations created for limited common ends.
A host of historians and contemporaneous observers have recognized the imperial context of the Revolution. Edmund Burke, both founder of modern conservatism and defender of American rights, put the blame for the conflict squarely on Parliament. He did so on account of that body’s rejection of its earlier understanding that the colonists should be left to govern (and tax) themselves whenever not in conflict with the laws and policies of the mother country. Misled by an over-attachment to its own sovereign power, Parliament had disturbed the equilibrium of the British Empire by seeking to govern directly where indirect influence was not merely prudent but necessary, given its status as a longstanding, prescriptive right. In Burke’s view, Parliament should be sovereign in name but in practice should exercise its power only when absolutely necessary, in the breach and not in the setting or unsettling of local policy. Actions like passage of the Stamp Act unnecessarily disturbed federal equilibrium and should be withdrawn.
Burke’s vision of the empire, and of the American colonies within it, was much in accord with that of the Americans, even as they became reluctant “revolutionaries.” Even the most cursory look at the Declaration of Independence, for example, shows Americans’ concern over the usurpation by Parliament (and especially King) over the legislatures and courts of the various colonies. From the dismissal of colonial legislatures to the suspension of inherited rights of due process, the British government had infringed upon Americans’ settled ways in determining their own policies within the imperial structure.
The American attachment to self-government was no new fancy in 1776. Nor was it the mere product of imperial policy. It was, rather, a deeply ingrained way of ordering public and even social and private life. From the earliest days of colonization (and before) the settlers of the British colonies in the New World had relied on local associations for their defense and well-being. One of the earliest colonial governing instruments, the Fundamental Orders of Connecticut, is, in fact, the founding document of a local federation; through it communities in the then-separate colonies of Connecticut and New Haven joined together for their mutual defense. The Fundamental Orders was the natural outgrowth of a way of approaching public life going back for generations and served as the charter and constitution of the colony and state until 1816.
The Fundamental Orders of Connecticut was merely a most political expression of a general approach to life among the largely Calvinist population of New England. This population prioritized local community action and saw larger groups as derivative of smaller, more local ones. Thus, for example, early Massachusetts laws provided for churches to name representatives to wider assemblies for determining appropriate doctrines and customs, all the while guarding the rights of each church to deal with its own members as it deemed appropriate within the law. Family and especially church were considered fundamental ordering units of public life and private character, such that larger associations, being more distant, also were more derivative in their authority and limited in their legitimate power.
Perhaps the most important document for understanding the grounds of American federalism is the Mayflower Compact. Through this political and religious instrument Puritans about to land in the New World bound themselves together into a civil body politic. They agreed to abide by the laws and institutions that the community would find appropriate and needful for the society they recognized as growing out of their common bond of religious purpose and common living. Society arose from the close relations of common worship and living; only from there did political authority arise.
The Mayflower Compact, too, was rooted in earlier practices. For back in England many of these same settlers had lived in communities formed by church covenants. Dissenting believers had formalized their community relations to help them lead lives separate from the surrounding people, including the hostile Anglican establishment, and to forge a common, godly way of life. The result was localist, but not mere localism in the sense of intentional, let alone hostile, isolationism. Isolation was a fact of life for Dissenters in England and during the early decades of the American colonies. Yet communities often sought to connect with one another, to cooperate, and to form useful alliances.
American colonial communities cooperated more as the opportunity arose, solidifying colonial governments. But even within these colonies there remained a federative habit of mind and action. Law in particular was seen as rooted in custom, hence intrinsically local. Law reports and even political tracts reference “the common law” of specific counties within particular colonies. This is why the joining together of colonists opposing parliamentary actions during the War of Independence was so unusual and so limited in its perceived legitimacy. Self-government was recognized as integral to decent communities, virtuous persons, and political liberty. It was worth fighting for and so would not be given up lightly, or to any greater extent than necessary to achieve limited, common goods.
There are, of course, even deeper roots to the federative impulse in both human nature and political practice. In political thought one might reference the Calvinist thinker Johannes Althusius and even Aristotle. It was Aristotle who insisted on the distinction between the political reality of small, tribal communities like Athens and the mere alliances existing in larger, imperial entities like Babylon. For Americans, however, the source of federation was in their traditions, in their beliefs, and, figuratively speaking, in their bones.
Bruce P. Frohnen is Professor of Law at the Ohio Northern University Pettit College of Law.