Legislative Powers & Limitations | Principles of the Constitution
Author: John Paynter
Of all John Adams’ published writings, two works provide an especially fruitful resource for an inquiry into his deepest political reflection…
Today’s offering in our Timeless Essay series affords readers the opportunity to join John Paynter as he unlocks the key to understanding John Adams’ political principles, including those concerning liberty. —W. Winston Elliott III, Publisher
As a political writer, John Adams is most remembered today for the constitutional prescriptions by which he helped to solidify the American Revolution. His Thoughts on Government was widely circulated in 1776 and helped hasten and shape the formation of independent states out of former British colonies. His Report of a Constitution… for the Commonwealth of Massachusetts was adopted with few changes, by that state, in 1780 and became the model for movements toward constitutional revision in other states. Both writings—the first in outline and the second in detail—indicate Adams’ view of the arrangement of political power which would best secure liberty. Neither work, however, elaborates Adams’ understanding of why a certain arrangement of power is necessary to the securing of liberty. To uncover this reasoning, the student of Adams’ thought must turn to his last published and least studied writings, the three-volume Defence of American Constitutions and one volume of Discourses on Davila. In these works, which Adams later grouped together as his “four volumes of ‘Defence and Discourses on Davila,’” he set before his audience “fairly, fully and impartially” the true principles of republican government as he had come to understand them from careful study of “human nature, society, and universal history.” The Defence and Davila are concerned less with detailed prescription than with a “rational theory” of republican politics out of which prescriptions can be drawn. Of all of Adams’ published writings, then, these last works provide an especially fruitful resource for an inquiry into his deepest political reflection.Advertisement
The nascent order of the Defence and Davila can be grasped most readily by reflecting on Adams’ immediate purpose in these books. The particular occasion which spurred both works was the attack on American constitutions launched by French encyclopedists and economists, and especially by Ann Robert Jacques Turgot and Marquis de Condorcet. Adams wrote to defend those American constitutions which most nearly embodied right principles of political construction. Turgot and Condorcet had argued that free government is possible only when the English model of balanced government is eschewed and all political authority is collected in a unicameral representative assembly; they had denied that distinct social orders exist naturally and that any effective government must involve some mixture of social orders. Adams countered by showing his readers that free government will endure only when political power is constituted as a “triple equipoise”; free government must consist of three equal, independent branches exactly balanced against one another, and those branches must correspond to social distinctions which arise naturally among men. The dispute between Adams and the French party thus proceeded on the basis of a basic agreement: all antagonists were friends of liberty; all agreed that free government is the only legitimate government. But the partisans of liberty disagreed on how best to secure liberty; they disputed the form of government best adapted to their shared purpose. As Adams put the dispute in a 1790 letter to his cousin, Samuel, the antagonists agreed on the principles of liberty but disagreed on the principles of political architecture. It is not surprising, then, that principles of liberty were taken up in the Defence and Davila only as a subordinate theme and occasionally; Adams considered them only when the means of government required illumination from the ends. His major subject in the two works was political architecture and especially its principles.Advertisement
The rod which allows the reader to divine the order of the Defence and Davila is provided by Adams’ intention to elaborate the subject of political architecture in terms of principles. Adams wanted to show his readers the “rational theory” of political construction rather than simply to indicate “the imperfection of M. Turgot’s idea” of all authority in one center. This latter, narrower, and merely polemical purpose he could easily have achieved, he said, by recording the disastrous consequences for freedom which have invariably followed from actual efforts to collect all political authority into a unicameral representative assembly. But the historical analysis which would have disproved his French antagonists could not have established the necessity of three political orders and a balance between them. To accomplish this positive purpose of showing his readers the true and only reliable principles of political architecture, Adams had to engage in a more ambitious investigation: He had to take “the most extensive views of men and societies.” For Adams, an extensive view entailed an examination of all “writers of reputation” in the art of political construction and of the most celebrated actual political structures, “whether they remain entire or in ruins.” Adams’ intention was to see “how far both the theories and the [actual] models were founded in nature or created infancy.” Only when he had shown that the triple equipoise is the one republican form solidly founded in nature, not “fancy,” would he have adequately accomplished his larger task of setting forth invariable laws of political construction.Advertisement
The Defence and Davila proceed in two ways to discover which political arrangements are “founded in nature.” The two ways are separable but ultimately compatible. In fact, the distinction between the two methods indicates the major difference between the two works; the relation between the methods indicates the deepest unity of the books. In both ways, Adams proceeded as a modern scientist: He attempted to discern the invariable operation of efficient causes and their effects. For nearly all of the Defence, he examined political constitutions as proximate causes. He hoped to show that all governments which have lacked a perfect balance among three orders have resulted in either tyranny or anarchy, while all governments which have achieved such a balance have preserved the principles of liberty for their people. Adams’ review of constitutions showed to his satisfaction the dangerous effects of all unbalanced or imperfectly balanced governments. Moreover, he saw the historic short-lived triumphs of liberty as having occurred in many cases because of a government’s approximation of balance. But his search for unequivocal positive evidence on the side of the triple equipoise encountered a difficulty: Only one government outside the United States had reduced the requirements of balance to practice and that government could not stand as conclusive evidence for Adams’ position. The government of England had embodied all of the components of a free constitution for fewer than two hundred years; it therefore could not be used to demonstrate the power of balance to preserve liberty for “thousands of years.” Moreover, aside from the recently created American constitutions, England stood alone in its commitment to balance; it therefore did not provide Adams with the comparative material needed to separate reliably the effects of political form from the effects of peculiarly English circumstances. The first way of demonstrating the principles of political architecture was consequently useful but insufficient for Adams’ highest aim. Adams’ other way of assessing the utility of various constitutions for liberty was to discover the human “elements” on which any political form must work in order to endure. He likened the systems of legislators to “philosophers making experiments on the elements;” systems of government are “experiments” made on Adams’ other way of assessing the utility of various constitutions for liberty was to discover the human “elements” on which any political form must work in order to endure. He likened the systems of legislators to “philosophers making experiments on the elements”; systems of government are “experiments made on human life and manners.” Accordingly, history can be read for what it reveals not only about political constitutions as proximate causes, but also about human nature as a cause. The best historians help their readers “unravel the secret springs” of human action; they disclose the operation of those passions which move men in all times and places. Once identified and measured in terms of their natural tendency, these springs of action comprise a standard by which to predict the efficacy of any political proposal. For this reason, the most decisive inquiry for a science of political architecture concerns the question of “what kind of beings men are.” Inattention to this inquiry had led the French party to faulty political prescriptions. Specifically, Adams’ antagonists had ignored the spring of human action: the natural human passion for distinction. Consequently, they had failed to take into account the problem of the social orders which inevitably result from the workings of that passion and to consider how government could incorporate those orders so as to make the passion for distinction support the principles of liberty.
It is concerning the springs of human action that the Davila plays a special role in Adams’ “four volumes.” In the three volumes of the Defence, Adams devoted occasional brief passages to the inquiry regarding the natural foundation of government, but he did so only as his treatments of particular aspects of political construction required deeper illumination. While inquiry into human nature provides the final measure for his teaching on political forms, Adams wrote the Defence as if he could settle the issue of the proper political form without giving extended attention to the nature of the human elements. By the time he resumed the task of political teaching in Davila, however, he had clearly concluded that the inquiry into human nature requires its own exposition. He, therefore, ended his first Davila discourse by observing to his readers that “before we proceed…it will assist us, in comprehending (Davila’s) narration, as well as in making useful reflections in morals and policy, to turn our thoughts for a few moments to the constitution of the human mind.” In Discourses II–XIII he then explicated the standard to which he had made only occasional references in the Defence. The Davila can thus be viewed, not simply as the last of four volumes, but as a statement of the groundwork on which the political teaching of the other three volumes rests and in terms of which the soundness of that teaching must be judged. The Davila completes the Defence theoretically, and, therefore, will receive special emphasis in the following exposition of Adams’ political teaching.
The Principles of Liberty
In the Defence and Davila, as in all of Adams’ writings, the reasoning for the principles of liberty received only brief attention. The principles and their natural source, Adams believed, had been adequately investigated as early as 1556, when John Poynet had published his Shorte Treatise of Politicke Power. That work had contained “all the essential principles of liberty” which “were afterwards dilated on” by “writers on the side of liberty” during the two periods marked by the Interregnum and the Revolution of 1688. Those writers, especially Locke, had taught Voltaire, Rousseau, and “their disciples” what they knew about liberty, so that the principles of liberty were “becoming universal” and needed no further defense.
Adam’s sense of satisfaction with the English theorists of liberty, however, did not prevent him from suggesting his own understanding of the source and substance of the principles of liberty. The principles of liberty have their foundation in natural law, which human reason is in principle capable of discerning and which ought to govern all men. Following his English predecessors, Adams identified the natural laws as two: the law of self–preservation and the law of respecting “the rights of others as much as [one’s] own.” As these statements of the law indicate, Adams’ understanding of natural law was thoroughly modern. The good which reason discerns is primarily the existence of rights in each individual, possessed by him by virtue of his constitution as a human being. The two natural laws are inferences or “reflections” about the proper ordering of human conduct entailed by those rights. Since the rights concern the things or goods which are proper to an individual as a solitary being, the first law simply states the necessity that each man preserve himself. Since each man is equal to every other with respect to his natural rights, however, the second law indicates the implication of natural rights for human relationships: Each man should treat every other human being as equally a rights-bearing individual.
In Adams’ analysis, natural law has two direct implications for political legitimacy. First, since each man is equal to every other with respect to his right of disposing of “his own,” only a man’s consent can legitimately place him under the power or rule of another. It was just this understanding which made Marchmont Nedham’s book, in spite of its faults, “so ancient a monument of liberty and political knowledge in England.” Nedham had asserted the “most excellent maxim” which later Englishmen had “englarged on, with great success”: that “the original and fountain of all just power and government is in the people.” A hallmark of the American Revolution was its success in fully demonstrating and exemplifying among men this maxim, for in the Revolution Americans had exhibited to the world for the first time in human history an example of governments “founded on the natural authority of the people without a pretense of miracle or mystery.”
One of the weaknesses of Nedham’s reasoning about the political implications of the principle of consent was his mistaken inference that only simple democracy could satisfy its requirements. Adams readily agreed with Nedham that “a free government is most natural, and only suitable to the reason of mankind,” but he disputed Nedham’s contention that only a democracy can be accurately denoted free. As Adams understood the principle of consent, it means two things about the forms which governments can legitimately take. First, since the origin of all just power is in the people, they have a right to erect whatever form of government they consider best suited “for their liberty, happiness, and prosperity.” The people may choose to retain power in their own hands, in which case they have constituted themselves as a simple democracy, in which the vote of the greater number is decisive. But simple monarchy or aristocracy or some mixture of the three simple forms of government is no less compatible with the principle of consent than is simple democracy, since that principle merely specifies that the people are the origin of just government, not that they must exercise government themselves. The people must constitute government; they need not actually run government.
In an important respect, however, the principle of consent does alter the traditional meaning of the non-democratic forms of government. By deriving government from the consent of men who are by nature equal in rights, Adams identified a power in the people which they can never fully relinquish. As he later said to John Taylor, “the summa potestatis, the supreme, sovereign, absolute, and uncontrollable power, is placed by God and nature in the people, and they can never divest themselves of it.” Under any form of government, the people retain a legitimate power of judging whether the governors are in fact securing their liberty, happiness, and property. The same people who erect a particular government “have at all times a right to interpose, and to depose for maladministration—to appoint anew.” This right, in fact, exists even under the traditional form of hereditary monarchy, for while the people have “a right to appoint a first magistrate…for perpetuity in his descendants,” no appointment of a king “can be, in the nature of things, for a longer period than quam diu se bene gesserit, the whole nation being judge.” The clear implication of the people’s power is that all legitimate forms of government other than simple democracy are representative government, in which the governors, even if appointed for life or perpetuity, hold office only “until further order” as that order is given by the nation. Even a hereditary monarch, to be legitimate, must be viewed as “the representative of the whole nation,” and his possession of office is finally subject to the judgment of those he represents regarding the adequacy of his performance.
While the people possess ultimate sovereignty, however, legitimate government is not simply identical with popularly willed government, but has a second requirement imposed by natural law. The very equality which yields consent as one of the principles of political legitimacy also specifies the ends that government is to serve. Men are equal, not in all ways, but only with respect to certain natural rights of private possession. Adams generally adopted the traditional English formulation of those rights as “life, liberty, and property” or “liberty, property, and safety.” The only cause which could have “prevailed upon reasonable creatures” to consent to government was the discovery by experience that government is necessary “to the preservation of their lives, liberties, and properties, from the injustice of another.” Again, Nedham was correct in asserting that “the end of all government is the good and ease of the people, in a secure enjoyment of their rights, without oppression.” The proper standard for good government is the Golden Rule transformed by the theorists of modern natural law: government should ensure that we “do to others as we would have others do to us” in the sense that each man should be made to respect the rights of others as much as his own. Thus formulated so as to accord with nature, the Golden Rule forms a perfect statement of the principle of justice, “applicable at all times, in all places, among all persons, in all circumstances.” just government is characterized by “a constant and perpetual disposition and determination to render to everyone his right,” which it does by compelling each man to respect the legitimate private possessions of others. In other words, justice is the proper end of government, and justice was understood by Adams to mean securing to each man those things to which he has a right by nature.
This essay in our series of “Timeless Essays” was first published here in August 2016. Books on the topic of this essay may be found in The Imaginative Conservative Bookstore. The Imaginative Conservative applies the principle of appreciation to the discussion of culture and politics—we approach dialogue with magnanimity rather than with mere civility. Will you help us remain a refreshing oasis in the increasingly contentious arena of modern discourse? Please consider donating now.
[*] I wish to thank the Earhart Foundation for financial support to complete this article and Professors Daniel Klenbort, Paula Wolff, and M. Richard Zinman for their helpful comments on an earlier draft.
 All of Adams’ public writing can be found in The Works of John Adams, Second President of the United States 10 vols., edited by Charles Francis Adams (Boston: Little, Brown & Co., 1850-56), hereafter cited as Adams, Works and relevant volume. For Thoughts, see Adams, Works, IV, 189-200 and for Report, see ibid., IV, 219-267. For the judgment of a leading student of the period regarding the influence of these writings, see Gordon S. Wood, The Creation of the American Republic, 1776-1787 (Chapel Hill: University of North Carolina Press, 1969), pp. 203 and 435.
 For these two works, see A Defence of the Constitutions of Governments of the United States of America, Against the Attack of M. Turgot, in his Letter to Dr. Price, Dated the Twenty–second Day of March, 1778…in three volumes, in Adams, Works, IV, 283-588, V, and VI, pp. 3-220; and Discourses on Davila; A Series of Papers on Political History by an American Citizen, in ibid., VI, 223-399. The three volumes of the Defence were published in 1787-88. The Davila papers were published serially as newspaper articles in 1790-91 and were collected into one volume fifteen years later.
 Ibid., X, 96 and VI, 482; letters to John Taylor, April 1814; VI, 416-17; IX, 573: letter to John Trumbull, 23 January 1791.
 The reader who turns to the Defence and Davila for the first time is likely to react with dismay. These four volumes appear to be poorly organized compendia of historical and theoretical writings on politics by other authors, sometimes, dissected and analyzed by Adams but snore often quoted verbatim without comment. All clearly touch on politics, but they do not form a treatise on the theory of republican government. This is a defect for which Adams apologized to his readers at the end of the Defence. But it is a defect of “style” and “method” brought about by the circumstances of writing, not a defect in Adams’ understanding of his subject. Our aim in this essay is to sketch that understanding systematically.
 While Adams’ immediate antagonists in the Defence and Davila were Turgot and Condorcet, his most important audience was American. There had been, “from the beginning of the revolution in America, a party in every State, who have entertained sentiments similar to those of M. Turgot.” In two of the states, that party had managed to establish governments “upon his principle” of all authority in one centre. More recently, Shay’s Rebellion and similar movements elsewhere in Massachusetts had threatened to depose the Governor and Senate “as expensive, useless, and pernicious” branches of the constitution; See ibid., IV, 299-300 and IX, 623: letter to Samuel Perley, 19 June 1809. Adams intended to correct “the mistakes of great men” so that those mistakes could no longer “countenance the prejudices of numbers of people, especially in a young country and under new governments” (ibid., IV, 299-302).
 The worst of the state constitutions, in Adams’ view, were those of Pennsylvania and Georgia (ibid., IV, 300 and VI, 274). The others all contained sufficient ingredients of balance to be defensible, although the best and most defensible was “my Constitution” of Massachusetts (ibid., IX, 623: letter to Samuel Perley, 19 June 1809).
 Ibid., VI, 411-12: letter to Samuel Adams, 18 October 1790.
 Ibid., IV, 435.
 Ibid., IV, 293.
 I have given a more extensive discussion of Adams’ use of history in chapter II of my doctoral dissertation, “The Ethics of John Adams: Prolegomenon to a Science of Politics” (University of Chicago, 1974). The rigor of Adams’ method is one reason for the initially confusing wealth of material in the Defence and Davila, for he examines all countries “where the governments may be called in any reasonable construction of the word, republican” (Adams, Works, IV, 379)
 For Adams’ statement of the “discoveries in the constitution of a free government” which England had reduced to practice, see ibid., IV, 284. He also suggested two lines of criticism of the English constitution, one at ibid., IV, 284-85 and VI, 183 and the other at IV, 359 and 440.
 Ibid., IV, 297.
 Ibid., VI, 365.
 Ibid., IV, 406.
 Ibid., VI, 232.
 See especially ibid., IV, 387, 391-98, 406-10; V, 40, 488; VI, 8-9, 57, 94-5, 114-15, 141, 182 and 205-211.
 Ibid., VI, 4-5, 412 and 160.
 Adams seems to have accepted the existence of a separate moral faculty without having been concerned to identify precisely the nature of that faculty. Compare note 46 below.
 Ibid., VI, 234. I mean the term “modern” here as do such diverse scholars as C.B. MacPherson and Leo Strauss when they interpret the turn in political theory which occurred at least as early as Thomas Hobbes and achieved its “liberal” form with John Locke. The older tradition had made the duties of human beings its primary concern and had understood those duties in terms of the proper ends of human life. The new view emphasized the claims which each man could legitimately make for himself against others and justified those claims in terms of the natural beginnings of human action in the passions. Under the modern view, then, natural law does not state positive obligations to benefit others but only the limits to which self-claims can go; we are bound not to hurt others, at least when our own preservation is not at stake.
 Ibid., VI, 234.
 Ibid., VI, 160, 116, 292-93. Adams devoted the last half of volume III of the Defence to a critique of Nedham’s book, The Excellency of a Free Government, published in 1656.
 Adams, Works, VI, 114 and 117 (italics mine).
 Ibid., VI, 469: letter to John Taylor of Caroline, April 1814 (italics mine). Adams’ series of thirty-two letters to Taylor, all written during April of 1814, are his only extended response to criticisms of the Defence. They were induced by Taylor’s attack on the Defence in his An Inquiry into the Principles and Policy of the Government of the United States (Fredericksburg,Va.: Green and Cady, 1814).
 Adams, Works, VI, 117. See also ibid., VI, 469: letter to John Taylor of Caroline, April, 1814. Adams’ use of “the people” in this context was made possible by that same shift in political theory which had transformed the meaning of natural law. The modern meaning of “the people” is directly linked to the emergence of the distinction between sovereign people and representative government. In the above discussion, “the people” designates the fundamental unity of the political community as consisting of the will of equal individuals to live together; the government which they bring into being merely implements—in this sense “represents” in action—the intention of each individual to have a cooperative existence. Traditionally, however, “the people” referred, not to the whole, but only to the many or majority (and usually the poor majority) and the problem of political unity was treated, not in terms of “sovereignty” and “representation,” but with sole attention to “ruling” the city. Aristotle, for instance, viewed the city as a composite of qualitatively diverse classes, of which “the people” was only one (“demos” or “plethos”). The several classes, on their own terms, had nothing in common; each made an exclusive claim to rule based on its own vision of justice absolutized. The only semblance of unity which could be attained between such conflicting classes occurred when one class successfully imposed its rule on the others and thereby determined the direction which the life of the composite would take. In this older view, then, the assertion that “the people” had constituted a government could only have the restricted meaning that the many had successfully established their rule over other classes. Such an assertion had no necessary connection with legitimate or good government.
While Adams occasionally used “the people” in other contexts to designate the social order of the many, this more restricted usage was for him governed by the modern doctrine of popular sovereignty: The acts of the many can be legitimate only as they aid the intention of the people as a whole to live together securely.
 Ibid., IV, p. 300. For typical enumerations of the natural rights in the Defence and Davila, see also ibid., IV, pp. 304, 407, 415, 444, 462-63, 466-68, 557 and 579; V, pp. 115, 288, 453f, 457, 494-96; VI, pp. 65-6, 88-9, 96, 117, 158 (where Adams adds honor and reputation to the list), 242 (where he adds fame), 277-78, 280, 300 (where he adds tranquillity), 395 (where he adds our conveniences, com- forts and pleasures) and 399.
 Ibid., VI, 65 (italics mine) and 475. Adams’ understanding of justice as the end of government is of a piece with his adoption of the modern view of politics in other respects. The sovereign people do not simply will to live together, but will to cooperate for the purpose of making their equal natural rights secure against outsiders and each other. On this one purpose they can unanimously agree, but on no other, for they do not all naturally or necessarily have any other purpose in common. The end of government, then, is to ensure that no man’s rights are invaded, and to achieve this purpose, government must treat all men under its jurisdiction as equally entitled to protection.
In contrast, Aristotle viewed political justice as the distribution of equal things to equals, and unequal things to unequals. The determination of who is equal and who unequal depends, he said, on the contribution which each makes to the proper end of politics. That end is not solely or primarily security; it is preeminently a good quality of life. To this end, the contributions from the several classes will by nature be unequal and the classes should be treated accordingly, with their benefit from politics being determined by the degree of importance of their contribution. Since “the people” (the many), for instance, can contribute necessary conditions for the good life, they must be recognized as having some legitimate claims on politics. But since the people can contribute only necessary and not sufficient conditions for such a life, their claim is not the preeminent one in the best city and the members of that class ought not be treated by government as equal to those whose contribution to a good way of life is greater.
Adams did not deny that human excellence is a proper concern of government, but he treated excellence as a necessary means to just government in the modern sense, not as the primary end of government.