Essay 37 – Guest Essayist: Joerg Knipprath

If Americans know of John Adams at all, it is probably somewhat vaguely as a long-ago President. Adams’s tenures as Vice-President and President are not generally regarded among the memorable in American history. He was not charismatic, physically imposing, or politically adept. In seeming contrast to his Puritan roots, he also was rather vain. As a result, he did not come easily by loyal friends in the political world.

As Vice-President, he is probably best known for his efforts to devise titles for the President and others along the lines he had seen during his residence in the Dutch Republic, where top government officials were addressed as “His Highmightiness.” He proposed that the President be called some version of “His Excellency” or “His Majesty.” A Senate committee went further, reporting a proposal that the President should be addressed as “His Highness the President of the United States of America and the Protector of the Rights of the Same.” James Madison and many others raised objections about the monarchical tone, and, fortunately, the House refused to approve. For his diligent efforts in this matter, Adams was the target of many jocular “titles.” Senator Ralph Izard of South Carolina referred to the short, plump Adams as “His Rotundity,” and that biting remark stuck.

Despite some policy successes, including the build-up of the Navy, Adams’ single term as President was marked by foreign relations turmoil, such as the naval war with France, and domestic missteps, such as the Alien and Sedition Acts. Adams saw the office as a chore, and avoided his duties at a rate higher than any other occupant of the office. Samuel Eliot Morison relates that, in four years, Adams stayed away for 385 days, returning to his farm in Quincy, Massachusetts.

The Adams’ sojourns at their farm reflected a deep connection to their New England roots. In the 1770s and 1780s, there was probably no single American who was as influential in the overall development of revolutionary and constitutional theory as John Adams. His thoughts often reflected an enlightened Puritanism. During the Revolutionary War, Adams was a diligent and successful administrator. He was an ally and confidant of General George Washington, although, typical of the lack of mutual understanding among the elites from different colonies, Adams did not trust Washington unreservedly. Several times during and after the War, he was selected to undertake important diplomatic tasks. In the words of Benjamin Franklin, Adams was “always honest, often great, sometimes mad.”

Adams was an attorney. He had already made a name for himself, but still took a great professional risk, when he and two other attorneys defended a British officer and eight soldiers accused of murder in the “Boston Massacre” of March 5, 1770. After numerous provocations, and in fear of their safety, the soldiers had fired on a violent mob of colonials, five of whom were killed. The officer was tried for murder seven months later, the soldiers a couple of months after that. All were acquitted of the capital murder charges, although two soldiers were convicted of manslaughter. The trial produced one of Adams’ well-known quotations, “Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence.”

Adams’ stature as a member of the radical faction against the British helped him, as well as the soldiers, with the jury. So did his family connections. His cousin Samuel Adams was of similarly militant inclination against the British. Both cousins were trained in classical history and political theory. Both were skilled debaters, though neither was a particularly compelling oralist. But John was the more intellectual “office” type, while cousin Sam was the more hands-on troublemaker. John wrote resolves, treatises, and constitutions, while Sam focused on organizing protests and riots, writing proclamations, and distributing outlandish propaganda.

John Adams had become involved in the political struggle that would culminate in American independence, during the controversy over the writs of assistance that the British used to combat smugglers who sought to avoid the Sugar Act import duties. Writs of assistance were general search warrants whose open-ended nature the colonials saw as violations of their rights as Englishmen. James Otis, Jr., was hired to challenge these writs in Paxton’s Case in 1761.

Otis gave a long and forceful argument that the act authorizing these writs was void, because, “An act against the Constitution is void; an act against natural equity is void.” This was a novel assertion in English law. It challenged the supremacy of Parliament, and, contrary to long-established English constitutional custom, suggested that the courts could refuse to apply such an act to controversies before them. Otis lost his case. Still, his argument provided the germ for the gradual development of basic principles of American constitutional law about the relationship between constitutions and ordinary laws, and about the role of an independent judiciary. As to the writs of assistance, five years later, the British attorney general agreed with Otis about their invalidity. Today, they are prohibited under the Fourth Amendment of the Constitution.

Adams was well-acquainted with Otis and was in the audience at the trial. He was much impressed with the argument, which clearly influenced his later views of balanced government and his drafting of the Massachusetts constitution. Adams also promoted Otis as a leading patriot voice. Both joined in their opposition to the next issue, Parliament passing the Revenue Act of 1764. The colonial assemblies objected that such involuntary taxes were invalid, a sentiment that eventually was captured in the slogan coined by Otis, “No taxation without representation is tyranny.”

In the disputes leading to the Declaration of Independence, Adams emerged as a prominent political theorist for the cause. His work Novanglus, of February 6, 1775, rejected Parliament’s control over the colonies. Adams instead claimed that the colonies and Great Britain were separate states, united only through the person of the king in a dominion status similar to that of England and Scotland. Based on the American theory of representation, and the practical obstacles to American representation in Parliament, such as physical distance, the colonial assemblies governed the colonies, while Parliament governed Great Britain. In an apparent contradiction to this argument, he did allow that Parliament could be in charge of foreign policy and trade, but analogized this to a commercial treaty approved by the Americans explicitly or by custom, rather than an inherent power.

An important part of Adams’s theory in the Novanglus essay was that the colonies, separately and in union, had their own constitutions that were not subject to alteration by Parliament. There appeared the influence of Otis’ earlier arguments that distinguished between Parliament’s legislative powers and constitutional limits thereon. In separate publications, James Wilson and Thomas Jefferson, future signers of the Declaration reached the same conclusions, as well. All rejected the “empire theory,” under which Parliament exercised control over all parts. These three were part of the “radicals” who also opposed the First Continental Congress’ Declaration of Rights and Grievances adopted on October 14, 1774. Congress there had accepted Parliament’s inherent power over the colonies’ external commerce, while rejecting that body’s authority over other matters, such as revenue. Adams adamantly rejected the moderate federal structure that the Congress’ Declaration of Rights embraced. Instead, as he wrote in Novanglus, “I agree, that ‘two supreme and independent authorities cannot exist in the same state,’ any more than two supreme beings in one universe; And, therefore, I contend, that our provincial legislatures are the only supreme authorities in our colonies.”

As the drive to revolution became unstoppable, and the Second Continental Congress declared the colonial charters void, Adams wrote a letter to George Wythe of Virginia, which provided a written plan of government to be considered by that state. The letter eventually was published by Richard Henry Lee of Virginia as Thoughts on Government, and its influence on the Virginia convention’s work was evident to Adams’ contemporaries, and to Adams himself. As he wrote to James Warren, on June 16, 1776, “But I am amazed to find an Inclination So prevalent throughout all the southern and middle Colonies to adopt Plans, so nearly resembling, that in the Thoughts on Government.”

At the same time, the Second Continental Congress appointed Adams to the committee to propose a declaration of independence. The initial drafting task fell to his friend and future political rival, Thomas Jefferson. Jefferson proposed that Adams write the declaration, but Adams demurred. It is said that Adams justified his refusal by telling Jefferson, “Reason first: You are a Virginian and a Virginian ought to appear at the head of this business. Reason second: I am obnoxious, suspected and unpopular. You are very much otherwise. Reason third: You can write ten times better than I can.”

With the war under way, Adams continued to serve in the Continental Congress. He, along with Benjamin Franklin and Edward Rutledge, composed a delegation sent to discuss a political accommodation with the British after a disastrous American military defeat on Long Island. The conference was requested by Admiral Lord Richard Howe, the supreme commander of British forces in North America, and his brother General William Howe, the commander-in-chief of the British land forces. The Howe brothers were Whigs and not unsympathetic to the American cause. Nevertheless, nothing came of the conference, and, as loyal officers of the king, the Howes turned to their job of settling the matter militarily.

The condition of the American army was deplorable, from a dearth of supplies and a lack of training and discipline. Adams was appointed head of the Board of War, the analog to the Secretary of Defense today. He immediately pressed Congress to accede to General Washington’s requests to maintain the army. Adams proposed that an enlistee who joined for the duration of the war be given $20 plus 100 acres land. To maintain discipline, punishments for various offenses were raised. For example, drunkenness on duty became punishable by 100 lashes instead of 39. The number of crimes subject to the death penalty was increased, as well. However, these Articles of War, written by Adams and based on their British counterpart, also provided proper procedures for the accused. Finally, Adams proposed creation of a military academy for better military training for officers, but nothing came of that until after the war.

Adams initially opposed alliance with France, but the desperate state of the American quest for independence eventually caused him to change his mind. As the war wound to a successful conclusion, Adams arrived in Paris as part of the five-member American delegation. Because several members, including Adams, distrusted the French diplomats, the Americans on November 30, 1782, made a separate preliminary treaty with Great Britain. It took nearly a year for the French and British to agree to their own terms, and peace was finally achieved on September 3, 1783.

Adams, who was an Anglophile by family roots and political philosophy, quickly wished to reestablish close commercial and diplomatic ties with Great Britain after the war. He became the first American minister to London in 1785. When he was received by George III, he hoped that “the old good nature and the old good humor” between the two countries would be rekindled. The king was willing, but the government was not. Efforts to enter a commercial treaty failed, due in part to the weakness of the Congress under the Articles of Confederation. The foreign department dismissively suggested that the states send delegations, instead. Adams left the post in 1788, frustrated and disappointed.

In addition to his numerous administrative and diplomatic duties, Adams continued to lead on another political issue, that of drafting constitutions and developing theoretical foundations for them. His principal success was the Massachusetts Constitution of 1780. The people of the state had rejected a constitution proposed by the legislature in 1778. Like other “first wave” state constitutions of the 1770s, that version had mixed different powers, vested primary power in the legislature, and contained no bill of rights.

Adams, like most of the era’s contributors to American constitutional developments, had read the classic ancient political writers, such as Plato, Aristotle, and Polybius, as well as more recent ones, such as Locke and Montesquieu. In their original languages. Adams, cousin Sam Adams, and James Bowdoin were selected by the Massachusetts convention in 1779 to draft a constitution to be submitted to the people. The two other members left the task to Adams.

The completed work, The Report of a Constitution, provided several cornerstones for future American constitutionalism. He proposed a government whose structure was more balanced among three independent branches than the legislature-centric state constitutions rushed out by the state legislatures during the drive to independence in the mid-1770s. Indeed, Article XXX of the Declaration of the Rights in Adams’s constitution offered an almost cartoonish version of an unyielding separation of powers. The Declaration also enumerated a long list of rights the legislature was prohibited from infringing. Finally, influenced by The Essex Result, a petition written by Theophilus Parsons against the proposed constitution of 1778, this new constitution was produced by a convention selected solely for that purpose, rather than by a legislative committee. Moreover, it was approved by town meetings, rather than by the legislature itself. This distinction between the function and status of ordinary legislatures and constitutional conventions became a critical catalyst in the development of American constitutional theory going forward and in the emergence of the judiciary’s power of constitutional review.

Adams’s creation influenced the next wave of state constitutions, as well as the drafters of the United States Constitution in 1787. Though substantially amended since then, the Massachusetts constitution is the oldest still in effect today.

The final work of Adams about constitutions, and perhaps his most comprehensive, was A Defence of the Constitutions of Government of the United States of America, written in three volumes over the course of a little more than a year beginning in 1786. It was a response to criticism by Baron Anne Robert Jacques Turgot, a French government official, of the emerging systems of separation of powers in the American state constitutions. Turgot and others dismissed those constitutions as just the British structure with a republican gloss. Governors who were independent of the legislatures mimicked the king, and bicameral legislatures the British Parliament, with the senates taking the role of the House of Lords. The criticism stung, as Adams himself had drafted such a “mixed government” for Massachusetts.

Defence takes the form of a series of letters as if written by a traveler around Europe. At the time, Adams was the American minister to the English court. His focus became writing, his diplomatic obligations taking a subsidiary role. Summoning his vast knowledge of history and political theory acquired through diligent research, he examined numerous republican constitutions from antiquity forwards. He aimed to expose the weaknesses of the democratic structures and “pure” systems of government favored by Turgot. History, the record of human experience, not ideology, was the sole reliable guide for Adams. Only balanced governments had survived the test of time, a lesson applied to the young American republics.

Like Aristotle and Polybius, Adams feared that pure forms, especially democracies, were unstable and inevitably led to tyranny, because of man’s lust for power due to his fallen nature. Classic republics fared little better, because they, too, relied on human virtue to sustain them. Adams doubted that Americans possessed sufficient virtue, though strong government direction through support of religion and morality might have a positive influence. In early 1776, he wrote that there was “so much Venality and Corruption, so much Avarice and Ambition, such a Rage for Profit and Commerce among all Ranks and Degrees of Men even in America” that put in question whether Americans had “public Virtue enough to support a Republic.” In contrast, much later he would say “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” In between, his defense of the American state constitutions was founded on the practical recognition that virtue is not enough to ensure liberty.

Adams was not at the Philadelphia convention, but the first volume of Defence was well-known to many of the participants. Though Adams was criticized by some for what they saw as an abandonment of militant republicanism, the framers of the Constitution adopted a similar system. The “mixed government” of the Massachusetts Constitution of 1787 became the system of “checks and balances” of the United States Constitution which would augment reliance on the people’s virtue in sustaining liberty. As Madison wrote in The Federalist No. 51, to preserve liberty while allowing government to function, “A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”

Joerg W. Knipprath is an expert on constitutional law, and member of the Southwestern Law School faculty, Professor Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

Podcast by Maureen Quinn.

 

 

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