Essay Read by Constituting America Founder, Actress Janine Turner

For the student of government and of the nature and characteristics of the various forms of constitution, almost the first question to consider is in regard to the state: what exactly is the essential nature of the state?” Thus, Aristotle (384 – 322 B.C.E) begins Book III of his Politics. He continues: “It is clear then that those constitutions that aim at the common advantage are in effect rightly framed in accordance with absolute justice, while those that aim at the rulers’ own advantage only are faulty, and are all of them deviations from the right constitutions; for they have an element of despotism, whereas a city is a partnership of free men.” (Pol. III, iv, 7).“Deviations from the constitutions mentioned are tyranny corresponding to kingship, oligarchy to aristocracy, and democracy to constitutional government; for tyranny is monarchy ruling in the interest of the monarch,” but none governs for the profit of the community (Pol. III, v, 4). Aristotle therein refers to a royal government as “one of the correct constitutions.” He writes that all kingships are not equal: one may be a military general, perhaps hereditary, and others elective (and there are variations/permutations under these classes of rulers). A separate “class of royal monarchy consists of the hereditary legal kingships over willing subjects in the heroic period. For, because the first of the line had been benefactors of the multitude in the arts or in war, or through having drawn them together or provided them with land, these kings used to come to the throne with the consent of the subjects and hand it on to their successors by lineal descent . . . ; but later on. . .gradually the kings relinquished some of their powers and had others taken from them by the multitudes. . . .” (Pol. III, ix, 7-8, my emphasis)

As a preliminary matter, I note that the Declaration of Independence employs the word “consent” only three times. Interestingly, the Declaration employs the phrase that He [the King of England] has “refused his assent” and variations thereon four times (that is, the King has refused to consent to things of value to the colonies.)
The first individual on whom I focus is an Englishman, John Locke, (1632 – 1704), who was “the most influential philosopher of this age . . . .[He] grew up in an England that made a bloody revolution and killed its king; he became the voice of a peaceful revolution and an age of moderation and tolerance and represented English compromise at its sanest and best.” From 1673 to 1675, he served as secretary to the Council of Trade and Plantations (Colonies) and helped Lord Shaftesbury draft the Fundamental Constitutions for Carolina (but they were not generally carried out.) Shaftesbury greatly influenced Locke’s theories regarding consent of the governed and philosophy of constitutionalism. In 1687, Locke joined in the plot to replace James II with William III; this “Glorious Revolution” succeeded in 1688 and resulted in the imposition of ‘certain constitutional limits on the authority of the Crown.’ Locke held that ‘government’ should be conceived as an ‘instrument’ for the defense of the ‘life, liberty, and estate’ of its citizens; i.e., government’s raison d’ệtre is the protection of individuals’ rights as laid down by God’s will and as enshrined in law. He then published three works that made him a major figure in European thought: Epistola de Tolerantia (1689); then, in 1690, a Second Letter concerning Toleration and Two Treatises of Government, the latter two of which form the cornerstone of modern democratic theory in England and America. I will focus mainly on the Second Treatise.
In Two Treatises, Locke warned that “when people are loosely organized, they are vulnerable to aggression from abroad.”

The government rules, and its legitimacy is sustained by the ‘consent’ of individuals. ‘Consent’ is a crucial and difficult notion in Locke’s writings. Locke seems to have thought of the active consent of individuals as being crucial only to the initial inauguration of a legitimate civil government. Thereafter, consent ought to follow from majority decisions of ‘the people’s’ representatives, so long as they, the trustees of the governed, maintain the original contract and its covenants to guarantee ‘life, liberty, and estate.’ If they do, there is a duty to obey the law. But, if those who govern flout the terms of the contract with a series of tyrannical political acts, rebellion to form a new government, Locke contended, might be not only unavoidable but justified. (Held, 81)

The distinction between these two agreements is important, for the reason that authority belongs to the people who have the power to tell their government what actions they want pursued; and, should these ends fail to be pursued, the final judges are the people who can dispense with their elected representatives and, if they so determine, they can change the form of government itself. Locke did not believe the formation of a governmental entity resulted in the transfer of all rights of all subjects to the political realm. The making of laws and the enforcement thereof are transferred, but the whole process is conditional upon government adhering to its essential purpose: the preservation of ‘life, liberty and estate.’ Sovereign power remains ultimately with the people (Two Treatises, 402-3, 412-13).

In Two Treatises, Locke defended the claim that men are by nature free and equal against claims that God had made all people naturally subject to a monarch. Such rights were independent of the laws of any particular society. Locke claimed that men are naturally free and equal as part of the justification for understanding legitimate political government as the result of a social contract where people in the state of nature conditionally transfer some of their rights to the government in order to better ensure the stable, comfortable enjoyment of their lives, liberty, and property. Locke affirmed an explicit right to revolution:

“Whenever the Legislators endeavor to take away, and destroy the Property of the People, or to reduce them to Slavery under Arbitrary Power, they put themselves into a state of War with the People, who are thereupon absolved from any farther Obedience, and are left to the common Refuge, which God hath provided for all Men, against Force and Violence. Whensoever therefore the Legislative shall transgress this fundamental Rule of Society; and either by Ambition, Fear, Folly or Corruption, endeavor to grasp themselves, or put into the hands of any other an Absolute Power over the Lives, Liberties, and Estates of the People; By this breach of Trust they forfeit the Power, the People had put into their hands for quite contrary ends, and it devolves to the People, who have a Right to resume their original Liberty” (Two Treatises, 222).
But, unlike Hobbes (who thought that the state of nature was marked by war,) Locke imagined that individuals in the state of nature were free and equal; he used these words as Jefferson was to use them to mean that no man had by nature more ‘rights’ than any other. By reason (Locke supposed), men came to an agreement: they made a “social contract” with one another to surrender their individual rights of judging and punishing not to a king but to the community as a whole.
“England rejected Locke’s separation of powers, and subordinated all government to the legislature; but his doctrine had aimed to check the executive, and that aim was completely achieved.” (Durant VIII, 582)

“When the American colonists rebelled against the resurgent monarchy of George III, they adopted the ideas, the formulas, almost the words of Locke to express their Declaration of Independence. The rights that Locke had vindicated became the Bill of Rights in the first ten amendments to the American Constitution. His separation of governmental powers, as extended to the judiciary by Montesquieu, became a living factor in the American form of government; his solicitude for property passed into American legislation; his essays on toleration influenced the founding fathers in separating Church from state and decreeing religious liberty. Rarely in the history of political philosophy has one man had such lasting influence.” (Durant VIII, 582-3)
Key ideas Thomas Jefferson borrowed from Locke included: that all people are born with certain natural rights, including life, liberty, and the pursuit of happiness (the right of estate/property in Locke’s lexicon); that governments derive their power from the consent of the people; and that government is a social contract between the people and their rulers. Jefferson also drew other ideas from Locke, such as the idea that the government should be limited in its powers and that the people have the right to revolution. Jefferson took from Locke the phrase “when a long train of abuses and usurpations” which precedes the rest of the Declaration sentence, “pursuing invariably the same object, evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security.” The Lockean source for this “right of revolution” is found in Two Treatises (222) in that it emanates from the government’s breach of the Social Contract.

In a letter to Henry Lee dated May 8, 1825, Thomas Jefferson wrote with his usual clarity:
BUT WITH RESPECT TO OUR RIGHTS, and the acts of the British government contravening those rights, there was but one opinion on this side of the water. . . .When forced, therefore, to resort to arms for redress, an appeal to the tribunal of the world was deemed proper for our justification. This was the object of the Declaration of Independence. Not to find out new principles, or new arguments, never before thought of . . . .Neither aiming at originality of principle or sentiment. . . .All its authority rests then on the harmonizing sentiments of the day, whether expressed in conversation, in letters, printed essays, or in the elementary books of public right, as Aristotle, Cicero, Locke, Sidney, etc.

In the American Ambassador’s residence in Finland, one finds three special bedroom suites: the Ambassador’s, the Presidential, and the John Morton. As the Second Continental Congress was nearing its close, there was one more “consent” required. It came down to the vote of the Pennsylvania delegation. Of the seven Pennsylvania members, two men absented themselves; two, Thomas Willing and Charles Humphreys, voted “no”; and two, James Wilson and Benjamin Franklin, voted “yes.” The last, and deciding vote to come, if at all, was the vote of John Morton. He voted in favor of adopting the Declaration of Independence. It passed by a vote of 3-2.
Morton’s vote, his consent, made all the difference. Sometimes, that’s all it takes.

Robert Pence is a Washington D.C. native who attended Maryland University as an undergrad, American University for J.D. and two M.A. degrees, and Yale University from which he received a M.Phil. degree in Italian Language and Literature. President Donald Trump appointed Bob to serve as the American ambassador to Finland; he served in Helsinki from May, 2018 until January, 2021. He served for years on various educational, artistic and philanthropic boards including The Kennedy Center, the Wolftrap Foundation, the World Affairs Council and American University. He is currently a member of boards of George Mason University (VA) and The Gary Sinise Foundation.
He is particularly proud to serve on Gary Sinise’s board where he joins with other equally committed citizens in support of the men and women of the Armed Forces of the United States, police, and first responders.

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