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Law professor explains ‘liberty under law’ 250 years after Founding Fathers pioneered American legal framework

The story of the American Revolution is told through law. From the denial of fundamental rights by the British to the American common law practiced today, the Founding Fathers knew the law of the new land had to be based in liberty.

Morris Savage Endowed Chair and Professor Steven Brown teaches Constitutional Law at Auburn University, and said America could not celebrate 250 years of independence without acknowledging the importance of law.

“The Revolutionary War is inextricably tied to law,” Brown said. “The idea primarily of liberty under law, but also the connection to law through laws that were passed and laws that were violated, natural law concepts that were ignored, and then of course the complaints of laws made without the consent of the governed. We remove any of those and the Revolutionary War does not happen at all, or at least not in the timeframe that it did.”

Most people know that laws passed without the consent of the governed was the catalyst for the American Revolution, but many don’t realize how long the colonies practiced representative government.

Nearly 150 years before the Declaration of Independence, a group elected by eleven different constituencies met in Jamestown, Virginia, to discuss the condition of the settlement. It was the first representative assembly in the Western Hemisphere and an important first step toward representative government, as it was copied in other colonies.

The idea branched from a much older document than the Declaration: the Magna Carta, or “Great Charter,” laid out rights in 1215 that included due process, no kings above the law and no taxation without the consent of the governed or their representatives.

When the British Parliament passed the Sugar Act, Quartering Act and the Writs of Assistance – open-ended search warrants which authorized officials to search and seize any personal property they deemed illegal – colonists found that the long arm of British law reaching into their homes was too much to bear.

“For 150 years, Americans had been voting and choosing representatives in their local and colonial assemblies. It’s very much ingrained into our habits and psyche. So that’s what really clashes,” Brown said. “When the British government tells us, ‘Don’t worry about it, you don’t need representation in Parliament, you have virtual representation,’ it clashes very much against our historic experience there. And that ultimately leads to the Revolutionary War.”

Led by lawyers, the Declaration of Independence called out violations of natural law – the basic, fundamental rights that every human being possesses and that government cannot infringe upon.

Grievances against King George III included lack of representation, obstructing justice, making judges dependent on his will for payment, establishing standing armies in times of peace, forcing people to shelter troops in their homes, depriving colonists of a trial by jury and issuing searches and seizures without cause.

The Constitution’s language echoes the Declaration’s by providing rights under law that the British Parliament denied American colonists. It sets clear guidelines for representative government, explains the power of the federal courts as separate from the executive branch, bans Congress from creating standing armies in times of peace, gives citizens the right to refuse sheltering troops, guarantees the right to a speedy trial before an impartial jury and declares the people secure against unlawful search and seizure.

“The Declaration of Independence was the promise. The Constitution was the fulfillment,” Brown said. “It's not perfect, but it's still this idea of liberty under law, which the Constitution was designed to achieve.”

Following the establishment of the United States of America, there was an effort to reject all things British, including British common law. That was nearly impossible, as the American legal system directly arose out of British law.

But in an effort to create “American law,” states began to require judges to issue written opinions, which were then compiled in law reports and could be used as reference materials for other judges, lawyers and the public. That is one of the legacies of the Revolution on law that we still see today.

“That is what distinguishes law from almost any other influence on the Revolution,” Brown said. “While the American Revolution is inextricably tied to the Magna Carta, stamps, tea and writs of assistance before the war, to the Constitution, Bill of Rights and development of American law afterwards, its legacy is still unfolding.”

For almost 30 years, Brown has carried a pocketbook Constitution that he picked up during his work on Capitol Hill. It’s a dog-eared, taped and stapled copy of the nation’s most important legal document that he uses in his classes at Auburn.

He hopes to encourage people to read the Constitution and reflect on how far the country has come and inspire not just future lawyers but all people to carry the torch that the Founding Fathers lit 250 years ago.

“All of us can learn more about what liberty under law requires, because doing so would help people better understand not only the law, but also those who make, execute and adjudicate the law,” Brown said. “Liberty is not license. If everyone always did whatever they wanted, that would be anarchy. So, there must be some laws and constraints. But when people have a say in those and choose representatives and other leaders who understand their role, they can enjoy the liberty under law that the founding generation worked so hard to secure.”

Tags: Political Science Faculty Research