Keith Mack
The Founding Fathers of the United States were the upper echelon of political leadership in the British colonies during the latter half of the 18th century. They were leaders in their communities and colonies, and nearly half were lawyers, with the rest being businessmen and planter-farmers. The Founding Fathers were influenced by the philosopher Emmerich de Vattel, whose ideas are laid out in the Law of Nations. Vattel believed that When an ancient act is to be interpreted, we should then know the common use of the terms, at the time when it was written. The Founding Fathers were not unified on the issue of slavery, and their views on other issues such as fashion, ethics, federalism, and judiciary review were also varied.
| Characteristics | Values |
|---|---|
| Occupations | Lawyers, planters/farmers, merchants/businessmen, physicians, ministers, surveyors, scientists, inventors, soldiers, politicians, diplomats, postmaster generals |
| Average Age | 43 |
| Heritage | Native-born, British (including Scots, Irish, and Welsh) |
| Influences | Philosopher Emmerich de Vattel, Vattel's Law of Nations |
| Intent | Interpret the constitution as it was written, change through legislation and amendments, prevent politicization of the court, promote legal consistency, keep the court separate from the legislature |
| Views on Slavery | Not unified, made some efforts to contain it, some Northern states adopted legislation to end or reduce it, Virginia passed a manumission law in 1782, Jefferson proposed to ban slavery in western territories in 1784 |
| Views on Religion | Affirmed freedom of religion and speech in the Bill of Rights, provided "equal protection under the laws" in the 14th Amendment of 1868 |
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What You'll Learn
Influence of Emmerich de Vattel
The Founding Fathers were heavily influenced by the philosopher, diplomat, and jurist Emmerich de Vattel, who was born in 1714 in Neuchatel, Switzerland. De Vattel's work profoundly influenced the development of international law, and his most famous work, "The Law of Nations" (or "Le Droit des gens"), published in 1758, was particularly influential in the United States.
De Vattel's work combined naturalist and positivist legal reasoning, and he was influenced by the polymath Leibniz, as well as Christian Wolff, whose work "Jus Gentium Methodo Scientifica Pertractum" (The Law of Nations According to the Scientific Method) he translated into French and added his own thoughts. De Vattel rejected Wolff’s conception of a regulatory world state, instead substituting national rights and duties proceeding from his own view of the law of nature. De Vattel's work also had ramifications for Just War Theory as it outlined international diplomacy as we now know it.
De Vattel's influence on the Founding Fathers can be seen in their interpretation of the Constitution and the Declaration of Independence. The Founding Fathers believed that the Constitution should be interpreted as it was written and that any changes should be made through legislation and possible amendments rather than through the courts. De Vattel's ideas on the rights and obligations of citizens and states resonated with the ideals expressed in the Declaration of Independence, particularly his principles of liberty and equality.
Additionally, De Vattel's work provided a framework for how America should engage with the world, prescribing a distinct path for the nation to emerge as a respectable actor on the international stage. His work was also cited extensively in Lysander Spooner's "The Unconstitutionality of Slavery", further illustrating his influence on American thought and legal theory.
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The Federalist Papers
Several key topics are covered in The Federalist Papers. For example, in Federalist No. 10, Madison discusses the necessity of a large republic to control factions. Federalist No. 51 features Hamilton's detailed explanation of checks and balances, while in Federalist No. 39, Madison elaborates on the principles of federalism. Individual rights within the Constitution's framework are addressed in Federalist No. 84, where Hamilton offers reassurance.
Compiled into a two-volume collection in 1788 by John and Andrew M’Lean, The Federalist Papers remain relevant today as they provide valuable insights into the founding fathers' thinking and the underlying principles of American governance. They continue to shape political philosophy and constitutional interpretation, influencing both judicial opinions and academic scholarship.
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Judicial review
The Founding Fathers of the United States were a group of individuals who were the political leaders of British colonies in North America during the latter half of the 18th century. They were responsible for drafting and signing the Declaration of Independence, the Articles of Confederation, and the US Constitution. The Founding Fathers were men of varied occupations, but nearly half were lawyers, and the remainder were primarily businessmen and planter-farmers.
The Founding Fathers were influenced by various schools of thought, including the philosophy of Emmerich de Vattel, who emphasised the importance of interpreting ancient acts in the context of the common use of terms at the time they were written. This textualist approach was favoured by the Founding Fathers as it prevented the politicisation of the court and promoted legal consistency, keeping the court separate from the legislature.
One example of the Founding Fathers' interpretation of the law can be seen in their efforts to address slavery. While they were not unified on the issue, they made some attempts to contain and end the practice. For instance, in 1782, Virginia passed a manumission law that allowed owners to free their slaves, and in the same year, Jefferson proposed a ban on slavery in all western territories, which unfortunately failed to pass by one vote.
The Founding Fathers' influence on the US Constitution and legal system has been a subject of debate and interpretation. Some scholars, like Princeton's Keith Whittington, argue for libertarian interpretations of originalism, which preserve higher-order decision-making for present and future generations. In contrast, judicial minimalists like Bork argue for striking down more laws to preserve natural rights. These differing factions, both claiming to uphold the will of the Founding Fathers, highlight the complexity and ongoing evolution of legal interpretations influenced by the Founding Fathers' legacy.
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Freedom of religion and speech
Freedom of religion and freedom of speech are two fundamental concepts that are often considered basic human rights. They are protected by international laws and conventions, and are also guaranteed by the constitutions of many countries. The founding fathers of the United States were influenced by these principles of common law when drafting the country's Constitution, particularly the First Amendment, which protects freedom of religion and freedom of speech.
Freedom of Religion
Freedom of religion guarantees the right to freely exercise one's faith and protects against government imposition of religion. The First Amendment to the U.S. Constitution states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof". This protects the right of individuals to practice their religion according to their conscience and prevents the establishment of a sectarian state. This concept of religious freedom was also present in the Virginia Declaration of Rights, which defined religion as "the duty which we owe to our Creator, and the manner of discharging it... ".
While the precise meaning of the First Amendment's provision on religion has been disputed, it has played a significant role in shaping religious freedom in the U.S. For example, the Supreme Court did not apply the First Amendment in the Permoli v. New Orleans case in 1845, which involved a Louisiana law confining Roman Catholic funerals to a single chapel. However, by the time the 14th Amendment was adopted in 1866, all states had adopted a policy of non-establishment, and separation of church and state was understood as essential to religious freedom.
Freedom of Speech
Freedom of speech is the principle that supports an individual's or community's right to express their opinions and ideas without fear of retaliation, censorship, or legal sanction. It is considered a fundamental aspect of democracy, as it allows for an informed electorate and public debate, even in times of emergency. The First Amendment to the U.S. Constitution, adopted in 1791, includes freedom of speech as one of its key protections.
The concept of freedom of speech has a long history, with England's Bill of Rights of 1689 legally establishing the constitutional right of freedom of speech in Parliament. Additionally, the Declaration of the Rights of Man and of the Citizen, adopted during the French Revolution in 1789, affirmed freedom of speech as an inalienable right. In international law, the Universal Declaration of Human Rights (UDHR) and international human rights law recognise the right to freedom of expression as a human right.
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Efforts to contain slavery
Common law in the British Empire, which developed over centuries, was characterised by inconsistent decisions and varying rationales for the treatment of slaves, the slave trade, and the rights of slaves and slave owners. While there were efforts to contain slavery, the common law had a "free hand" to develop, unencumbered by legislative intervention.
In 1171, an Irish decree ordered the emancipation of all English slaves in Ireland, restoring them to their "former liberty". In 1381, a general charter of emancipation abolished slavery in England. However, villeinage persisted until the early 17th century. In 1569, a court case involving a man named Cartwright, who was observed brutally beating another man, may have imposed limits on the physical punishment of slaves, but it did not explicitly make slavery illegal in England.
The legal status of slavery in England and its colonies remained ambiguous. In 1706, Chief Justice Holt refused to recognise a slave as property, holding that "no man could have property in another". However, this decision had little long-term impact, as the slave trade continued to flourish in Liverpool and London markets throughout the 18th century. Legal opinions, such as those by Lord Hardwicke, asserted that a slave's status did not change upon arriving in England and that slavery was not contrary to English law.
In the British colonies, slave codes were enacted to regulate slavery and protect the property rights of slave owners. These codes established racial distinctions, with any amount of African heritage classifying a person as Black. They also determined the status of offspring, following the condition of the mother. Punishments for slaves included whipping, branding, and imprisonment, and in some cases, death for those who committed violence against whites. Despite the existence of slave codes, enforcement was not always strict and depended on signs of unrest.
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Frequently asked questions
The Founding Fathers were influenced by a variety of sources, including common law. They were heavily influenced by the philosopher Emmerich de Vattel, who argued for interpreting ancient acts by understanding the common use of terms at the time of writing.
The Founding Fathers had diverse careers, but most had backgrounds in law, agriculture, business, or medicine. About half were lawyers, a sixth were planters or farmers, another sixth were merchants or businessmen, and ten were physicians.
The Founding Fathers were not unified on the issue of slavery. While some made efforts to contain it, such as Jefferson's proposal to ban slavery in the western territories, others accommodated it within the new nation.
The Founding Fathers supported freedom of religion and speech, as affirmed in the Bill of Rights and the 14th Amendment. Washington, a leader in the Church of England, assured religious groups that their liberties would be protected under the Constitution.
