Thomas Paine's View of Constitutions by Ray Polin

by Raymond and Constance Polin

Dr. Polin is Professor Emeritus of Government and Politics, St. John's University, New York, and Mrs. Polin is his co-reseorcher and co-author of a work nearing completion on American political thought.

Quo warranto?

By what warrant, right, or authority may a government perform such acts and functions as make law, tax, regulate industry and education, try, fine, imprison, and even execute; and such additional duties as maintain armed forces, enter into treaties, make war and peace, set standards of measurement, license medical practice, erect roads and bridges, control the traffic that travels over them or through the air, conduct elections, and grant or recognize citizenship?

A simple answer that states the encompassing principle that can

legitimate a government's exercise of such numerous and varied powers was penned by Thomas Jefferson in the dictum in the Declaration of Independence that, "Governments are instituted among Men, deriving their just powers from the consent of the governed."

The means of giving consent in a proper way for a government to have

widely known, proper powers, limitations, and duties is Thomas Paine's concern in his treatment of constitutions. Paine purposed to realize for every individual, as much as possible, the God-given natural rights and liberty of mankind. Such a goal for any nation, Paine believed, is best and most easily accomplished through the agency of a constitution that by its sequence of adoption and substantive content accorded with what he advocated in Rights of Man (1791-92).

Paine takes care to eliminate from consideration, therefore, any

consideration that a governmental contract could be the basis of a valid constitution or legitimate government. A governmental contract was one that followed the rationale of a feudal relationship contract: between unequals and often entered into under duress; Paine argued especially against its usual provision of translatio: translation or permanent alienation (transfer from) of a title (i.e., legal ownership of a property). Here Paine was reaffirming that our God-given natural rights and liberty cannot be alienated from us. Paine therefore responds energetically to Edmund Burke's obsequiouslv employed illustration in his Reflections on the Revolution in France ( 1790) that recounted use of translatio (permanent and unlimited transfer) to vest the British monarch with assertions of sovereignty in a declaration by Parliament to William of Orange and Mary in 1688:

"The Lords Spirirual and Temporal, do, in the name of the people

aforesaid.- (meaning the people of England then living) "most humbly and faithfully submit themselves, their heirs and posterities for EVER." He also quotes a clause of another act of Parliament made in the same reign, the terms of which, he says, "bind us," (meaning the people of that day) "our heirs and posterity, to them, their heirs and posterity, to the end of time."

Paine indignantly retorts:

"Every age and government must be as free to act for itself, in all cases, as the ages and generations which preceded it. The vanity and presumption of governing beyond the grave, is the most ridiculous and insolent of all tyrannies. Man has no property in man; neither has any generation a property in the generations which are to follow."

What Thomas Paine favors as the basis of a constitution is a social

contract, an agreement among "We, the People" as equals, to set up an arrangement or constitution that is limited in kinds and duration of grant of power: i.e., it is predicated on the principle of concessio (concession of limited extent of power that is conditional and therefore withdrawable when performance is not satisfactory). Paine regarded the recent American state and Federal constitutions as examples of social compacts and proper constitutions that enabled their governments to exercise their powers justly because limited in substance and as to due process, including method of amendment.

Paine stipulated prior adoption by the people-not the government - as

a necessary authorization for institution or alteration of a constitution. Thus, he agreed with Alexander Hamilton's statement in Federalist No. 22 that, "The streams of national power ought to flow immediately from that pure, original fountain of all legitimate authority." Paine presented the same idea but required the sequence of popular action beforehand:

A constitution is a thing antecedent to a government, and a

government is only the creature of a constitution. The constitution of a country is not the act of its government, but of the people constituting a government.

Paine reiterates: "A constitution is not the act of a government, but

of a people constituting a government; and government without a constitution, is power without a right."

For Paine, a constitution should provide the fundamental rules

according to which the government is organized and operates as it decides on policies, maintains public order and safety, and protects liberty. He succinctly states: "The American Constitutions were to liberty, what a grammar is to language: they define its parts of speech, and practically construct them into syntax."

Paine's definition of a constitution, is not as inclusive, flexible,

or authoritative as the standard one by Lord Bolingbroke (Viscount Henry St. John) in his 1733 work, A Dissertation upon Parties. Bolingbroke properly allowed for traditional, unwritten, or partially written, constitutions as well as written ones of the type Paine demanded. Paine, instead, was a more tendentious polemicist who wanted to show that the British monarchical government was exercising unconsented-to power in ways dangerous to her own and other peoples; and he also wished there to be an order of procedure that would be more likely to produce: (1) the consent of the people as a whole to a constitution; and(2) a definite, widely known description of the limits as well as powers of the government, so that the people would be more secure from and better served by it.

We should not conclude without asking when would Thomas Paine have

been satisfied with a constitution? Paine himself gives us an answer:

When it shall be said in any country in the world, "My poor are

happy; neither ignorance nor distress is to be found among them; my jails are empty of prisoners, my streets of beggars; the aged are not in want, the taxes are not oppressive; the rational world is my friend, because I am a friend of its happiness" - when these things can be said, then may that country boast of its constitution and its government.

Finally, we should ask what most motivated Thomas Paine in developing

his socio-politico-economic agenda? Clearly, the goals he set in his statement about the kind of constitution and country he wanted, were understood by him not to be fully achievable in his lifetime; but he felt compelled to declare them in order to encourage mankind to persist in the brave new era of the Enlightenment to make a better world by following deistic-Quaker religious principles. The central purpose of these teachings was to help one another, especially when in need.

In a footnote to his "Observations on the Declaration of Rights"

(1791), Paine writes of an original pactum divinum ("a covenant with the Lord") that antedates and outranks all other pacts and authority of government: "a compact between God and man, from the beginning of time." In accordance with this covenant, we are commanded by God to love and serve one another and to keep also God's other commandments. Thus, the much misrepresented Paine, although by no means saintly in attitude or behavior, was in fact sincerely devout in the best sense of the word: doing God's will. Paine's political thought and life of action should therefore be understood as deriving mostly from his religious faith and faithfulness to the word of God as he was taught and perceived it:

It is time that because of his wise words and brave deeds, Thomas

Paine should be regarded as "a son of the commandments" that constitute "a covenant with the Lord."