Taxation Without Representation: Civil Rights Violations in the American Colonies

By: Derek Rajavuori, Junior Editor

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This Tuesday, March 5th, marked the 243rd anniversary of the Boston Massacre, one of the major revolution-era happenings that precipitated the struggle for colonial independence.  While the precise circumstances surrounding the incident are unclear, it at least amounted to an unequivocal indication that the colonists were unhappy with the state of things.  Moreover, it is also undisputed that a group of British soldiers fired into a crowd of protesting colonists, thereby drastically infringing upon the right to free speech and assembly.  This, and many other civil rights violations, undoubtedly influenced the mindset of the founding fathers as the rebelled and restructured the nation. 

In the latter half of the 18th century, the British fisc was burdened by its military projects and an extensive imperial agenda.  It had recently finished a war in the colonies – the French and Indian War – and was engaged in a number of ongoing conflicts across the globe.  To help ease the financial load, the Crown began to levy and enforce strikingly high taxes and tariffs on sugar, molasses, and of course, on tea.[1]  Because the colonists had no representation in parliament, they had to result to civil discourse in order to ensure that their distaste was heard.[2]  Culminating with the Boston Tea Party in 1773, the colonists engaged in a massive campaign to eliminate “taxation without representation.”

Closely related to the fiscal issues stemming from the Crown’s military campaigns, the British also feared economic competition with other nations.  To prevent their adversaries from gaining a share of the colonial market, the British navy routinely interfered with the colonists’ attempts to purchase foreign goods.[3]  The colonists, in effort to avoid the drastic tariffs, frequently sought to purchase goods from outside markets, but they were thwarted by these British practices.[4]  Combine this with the overbearing prices on precious goods, and you have a recipe for revolution. 

Equally important to the revolution as the Crown’s taxation and economic restrictions was the presence of the British regulars – colloquially known as the “redcoats.”  Years of military occupation instilled a fear in the members of the Constitutional Convention that a national standing army would pose an intolerable threat to individual liberty.[5]  It resulted in a strong conviction to keep the military subordinate to civilian authority.  In Federalist No. 41, James Madison explained that a standing force is an “object of laudable circumspection and precaution” and indicated that a wise nation will exercise prudence in eliminating the both the necessity and the danger of resorting to one.[6]  “The clearest marks of this prudence,” Madison indicated, “are stamped on the proposed Constitution.”[7]

The colonists were dissatisfied with the elevation of the British military over civil authority.  The Declaration of Independence, for example, renounced the Crown expressly because it rendered “the Military independent of and superior to the Civil Power.”[8]  The expansion of military power at the expense of local civil authority led to a number of well-known oppressive aspects of life in the colonies.  In Boston, for example, the British began quartering soldiers in colonists’ homes as a form of intimidation.  This practice clearly influenced the framers in drafting the Bill of Rights.[9]

The state of civil rights in the colonies was heavily reflected in the structure and substance of a number of provisions in the Constitution and Bill of Rights.  For example, stemming from their experience with the British military occupation, the Founders strongly believed that individual liberty would be best served by the provision of a robust civil, rather than military, criminal process.[10]  The right to a trial by jury in criminal cases is one of the most significant and obvious protections included as a consequence of this line of reasoning.[11]  Deprivation of the right to a trial by jury was one of the driving forces of the American Revolution, and the Declaration famously declared its “solemn objections” to the King’s practice of “depriving us in many cases, of the benefits of Trial by Jury.”[12]   Less obvious, but equally important to individual liberty, was the basic structure of the federal judiciary.  The Constitution dictates that Article III judges be appointed and receive lifetime tenure, and it provides them with immunity to salary decreases.[13]  These three provisions seek to ensure that the federal bench is separate and independent from the political branches of government.  The Supreme Court has since verified that “[c]ourts and their procedural safeguards are indispensable to our system of government.  They were set up by our founders to protect the liberties they valued.”[14]

The Constitution also contains a number of other provisions that are arguably rooted in pre-revolution British practices.  For example, while it named the President Commander-in-Chief, it also established crucial limitations on that power.  Congress, rather than the President, has the power to declare war.[15]  Indeed, the President’s military power is “dependent upon Congress for both the authority to wage a war and the means by which to do so.”[16]  The right to petition for the writ of habeas corpus, at least as it was originally understood, also reflects the critical role the Founders placed on civilian criminal process; it provides a right of an accused to access civilian courts.[17]  Alexander Hamilton explained that “confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.”[18]  This danger was significant enough to lead to the provision of the writ.

Although this list is by no means exhaustive, it provides a few examples of how life in the colonies influenced the revolution itself, and how it was reflected in various provisions of the Constitution.  The colonists were propelled into revolution by what they saw as intolerable violations of individual liberty, and they eventually succeeded in doing the impossible – fending off the Crown’s attempts to retain sovereign control.  As the framers met to structure our government not long afterwards, the restraints on liberty were undoubtedly fresh in their minds.  In order to avoid creating a restriction-heavy federal government, they allowed their experience to influence their actions, thereby providing and protecting the rights we hold dear today.

 

 

 

 


[1] Robert Middlekauff, The Glorious Cause: The American Revolution, 1763-1789 207 (2005)

[2] Id. at 227

[3] Id. at 289

[4] Id.

[5] Perpich v. Dep’t of Defense, 496 U.S. 334, 340 (1990)

[6] The Federalist No. 41, at 321 (James Madison)

[7] Id.

[8] The Declaration of Independence para. 14 (U.S. 1776)

[9] See U.S. Const. amend. III. (prohibiting the forced quartering of soldiers).

[10] Ex parte Milligan, 71 U.S. 2, 119 (1866).

[11] U.S. Const. art. III, §2.

[12] The Declaration of Independence para. 20 (U.S. 1776).

[13] U.S. Const. art III, §1.

[14] Duncan v. Kahanamoku, 327 U.S. 304, 322 (1946).

[15] U.S. Const. art I, §8, Cl. 11

[17] U.S. Const. art I, §9.

[18] The Federalist No. 84 (Alexander Hamilton)

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