Op-ed on the History News Network

I was honored to thave a piece published on the outstanding History News Network, on Constitution Day 2022, in which I argued that the moral and political trauma over the the contitutional status of abortion echoed the moral and politcal trauma over slavery in the earlier days of the United States:

How the Constitution Can Accommodate Divergent Values


How the Constitution Can Accommodate Divergent Values

by James D.R. Philips

James Philips is the author of Two Revolutions and the Constitution: How the English and American Revolutions Produced the American Constitution, published by Hamilton Books and available through all online booksellers.

The Declaration of Independence charged that King George III and parliament had “…subject[ed] us to [British laws] foreign to our constitution…” Yet in 1776 (when the Declaration was written) there was no written American constitution. Why did Jefferson write “our constitution”?

Jefferson was asserting that across the 13 British-American colonies there was a shared belief about how America should be governed.

Eleven years after the Declaration, the Constitutional Convention devised a system of federal and national government, which it set out in the Constitution. That system built on the shared constitutional beliefs and experience of Americans but also allowed for the diversity of other American beliefs and values.

The moral issue which most divided revolutionary America was not abortion: it was the institution of slavery. By the time of the Constitutional Convention in 1787, Massachusetts had abolished slavery through its new Bill of Rights, and other New England States were moving towards abolition. Georgia and South Carolina were adamant that they would not join the Union if slavery or the slave trade were suppressed. Some Virginian slave owners at the Convention spoke against slavery, on moral grounds.

The original Constitution addressed slavery in three places: once when dealing with the allocation of votes and taxes; once when prohibiting a ban on the importation of slaves before 1808; and once when requiring all States to return slaves who had escaped from other States.

By 1776, the British-American political system included: a legislature in each colony, with a chamber elected by most white men who owned property; jury trials, and the application of the common law; low taxes; the limited exercise of British power in the colonies; and a belief that the colonies should be able to grow westward.

The Declaration was electrifying in its assertion of “certain unalienable rights; …among these are life, liberty, and the pursuit of happiness”. How did the Constitution give effect to these rights? 

Not by setting out personal rights. The original Constitution was focused on establishing the machinery of a new system of republican federal and national government. It was this system, rather than the express enumeration of individual rights, which would protect Americans’ liberty and protect them from tyranny.

Both at the Constitutional Convention and during the ratification debates many Americans wanted to follow the practice, which began with the English Bill of Rights of 1689 and was picked up in many of the State Constitutions, of setting out certain individual rights as paramount rights which American governments and law would have to respect. The American Bill of Rights was added to the Constitution almost immediately after ratification.

When founding the nation, American political leaders had to both leverage Americans’ shared political culture and beliefs, and allow for Americans’ differing moral beliefs and values.

In some ways, differing beliefs about the issue of abortion are even more politically difficult than about slavery. Defenders of slavery claimed that it was economically, not morally, necessary. Anti-slavery advocates believed that there was a moral imperative to abolish slavery.

With abortion, pro-lifers believe that abortion is immoral in many circumstances, while pro-choicers believe that it is immoral to prohibit abortion in many circumstances. The difference in perception of the moral issues intensifies the political division.

The possibility of the Supreme Court being activist in constitutional issues would have surprised the founding generation, who knew that differences in values across the 13 original States were a political reality, with slavery being the most obvious example.

Since the Second World War, internationally human rights treaties and constitutional protections have expanded immensely in scope. Some Americans see a role for the Supreme Court in responding to the changed human rights environment by finding rights which were not explicit in the Constitution or the Bill of Rights. For originalists, the express enumeration of rights is a constraint on the Court’s ability to do this.

The question now is the extent to which differences should be resolved through State democratic processes or constrained by the Supreme Court finding individual rights as paramount rights.

The challenge of enabling a single federal/national government in a nation with differing (as well as many shared) convictions about moral issues has been with the nation since its founding.

Published by James Philips

When his younger son was four years old, one Saturday afternoon James found himself – for the first time in years – with several hours in which he was not working for his law firm or doing things with his young family. He picked up a book of his choosing. It was a history book. James was born in 1960 in Sydney, Australia. His late elder sister, Petrina (known in the family as ‘Beans’) taught him to read before he went to school. He was sick with asthma and bronchitis for much of his childhood, and spent a lot of time reading – especially historical stories. He liked to argue for his views, too. His father, Peter, had studied law after returning from service in World War II, and many of Peter’s and his mother Sue’s friends were lawyers. James decided early on that he wanted to be a barrister (a type of attorney who represents clients in Court). His uncle Bill spent many hours restoring a rotting sailing dingy, in which James taught himself to sail while on the family’s annual beach vacations. At school he did well in math and science subjects, but also in English and history (which is where his heart was). He was captain of his high school debating team, and acted in several plays. He also produced and directed a play, and assisted in the production of others. One of his actors only suffered mild rope-burn when the harness that James had made for a hanging scene slipped… James won a scholarship to Oxford University straight after school. He was not as motivated in his studies there as he had been at school, and did not feel any connection to England. Those factors, and two people, had a big role in his decision to leave Oxford after four of the nine terms of his course in Politics, Philosophy and Economics. The first person was a wonderful woman whom he fell in love with, but who dumped him. The second was Margaret Thatcher, whose government put up fees for overseas students to a level which James could not afford. James then studied for a liberal arts and a law degree at Sydney University. He made his first investments in the share market while at university, using money that he borrowed on a credit card. After graduating, he worked at a law firm with some outstanding lawyers, who were passionate about excellence, about their clients, and about building the firm. He stayed at that firm for thirty years, becoming a partner, then head of Mergers and Acquisitions in Sydney, then co-head of Corporate, and a Board member for eight years. He loved being a solicitor (a type of attorney who rarely represents clients in Court), and never switched to becoming a barrister. More importantly, he met Julie Claridge there. James was smitten, and they became engaged after James’s eighth proposal. They were married and then blessed with two wonderful sons. Like many Australians, James and Julie love to travel. They resumed travelling when their younger son was three. Both boys were – mostly – fine with the twenty-four hour flights that Australians take. James and Julie encouraged intellectual curiosity in their sons, and helped to teach them how to participate in fact-based discussions and debates. Family discussions have been wide ranging since the boys were young. While at his first law firm, James was able to advise many local and offshore clients. He also helped the firm to grow its offshore business. He made a trip to Myanmar to test a recommendation that the firm should open an office there: he recommended that it should not. He advised the first company from the People’s Republic of China to list on the Australian Stock Exchange. He later made many business visits to the PRC. For more than twenty years he has been a visiting lecturer at the law school of the University of Sydney (currently ranked 12th in the world), teaching two topics on equity capital markets law. He wrote a long chapter for a leading subscription publication, on public merger and acquisition law in Australia. He has convened and spoken on many panels, and at many seminars and conferences. When he became head of Mergers and Acquisitions, to encourage some of his partners to take oral communication training, he took the training himself. He learnt a lot about the importance of preparation before every meeting and every presentation. His law firm was an innovator in teaching its lawyers to present complex advice concisely and with clarity. He is a director of a leading Australian think tank, and Chair of two real estate investment trusts. James and Julie have always lived on a pre-agreed amount, paid their taxes, made donations and used the rest of their income to invest. James sees investment as trying to apply knowledge about a range of topics to predict the future, and to pick future winners. At the end of the Great Recession, James and Julie sold their family home to take advantage of depressed investment asset values. After coming second in an election for Chair of his law firm, James moved to a global law firm where he became head of Corporate in Australia. There he sat in open plan, with a team of very capable and motivated young lawyers. He discovered that they did not know much about history or literature. In 2018 James decided to embark on a new project – to write a book about an important historical topic, in the hope that he could help to spread knowledge about what made the world as it is. He resigned as a partner from his law firm, and began work on his new mission.

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