Modern Age - Fall 2014 - 75

JAMES MONROE AND THE SOURCES OF AMERICAN EXCEPTIONALISM

independence of the colonies. The familiar
document of July  4 is a separate item and
does not actually contain the words "Decla-
ration of Independence." Nor, strictly speak-
ing, is it part of our legal system. It follows
the perennial format of a "petition of right,"
with a preamble and a list of grievances. The
traditional format adopted one innovation:
since His Majesty had been dismissed two
days before, on July  2, the preamble seeks
approval from "the decent opinions of man-
kind." The Preamble and the introduction,
so prominently a part of the mythos of the
Founding, is only 282 words. The rest of
the document consists of 1,123 words and is
basically a list of the king's offenses against
the common law and the charters of liberty.
The argument is not that British law must
be overturned and rejected but that the king
broke the law and ignored redress, and there-
fore the law can be restored only by breaking
allegiance with the king and separating all
political connection.
Americans have been thrilled from the
beginning with the golden words of Jef-
ferson's Preamble. Some have attributed the
document to the influence of Enlightenment
ideas. But the committee of five charged
with preparing the final draft cut Jefferson's
lofty rhetoric in half because they wanted
to get right down to business, namely, the
concrete indictment of the king's derelic-
tion from his obligations under law. There
is much more of Sir Edward Coke than
John Locke in America's favorite historical
document.
Richard Henry Lee and Francis Lightfoot
Lee were the only brothers among the signers
of the July 4 document. Richard Henry Lee
and Francis Lightfoot Lee were also the only
brothers who were signers of the Articles of
Confederation. Under the Articles, Richard
Henry Lee became sixth president of the
United States in Congress Assembled (the

Continental Congress). The seed that had
been planted in the Westmoreland Resolves
bloomed full forth in America's founding.

T

here were three phases to the develop-
ment of U.S. independence under law.
The first phase was the period of the colonial
charters, which had been granted by the
king, not the Parliament. The second phase
began in 1775 with the War for Indepen-
dence followed by the Articles of Confedera-
tion. The third phase began in 1789 when
certain powers were delegated to the federal
government by the Constitution, and others
retained by the states. The powers retained
by the states in fact were among those
powers granted with the colonial charters.
Monroe was well aware of this. As president
he wrote a very comprehensive legal memo-
randum on the sources of American law (his
Veto Message on Internal Improvements) and
pointed out that he had given public service
under each of the three phases. For Monroe
the law was a practical experience and not an
academic theory.
The debates in the Constitutional Conven-
tion tried both to fix the deficiencies of the
Articles of Confederation and to devise a
fool-proof system to make the best elements
of the British system permanent. Instead of
having a king as sovereign, the Founders'
theory was that the people should be sover-
eign. But the sovereign powers of the people
had to be exercised through a mechanism
that resisted rapid change, to preserve the
liberties of all. The Founders deliberately
rejected a parliamentary system where a
prime minister elected by the majority cau-
cus has unitary power. The executive powers
of the government were put into the hands
of an independently elected president who
had no power to create legislation, but only
a limited power of veto. The Congress was
divided into two bodies that had to come to
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Modern Age - Fall 2014

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