Few periods in the history of western intellectual thought have been more productive in so little time than the work product which flowed from the Continental Congress during the summer of 1776. On April 19, 1775, when the “shot heard around the world,” would forever become part of our history – British North America was separated from Great Britain by more than 3,000 miles of ocean: we were separated by a burgeoning idea, of what would become known as the “Birth of the American Mind.” (See Bernard Bailyn, The Ideological Origin of the American Revolution; Alison L. LaCroix, The Ideological Origins of American Federalism. For those interested in nineteenth-century American thought see Henry Steele Commager, The American Mind: An Interpretation of American Thought and Character Since the 1880s).
Delegates to the Continental Congress in the summer of 1776 were men of various backgrounds who professed an array of views on the powers of the King and Parliament as it related to their status as British subjects. But were men such as John Adams intellectually British? Or had 170 years in British North America produced a new human being, less refined than his cousin across the pond but more in tune with current events and concepts of liberty? Had the New World produced a new human being who relished a broad view of what freedom meant?
On June 7, 1776, Richard Henry Lee of Virginia introduced a resolution leading to the Declaration of Independence. That said, I pose to you on this July Fourth the following question: Was the Continental Congress really radical? Or did the Congress exercise social control? An expression of what liberty really stands for?
Defining Liberty
On June 18, 1776, just 11 days after Mr. Lee introduced his resolution calling for American independence, the Continental Congress passed the following resolution:
Resolved, That no man in these colonies, charged with
being a tory, or unfriendly to the cause of American
liberty, be injured in his person or property, or in any
manner whatever, disturbed, unless the proceeding
against him be founded on an order of this Congress, or
the Assembly, convention, council or committee of safety
of the colony, or committee of inspection and observation,
of the district wherein he resides; provided, that the
resolution shall not prevent the apprehending any person
found in the commission of some act destructive of
American liberty, or justly suspected of a design to commit
such act, and intending to escape, and bringing such person
before proper authority for examination and trial.
Unlike other revolutions throughout history, the Founding Fathers who were traitors to the Crown and Parliament respected the right of their brethren to disagree with them on the issue of American Independence. Tories were not to be punished for their political viewpoints. The resolution of June 18th drew a distinction between pure political speech and speech plus conduct, or pure conduct – concepts which have been part of our first amendment jurisprudence since the First World War. (see also Masses Publishing Co. v. Patten). Later cases have reinforced this basic doctrine, such as Cohen v. California, which reversed petitioner’s conviction for wearing in a courthouse a jacket which read “F * * K the Draft” as pure political speech; Tinker v. Des Moines Independent Community School Dist., where wearing a black armband protesting the Vietnam War was a form of protected silent pure political speech; and Stromberg v. California, which reversed petitioner’s conviction for flying the Red Flag of the U.S.S.R. on her private property as being pure political speech. In going to these lengths to protect pure political speech, the delegates to the Continental Congress were paying respect to men such as John Peter Zenger, who was prosecuted by the Crown for expressing unpopular views against the government. (See Trial of John Peter Zenger; see the brilliant article by Leonard W. Levy, Did the Zenger Case Really Matter? Freedom of the Press in Colonial New York, writing: “The test of free speech, however, is not the right of a man to soliloquize or shout his outrageous opinions from the top of a lonely mountain; it is, rather, his right to speak openly and with impunity among his neighbors.”)
Something marvelous was taking place within the walls of Independence Hall that summer: the Founding Fathers while authoring a declaration, actually, a bill of indictment against the King and Parliament – were taking steps to preserve what they were fighting for – the right to be intellectually free, to express themselves on matters of the day.
The resolution of June 18th vested in the Congress and the states, concurrent jurisdiction to try and punish those individuals who committed “some act destructive of American liberty, or justly suspected of a design to commit such act, and intending to escape, and bringing such person before proper authority for examination and trial.” The Founding Fathers required that an individual commit an act or engage in a “design to commit,” today’s inchoate offense of conspiracy, before being duly arrested, tried and convicted of crime. We were separating ourselves from Great Britain and the other powers of Europe where judicial creation of crime was commonplace. Just thirty-six years after the Continental Congress produced the Declaration of Independence, the Marshall Court held that judicial creation of crime was inimical to our constitutional faith: faith posited upon liberty.
The Founding Fathers were not just breaking ties with the King and Parliament that summer, they were establishing a republic posited upon the rule of law. And therein lies the beauty of the summer of 1776.
As I do each July Fourth amid an evening repast, I sit back on my sofa and re-read the Declaration of Independence – re-committing myself to the fundamental principles which the Founders held so dear.
Happy July Fourth!
Rabbi Joseph Fred Benson, a native of University City, Missouri, received an A.B. cum laude in English Legal History; American Legal History; and Political Science, American National Politics with an emphasis in Constitutional Law 1976; A.M. in American Legal History with an emphasis in Constitutional Law 1977; J.D., 1985, Saint Louis University; Semichah/Rabbinic Ordination 2007, Saint Louis Beis Din/Rabbinical Court. He served as the first Supreme Court Archivist – Legal Historian to the Supreme Court of Missouri (2000-2015). In retirement, Rabbi Benson teaches Hebrew to adults in Jefferson City and officiates at life cycle events throughout Mid-Missouri. He is also a provocateur of articles appearing in the Missouri Lawyer’s Weekly; St. Louis Jewish Light; and, the Catholic Missourian. His first article in JURIST appeared on July 4, 2020 titled “The Real Independence Day: July 2, 1776.”
Suggested citation: Joseph Fred Benson, Beyond the Declaration: Discovering the Meanings of American Independence, JURIST – Professional Commentary, July 4, 2022, https://www.jurist.org/commentary/2022/07/Joseph-Fred-Benson-independence-day-July-fourth/.
This article was prepared for publication by Rebekah Yeager Malkin, Deputy Commentary Managing Editor. Please direct any questions or comments to sh/her/hers at commentary@jurist.org
