Observations on the New Constitution, and on the Federal and State Conventions, Part II: Philosophy

Before diving into an analysis of the content and significance of Mercy Otis Warren’s Observations on the New Constitution, and on the Federal and State Conventions, it might first be appropriate to attempt to ascertain its place on the timeline of early American history. Save for the year, 1788, and the place of its first publication, Boston, the document itself does not explicitly acknowledge at what point in the ratification process it first saw print. As discussed during previous explorations of entries in the Anti-Federalist Papers (of which Observations is certainly a part), when a particular criticism of the proposed federal constitution was first put forward is highly significant to the manner in which it ought to be interpreted. In the middle of the process, when it was unclear whether the Constitution would be adopted or not, an Anti-Federalist could be expected to write with feelings of legitimate confidence; nearer its end, when ratification was essentially accomplished, desperation or frustration might fairly be perceived as the dominant undertones. Though, again, Observations does not provide any overt indication of when it was published, a bit of deduction based on elements of the text itself render a fairly narrow window of possibility.

Observations is divided into nineteen sections, of greatly varying lengths. Near the end of the first, Warren mentioned, with wry resignation, the “late Convention of the Massachusetts.” The Massachusetts ratifying convention concluded on February 6^th, 1788 by approving the proposed constitution, 187 to 168 (hence the cause of Warren’s sardonic disappointment). Later, in the eighteenth section, she mentioned several other state conventions whose results were still pending at the time of her writing. These included specific mentions of the likelihood of Virginia, Maryland, and New York to adopt the proposed federal charter (she figured none of them would), as well as a general admission that the conventions of New Hampshire, Rhode Island, and the Carolinas also represented important battlegrounds. Putting aside the fact that she was incorrect on all counts – interesting, but unimportant for the moment – Warren’s mention of the upcoming Maryland convention provides a fairly clear indication of when Observations was written. The convention that assembled in Maryland to ratify or reject the proposed constitution concluded its deliberations on April, 26^th, 1788 with a vote of 63 to 11 in the affirmative. Because Maryland’s vote immediately followed that of Massachusetts, Observations must have been written at some point between early February and late April of the same year.

Massachusetts was the sixth state to ratify the draft constitution out of the nine required before it went into effect; three more states needed to vote in favor out of the remaining seven. Accordingly, the tone of Warren’s observations could fairly be interpreted as both confident as well as somewhat measured. Her remarks aimed at the men who took part in the ratification of the Constitution in Massachusetts seem at times almost haughty; her disappointment is plain, no doubt magnified by the belief that their efforts would ultimately come to naught. At the same time, particularly in section eighteen, Warren struck a somewhat more cautious tone. Acknowledging the number of conventions yet to render a verdict, she made clear to her audience how important each convention remained to the overarching debate, and warned of the consequences should the issue of ratification split the United States into potentially warring factions.

Forgiving some degree of rhetorical exaggeration, Warren had reason to be concerned. The ratification debate which followed the drafting of the United States Constitution represented an extremely significant crossroads in the young nation’s history. Down the path of acceptance lay the entire subsequent history of the United States as we know it. Down the other path, of rejection, was a history entirely unknown to us, full of different events, and a wholly different nation, that could just as easily have unfolded. Though they lacked the benefit of hindsight, the tone of their writings indicate that those engaged in the debate surrounding the proposed constitution, be they Federalist or Anti-Federalist, were very sensitive to the potential consequences of their efforts, and proceeded with the appropriate sense of responsibility, gravity, vigilance, and passion. Mercy Otis Warren was very much a part of this conversation, and Observations was perhaps her most significant contribution.

Of said document, a fair amount of information can be gleaned that provides a degree of insight into who Mercy Otis Warren was (intellectually, if not personally), how she viewed the world, and where among the Founders she is best located. To that end, perhaps the most striking element of Observations is the knowledge, of history, philosophy, and contemporary politics, Warren time and again displayed over the course of the various arguments she put forward. Recalling that she was largely self-educated, or at least that her education came mainly as the result of her own initiative, the sheer breadth of her understanding is quite impressive, as is her ability to effectively put it to use. Indeed, though she was not extended the privilege of attending any formal learning institutions, her rhetorical style betrays the influence of a classical education. Rather than simply recite what she had read, which evidently included English and Spanish history, French and Italian philosophy, the Old Testament, and the Classics, she demonstrated an understating in Observations of how these diverse elements could best be utilized in order to further her argument in a way that was logical, structured, and effective. This would have been no small feat for anyone, and effectively placed Warren on the same intellectual plane as any of her more well-known male contemporaries.      

In addition to the manner in which Warren deployed the knowledge she had amassed, it’s also worth paying heed to the specific references she chose to deploy in Observations, and considering what they have to say about her perspective, assumptions, and intellectual proclivities. Take, for instance, an allusion made very early in the first section to the main character of the Spanish novel Don Quixote by Miguel de Cervantes. Warren, speaking of the disappointment that might visit upon those who ratified the Constitution only to find the “flower of their crop” taxed to oblivion by newly-established federal authorities, guessed they would likely answer, as did the Man of La Mancha, “The steward of my Lord has seized and sent it to Madrid.” This would seem a rather sardonic observation, lacking in sympathy as it compares the supporters of the proposed constitution to one of literature’s most famous lunatics. Clearly Warren felt little compassion for those who wished to usher in the proposed federal union without considering certain of its consequences, but why did she choose the main character of a 17^th-century Spanish novel as her point of reference?

Published in two parts in 1605 and 1615, Don Quixote is one of the most celebrated works of fiction in the history of Western literature, and its titular hero has become an enduring figure in the popular lexicon. From the name and manner of Don Quixote is derived the English adjective “quixotic,” signifying a sense of romance to the point of impracticality, and from a famous incident described in the novel also comes the idiom “tilting at windmills,” meaning to attempt to battle imaginary foes. Both of these English-language derivations of Don Quixote may have had something to do with what Warren was attempting to communicate. Perhaps she intended to paint supporters of the Constitution as blindly idealistic, or determined to remedy problems that simply didn't exist via the adoption of a federal charter. Still, there is more to Cervantes’ novel than just the main character, and perhaps more to Warren’s invocation of the same than rhetorical expedience.

Don Quixote is a comic novel in the picaresque tradition and among other things has been described as a satire of orthodoxy and nationalism, a deconstruction of established chivalric narratives, and a meditation on the devaluing of nobility in contemporary European culture. It’s a highly complex work, with many discernible thematic layers, and would no doubt have presented a challenged to readers unprepared for Cervantes’ unconventional and inventive use of language and meta-narrative (in the second half of the story, the main characters are aware of the publication of the first half of their adventures). That Mercy Otis Warren had read Don Quixote, and was familiar enough with it to casually quote a passage in support of a written argument, is potentially significant for several reasons. Presumably she enjoyed the book, or else she would not have remembered it. This in itself reveals a possible taste for literature, and not merely for what was popular among English-language audiences of the day. As to the content of the novel, perhaps she found appealing its apparent indictment of idealism, and saw the titular hero as a tragic buffoon; sympathetic, but still hapless. This would again seem to align with her evident lack of sympathy for certain of the proposed constitution’s more energetic supporters. Don Quixote being viewed as a comedy perhaps also indicates that Warren was not without a sense of humor or irony. This appears to be confirmed by the sentence that followed her quotation of the Man of La Mancha, whose simple words she translated as, “The exigencies of government require that the collectors of the revenue should transmit it to the Federal City.” A needlessly exact interpretation, it seems likely Warren intended it to mock the inability of those she described to grasp the meaning of the original quotation.

In addition to Western literature, Mercy Otis Warren also demonstrated a familiarity with various types of European philosophy in her anti-constitutional Observations. Ample evidence of her intellectual fluency can be found in the first section alone, in which she quoted at length from the French writer, diplomat, and historian Gabriel Bonnot de Mably (1709-1785), expressed ideas drawn from social contract theory as articulated by English philosopher John Locke (1632-1704), and made use of certain observations put forward by British legal theorist Sir William Blackstone (1723-1780). She also made reference in section five to the influence of English jurist Sir Matthew Hale (1609-1676), and in section fourteen to the realpolitik political theory of Italian statesman Niccolò Machiavelli (1469-1527). This is an impressive assortment of thinkers to have at hand, and the confidence with which Warren deployed their words amidst her various assertions indicates a strong grasp of what each of them had to say and the manner in which their words could be applied to the situation she was facing in 1788.

At the same time, Warren’s familiarity with the work of each of the men she chose explicitly to cite in Observations suggests something about her own preferences and inclinations. Mably, for instance, proved to be a major influence on the development of both republican and communist political theory. At times in his work he criticized the concept of private property as incompatible with human sympathy, argued in favor of equality before the law, and asserted that virtue was a far more valuable commodity than material wealth. One of the passages of his that Warren quoted speaks quite effectively to this sentiment. “The virtues and vices of a people,” he wrote, “When a revolution happens in their government, are the measure of the liberty or slavery they ought to expect.” She further quoted Mably as having written that, “An heroic love for the publick good, a profound reverence for the laws, a contempt of riches, and a noble haughtiness of soul, are the only foundations of a free government.” She thereafter asked, evidently taking the Frenchman’s words as a guidepost, “Do not these dignified principles still exist among us?”  By bringing Mably’s explicit sentiments to bear on her argument against the ratification of a proposed federal charter, Mercy Otis Warren thereby expressed sympathy with his core premise that wealth and privilege were corrosive of equality, and that virtue was a far more important social value than obedience.

       Her understanding of social contract theory, as expressed in section one of Observations, likewise seems to demonstrate the depth of Warren’s knowledge of Western philosophy, and her ability to synthesize complex ideas in a way that aided her ability to convincingly put forward an argument. At the beginning of the third paragraph of the aforementioned section, she laid out a very succinct summary of the social contract and some of its implications as a means of criticizing the deficiencies of the government that was framed by the proposed constitution. So concise is this summation, and so well-phrased, that it bears a sizeable, if not complete, quotation. “Man is born free,” Warren wrote,

And possessed of certain inalienable rights – that government is instituted for the protection, safety and happiness of the people, and not for the profit, honor, or private interest of any man, family, or class of men – That the origin of all power is in the people, and that they have an incontestable right to check the creatures of their own creation, vested with certain powers to guard the life, liberty, and property of the community [.]

In addition to the evident influence of the phraseology of the Declaration of Independence – in itself a document inspired by existing social contract theory – this passage appears to exhibit a particular affinity with the philosophy of John Locke. The final clause especially, in which Warren described the logic behind the so-called “Right of Revolution” or “Right of Revolt,” has a distinctly Lockean ring to it. 

By abusing their power, Locke argued in his Two Treatises on Government (1689), the legislative authorities, “Forfeit the Power, the People had put into their hands, for quite contrary ends, and it devolves to the People, who have a Right to resume their original Liberty.” Warren made essentially the same case when she stated that, “The origin of all power is in the people, and that they have an incontestable right to check the creatures of their own creation [.]”Locke likewise asserted that what the people had to lose, what they established governments in order to protect, were their, “Lives, Liberties, and Estates [.]” Warren echoed this as well by her claim that governments were, “Vested with certain powers to guard the life, liberty and property of the community.” As these specific parallels, and the manner in which Warren further elaborated on the nature and purpose of representative government within the text of Observations, indicate that her grasp of Locke’s version of social contract theory was quite firm. Like her colleague and correspondent Thomas Jefferson, who also displayed a strong affinity for Locke’s articulation of the origin and nature of political organization, Warren evidently regarded government as means rather than an end; a thing intended to serve the people rather than demand service of them. This would tend to place her in a similar ideological category to Jefferson, his friend and colleague James Madison, and the various other Anti-Federalists and Republicans who likewise opposed the centralization of power in the hands of a strong, coercive federal government.

In addition to the work of John Locke, Warren demonstrated a particular affinity for certain elements of English political thought by also quoting from the writings of Sir William Blackstone in her Anti-Federalist Observations. These excerpted passages appear in sections one and two, and provide further evidence of her abovementioned disdain for coercive government and her steadfast belief in the primacy of certain fundamental legal protections native to the English tradition. The first such quote, whose author she cryptically referred to only as “a justly celebrated writer,” asserted that, “the principle aim of society is to protect individuals in the absolute rights which were vested in them by the immediate laws of nature [.]” Society, referring potentially to any form of social organization up to and including formal government, was primarily responsible for protecting the natural rights of individuals, presumably something on the order of life, liberty, and property. This is a very Lockean ideal, and one which very much squares with what Warren had theretofore expressed concerning government and its basic purpose.

The second quotation form Blackstone that Warren dispensed, in the second section of Observations, seemed to follow logically from the first as a specific example of how the “absolute rights” of the individual were best protected. “The learned Judge Blackstone,” she deigned to address, observed that it, “has been coeval with the first rudiments of civil government, that property, liberty and life, depend on maintaining in its legal force the constitutional trial by jury.” As mentioned on many occasions during the discussions of previous weeks, trial by jury was, and is, widely recognized as one of the most essential political/legal rights attached to the concept of English or British citizenship and its various derivatives. For centuries it has been viewed as one of the foremost means by which a free people may be guaranteed of their personal and communal liberty, and its abrogation has frequently met with agitation, protest, and even armed insurrection. Many of the Founders, when offering written protest against the actions of British ministers in the 1760s and 1770s, put forward the right of trial by jury as a one of the tradition prerogatives possessed by citizens of the colonies (as subjects of the British Crown) which the government of the day was intent on denying or suppressing. Mercy Otis Warren, it seems, was no different, and attempted to buttress her claim for the centrality of trial by jury to the liberty of a free people by quoting words to that effect from one of the foremost legal minds in the Anglo-American world.

Sir William Blackstone was indeed that, and Warren’s knowledge of him and his work ought to be seen as further cementing her place as the intellectual equal of the other members of the Founding Generation. His Commentaries on the Laws of England (published in four volumes between 1766 and 1770) was, at the risk of repeating myself, perhaps the single most influential textbook of common law history and practice in Britain and America for the better part of the 18^th and 19^th centuries. For young lawyers who came of age during the years immediately preceding the American Revolution, Blackstone’s packaging of established case histories was at the centre of their education, and in some cases was the only text they consulted before requesting admission to their respective bar association. Among those who are known to have read and/or possessed a copy of Commentaries are some of the most brilliant legal minds of their time, including President John Adams, Chief Justices John Marshall and John Jay, and Associate Justice James Wilson. For Mercy Otis Warren to be considered a member of this august company, if only by virtue of her common knowledge of the aforementioned Blackstone, is no small thing. If she was comfortable enough with the “learned Judge” to quote him in her own work, and knowledgeable enough to do it well, then she may have conceivably possessed an understanding of his work on par with that of some practicing lawyers and judges then working in America. This is in addition to the fact, again, that Warren was almost entirely self-taught, and so would have had to seek out and interpret Blackstone’s work without formal assistance.

Even in cases when she did not necessarily agree with the principles they set forth, Warren demonstrated a capacity in Observations to seek out and absorb the teachings of a variety of legal or philosophical authorities. At the end of section fourteen, for instance, she stated, as a means of reiterating the importance of protecting the rights of individuals, that, “even the Italian master in politicks, the subtle and renounced Machiavel acknowledges, that no republic ever yet stood on a stable foundation without satisfying its common people.” Though delivered with all the ceremony of a somewhat casual aside, this admission of familiarity with the political thought of Machiavelli is potentially quite revealing. Referring to the author of Il Principe (1532) as “subtle and renounced” seems a fairly clear indication of Warren’s disdain for the man, or at least for the principles he espoused. Considering that Machiavelli is thought of as among the originators of realpolitik thought, whereby ends tend to justify means, it could logically be inferred that Mercy Otis Warren rejected that style of political decision-making and nurtured a somewhat more principled political outlook. This would appear to place her, in the American context, in opposition to notoriously pragmatic figures like Alexander Hamilton.

At the same time, though she evidently found Machiavelli disagreeable as a political theorist, Warren was nonetheless familiar enough with him and the principles he espoused to attribute an idea to his name. Though this does not necessarily mean that she had read Il Principe from cover to cover some time prior to drafting Observations in 1788, it is an undeniable possibility that at some point she read some of his work – enough, at least, to decide that his ideals were not to her liking. If this was indeed the case it further testifies to Warren’s intellectual curiosity, as well as her humility (being willing to admit that Machiavelli was not completely without merit), and her desire to continually acquire knowledge and turn it to a useful purpose.