January 10, 2014
When we think of important legal influences from America’s colonial and revolutionary period, we often first think of influential statesmen such as Alexander Hamilton and James Madison, authors of the Federalist Papers, or Thomas Jefferson, the author of the Declaration of Independence.
There is another author who, while perhaps not regarded as a scholar of the same caliber as the above writers by today’s legal scholars, has written a piece of literature that has had an undeniably profound impact on the United States.
That author is Thomas Paine, and his piece of literature is the pamphlet Common Sense, which was published anonymously on January 10, 1776.
Common Sense didn’t engage in any grand intellectual discussion over the proper role or scope of government; instead, the 238 year old pamphlet was a strong advocacy for immediate independence of the American colonies.
What made Common Sense unique was how it was written. Paine abstained from the heavy philosophical temperament that characterized Enlightenment era writers, instead using language and arguments that were simple, plain, and easily accessible by the colonies’ general populace.
The 48-page writing was structured into four sections. The first of these examines the nature and role of government itself, which Paine describes as a means for individuals living in society to resolve the problems that inevitably arise from a growing and changing society. Paine both advocates for representative democracy in this section and criticizes monarchy and aristocracy as systems that allow rulers to wield power through heredity alone while contributing nothing to the people.
The second section offers a more direct criticism of “the evil of monarchy;” Paine cites Bible verse to support the notion that all individuals are created equal and that any distinction between royalty and subjects is false. Paine goes on to use historical and contemporary examples of why monarchies are “evil,” and comes to the conclusion that royalty have no place in a legitimate republic (a direct criticism of Britain’s “constitutional monarchy” form of government).
The third section makes a staunch and an unabashed promotion of American independence. In this section, Paine also calls for the framing of a “Continental Charter, or Charter of the United Colonies,” which, among other things, should fix “the number and manner of choosing members of Congress, members of Assembly, with their date of sitting, and drawing the line of business and jurisdiction between them.” In addition, such a charter would “[s]ecur[e] freedom and property to all men, and above all things, the free exercise of religion, according to the dictates of conscience.”
Having thrown his support behind the path of independence, Paine dedicates his final section to contending that the path to independence is within the military ability of the colonies, and providing strategies toward reaching this goal.
The pamphlet was an unprecedented success.
No other writing had gone to any lengths to be accessible to the general populace, since, at the time, discussion of politics and government were considered the exclusive province of colonial elites. Common Sense, by contrast, was widely read across the colonies by people of all walks of life. It was read at public gatherings, allowing those who couldn’t read to hear Paine’s words and advocacy for independence.
Paine’s message resounded compellingly; previously, the vast majority of the colonists were on the fence with the issue of independence (despite the fact that armed conflict had already begun between Britain and the colonies). Most viewed themselves as aggrieved Britons, but Britons regardless. The idea of complete independence from the British crown was a radical notion to most.
Common Sense changed all of that; when the messages contained in the pamphlet had spread throughout the colonies, the people were unified behind the single ideal of independence – an ideal that gave birth to the Declaration of Independence six months later.
But to recognize American independence as the pamphlet’s only lasting influence on American political and governmental identity is selling the writing short. After all, Common Sense advocated strongly for democracy, not just independence.
Although we may believe the notion of America having a king to be ludicrous, it was a serious consideration at the time, especially among the colonial elites.
Paine’s damning criticisms of monarchies resonated so powerfully with the people of the colonies that any serious consideration of American royalty was effectively lost forever.
Albeit, Paine’s writings may not be widely and seriously cited among legal scholars in constitutional discussions, at least as much as those of Madison or Hamilton.
Without Paine’s Common Sense, however, it’s uncertain whether today’s legal scholars would even be having constitutional discussions at all.