The framers, convened to discuss, debate, and draft a Constitution in 1787, were among the most learned men in the colonies, but they were not mythologically infallible. They debated competing ideas of society and governance from some of the best thinkers and philosophers of Classical Antiquity, the Age of Reason, and the Enlightenment. It is believed that many founders were at minimum, professing gnostics (believers in a God), though some were primarily of the Deist ideology, denying the involvement of a creator God with His creation in any personal way. We know that many were slaveholders. We know that none were women.
They had led the effort to fight and win a difficult, costly war to escape the injustice of British tyranny. The idea of Justice was of paramount importance to them. They were putting away the old, European ideas of justice, to put on the new. And as Americans, we are both humbled and inspired by their efforts. How did they arrive at their concepts and their systems? And what does it mean “to establish Justice”?
To Plato, Justice meant harmony. From Plato’s Republic, the framers would have been introduced to the idea of an integrated, interdependent and harmonious society and system of government. To be established, each part must fulfill its role in relationship with the others. Thus, the formation of three inter-connected, co-equal branches is consistent to the Platonic ideal.
From Plato’s harmonious framework, as modified by Locke, Hume, Adam Smith, Rousseau, and even Hobbes, they sought to craft a government based on the concept that Justice is both an external system of courts, judges, and juries; and an internal quality to be cultivated as the most excellent of human virtues.
This concept, embodied most fully by the American experiment, is the most radical, fundamental diversion from all previously codified political doctrine. The framers recognized Justice as basic equality in humanity itself. They codified their belief that all men share equally the endowment of inherent rights bestowed by God, not by governments. In recognition of this, they determined to craft a government of law and not of men. A government that would preserve, protect, and foster these inalienable rights. They wanted men unshackled by governmental oppression from either a tyrant, or from a shifting, unstable majority.
To do so, the founders adopted a system of public election combining popular vote with appointed electors in an effort to select only the most highly qualified candidates for public office. Yet, unlike Plato, the only guidelines the framers included were minimum age, residency, and citizenship requirements. In this, the founders were perhaps too optimistic in the belief that the population at large would be able to distinguish between qualified and unqualified candidates. Their hope was that the electoral college, serving by appointment, would correct any deficiencies from the voting public at large. Again, it is notable, that from the beginning, the framers rejected the inclusion of women for election on any basis.
They discarded heredity as a factor in office-holding. From the outset, they flatly rejected the European practice of Monarchy along with its church-supported doctrines of the Divine Rights of Kings. Justice would neither be established, nor dispensed, by either Ecclesiastical or Monarchical decree in the United States.
The framers, with hands burned on the stove of Monarchy, would have had Jefferson’s list of grievances and injustices from the Declaration of Independence in mind as they fashioned a system that did not oppress the weak at the mere will of a King. Yet, they had almost equal distrust of pure Democracy. They wanted a system that gave weight to the codified rule of law as a bulwark against the whims of an ever-changing popular majority.
Plato’s utopian society of The Republic had been written in answer to the question, ”what is Justice?” His work would shock modern readers for its reach into eugenics, childbearing, parentage, state-run-and-state-provided-health-care (beginning with state mandated exercise and fitness regimens), marriage, property rights, the state run educational system, income and wealth caps, taxation, and the lifetime appointment of ”Guardians” to run the government. It is both fantastic, and fantastical as a work of pure theory as applied to the social construct. It has never been practiced, in toto, in the history of mankind.
But the framers paid homage to this and many ideas of political philosophy as they sought ”to establish Justice”. Like Plato before them, the most well-regarded thinkers of the day would have conceived of Justice as that most difficult to define attribute of human nature and social composition. These philosophers struggled with the institution of slavery. They struggled with ideas of women’s rights. They debated over property rights, and corporations, and voting, and the dangers of mob-rule inherent in Democracy.
From a historical perspective, we have the luxury of seeing how the framer’s contemporary social detritus, particularly with regard to slavery and women’s rights, clouded and embarrassed some of their decisions. Yet, we can still be thankful that they were not only concerned with the scaffolding of Justice; the mere establishment of courts and judges. Rather, they championed the concept that Justice is the End of Government itself.
Only a carefully crafted, harmonious system could honor the human virtue of Justice (as the principle that all men are created equal and deserve equal treatment under the law); and simultaneously create an integrated system empowering the Judicial branch (as definers and protectors of Justice and law) to insure that the external system would protect this internal truth.
We marvel at the system of checks and balances created. We admire the elevation of a Judicial Branch as a co-equal with the Legislative and Executive branches. But we recoil at the knowledge we have from the armchair of historical reflection, that these men who espoused Justice as a virtue, nonetheless failed to grant equal protection to either slaves or women in our great founding document. And we are aware that the establishment of Justice, with its great promise of equal treatment under the law is a work still in progress.
Thankfully, the founder’s wisdom is shown in the creation of a document and system flexible and adaptable enough to be cured of oversights and omissions as it strives even now toward the great end: to establish Justice.