The fundamental law by which society governs itself: James Otis, revolutionary Boston, and the Constitution
James Vaughn
Platypus Review 177 | June 2025
On October 12, 2024, the Platypus Affiliated Society hosted the panel, “1776 and 2024: Revolutionary Boston and capitalist politics today,” at Boston College, as part of its 2024 East Coast Conference. The panel featured three Platypus members: James Vaughn, Spencer Leonard, and Erin Hagood. James Vaughn’s edited opening remarks follow.[1]
I WOULD LIKE TO BEGIN with a quotation from Bernard Bailyn, whom I consider the greatest late-20th-century historian of colonial revolutionary America. In a bicentennial speech in 1976, he wrote:
A single characteristic of this later Revolutionary period predominates. Despite depressions, doubts, and fears for the future and despite the universal easing of ideological fervor, the general mood remained high through all of these years. There was a freshness and boldness in the tone of the eighties, a continuing belief that the world was still open, that young, energetic, daring, hopeful, imaginative men had taken charge and were drawing their power directly from the soil of the society they ruled and not from a distant, capricious, unmanageable sovereign. It was not simply that new forms of government were being devised. A new civilization, it was felt, a civilization whose origins could now be seen to have lain in the earliest years of settlement, was being created, free from the weight of the past, free from the corruption and inflexibility of the tangled old-regime whose toils had so encumbered Americans in the late colonial period. . . . Far from the 1780s being a conservative or “counterrevolutionary” period that culminated in a Thermidor at Philadelphia and far from that decade being dominated by self-searching despair for the future of republican hopes, those years witnessed a vast release of American energies that swept forward into every corner of life.[2]
Bailyn pushes against the narrative, established by the progressives of the early 20th century and the New Left neo-progressives of the 1960s and 70s, that the later 1770s and 80s had been a dark period and a counter-revolutionary period.
I fully agree with Bailyn’s quotation, but nevertheless I would like to offer a friendly amendment. He says that the 1780s were the realization of the 1760s and 70s because they had broken from an alien, trans-Atlantic, distant sovereign, and their sovereignty was rooted in the soul of their own society. I would rather say that they had placed sovereignty not in their own society, but in society itself, and had for the first time achieved the sovereignty of society over itself: a self-governing society in which the state becomes an instrument of society as a whole. There were people all over the world who were struggling precisely to realize the sovereignty of society. The only real success of the American Revolution is to have achieved this in one area of the world, and to have built political institutions that lasted beyond the revolutionary ferment of the later 18th century into and through a fully developed capitalist modernity.
What is this society of which I am speaking? I simply mean “society” here in the double-sense of “civil society” (bürgerliche Gesellschaft) in which the Hegelian and Marxist tradition uses it. Civil society is in one sense all social relations between people that constituted the new form of society — “bourgeois society,” or, the society of the social relations of free laborers — emerging from the post-medieval, Western world. On the other hand, a successfully constituted civil society that politically organizes itself creates another layer of civil society, which is what social scientists generally mean by it in our own day: those voluntary associations of everyday life. When I say “civil society,” I mean it in both senses: the totality of all the reciprocal bourgeois social relations greater than the sum of their parts, and furthermore how once this is politically institutionalized through the universality of law, the consolidated realm of everyday life where free laborers voluntarily interact and exchange with one another. This may have local expressions. There may be a “civil society” in colonial British North America in the United States, but it is simply the consolidation of a global phenomenon of bourgeois social relations through successful political and institutional organization. Local developments very much depend on the development of global social relations.
By the time of the 18th century, bourgeois society had become aware of itself. This is simply what we call the Enlightenment. The introduction of bourgeois society brought an unprecedented level of sociality, which both creates something greater than the sum of its parts, or society as such, and retrospectively allows us to see that there had always been an organization of reciprocal relations amongst people — “societies” — but they had never been as fully social as the bourgeois society of the 18th century. That greater reciprocity of relations amongst people allows for more individuality than ever before, and that greater individuality in turn contributes to a much greater development of sociality. Here, I am just giving a basicreading of Rousseau.
Nevertheless, there was an issue in the 18th century: how do you politically organize and consolidate the potential of society? How does society govern itself? How does it develop a political agency rooted in itself and responsible to itself? Hobbes was the first to clearly pose this problem in Leviathan (1651). His answer was to erect a common power, an absolute sovereign that was the expression of society as a whole, but which became estranged from society and dominated it as an alien political force. Practically, it took the seventeenth-century English Revolution and theoretically, it took John Locke to subject Hobbes’s alien, sovereign power to society itself, through which it was understood that the Constitutional Monarchy and Parliamentary settlement created by 1688 represents the self-government of society, because parliament makes the laws of deliberative assembly. Because the state cannot rule without parliament, it cannot rule beyond the law. Unlike what Jean Bodin and Hobbes said — that you cannot have law without someone who gives the law but does not receive it — the point of 1688 and Locke is to say that the giver of the law must also receive it. There can be no alien, absolute sovereign power outside of and unaccountable to the society over which it rules.
Nevertheless, the British Parliamentary regime was at best a partial implementation of this revolutionary project. It was an oligarchic, parliamentary, absolutist, corrupt realization of this transformation, and it is left to the thinkers of the mid-18th century, above all Rousseau, to rearticulate the tasks of a society that governs itself. This is the highest achievement of Rousseau’s principle of the general will, which understood that for people to be fully self-determiningindividuals, they must inhabit a sociality that involves heteronomy: receiving the law from outside themselves. Rousseau is asking how the people can be involved in such heteronomy while remaining autonomous. He points out that people can only be genuinely free as individuals within a free sociality, in which they benefit from society’s transformation of the world in history, while on the other hand, such a society can only benefit from free individuals who are self-determining and innovative.
What does any of this have to do with the American Revolution, or the events in Boston? For one, many people throughout revolutionary North America were influenced by Rousseau’s Social Contract (1762). It was being read all over the Western world in the 1760s — not just by Thomas Jefferson. But more substantively, what is achieved in the American Revolution, for which Boston is a key theater, is precisely the first and only lasting institutionalization of a self-governing society, which is achieved, above all, in the American Constitution. American revolutionaries turn, for the first time, to writing constitutions, because they are attempting to institutionalize the general will. It is precisely the idea that the state does not create the fundamental law, but rather the fundamental law creates the state. There may be something in the state called the legislature that makes laws, but those are merely ordinary, regular laws, made by representatives who are elected and determined through a given system. The law-making or legislative power is controlled by a higher law, a fundamental law, which is the general will of society as a whole. Law pre-exists the state. The state, even when it is making law, such as in the legislative body, or enforcing law in the executive body, or interpreting law in the judicial body, is controlled by a higher law that is in no way, shape, or form ever created by the state, but is rather produced by the totality of the people themselves as a social collectivity.
The turn to writing constitutions is the attempt to put down on paper the law-giving power of the people. When people want to rewrite their fundamental law, they must come together in great conventions and assemblies with supermajorities to change it, because they are not merely changing ordinary law. That is why they erect such high obstacles to constitutional change. It is not that they do not imagine constitutional change, but that it must be the totality of society reflecting and deliberating on itself and overwhelmingly agreeing to do so.
These ideas first clearly emerged here in Boston. Following the Glorious Revolution of 1688, the colonies of British North America had considered themselves provinces or constituent parts of a British empire of liberty, ultimately rooted in England and above all in London. Originally, the goal of European colonialism was to try to reconstitute the social order of the mother country, but in the colonial environment they failed to constitute those old metropolitan social orders. They did not successfully implant a titled aristocracy, vast religious establishments, standing armies, and Old Regime monarchies. Quite unintentionally, new bourgeois social relations began to constitute a new social order, involving far less of a compromise with the past than in Europe, because of the failure of traditional social forms to carry themselves across the Atlantic. In a word, all land is essentially commercial; all labor beyond the slave plantations is essentially free and unleashed from patterns of deference and tradition accumulated in the Old World.
As a result, colonial North America becomes the most rapidly developing place in the world prior to the industrial revolution. The free laboring populations here develop socially and economically at a quicker rate than had ever happened before in human history. They go from being under 200,000 people in 1700 to over 2 million at the time of the Revolution, which is not merely the most rapid demographic advance in the history of the world hitherto, but also, as Adam Smith tells us, not merely a quantitative change in demography. Qualitatively, the people are relating and interacting with one another differently than ever before. As he puts it, the natural course of liberty realizes its fullest expression here. They have the highest rate of per-capita income in human history by the 1740s and 50s. It is their social relations rather than their demographic growth that makes them economically and socially prosperous to a degree previously unseen. As Smith says, the surest sign of a free and wealthy society is one in which the common people have a lot of children who live into old age.
In the 1760s and 70s, there comes the imperial crisis. During and after the Seven Years’ War (1756–63), the British political elite begin to take the empire in a politically autocratic and economically extractive direction. They do this on the basis of the idea that King George and Parliament itself are absolutely sovereign, outside of and beyond society. They begin articulating that essentially Hobbesian point that society must create something outside of itself, the state, that then turns around and controls society, and that social relations have to be held together by an unaccountable state divinity, a mortal God as Hobbes called it and as Parliament thinks of itself by the 1760s. One of the ways this manifests is that the Parliamentary regime begins insisting on enforcing the laws of trade navigation. These were laws regulating trade and shipping throughout the British empire and in the colonies. In the early 1760s, they pass new writs of assistance, which are general warrants that do not specify a criminal charge or perpetrator; they simply empower magistrates to search houses, storefronts, and ships across colonial America, and most importantly port cities like Boston, for contraband goods, on the basis of their own suspicions. They could knock on your door, wake you up at night, search everything, and go to your business without any proof of a judge having been convinced of a reason to name a specific place or person. If they find any contraband goods, you are tried without a jury in an admiralty court in which the judge is appointed by and responsible to the crown in London. Such a courtroom is the domain of the state, not civil society. If you are found guilty, the royally appointed judge keeps a portion of the rewards, payments, and fines of the contraband discovered. You can see how such a state, even if it is initially just minor contraband, could quickly become wholly removed from society and operate as its destroyer rather than its protector.
The first person who makes this clear is James Otis, Jr., whose grave we will visit tomorrow. He gives a speech about the writs of assistance in the Massachusetts Bay Superior Court, where many people are gathered who subsequently become key founders and revolutionaries — most famously John Adams — who essentially say that their minds were transformed by that speech. James Otis was a Massachusetts Bay Colony jurist defending people charged under the writs of assistance. In the Massachusetts Bay Superior Court, he moves the spotlight away from the alleged criminal activity of civilians and instead gives a lengthy oral disquisition on the corruption of such charges. As he says, the court has no standing here in Boston; the entire authority is illegal; the real criminality is their attempt to put these men on trial, and therefore society must now try the customs inspector and magistrates, because they have become enslavers of and criminals against society.
James Otis goes on to write a number of newspaper essays and pamphlets. The most famous one is The Rights of the British Colonies Asserted and Proved (1764), partially in response to the Sugar Act.[3] There, Otis lays out the case that the first law of all political communities is the fundamental law by which society governs itself. Before people are political, they are social. They establish reciprocal relations between one another. They are able to have a sociality independent of the state — a division of labor, exchange of goods and services, culture, science, families, and kinship communities. Therefore, the state is not the creator of law but the law’s first upholder. The picture he paints of what happened in the Glorious Revolution is that the then king of England—the absolutist monarch King James II who is overthrown in the course of the revolution—represented the state running roughshod over society, until society gathered together and overthrew him, after which Parliament held a convention to draw up a fundamentally new social compact. Otis says, you can never perfectly institutionalize the fundamental law of society, but the British Constitution written at the time of the Glorious Revolution (1688) represented the closest approximation to the natural constitution of society. Hence, he says, the British were the freest among nations, as all British subjects in the colonies, black and white, had civil rights irrespective of their rights in British law. There is a higher law of society beyond any of its concrete institutionalizations. Civil rights are not created by the state but by our sociality. What are the immanent needs of that sociality? That we want to be free, self-determining people, but we realize that this requires reciprocal relations with others. We must accept common rules, regulations, and laws from outside ourselves — heteronomy — that we nevertheless would make ourselves — autonomy — realizing that free society forms the basis of even greater individuality.
Later, Otis gets in a fight with a customs inspector in a Boston coffeehouse, is bludgeoned over the head, and becomes a mentally unstable figure needing to be cared for by others. John Adams was his greatest mentee. William Tudor wanted to write a biography of James Otis, which delighted Adams, who famously tells Tudor, “As long as North America shall have a soul it will sell and immortalize your name [William Tudor] as well as mine, for James Otis was the real father and founder of the American empire more certainly than Romulus that of the Roman.”[4] He means that John Adams, Peter Oxenbridge Thacher, the whole Bostonian patriot movement, and all the other patriots corresponding throughout the colonies had essentially come to conclude, following Otis, that there was a fundamental law of society that was higher than any institutionalization of the British Constitution, and if those institutions violated it, they could take up arms, not to destroy society but to preserve it, from the true anarchists, rebels, and destroyers of the bonds of society: the Constitutional Monarchy and the Parliamentary regime acting arbitrarily against it.
That was the key move to the realization that they needed a written constitution. A modernizing commercial society in which people are involved in their own affairs and ensconced in an extensive division of labor requires a representative liberal democratic system rather than a direct one, because the people cannot spend all their days making laws. They should simply make laws that allow for a free society to pursue its own aims and interests, not laws that determine how they live their lives. Such a social-political order requires a fundamental law that undergirds society as a whole, represented in the document of the constitution. Without having to convene constantly, give up their private lives, abandon their families, and relinquish their in order to debate laws all day, members of society need a written constitution that embodies such an assembly of all the people prior to forming the political order, which in turn would represent the higher fundamental law that controls the state itself. In other words, the constitution is the revolutionary institutionalization of the general will, meant to control the state and everyday lawmaking itself. It is in this way that many people, such as Samuel Adams, John Adams, Alexander Hamilton, and Thomas Paine retrospectively realize how much Otis’s arguments contain what they end up doing when they build the new regime in the 1780s.
Today, people who present themselves as progressive and more enlightened say that the U.S. Constitution is from an archaic dark age when everybody was a family farmer and therefore it is meaningless and only constricts us. Of course, society has changed since the Constitution was written. But those who want to use this argument to suspend the operation of the Constitution effectively want to excuse themselves from the self-accountability of society. These people are not friends of any Left worthy of the name. A fully developed proletarian socialist movement will have to confront the Constitutional order, but there can be no pre-determining of what that confrontation will be other than through the mass attempt to change the world. Short of that, anyone who says that an administrative state can operate free from the Constitution is suspending the fundamental law of society. The progressive critique of the Constitution is not about transforming the Constitutional order but revoking it, so that an administrative state full of law professors and bureaucrats can “nudge” you in the direction you should be living your lives, as Cass Sunstein and Richard Thaler put it: you do not know how to live your life, and these people with superior expertise will gather the administrative state to nudge you — not force you — into living the way you should appropriately live.[5] Rather than create a new political regime that will supersede the Constitutional order while remaining accountable to a changing society, they want to terminate the freedom of society altogether. They have no interest in the kind of social transformation necessary to transcend that order. Their interest is simply to suspend the operation of the fundamental law so that they themselves can be an arbitrary power, an alien power not immanent to society but ruling above it. |P
Transcribed by Will Stratford
[1] Video of the event is available at <https://youtu.be/rbAURJc1d9c>.
[2] Bernard Bailyn, “The Central Themes of the American Revolution: An Interpretation,” in Essays on the American Revolution, eds. Stephen G. Kurtz and James H. Hutson (Chapel Hill: University of North Carolina Press, 1973), 3–31.
[3] In Collected Political Writings of James Otis, ed. Richard Samuelson (Indianapolis: Liberty Fund, 2015), 119–82, <https://oll.libertyfund.org/titles/collected-political-writings#lf1644_label_097>.
[4] John Adams to William Tudor, Jr. (February 16, 1823), <https://founders.archives.gov/documents/Adams/99-02-02-7769>.
[5] Richard H. Thaler and Cass R. Sunstein, Nudge: Improving Decisions About Health, Wealth, and Happiness (New Haven: Yale University Press, 2008).
