Creating a Selective Liberty (1 of 4)

The English and Colonial Origins of Inequality in American Law

Introduction

The idea that “all men are created equal” and are endowed with unalienable rights was a radical statement in 1776, but largely an empty one. The constitutional order that followed was built on a hierarchical English legal tradition that sorted human beings by gender, race, and status, and assigned rights accordingly. The American founders did not invent inequality; they inherited it. But when the moment came, they chose to keep it.

The contradictions embedded in early American constitutionalism were not accidental failures or unfortunate oversights. They were the product of English and colonial legal institutions that the founding generation knew well and chose to enshrine. From the common law doctrine of coverture, which rendered married women legally invisible, to the colonial codification of race-based chattel slavery, to the systematic dispossession of indigenous peoples, the early American legal system was defined not by the equality it proclaimed but by the hierarchies it protected. The Declaration of Independence pointed to a place the Constitution had no intention of going. Understanding how that gap opened and why it persisted requires tracing American law back to its English and colonial roots.

The English Inheritance: A Legal System Built on Hierarchy

By 1787, centuries of common law development had produced a legal system in England, which was, at its core, an ordered hierarchy. When settlers crossed the Atlantic, they brought that system with them, and the assumptions embedded in it traveled just as surely as the written charters and legal codes.

The common law of England rested on the principle that rights were not universal. They were distributed according to status. At the apex of this structure sat the land-owning male subject; the freeholder whose legal identity was whole and whose rights were protectable in court. Below him, the law recognized degrees of diminished personhood: married women existed under the doctrine of coverture, which held that a wife’s legal identity was absorbed into her husband’s upon marriage. She could not own property independently, enter into contracts, or seek legal redress in her own name. The law did not subordinate women so much as erase them. This was not a colonial innovation; it was an inheritance from English common law and applied without serious question in every colonial jurisdiction.

The celebrated “rights of Englishmen,” which colonists would later invoke passionately against parliamentary overreach, were never intended to be universal. They were the rights of a specific class of people, defined by gender, property, and eventually race. Sir Edward Coke’s elevation of common law as a bulwark against tyranny, and the protections enshrined in the Magna Carta, the Petition of Right, and the Bill of Rights of 1689, were achievements won by and for a narrow slice of English society. John Locke’s social compact theory, which so heavily influenced American revolutionary thought, premised natural rights on the protection of property, a framework that, by definition, excluded those who owned none. What the colonists received was liberty for male landowners. Everyone else was excluded, and those exclusions would prove remarkably durable on American soil.

Colonial Amplification: Importing Hierarchy, Exporting Innovation

What then emerged was not a faithful reproduction of English law but something in many ways more severe. Colonists adapted English legal structures to fit the conditions of a new world, and in doing so, they laid the foundation for the institutionalization of the hierarchies they inherited. The most consequential legal innovation of the colonial period was the codification of race-based chattel slavery. Slavery did not exist in English common law; it was an American creation built piece by piece through colonial legislation beginning in the mid-seventeenth century. Virginia led the way, establishing in 1662 that the status of a child followed the condition of the mother, ensuring that slavery was not merely a personal condition but a hereditary one. By the late seventeenth century, a comprehensive slave code had emerged across the southern colonies, stripping enslaved people of any legal personhood, treating them as property that could be bought, sold, seized for debt, and willed to heirs. The southern colonies became slave societies, institutions where the entire legal, economic, and social order was organized around the ownership of human beings. Despite a lack of precedent in English common law, colonial legislatures leveraged their legal authority and administrative skills to codify slavery, transforming the tools of governance into the machinery of a historical atrocity.

The dispossession of Native Americans followed a more complicated but equally consequential path. At its origin, the conflict over land between English settlers and indigenous peoples was rooted in a genuine and fundamental incompatibility between two legal worldviews. English law operated on a fee simple model, granting absolute, exclusive title to land tied to permanent settlement and improvement. Indigenous peoples generally operated on a usufruct model, asserting the right to use land seasonally for hunting, planting, and gathering, without claiming exclusive ownership of the soil itself. These were irreconcilable frameworks and early encounters were marked by genuine misunderstanding. The so-called sale of Manhattan is a telling example: what the Dutch recorded as a permanent transfer of title was almost certainly understood by the tribe as a reciprocal grant of use rights, an inclusion of the Dutch into an existing network of shared access and mutual obligation. But genuine misunderstanding did not remain innocent for long. Once colonists recognized that Native peoples did not assert exclusive permanent title in the English sense, that recognition became a legal weapon. The absence of improvement in the English meaning (fenced fields, permanent structures, and cultivated soil) was recast as the absence of any recognizable property right at all. Misunderstanding hardened into a strategy. What began as legal incomprehension ended as legal strategy, and the result was the wholesale destruction of indigenous land rights.

Meanwhile, the doctrine of coverture, transplanted from English common law, took firm root across the colonies with virtually no modification. Colonial assemblies occasionally carved out narrow exceptions, such as the feme sole trader statutes that allowed some women to conduct business independently when their husbands were absent. But those exceptions changed nothing fundamentally. Coverture remained the baseline. The legal invisibility of married women was accepted as natural, unremarkable, and necessary to the proper ordering of the household and society. By the time the revolutionary generation began articulating its grievances against Britain, the colonial legal system had already institutionalized three overlapping hierarchies: the subordination of women through coverture, the enslavement of Africans through race-based slave codes, and the dispossession of indigenous peoples through the legal erasure of land rights.

The Founding Moment: Codifying the Contradiction

The American Revolution was, in essence, a legal argument. The colonists did not initially seek independence; they sought the restoration of rights they believed were being violated. And the rights they invoked were English ones. The protection against arbitrary taxation, the guarantee of trial by jury, the requirement of actual representation before legislative authority could be exercised, were the vocabulary of the revolutionary complaint. When James Otis argued against writs of assistance, when colonists protested the Stamp Act, and when Jefferson drafted the Summary View of the Rights of British America, they were not reaching for a new legal tradition. They were appealing to the old one. The revolution was fought in the name of English liberty, which meant it was fought in the name of a liberty that had always been defined by who was included in the category of rights-bearing subjects.

This is the first and perhaps most revealing irony of the founding moment. The legal framework the colonists used to justify resistance to Britain was the same framework that had normalized coverture, enabled the slave trade, and erased indigenous land rights. The grievances were real, and the arguments were sophisticated, but they operated entirely within a tradition that had never extended its protections to these excluded groups. When Patrick Henry thundered about liberty, he was not speaking to or about the majority of people living in the colonies.

The Declaration of Independence represented a brief and tantalizing departure from that tradition. Jefferson’s assertion that all men are created equal and endowed with unalienable rights was a genuinely radical claim, one that enslaved people, women, and indigenous leaders recognized immediately as a potential basis for their own claims to freedom and dignity. But the Declaration of Independence was not law; it was a statement of purpose, a political document designed to justify separation from Britain. The Constitution that followed eleven years later made that distinction painfully clear.

The Philadelphia Convention of 1787 was convened under a sense of genuine crisis. The earlier Articles of Confederation had proven unworkable: Congress could not tax, regulate commerce, enforce treaties, or prevent states from undermining one another economically. The delegates who gathered in Philadelphia were serious, capable men who understood that the existing system was failing. But the solution they built carried the same hierarchies they had always lived with. The compromises made at Philadelphia were not incidental. They were structural. The Three-Fifths Clause counted enslaved people as three-fifths of a person for purposes of representation, granting slaveholding states disproportionate political power while denying the humanity of the people being counted. The slave trade was constitutionally protected until 1808. The fugitive slave clause required the return of escaped enslaved people across state lines. These were not reluctant concessions extracted from unwilling founders. They were the price of union, negotiated openly and accepted deliberately. Figures like George Mason, who refused to sign the Constitution partly on the grounds that it failed to end the slave trade, and Gouverneur Morris, who called slavery a “nefarious institution,” nonetheless participated in a process that enshrined it. The contradiction was visible to the people creating it, and they chose union over resolution.

Women were not a subject of serious debate at the Convention. Their marginalized status was so thoroughly normalized that it required no defense and received no challenge. The legal invisibility of married women was simply assumed as a baseline condition of the social order. Abigail Adams had famously urged her husband to “remember the ladies” in 1776, and John Adams had dismissed the request as a joke. By 1787, the question had not advanced. The Constitution’s use of “persons” and “men” was not accidental ambiguity. It reflected a deliberate understanding of who constituted the political community.

Native Americans were addressed in the Constitution primarily as an external problem to be managed. The Commerce Clause granted Congress the power to regulate trade with Indian tribes, treating Native nations as foreign entities. “Indians not taxed” were excluded from population counts entirely. The legal framework that had been used in the colonial period to dispossess indigenous peoples of their land was not reconsidered at Philadelphia. It was simply carried forward, now backed by the authority of a national government with expanded powers to project force westward.

The Ratification Debates: Contradiction Made Visible

The argument over whether to adopt the Constitution was, in many respects, an argument about who the Constitution was for. The Antifederalists, despite being cast by their opponents as obstructionists and small-minded defenders of a failing system, were arguably the most clear-eyed observers of what the new Constitution actually did. They saw that the “Necessary and Proper” clause and the “General Welfare” clause created an effectively limitless grant of federal power. They saw that the House of Representatives, with its small initial membership and large electoral districts, would inevitably be dominated by the wealthy and well-connected, what Melancton Smith called the “natural aristocracy,” rather than the middling farmers and tradesmen who made up the bulk of the population. They saw that a distant federal judiciary with broad jurisdiction would favor those with the resources to navigate it over ordinary citizens.

But the ratification debates also exposed the contradictions that the Antifederalists were not willing to confront. In the northern states, Antifederalist critics highlighted the Constitution’s protection of the slave trade as a moral failing. In the southern states, some Antifederalists argued the document did not protect slavery firmly enough. Nobody in that debate was arguing for equality; they were arguing over which propertied white men were left with the advantage. It was largely between different factions of propertied white men negotiating the terms of their own political arrangement. The people most affected by the Constitution’s structural exclusions, enslaved people, women, and Native Americans, had no voice in the ratification conventions and no meaningful representation within them. The process itself reflected the contradictions of the document it was meant to approve. Ratifying conventions were composed almost exclusively of wealthy landowners, with newer and poorer districts systematically underrepresented. In some states, delegates representing a small fraction of the population controlled the outcome. In Pennsylvania, Federalists physically dragged reluctant lawmakers through the streets to secure a quorum. The ratification of a document premised on the consent of the governed was achieved through a process that excluded the majority of the governed.

The eventual adoption of the Bill of Rights did little to resolve the underlying misalignment. James Madison, who had initially opposed a Bill of Rights as unnecessary, ultimately championed it as a political tool to neutralize Antifederalist calls for a second constitutional convention that might have dismantled the new federal structure entirely. The amendments that survived were carefully limited to procedural and individual rights. Structural proposals that would have altered the balance of power, including changes to the three-fifths clause, limits on the federal judiciary, or modifications to Senate representation, were quietly set aside. Although the Bill of Rights secured the Constitution’s survival, it did not address its contradictions.

Conclusion: The Gap Between Proclamation and Architecture

Early American constitutionalism was not a failed attempt at equality; it was the deliberate construction of a national legal order built on hierarchies that the founders understood and accepted. The Declaration of Independence stated that all men are created equal, but the Constitution established a government for only some of them, requiring, as Justice Thurgood Marshall stated, several amendments, a civil war, and momentous social transformation to attain the system of constitutional government and its respect for individual freedoms and human rights, which we hold as fundamental today.

America’s early legal architecture did not simply fall short of an ideal; it was never designed to reach that ideal in the first place. Coverture rendered women legally invisible for centuries before the founding and remained embedded in American law for nearly two centuries after the founding. Race-based chattel slavery was not inherited from England but constructed in the colonies using English legal tools, then protected by the Constitution with deliberate precision. The dispossession of indigenous peoples began as a collision of incompatible legal worldviews and hardened into a systematic legal strategy of erasure. The freedom and equality that Americans enjoy today did not arrive with the Constitution. They were extracted from it. Through amendment, litigation, protest, and war. None of that was inevitable, and none of it was given. That process was not a testament to the founding itself, but to the resilience of those originally excluded from it.