Precedents: the Mayflower Compact and the colonization
Since American history provides a myth regarding the foundation of a political community within a no man's land, philosophers and historians have identified some episodes of colonization as one of the rare real experiences of free consent among individuals on the creation of a political community and the adoption of society's basic rules.
As is well known, one of the main figures responsible for tracing the line of legitimacy that reaches the U.S. Constitution from the time of the colonization and, specifically, from the episode of the Mayflower Compact was, in fact, the main theorist that gave account of the legitimacy of the American constitutional foundation given a supposed relatively non-violent character of the American Revolution: Hannah Arendt (1963, pp. 166-178).Arendt, grounding herself on the narratives of the origins of American constitutionalism provided by some previous authors (see, for instance, Craven, 1956; McLaughlin, 1932), saw in the Mayflower Compact a social contract arising from a group almost thrown into a state of nature, a situation which somehow was reproduced during the colonization in some charters1 and, after the independence, while framing the American States' constitutions.
Regardless ofthe historical evidence that the episode of the Mayflower Compact scarcely had any influence in the theoretical framework of the generation that carried out the revolution and triggered the constitution-making processes both in the States and in the Federation (Topf, 2019, p. 59 n.36), the point here is that the Mayflower Compact episode as described retrospectively by Arendt and the authors that inspired her from the interwar time is, considering the historical context that surrounded the arrival of the ship near Cape Cod (Johnson, 1997, pp. 28-31), far from encapsulating an example of forming a political order through the action of free people.
To begin, we must not lose sight of the fact that the ideas concerning the foundation of the political community by a compact to which all the individuals give their consent flourished from a religious background (Lutz, 1988, pp. 24-27; Robertson, 2015, p. 19); the same religious vision that had forced the Mayflower passengers to flee from England in order to establish themselves in North America. So, the Mayflower travel itself was marked by the shadow of oppression, indeed being the outcome of previous violence: that which King James of England and Scotland and his officials exercised pursuing members of the Protestant dissidence to the English Church (Solt, 1990, 145-146). Despite this circumstance, the so-called Pilgrim Fathers concluded their agreement declaring themselves “loyal subjects of our dread Sovereign Lord King James,” that is, without breaking whatsoever with the political regime under which their adventure was being developed. It was not an entire “new beginning” out of the pre-existent political sphere. Considering that the Pilgrims and those Europeans that landed in North America by the first half of the seventeenth century saw themselves as fabricants of new governments, as Arendt pretends, is inaccurate. Both the Mayflower Compact and the subsequent colonial charters that provided for structures of government emphatically asserted royal authority for doing so (Topf, 2019, pp. 62-63).
Yet, from the perspective of the epistemological analysis, it is no wonder that Arendt relied on a religious conception provided by the Pilgrims and the Puritans, in which collective oaths played a central role, to justify the main tenets of her theory on the sources of power. As had been underscored by some of Arendt's commentators (Miller, 1979; Sternberger, 1977, p. 145; Topf, 2019, p. 60), her insistence on focusing on the agreements among men as the pillar of political authority by denying the historical contingencies of the creation of a political order is only understandable under religious assumptions. To explain that men came together to found an enduring, stable, and legitimate political order, and that the progress shown by the American republic in contrast with other experiences, such as the French or the Russian ones, is precisely due to the terms of its creation through such free consented covenants is not scientifically sustainable under any historical methodology.
To use James Miller's terms, Arendt's descriptions applied to the American developments from the Mayflower Compact are “magical” (1979, p. 181 and p. 183).Digging up some more historical details on the Mayflower's vicissitudes, it is not difficult to realize that anything agreed there was not a product of the inclusive participation of all the members concerned. Not all the people placed in the ship had been involved in the conclusion of the compact. The agreement only involved the males that belonged to the religious group of the Congregationalists, the only ones that were allowed to participate in the establishment of the political body. The compact was concluded with the exclusion of the women and the other passengers of the ship, such as adventurers, tradesmen, and servants, referred to by the Pilgrims as “the Strangers.” The foundation of the new order began, thus, with the segregation on both gender and religious grounds. Majority decision-making was a rule not extended to the whole of the human group that took part in the expedition, but only to the group defined by a part. The creative act was, from the outset, an act defined by its ability to exclude.
Colonization was not an occupation of a terra nullius either. The agreements among the settlers, the Mayflower Compact and those adopted some years after providing the regulations of the settlements, as the Fundamental Orders of Connecticut, had not taken place within a territory free from any other human presence. The political articulation during the colonization was seeded in a ground already politically organized by other human groups against whom the newcomers were preparing themselves to fight, to assimilate, and to destroy.2 The settlers had to pave the way by killing and looting the indigenous peoples that they found when they arrived at the North American eastern coasts, before agreeing on the basic rules that would rule them. Still, the fundamental decisions on the colonies' governance were taken given the confrontation between the settlers and the indigenous local population in a way that the latter neither participated in the rules that would organize the colonies of the Europeans, nor would be members of the political community once the legal framework was established.
The shaping of a legal framework for a colony was, indeed, the signal of its consolidation in spite of the indigenous pressure, if not the mark of the indigenous defeat. The North American germinal fundamental orders were, accordingly, also the consequence of existential conflicts for the control of land and resources and it was not rare to find in the beginnings of the odyssey of colonization, particularly when they were still unsafe in confrontation with the Indian polities, that the rules of organizing the colony were directly dictated and imposed by the directors of the private companies that have invested in the North America colonialist endeavour, as happened, for instance, with the colony of Jamestown established under the auspices of the Virginia Company by the beginning of the seventeenth century (see Acemoglu and Robinson, 2012, p. 25), a model which is the antonym of the consent among free men that Arendt had depicted.Generally, thus, coercion accompanied all of the fundamental regulations that were adopted in North America from colonization to the entry into force of the Federal Constitution, including the decisive caesura represented in the American Revolution which was no more than a war of secession.