Today, July 4th, we celebrate the birth of the United States. This is, of course, the anniversary of the Declaration of Independence. That today is our national birthday is a little odd to me simply because the Declaration of Independence has no legal effect in modern American law. Modern American law looks to the U.S. Constitution, which went into effect in 1789, after the Revolution had ended and the essential failure of the first independent American government which was formed by the Continental Congress and the Articles of Confederation.
When our founding fathers drafted the Constitution they did so based upon their experiences with injustice. For instance, if we were to draft a Constitution today it is unlikely we would think to prohibit the quartering of soldiers in private homes in peacetime. However, I believe, this provision is reflective of the framers’ experience with European rule.
The US Constitution contains a number of provisions that are relevant to the economic and property rights of the American people. For instance, the “Takings Clause” contained in the 5th Amendment prohibits the government from taking private property for public use without just compensation of the owner. There is also a provision that provides for access to the federal courts and a right to trial by jury for disputes contained in the 7th Amendment.
Of great interest to me, as a Bankruptcy attorney working in 21st Century Florida, is the provision contained in section 8 of article I of the Constitution that grants to Congress the power to establish uniform bankruptcy laws throughout the United States. What is notably absent is the power to create any form of debtors’ prison. I believe this again speaks to the experience and interests of the founding fathers and framers of the Constitution. Our Constitution was written on the brink of the industrial revolution and at a time of great economic and social change. In Europe, those who took economic risks such as creating a business, and failed, were often ruined for life. It was common for people to be incarcerated for being unable to pay their debts.
The idea of America as a place where a person can start anew remains within our bankruptcy code. Our nation was built by risk takers who envisioned new businesses and industries; and who were not afraid to try, fail, and try again. In my own practice I have often been amazed at the renewal that can occur when people are freed from the burden of unmanageable debt either through direct discharge or through restructured repayment. I am very proud that the promise of renewal and justice lives on in America, and I feel very fortunate that I have the opportunity in my work to help others make their American dream come true.