Skip to comments.A Round with The Declaration
Posted on 05/17/2002 10:49:35 PM PDT by aconservaguy
THE 225TH ANNIVERSARY OF THE DECLARATION OF INDEPENDENCE
"We Hold These Truths" by Stephen B. Presser Is the Declaration of Independence part of the federal Constitution? The short answer, of course, is "no." For the Declaration to be part of the Constitution, it would have to have been included in the original document ratified by at least nine of the conventions held in the original 13 states between 1787 and 1789, or added by amendment, which requires a two-thirds vote of both houses of Congress and the assent of three quarters of the state legislatures. The Declaration was never ratified by either method. It is also possible to add amendments through a new national constitutional convention, with ratification by state legislatures, but this has never happened.
Some political theorists claim that the principles of the Declaration were incorporated into the Constitution during the Civil War, through some quasi-magical amendment process conjured up, through executive fiat, by President Lincoln. This occurred sometime around when he extraconstitutionally emancipated the slaves in the states that had seceded from the Union or, perhaps, when he delivered the Gettysburg Address. Some law professors have sought to find an incorporation of the Declaration through the Reconstruction amendments; while it is true that those amendments did bring us closer to some ideas found in the Declaration, they could noteither explicitly or implicitlymake the Declaration part of the Constitution.
Nevertheless, it would be wrong to conclude that the Declaration has no relevance for interpreting the Constitution, and as we celebrate the Declarations 225th anniversary, it is useful to remember just what the Declaration was and how it relates to the Constitution.
The Resolution of Independence from Great Britain, which preceded the Declaration, was an act of the representatives of the 13 colonies and might properly be viewed as the act of 13 newly sovereign states. These states were the entities that ratified the federal Constitution in 1789, and while the states representatives certainly approved of the Declaration, the Declaration itself held no constitutional force. As Jefferson (or whoever drafted the phrase) made clear, the Declaration was the submission of "facts" to a "candid world" to support the decision to break with our mother country. It was an explanation of a political act and might be regarded today as something similar to legislative history; that is, we might consider it helpful in interpreting what happened, but it has no independent force of law. Or we might think of it simply as propagandaseriously trumped-up charges against Parliament and the king calculated to secure the aid of the French and other European powers in our struggle with England.
The validity of some of the facts alleged in the Declaration is doubtful, though it does contain some timeless philosophical truthstruths that touch constitutional interpretation. One is the notion that whatever rights we have in a temporal government must ultimately be viewed as the gift of "Natures God," Who regards all men as equal in His sight: not equal in terms of abilities, entitlements to worldly goods, or accomplishments, but with a claim to be treated equally under the law. This notion of equality before the law, and nothing more grandiose, is what was meant by the 14th Amendments guarantee of "equal protection," "due process," and "privileges and immunities" to all Americans. The Declaration should not be viewed, as some have urged, as a device for the easy removal of contract and property rights, or for redistribution of wealth to achieve equality of result.
In its confirmation of equality before the Creator, the Declaration did not exhaust the natural-law foundations of any legal systemthose that have been recognized since the time of Aristotle and Cicero, on through Aquinas, and by Burke and the Framers themselves. These include the guarantee that your property will not be taken without just compensation, that you cannot be punished for an act that was not a crime when you committed it, and that you cannot be both judge and party in your own case. Some of these are now express constitutional guarantees, but Supreme Court Justice Salmon Chase believedas did Blackstone and Cokethat these limitations were fundamental aspects of any governmentmonarchy, aristocracy, or republicthat purported to be bound by the rule of law. Natural law is part of the foundation of our Constitution, as of every legitimate constitution, but the words of the Declaration have no continuing legal or constitutional status.
Stephen B. Presser is the legal-affairs editor for Chronicles.
"All Men Are Created Equal" by Clyde Wilson "When in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another . . . " The necessity has occurred. The 13 colonies have a long history as self-governing societies, a condition that is now threatened. As all governments derive their just powers from the consent of the governed, the people have a right to alter or abolish a government whenever it becomes destructive to those who have given their consent. The occasion calls for a statement of rights violated, in the good old English tradition of the Magna Carta and the Glorious Revolution. Therefore, "these United Colonies are, and of Right ought to be FREE AND INDEPENDENT STATES." There you have it: the sovereignty and self-government of existing societies. Of course, as is always the case in human events, the Declaration still had to be made good by bayonets wielded by free men.
Mr. Jefferson drafted a legal document to be adopted (or not) by 13 sovereign states. He was not Moses releasing a prophecy. Contrary to befuddled scholars, he did not get his fillip about equality from reading French books. It came from his belief in the self-governing equality of the colonists primitive AngloSaxon ancestors before they succumbed to Norman centralism. "All men are created equal" meant that a Briton on this side of the water is just as good as a Briton on the other side, a second son is just as good as the firstborn, and that no man is entitled, as the author said on another occasion, by birth "to ride booted and spurred over his fellows." Aristocrats were to be identified, as he said on yet another occasion, not by birth but by talents and services.
Every thoughtful American of the 19th century feared (ofttimes openly) that "all men are created equal" was a cannon that might break loose on the deck and destroy everything in its pathparticularly after the French Revolution endowed the minds of a great number of Westerners with a vision of the Rights of Man bestowed by a centralized, self-justifying state.
On this side of the water, there were several effects. First, the disintegration of New England Puritanism spawned utopian and blasphemous Transcendentalism and various enthusiastic religious cults. The thrust of these phenomena was to create a popular ideology which lumped together Gods plan for the universe and the New Mans destiny of perfection with Americas destiny as the trailblazer for mankind (at least the New England version of America). In an 1844 public letter to American leaders, Mormon founder Joseph Smith argued that the Declaration justified the federal governments authority to overrule the states on behalf of his beleaguered sect.
Second, among the Germans, the French Revolution sired a bastard offspring: an ideology even more abstract, ruthless, and state-worshipping than the original. The human debris of the failed European Revolutions of 1848 poured into the free confederacy in America, which they mistakenly assumed was the embodiment of their version of the Rights of Man. It is easy to demonstrate that, demographically, the Puritans and Forty-Eighters, along with ruthless economic exploiters, diverted politics out of its accustomed paths in the Midwest and helped elect Abraham Lincoln to the presidency by a 40 percent vote.
At Gettysburg, Lincoln declared that the Declaration had created a "nation," not free and independent states. Specifically, it produced a nation dedicated to the proposition of equality, presumably justifying its pursuit by any means. Massive battalions made the reinterpretation stick. Contrary to what countless mountebanks have proclaimed since, Lincoln was not proclaiming the equality of African-Americans, which was never a sincere goal and was soon forgotten. He was proclaiming that the French Revolution had replaced the American Founding. Anyone who looks honestly at the Unions war will see that, aside from a few pretty speeches, it was justified in terms of blood-and-iron nationalisman indestructible government.
Consent, the central idea of 1776, was gone. It could be given only once; from then on, the Union was forever binding. This was not the recurrent process portrayed in the Declaration. The people were no longer the center; the government was. The plural United States was now an artificial singular. "American," which had meant the fellow feeling of related peoples, now meant merely obedience to the same government.
Americans have never lost the idea of, and the instinct for, equalityand that is a good thing. But we appear to have lost the idea of, and the instinct for, freedom and independence. Can we recover them? The prospects are not good, but stranger things have happened in history.
Clyde Wilson is a professor of American history at the University of South Carolina.
"Dedicated to the Proposition" by Donald W. Livingston A gay activist recently claimed on national television that legal rejection of gay "marriages" violates the Declaration of Independence, while an ACLU member insisted that posting the Ten Commandments in a courtroom was a violation not only of the Bill of Rights but of the Declaration. Though absurd, these positions logically follow from the dominant liberal interpretation of the document. Its claim that all men are "created equal" and are endowed with "unalienable rights" to "life, liberty, and the pursuit of happiness," has been treated as the sole meaning of the document, whichin this viewunderwrites a radical ethic of individualism. In this way, the Declaration privileges the liberty of individuals over the corporate liberty of the people of a state to protect a valuable way of life, which includes authoritative interpretations of what the rights of individuals are. This Lockean reading of the Declaration is then read into the Constitution as its animating principledespite the obvious fact that the Constitution was designed to protect the reserved corporate liberty of the states against encroachment by enumerating the powers granted by those states to the newly created central government. The language of "natural rights" does not appear in the ancient Greek and Roman traditions, nor in the Bible, nor in the Constitution: The only individual rights specified there are traditional English common-law rights (no ex post facto laws, etc.). Americans, of course, had strong beliefs about individual rights; but they left their exposition and interpretation largely up to the states. Still, we are told that America is a "Lockean" nation. And so Mortimer Adler could write a popular book on the Constitution with the title We Hold These Truths.
The Declaration is a secession document justifying the corporate liberty of 13 distinct political societies to break the "political bands" that had connected them with another "people" and to govern themselves. But what seceded was not the American people in the aggregate (as the "Lockean" reading would have it). The Declaration begins with an assertion of corporate liberty and ends with the ringing claim that 13 distinct political societieshitherto coloniesare now to be recognized individually as "free and independent states." If liberals do not understand what the Declaration asserted, his Britannic majesty did: In the Treaty of Paris, he acknowledged each former colony by name to be a free, sovereign, and independent state.
The Declaration, then, is not about an aggregate of atomistic Lockean individuals uniting to secure their individual self-interest, but historically pre-existing political societies, each seeking to establish (out of its desired sovereignty) legal protection for what it considers a valuable way of life. But what about the abstract proposition that "all men are created equal?" It is just that: an abstraction. Without a moral and religious tradition to interpret itwith all its contingency and particularityit is entirely empty and cannot serve to guide any conduct whatsoever.
Consider the metric system. The length and weight of anything in the universe can be measured with it. Further, the connection between a meter and 100 centimeters is "unalienable." Yet the system cannot actually measure anything until we know how long a meter is. A meter could be the length of Napoleons left hand or the length of Josephines favorite hairpin: In either case, it would equal 100 centimeters. To know the length of the standard meter, we must accept a story told by authority about the selection, by authorities, of a particular iridium bar encased in Paris. Not even in the rationalistic metric system can we escape the contingencies and particularities of tradition. Philosophers may prove Gods existence through self-evident argument, but we still need the biblical and Church tradition as the guide to mans relation to God.
The same is true of the abstract natural rights of the Declaration. To say, as liberals on the left and right tirelessly do, that America is an "idea" rather than a culture, or that ours is a "proposition country," is like saying that the metric system is not like other systems of measurement (which have a traditionally determined standard of measurement), but instead is merely an idea or set of abstract principles. It is always morally corrupting to think we are guided by what is, in fact, impossible.
The Framers were, at times, given to rationalistic language, and Jefferson uses it in the Declaration. But his main object is not the propounding of an abstract proposition but an affirmation of the corporate liberty of 13 states, each with its own particular moral and religious tradition. Jefferson and his contemporaries well understood that the content of natural rights would have its source in those distinct traditions. It would not be until the 1830s, when the founding generation had died out, that a new, aggressive breed of Americans would appear, bent on centralization and speaking the French revolutionary language of nationalism. They reconceived the abstract natural rights of the Declaration as standing on their own, and used them (with all the arbitrariness that empty abstractions allow) to destroy the moral and religious traditions of those very states the Declaration had said should be independent.
Donald W. Livingston is a professor of philosophy at Emory University, author of Philosophical Melancholy and Delirium (University of Chicago Press), and director of the League of the South Institute for the Study of Southern Culture and History.
Copyright 2001, www.ChroniclesMagazine.org 928 N. Main St., Rockford, IL 61103
This reminds me of Bread and Circuses.
Is the Declaration of Independence part of the federal Constitution? The short answer, of course, is "no." For the Declaration to be part of the Constitution, it would have to have been included in the original document ratified by at least nine of the conventions held in the original 13 states between 1787 and 1789, or added by amendment, which requires a two- thirds vote of both houses of Congress and the assent of three quarters of the state legislatures. The Declaration was never ratified by either method.
[B]ut the words of the Declaration have no continuing legal or constitutional status.
"Eyes they have, but see not, ears, but hear not."
FINALLY! A RAY OF LIGHT FOR THE YANKEE DARKNESS!
But alas, I fear the Yankees will never admit to the wrongs of Lincoln.