Category: reason

 

July 4 is an appropriate time to remember Frederick Douglass’ famous 1852 speech, “What to the Slave is the Fourth of July?” The speech is—for good reason—most famous for its powerful condemnation of slavery, racism, and American hypocrisy. But it also includes passages praising the American Revolution and the Founding Fathers.  Both are worth remembering.

Here is, perhaps, the best-known part of the speech:

What, to the American slave, is your 4th of July? I answer: a day that reveals to him, more than all other days in the year, the gross injustice and cruelty to which he is the constant victim. To him, your celebration is a sham; your boasted liberty, an unholy license; your national greatness, swelling vanity; your sounds of rejoicing are empty and heartless; your denunciations of tyrants, brass fronted impudence; your shouts of liberty and equality, hollow mockery; your prayers and hymns, your sermons and thanksgivings, with all your religious parade, and solemnity, are, to him, mere bombast, fraud, deception, impiety, and hypocrisy — a thin veil to cover up crimes which would disgrace a nation of savages. There is not a nation on the earth guilty of practices, more shocking and bloody, than are the people of these United States, at this very hour.

And there is much more material of the same kind in the speech, ranging from a denunciation of the internal slave trade, to an attack on the then-recent Fugitive Slave Act of 1850. The key point is that slavery and racism made a mockery of America’s professed ideals of liberty and equality. And, sadly, that legacy is far from fully overcome even today.

But Douglass’ speech also includes passages like this one, praising the American Revolution:

Fellow Citizens, I am not wanting in respect for the fathers of this republic. The signers of the Declaration of Independence were brave men. They were great men too — great enough to give fame to a great age. It does not often happen to a nation to raise, at one time, such a number of truly great men. The point from which I am compelled to view them is not, certainly, the most favorable; and yet I cannot contemplate their great deeds with less than admiration. They were statesmen, patriots and heroes, and for the good they did, and the principles they contended for, I will unite with you to honor their memory.

They loved their country better than their own private interests; and, though this is not the highest form of human excellence, all will concede that it is a rare virtue, and that when it is exhibited, it ought to command respect. He who will, intelligently, lay down his life for his country, is a man whom it is not in human nature to despise. Your fathers staked their lives, their fortunes, and their sacred honor, on the cause of their country. In their admiration of liberty, they lost sight of all other interests.

They were peace men; but they preferred revolution to peaceful submission to bondage. They were quiet men; but they did not shrink from agitating against oppression. They showed forbearance; but that they knew its limits. They believed in order; but not in the order of tyranny. With them, nothing was “settled” that was not right. With them, justice, liberty and humanity were “final;” not slavery and oppression. You may well cherish the memory of such men. They were great in their day and generation. Their solid manhood stands out the more as we contrast it with these degenerate times….

Their statesmanship looked beyond the passing moment, and stretched away in strength into the distant future. They seized upon eternal principles, and set a glorious example in their defense. Mark them!

Elsewhere in the speech, he also praises the revolutionaries’ refusal to submit to oppression merely because it was backed by law. This is an obvious reference to the those who, in the 1850s, argued that abolitionists had a duty to submit to the Fugitive Slave Act and other unjust proslavery laws. It is also a rebuke to “just enforce the law” arguments backing submission to deeply unjust laws in our own day.

Douglass recognized that the American Revolution not only espoused high principles, but had actually made important progress in realizing them—even as he also condemned the failure to realize them more fully, and the hypocrisy of Americans for tolerating the massive injustice of slavery, which so blatantly contradicted those principles.

In other writings and speeches, Douglass also praised the antislavery potential of the Constitution(which, I think, he in some respects overstated). His purpose in the Fourth of July Speech, was not to denounce the Founding Fathers, but rather the white Americans of his own time.

This raises the question of how we should think about slavery and the American Revolution today. Elsewhere, I have argued that, on balance, the Revolution gave an important boost to the antislavery cause, in both America and Europe—most notably by inspiring the “First Emancipation”—the abolition of slavery in the northern states, which was an essential prerequisite to eventual nationwide abolition.

I do not, believe, however, that this fact completely exempts the Founders from severe criticism on their record with respect to slavery. Most obviously, they still deserve condemnation for the fact that many of them were slaveowners themselves. People like Thomas Jefferson, George Washington, James Madison, and George Mason all owned slaves throughout most of their lives, even though they well knew it was wrong and a violation of their own principles.

Jefferson famously denounced slavery as “a moral depravity” and “the most unremitting despotism.”  Yet he kept right on owning slaves. The same goes for the others, though Washington did finally free his upon his death. It’s hard to avoid the conclusion that they continued to perpetrate a grave injustice because they did not want to suffer the loss of wealth and social status resulting from manumission.

This isn’t even a matter of “judging historical figures by modern standards.” It is a matter of them failing to live up to their own standards.

In addition to failing to free their own slaves, most of the Founders also failed to prioritize the abolition of slavery as an institution. They did take some important steps, such as promoting abolition in the northern states, barring the spread of slavery to the “Old Northwest,” and eventually banning the importation of new slaves from abroad. But they pretty clearly did not give abolishing the greatest moral evil in the new republic the priority it deserved.

Instead, they often prioritized less significant, but politically more advantageous issues. Alexander Hamilton (who was not a slaveowner) is often praised for his antislavery attitudes—in some ways justifiably so. But, throughout his political career, he repeatedly subordinated abolition to other priorities. Much the same can be said of most other political leaders of the day.

With great power, comes great responsibility. When it comes to slavery, most of the people who wielded great power in revolutionary America and the early republic failed to fully live up to theirs.

But the condemnation they deserve for that failure must be balanced against the very real progress they made possible—including on the issue of slavery. In addition, we should remember that we ourselves may not be free of the same types of faults.

It is far from unusual for people to set aside principles when they collide with self-interest. How many of us really prioritize doing what is right when doing so requires us to pay a high price? We like to think that, if we were in Jefferson’s place, we would have freed our slaves and prioritized abolition. But it is far from clear we would actually have the courage and commitment to do so.

Modern politicians, too, rarely prioritize the most morally significant issues ahead of those that are most politically advantageous in the short run. Given that slaves could not vote—and neither could many free blacks—it is actually notable that the Founders did as much to curb slavery as they did, even if it was nowhere near as much as they should have done.

In sum, Frederick Douglass was right to praise the American Revolution, and right also to condemn the gross injustice and hypocrisy of the nation’s failure to live up to its principles. In thinking about the Founders today, we too should praise the great good they did—which ultimately outweighed the harm. But we should also remember their greatest shortcoming. And we should be wary of too readily assuming that we ourselves would do better if faced with the same kinds of choices.

UPDATE: In previous posts, I have written about Douglass’ underappreciated speeches on immigration and how we should remember the Civil War.

 

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Former Senator Timothy Wirth, writing with Tom Rogers, yesterday published what is perhaps the most plausible account of how President Trump could lose the election and remain President. The essence: Trump makes unfounded claims that China interfered in the election, the Justice Department investigates, the legislatures of four swing states Biden appeared to win decide to refuse to certify the Electoral College slate pending the investigation, the Supreme Court rules that the Electoral College must be held without those states, and Trump wins when the election is thrown to the House of Representatives voting by state.

Enhancing the argument’s superficial appeal is that states don’t have to use popular elections at all to choose the electors for President. Under Article II, § 1, cl. 2, “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors.” As a legal matter, a state almost certainly could decide to cancel its popular election and name specific electors. Whether those electors could be bound to vote for a particular candidate is yet to be decided, but reasonably safe electors presumably could be found, even given the possibility of attempts to bribe or unduly influence electors. There does not, however, appear to be any movement in any state to eliminate popular voting for President. (I place aside the National Popular Vote Interstate Compact, which is based on the principle that the national popular vote rather than state popular votes should control.) The public does not want to abandon popular voting for a state’s electoral votes in favor of the decisions of state legislators. I would be surprised if more than a very small portion of voters in a state would support this, even if there is a high probability that the state popular vote will be different from what legislators would decide.

Could a state retroactively cancel a popular vote and substitute the will of legislatures? Maybe, in theory. It isn’t clear “as the Legislature therefore may direct” implies that the direction must be in advance of the election. But as in the federal government, state legislatures may “direct” outcomes only by passing legislation, which requires governors’ signatures.  (Jason Harrow noted this in March in explaining why red state legislatures would be unlikely to use coronavirus as an excuse to cancel elections in advance.) Three of the four states in the Wirth-Rogers scenario have Democratic governors.

But could a state refuse to certify electors after the fact, with the goal of depriving Biden of a majority? Perhaps this seems more likely, in that it might occur as a result of executive or judicial action in a particular state. But with so many Democratic governors in the relevant states, executive action does not seem likely here. Meanwhile, the Pennsylvania Supreme Court is majority-Democratic and the Wisconsin Supreme Court consists of elected Justices who would thus seem unlikely to nullify the actions of voters in their states.

It’s not even clear that a state could decide not to certify a slate of electors. “The Electors shall meet in their respective states, and vote by ballot for President and Vice-President,” the Twelfth Amendment commands. In Bush v. Gore (2000), the Court emphasized the importance of a definitive resolution so that the Electoral College could meet on schedule. This provides a strong precedent for the Court to resolve a disputed election in some way.

My ultimate disagreement with Wirth and Rogers, however, not a difference in legal interpretation. They are more cynical than I am–even more cynical, I should say, as I am pretty cynical. Their cynicism starts with the assumption that President Trump would do anything he could do to stay in office. Let’s assume that they are right about that. Their cynicism becomes too much when they assume that everyone else, particularly state legislators and Supreme Court Justices, will do whatever it takes to achieve their preferred outcome in the election. I disagree. I believe that Supreme Court Justices will not support actions transparently designed to thwart the will of voters, and state legislators will not either. Any such action would meet the strong disapproval, at the least, not only of Biden supporters but also of many Trump supporters. Polarization notwithstanding, Americans still believe in elections.

Some might say that the true lesson of Bush v. Gore is that Supreme Court Justices will do whatever it takes to have their preferred party win presidential elections. Indeed, Maxwell Stearns and I opened an article on Bush v. Gore with a prescient quote from Jeffrey Segal and Harold Spaeth: “If a case on the outcome of a presidential election should reach the Supreme Court, … the Court’s decision might well turn on the personal preferences of the justices.” I do not think it a coincidence that the Court in Bush v. Gore was split on partisan lines (at least on the question of remedy for the Equal Protection violation found by seven Justices). But Segal and Spaeth qualified their statement by noting that this would happen only “if” a case reached the court and by noting that it “might well turn” on justices’ preferences. Even ardent attitudinalists do not believe that the Supreme Court will use just any manufactured excuse to overturn a clear election. After all, the Supreme Court hasn’t resolved any other election.

Sure, the 2016 election could be resolved in courts, legislatures, or the Supreme Court if there is genuine doubt about how to count the results in a particular state. If it emerged that a foreign power really did stuff ballot boxes with mail-in votes, there would be a legitimate dilemma about how to proceed. But the claim that state legislatures and the Supreme Court would disingenuously overturn a clear election result with a bogus interference theory (even if the President were to invite such action) is fanciful.

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The 150th anniversary of the Declaration of Independence was commemorated in an speech by President Calvin Coolidge in Philadelphia. Born of the Fourth of July, 1872, Coolidge explained the eternal truth of our nation’s founding document.

In 1926, as today, some persons thought that the Declaration of Independence and the Constitution were obsolete. According to some of the people who considered themselves “progressives,” the hoary ideals of the Declaration and the Constitution might have been alright in their time, but social and technological changes had made them impractical.

Others insisted that that the Declaration’s words “all men are created equal,” were false. Supposedly, people were unequal because of inherent racial or ethnic differences. According to the Ku Klux Klan, which was powerful in American politics at the time, racial difference obliterated common humanity.

President Coolidge’s speech debunked anti-Declaration notions. He examined the history of the key ideas of the Declaration. The principle of consent of the governed had been present in English and Dutch history. So had the idea of inalienable rights.

One idea was new: “All men are created equal.” In Coolidge’s words: “But we should search these [historic European] charters in vain for an assertion of the doctrine of equality. This principle had not before appeared as an official political declaration of any nation. It was profoundly revolutionary. It is one of the corner stones of American institutions.”

As Coolidge well knew, the United States of 1926 and 1776 were hardly perfect in equality, inalienable rights, or consent of the governed. In Coolidge’s first State of the Union speech (1923), he declared:

Numbered among our population are some 12,000,000 colored people. Under our Constitution their rights are just as sacred as those of any other citizen. It is both a public and a private duty to protect those rights. The Congress ought to exercise all its powers of prevention and punishment against the hideous crime of lynching, of which the negroes are by no means the sole sufferers, but for which they furnish a majority of the victims.

Coolidge favored strict economy in government, with spending only on essentials. Apparently essential, in Coolidge’s view, was new federal funding to support medical education at Howard University–the leading historically black university, located in D.C.

Kurt Schmoke, President of the University of Baltimore (and former Mayor of Baltimore), summarizes: “the historical record testifies of Coolidge’s commitment to the ideal outlined in the Declaration of Independence: that all men are created equal. He worked in many quiet ways to advance that ideal during his six years in the White House.” Kurt Schmoke, The Little Known History of Coolidge and Civil Rights, 1 Coolidge Quarterly (no 3, Nov. 2016). It is fair to criticize President Coolidge for not taking sufficient action to match his eloquent words. See Maceo Crenshaw Dailey, Jr., Calvin Coolidge’s Afro-American Connection, 8 Contributions in Black Studies (art. 7, 1986); John L. Blair, A Time for Parting: The Negro during the Coolidge Years, 3 Journal of American Studies 177 (no. 2, Dec. 1969). No-one is perfect based on standards past, present, or future.

As Coolidge’s political career demonstrated, Declaration of Independence principles are diminished by human frailty, including the frailty of persons who advocate for human rights. Even in a maelstrom of politics, with its many human imperfections, we can find the way forward in the eternal truths of the Declaration. As President Coolidge said on the Declaration’s 150th anniversary:

…Amid all the clash of conflicting interests, amid all the welter of partisan politics, every American can turn for solace and consolation to the Declaration of Independence and the Constitution of the United States with the assurance and confidence that those two great charters of freedom and justice remain firm and unshaken. Whatever perils appear, whatever dangers threaten, the Nation remains secure in the knowledge that the ultimate application of the law of the land will provide an adequate defense and protection…

The American Revolution represented the informed and mature convictions of a great mass of independent, liberty-loving, God-fearing people who knew their rights, and possessed the courage to dare to maintain them….

It was the fact that our Declaration of Independence containing these immortal truths was the political action of a duly authorized and constituted representative public body in its sovereign capacity, supported by the force of general opinion and by the armies of Washington already in the field, which makes it the most important civil document in the world. It was not only the principles declared, but the fact that therewith a new nation was born which was to be founded upon those principles and which from that time forth in its development has actually maintained those principles, that makes this pronouncement an incomparable event in the history of government. It was an assertion that a people had arisen determined to make every necessary sacrifice for the support of these truths and by their practical application bring the War of Independence to a successful conclusion and adopt the Constitution of the United States with all that it has meant to civilization.

The idea that the people have a right to choose their own rulers was not new in political history. It was the foundation of every popular attempt to depose an undesirable king. This right was set out with a good deal of detail by the Dutch when as early as July 26, 1581, they declared their independence of Philip of Spain. In their long struggle with the Stuarts the British people asserted the same principles, which finally culminated in the Bill of Rights deposing the last of that house and placing William and Mary on the throne. In each of these cases sovereignty through divine right was displaced by sovereignty through the consent of the people. Running through the same documents, though expressed in different terms, is the clear inference of inalienable rights. But we should search these charters in vain for an assertion of the doctrine of equality. This principle had not before appeared as an official political declaration of any nation. It was profoundly revolutionary. It is one of the corner stones of American institutions.

….A very positive echo of what the Dutch had done in 1581, and what the English were preparing to do, appears in the assertion of the Rev. Thomas Hooker of Connecticut as early as 1638, when he said in a sermon before the General Court that–

“The foundation of authority is laid in the free consent of the people”

“The choice of public magistrates belongs unto the people by God’s own allowance.”

This doctrine found wide acceptance among the nonconformist clergy who later made up the Congregational Church….

In its main features the Declaration of Independence is a great spiritual document. It is a declaration not of material but of spiritual conceptions. Equality, liberty, popular sovereignty, the rights of man these are not elements which we can see and touch. They are ideals. They have their source and their roots in the religious convictions. They belong to the unseen world. Unless the faith of the American people in these religious convictions is to endure, the principles of our Declaration will perish. We can not continue to enjoy the result if we neglect and abandon the cause….

About the Declaration there is a finality that is exceedingly restful. It is often asserted that the world has made a great deal of progress since 1776, that we have had new thoughts and new experiences which have given us a great advance over the people of that day, and that we may therefore very well discard their conclusions for something more modern. But that reasoning can not be applied to this great charter. If all men are created equal, that is final. If they are endowed with inalienable rights, that is final. If governments derive their just powers from the consent of the governed, that is final. No advance, no progress can be made beyond these propositions. If anyone wishes to deny their truth or their soundness, the only direction in which he can proceed historically is not forward, but backward toward the time when there was no equality, no rights of the individual, no rule of the people. Those who wish to proceed in that direction can not lay claim to progress. They are reactionary. Their ideas are not more modern, but more ancient, than those of the Revolutionary fathers.

President Coolidge knew the same sort of reactionaries who afflict us today: Marxists, racists, and all the scammers who peddle new versions of the old poisonous lies against equality, rights, and consent.

On Independence Day 2020, honor the many Americans who have sacrificed for equality, rights, and consent. Defy the mobs, and stand for  the eternal truths of the Declaration of Independence.

 

Additional resources: Documentary, Calvin Coolidge: Our American Journey, from the Calvin Coolidge Presidential Foundation.

 

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Today is July 4, Independence Day. In previous years, I used this opportunity to address two important aspects of the Revolutionary War that are sometimes neglected. Both issues remain relevant today.

In this 2017 piece (see also updated version here), I explained why it matters that the Declaration of Independence did not justify secession from the British Empire on the basis of ethnic nationalism, but rather based on universal principles of human rights, which the British government had violated:

As I noted elsewhere in the same piece, the revolutionaries themselves often failed to live up to the high principles they asserted, most notably in so far as many of them were slaveowners. But that doesn’t mean the Declaration’s principles were useless, even when it comes to the issue of slavery:

Despite our many deviations from them, it would be a mistake to assume that the Declaration’s ideals were toothless. Even in their own time, the principles underlying the Declaration helped inspire the First Emancipation – the abolition of slavery in the northern states, which came about in the decades immediately following the Revolution. This was the first large-scale emancipation of slaves in modern history, and it helped ensure that the new nation would eventually have a majority of free states, which in turn helped ensure abolition in the South, as well.

The Declaration did not abolish slavery, and its high-minded words were, for decades, undercut by the hypocrisy of Jefferson and all too many others. But the ideals of the Declaration played an important role in slavery’s eventual abolition.

That brings us to the topic I considered in   a post written on Independence Day last year: “The Case Against the Case Against the American Revolution.” In that piece, I addressed arguments from both left and right suggesting that the world would be a better place if the Revolution had been defeated or had never occurred at all:

July 4 is almost over. But there is still time to  address claims that history would have taken a better course had the American Revolution failed (or never started). In the United States, such arguments are made mostly by people on the left. This 2015 Vox article by Dylan Matthews is an excellent example. But similar claims are also made by a few libertarians, such as my George Mason University colleague Bryan Caplan, and by some Canadian and British conservatives. Here are the main arguments typically advanced by modern critics of the Revolution…..:

1. British rule would have led to an earlier and less violent abolition of slavery. The British Empire abolished slavery in 1833, some thirty years before the United States, and it did not require a bloody civil war to do it.

2. A British-ruled America would have treated Native Americans better (as witness their apparently superior treatment in Canada).

3. A British America would have had a parliamentary form of government rather than separation of powers, which—among other advantages—would have led to a larger welfare and regulatory state. This latter point, of course, is usually made by left of center critics of the Revolution, not conservative and libertarian ones.

4. The history of Canada (and later Australia and New Zealand) shows that the British Empire was capable of gradually granting colonies increased autonomy and rights without the need for a bloody revolt.

5. The Revolutionary War caused enormous bloodshed. Some 25,000 Americans died (a larger percentage of the population than were lost in any of our other wars, besides the Civil War). To that figure, we should add numerous casualties suffered by British and French troops, and by German mercenary soldiers hired by the British. The possible gains of the Revolution were not enough to justify this terrible loss of life.

It’s a weighty indictment we should take seriously. But in the rest of the post I explain why it is nonetheless mostly wrong. Despite the very real flaws of the revolutionaries and of the new nation they founded, the world is a better place thanks to their sacrifices.

Appropriate recognition of the achievements of the Revolution should not, however, blind us to the many ways in which we still fall short of the ideals it espoused. The present US government is guilty of many sins, including some that reminiscent of the ones that the Declaration condemned. Too often, it still fails to protect life, liberty, and the pursuit of happiness, and still fails to treat all persons equally, regardless of morally irrelevant characteristics such as race, ethnicity, and circumstances of birth.

Abraham Lincoln’s 1858 statement on the meaning of Declaration of Independence remains appropriate today:

I think the authors of that notable instrument intended to include all men, but they did not mean to declare all men equal in all respects…. They did not mean to assert the obvious untruth, that all were then actually enjoying that equality, or yet, that they were about to confer it immediately upon them…

They meant simply to declare the right, so that the enforcement of it might follow as fast as circumstances should permit.

They meant to set up a standard maxim for free society which should be familiar to all: constantly looked to, constantly labored for, and even, though never perfectly attained, constantly approximated, and thereby constantly spreading and deepening its influence and augmenting the happiness and value of life to all people, of all colors, everywhere.

 

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[This year, my annual post celebrating the Fourth of July is drawn from a chapter of Our Republican Constitution: Securing the Liberty and Sovereignty of We the People, and from a short essay on the same topic, The Declaration of Independence and the American Theory of Government: First Come Rights, and Then Comes Government.” It also draws upon Sean Wilentz, No Property in Man: Slavery and Antislavery at the Nation’s Founding]

The Declaration of Independence used to be read aloud at public gatherings every Fourth of July. Today, while all Americans have heard of it, all too few have read more than its second sentence. Yet the Declaration shows the natural rights foundation of the American Revolution, and provides important information about what the founders believed makes a constitution or government legitimate. It also raises the question of how these fundamental rights are reconciled with the idea of “the consent of the governed,” another idea for which the Declaration is famous.

The adoption of the Declaration, and the public affirmation of its principles, led directly to the phased in abolition of slavery in half of the United States by the time the Constitution was drafted as well as the abolition of slavery in the Northwest Territory. The Rhode Island gradual abolition law of 1784 read:

All men are entitled to Life, Liberty, and the Pursuit of Happiness, and the holding Mankind in a State of Slavery, as private property, which has gradually obtained by unrestrained Custom and the Permission of the Law, is repugnant to this Principle, and subversive of the Happiness of Mankind.

Later, the Declaration also assumed increasing importance in the struggle to abolish slavery. It became a lynchpin of the moral and constitutional arguments of the nineteenth-century abolitionists. As one New Yorker opposed to slavery wrote in 1797:

The right of property which every man has to his personal liberty is paramount to all the laws of property…. All I contend for at present is, that no claims of property can ever justly interfere with, or be suffered to impede the operation of that noble and eternal principle, that “all men are endowed by their Creator with certain unalienable rights–and that among these are life, liberty, and the pursuit of happiness.

The Declaration was much relied upon by Abraham Lincoln and many others before him:

Without the Constitution and the Union, we could not have attained the result; but even these, are not the primary cause of our great prosperity. There is something back of these, entwining itself more closely about the human heart. That something, is the principle of “Liberty to all”–the principle that clears the path for all–gives hope to all–and, by consequence, enterprize, and industry to all.

The expression of that principle, in our Declaration of Independence, was most happy, and fortunate. Without this, as well as with it, we could have declared our independence of Great Britain; but without it, we could not, I think, have secured our free government, and consequent prosperity. No oppressed, people will fight, and endure, as our fathers did, without the promise of something better, than a mere change of masters.

The assertion of that principle, at that time, was the word, “fitly spoken” which has proved an “apple of gold” to us. The Union, and the Constitution, are the picture of silver, subsequently framed around it. The picture was made, not to conceal, or destroy the apple; but to adorn, and preserve it. The picture was made for the apple—not the apple for the picture.

The Declaration had to be explained away–quite unconvincingly–by the Supreme Court in Dred Scott. And eventually it was repudiated by some defenders of slavery in the South because of its inconsistency with that institution.

When reading the Declaration, it is worth keeping in mind two very important facts. The Declaration constituted high treason against the Crown. Every person who signed it would be executed as traitors should they be caught by the British. Second, the Declaration was considered to be a legal document by which the revolutionaries justified their actions and explained why they were not truly traitors. It represented, as it were, a literal indictment of the Crown and Parliament, in the very same way that criminals are now publicly indicted for their alleged crimes by grand juries representing “the People.”

But to justify a revolution, it was not thought to be enough that officials of the government of England, the Parliament, or even the sovereign himself had violated the rights of the people. No government is perfect; all governments violate rights. This was well known. So the Americans had to allege more than mere violations of rights. They had to allege nothing short of a criminal conspiracy to violate their rights systematically. Hence, the famous reference to “a long train of abuses and usurpations” and the list that follows the first two paragraphs. In some cases, these specific complaints account for provisions eventually included in the Constitution and Bill of Rights.

In Our Republican Constitution: Securing the Liberty and Sovereignty of We the People, I explain how the Declaration encapsulated the political theory that lead the Constitution some eleven years later. To appreciate all that is packed into the two paragraphs that comprise the preamble to the list of grievances, it is useful to break down the Declaration into some of its key claims.

“When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.”

This first sentence is often forgotten. It asserts that Americans as a whole (and not as members of their respective colonies) are a distinct “people.” To “dissolve the political bands” revokes the “social compact” that existed between the Americans and the rest of “the People” of the British commonwealth, reinstates the “state of nature” between Americans and the government of Great Britain, and makes “the Laws of Nature” the standard by which this dissolution and whatever government is to follow are judged. “Declare the causes” indicates they are publicly stating the reasons and justifying their actions rather than acting as thieves in the night. The Declaration is like the indictment of a criminal that states the basis of his criminality. But the ultimate judge of the rightness of their cause will be God, which is why the revolutionaries spoke of an “appeal to heaven”—an expression commonly found on revolutionary banners and flags. As British political theorist John Locke wrote: “The people have no other remedy in this, as in all other cases where they have no judge on earth, but to appeal to heaven.” The reference to a “decent respect to the opinions of mankind” might be viewed as a kind of an international public opinion test. Or perhaps the emphasis is on the word “respect,” recognizing the obligation to provide the rest of the world with an explanation they can evaluate for themselves.

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. “

The most famous line of the Declaration. On the one hand, this will become a great embarrassment to a people who permitted slavery. On the other hand, making public claims like this has consequences—that’s why people make them publicly. To be held to account. This promise will provide the heart of the abolitionist case in the nineteenth century, which is why late defenders of slavery eventually came to reject the Declaration. And it forms the basis for Martin Luther King’s metaphor of the civil rights movement as a promissory note that a later generation has come to collect.

Notice that the rights of “life,” “liberty” and “the pursuit of happiness” are individual, not collective or group rights. They belong to “We the People”—each and every one. This is not to say that government may not create collective, positive rights; but only that the rights that the next sentence tells us are to be secured by government belong to us as individuals.

What are “unalienable,” or more commonly, “inalienable rights”? Inalienable rights are those you cannot give up even if you want to and consent to do so, unlike other rights that you can agree to transfer or waive. Why the claim that they are inalienable rights? The Founders want to counter England’s claim that, by accepting the colonial governance, the colonists had waived or alienated their rights. The Framers claimed that with inalienable rights, you always retain the ability to take back any right that has been given up.

A standard trilogy throughout this period was “life, liberty, and property.” For example, the Declaration and Resolves of the First Continental Congress (1774) read: “That the inhabitants of the English colonies in North-America, by the immutable laws of nature, the principles of the English constitution, and the several charters or compacts, have the following RIGHTS: Resolved, 1. That they are entitled to life, liberty and property: and they have never ceded to any foreign power whatever, a right to dispose of either without their consent.” Or, as John Locke wrote, “no one ought to harm another in his life, health, liberty, or possessions.”

When drafting the Declaration in June of 1776, Jefferson based his formulation on a preliminary version of the Virginia Declaration of Rights that had been drafted by George Mason at the end of May for Virginia’s provincial convention. Here is how Mason’s draft read:

THAT all men are born equally free and independent, and have certain inherent natural rights, of which they cannot, by any compact, deprive or divest their posterity; among which are, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.

Notice how George Mason’s oft-repeated formulation combines the right of property with the pursuit of happiness. And, in his draft, not only do all persons have “certain . . . natural rights” of life, liberty, and property, but these rights cannot be taken away “by any compact.” Again, these rights each belong to individuals. And these inherent individual natural rights, of which the people—whether acting collectively or as individuals—cannot divest their posterity, are therefore retained by them, which is helpful in understanding the Ninth Amendment’s reference to the “rights…retained by the people.”

Interestingly, Mason’s draft was slightly altered by the Virginia Convention in Williamsburg on June 11, 1776. After an extensive debate, the officially adopted version read (with the modifications in italics):

That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.

This version is still in effect today.

According to historian Pauline Meier, by changing “are born equally free” to “are by nature equally free,” and “inherent natural rights” to “inherent rights,” and then by adding “when they enter into a state of society,” defenders of slavery in the Virginia convention could contend that slaves were not covered because they “had never entered Virginia’s society, which was confined to whites.” Yet it was the language of Mason’s radical draft—rather than either Virginia’s final wording or Jefferson’s more succinct formulation—that became the canonical statement of first principles. Massachusetts, Pennsylvania, and Vermont adopted Mason’s original references to “born equally free” and to “natural rights” into their declarations of rights while omitting the phrase “when they enter into a state of society.” Indeed, it is remarkable that these states would have had Mason’s draft language, rather than the version actually adopted by Virginia, from which to copy. Here is Massachusetts’ version:

All men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness.

Virginia slaveholders’ concerns about Mason’s formulation proved to be warranted. In 1783, the Massachusetts Supreme Judicial Court relied upon this more radical language to invalidate slavery in that state. And its influence continued. In 1823, it was incorporated into an influential circuit court opinion by Justice Bushrod Washington defining the “privileges and immunities” of citizens in the several states as “protection by the Government, the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety.”

Justice Washington’s opinion in Corfield (to which we will return), with Mason’s language at its core, was then repeatedly quoted by Republicans in the Thirty-Ninth Congress when they explained the meaning of the Privileges or Immunities Clause of the Fourteenth Amendment, which reads: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” It was this constitutional language that Republicans aimed at the discriminatory Black Codes by which Southerners were seeking to perpetuate the subordination of blacks, even after slavery had been abolished.

“That to secure these rights, Governments are instituted among Men.… “

Another overlooked line, which is of greatest relevance to our discussion of the first underlying assumption of the Constitution: the assumption of natural rights. Here, even more clearly than in Mason’s draft, the Declaration stipulates that the ultimate end or purpose of republican governments is “to secure these” preexisting natural rights that the previous sentence affirmed were the measure against which all government—whether of Great Britain or the United States—will be judged. This language identifies what is perhaps the central underlying “republican” assumption of the Constitution: that governments are instituted to secure the preexisting natural rights that are retained by the people. In short, that first come rights and then comes government.

“…deriving their just powers from the consent of the governed.”

Today, there is a tendency to focus entirely on the second half of this sentence, referencing “the consent of the governed,” to the exclusion of the first part, which refers to securing our natural rights. Then, by reading “the consent of the governed” as equivalent to “the will of the people,” the second part of the sentence seems to support majoritarian rule by the people’s “representatives.” In this way, “consent of the governed” is read to mean “consent to majoritarian rule.” Put another way, the people can consent to anything, including rule by a majority in the legislature who will then decide the scope of their rights as individuals.

But read carefully, one sees that in this passage the Declaration speaks of “just powers,” suggesting that only some powers are “justly” held by government, while others are beyond its proper authority. And notice also that “the consent of the governed” assumes that the people do not themselves rule or govern, but are “governed” by those individual persons who make up the “governments” that “are instituted among men.”

The Declaration stipulates that those who govern the people are supposed “to secure” their preexisting rights, not impose the will of a majority of the people on the minority. And, as the Virginia Declaration of Rights made explicit, these inalienable rights cannot be surrendered “by any compact.” Therefore, the “consent of the governed,” to which the second half of this sentence refers, cannot be used to override the inalienable rights of the sovereign people that are reaffirmed by the first half.

In modern political discourse, people tend to favor one of these concepts over the other—either preexistent natural rights or popular consent—which leads them to stress one part of this sentence in the Declaration over the other. The fact that rights can be uncertain and disputed leads some to emphasize the consent part of this sentence and the legitimacy of popularly enacted legislation. But the fact that there is never unanimous consent to any particular law, or even to the government itself, leads others to emphasize the rights part of this sentence and the legitimacy of judges protecting the “fundamental” or “human” rights of individuals and minorities.

If we take both parts of this sentence seriously, however, this apparent tension can be reconciled by distinguishing between (a) the ultimate end or purpose of legitimate governance and (b) how any particular government gains jurisdiction to rule. So, while the protection of natural rights or justice is the ultimate end of governance, particular governments only gain jurisdiction to achieve this end by the consent of those who are governed. In other words, the “consent of the governed” tells us which government gets to undertake the mission of “securing” the natural rights that are retained by the people. After all, justifying the independence of Americans from the British government was the whole purpose of the Declaration of Independence.

“That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”

People have the right to take back power from the government. Restates the end—human safety and happiness—and connects the principles and forms of government as means to this end.

“Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed.”

Affirms at least two propositions: On the one hand, long-established government should not be changed for just any reason. The mere fact that rights are violated is not enough to justify revolution. All governments on earth will sometimes violate rights. But things have to become very bad before anyone is going to organize a resistance. Therefore, the very existence of this Declaration is evidence that things are very bad indeed.

“But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”

Revolution is justified only if there “is a long train of abuses and usurpations, pursuing invariably the same Object”—evidence of what amounts to an actual criminal conspiracy by the government against the rights of the people. The opposite of “light and transient causes,” that is, the more ordinary violations of rights by government.

“Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain [George III—Eds.] is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.“

What follows is a bill of indictment. Several of these items end up in the Bill of Rights. Others are addressed by the form of the government established—first by the Articles of Confederation, and ultimately by the Constitution.

The assumption of natural rights expressed in the Declaration of Independence can be summed up by the following proposition: “First comes rights, then comes government.” According to this view: (1) the rights of individuals do not originate with any government, but preexist its formation; (2) the protection of these rights is the first duty of government; and (3) even after government is formed, these rights provide a standard by which its performance is measured and, in extreme cases, its systemic failure to protect rights—or its systematic violation of rights—can justify its alteration or abolition; (4) at least some of these rights are so fundamental that they are “inalienable,” meaning they are so intimately connected to one’s nature as a human being that they cannot be transferred to another even if one consents to do so. This is powerful stuff.

At the Founding, these ideas were considered so true as to be self-evident. However, today the idea of natural rights is obscure and controversial. Oftentimes, when the idea comes up, it is deemed to be archaic. Moreover, the discussion by many of natural rights, as reflected in the Declaration’s claim that such rights “are endowed by their Creator,” leads many to characterize natural rights as religiously based rather than secular. As I explain in The Structure of Liberty: Justice and the Rule of Law, I believe this is a mistake.

The political theory announced in the Declaration of Independence can be summed up in a single sentence: First come rights, and then comes government. This proposition is not, as some would say, a libertarian theory of government. The Declaration of Independence shows it to be the officially adopted American Theory of Government.

• According to the American Theory of Government, the rights of individuals do not originate with any government but pre-exist its formation;
• According to the American Theory of Government, the protection of these rights is both the purpose and first duty of government;
• According to the American Theory of Government, at least some of these rights are so fundamental that they are inalienable, meaning that they are so intimately connected to one’s nature as a human being that they cannot be transferred to another even if one consents to do so;
• According to the American Theory of Government, because these rights are inalienable, even after a government is formed, they provide a standard by which its performance is measured; in extreme cases, a government’s systemic violation of these rights or failure to protect them can justify its alteration and abolition. In the words of the Declaration, “whenever any Form of Government becomes destructive of these ends,” that is the securing of these rights, “it is the Right of the People to alter or abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”

The original public meaning of the text of the Declaration of Independence is distinct from the original public meaning of the U.S. Constitution. The Constitution, however it is properly interpreted, does not justify itself. To be legitimate, it must be consistent with political principles that are capable of justifying it. Moreover, these same publicly identified original principles are needed inform how the original public meaning of the Constitution is to be faithfully to be applied when the text of
the Constitution is not alone specific enough to decide a case or controversy.

The original principles that the Founders thought underlie and justify the Constitution were neither shrouded in mystery nor to be found by parsing the writings of Locke, Montesquieu, or Machiavelli.

On July 2nd, 1776, the Congress of the United States voted for independence from Great Britain. On July 4th, 1776, it officially adopted the American Theory of Government, which was publicly articulated in the Declaration of Independence.

Happy Independence Day!

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