Modern history

THREE

DIVORCE: THE DECLARATION AND THE CONSTITUTION ESTRANGED?

EVEN AMONG HISTORIANS WHO ADMIRE BOTH THE Declaration and the Constitution, the divorce between them has long since been accepted as fact. Popular historian Joseph Ellis, who has done good writing about the Founding, presents a moderate and balanced version of it:

A corollary triumph [of the Revolutionary generation] that merits mention is the ability to reconcile two competing and, in several respects, contradictory political impulses. There were really two founding moments: the first in 1776, which declared American independence, and the second in 1787–88, which declared American nationhood. The Declaration of Independence is the seminal document in the first instance, the Constitution in the second. The former is a radical document that locates sovereignty in the individual and depicts government as an alien force, making rebellion against it a natural act. The latter is a conservative document that locates sovereignty in that collective called “the people,” makes government an essential protector of liberty rather than its enemy, and values social balance over personal liberation. It is extremely rare for the same political elite to straddle both occasions. Or, to put it differently, it is uncommon for the same men who make a revolution also to secure it.1

Now, this is a handsome passage, and one cannot help but admire Professor Ellis’s friendliness toward the Declaration, the Constitution, and the Founders who wrote them.

To Professor Ellis, the Constitution is conservative, and the Declaration is liberal. To him, the Declaration and the Constitution are nearly, if not fully, incompatible.2 They are oil and water, and he likes them both, just as anyone may like both oil and water. But they are very different things.

There is something to this on the surface. Obviously the purpose of the Declaration is different from that of the Constitution. One throws off a government; the other builds one. One liberates; the other regulates. One defies rules; the other imposes them. One is bold and universal; the other is specific and restrained. One was written mainly by Jefferson, airy of manner as he was elevated of height. The other was written mainly by Madison, logical and precise, his reasoning as compact as his tiny figure. Like its author, the Declaration shows imagination and eloquence. Like its author, the Constitution shows order and balance.

But are they really so different? There is the problem that their authors did not think so. It happens that Jefferson and Madison were the deepest of friends, both personal and political, for nearly all of their adult lives. They cooperated closely in building the nation, including the political party that would govern it for two generations and elect each of them president, one after the other. They had differences, true enough, but no two men of such stature ever made a better or more enduring partnership or shared so many purposes and principles high and commanding.

If the men were reconciled so profoundly, it is likely the documents they produced were also reconciled. Read the Declaration for a minute, and one sees certain problems with the way Professor Ellis characterizes it. The professor writes, for example, that the Declaration “depicts government as an alien force.” Where does it do that?

The opening of the Declaration speaks of peoples. The first right it names is the right not of an individual, but of a people. It is peoples, not individuals, who are entitled under the “Laws of Nature and of Nature’s God” to a “separate and equal station.” This must mean that peoples have a standing in nature—that it is natural for people to form peoples. If that is natural, then government is not an alien but a natural force. And that term natural comes from an ancient word for “birth.” Government is therefore not an alien, but natural born.

Professor Ellis writes that the Declaration makes “rebellion against [government] a natural act.” True enough: it says, “Whenever any Form of Government becomes destructive to these ends [namely, securing the rights of each and every man], it is the Right of the People to alter or to abolish it.” Notice it says that this is a right of “the People,” the group entitled in nature to a certain standing. This group may indeed throw off the government if it pleases. What then is it to do? Jefferson continues that the next step is to “institute new Government.” The institution of new government is parallel in grammar, in meaning, and in priority to the right to throw off government. If it is natural for a people to rebel against a bad government, it is also natural for a people to establish a new one that is good.

This is reiterated as the Declaration proceeds. The document has much to say about the form and nature of government, especially in its long middle section, which is generally ignored today. It was not ignored at the time, however, because this section contains the charges against the king and Parliament that give specific justification for the act of revolution. This part puts the responsibility directly on the British government. It builds a case against that government, specifically, in one of the monumental controversies in all history. At stake is the loyalty of a whole people to the king. And at stake is the vast land upon which they live, at that time still unknown in extent, but the prize possession of one of the greatest empires in the entire human story. America is the chief British holding in what is called “the New World,” a place of such proportion and gravity as to constitute a whole other sphere.

The charges against the king name the specific practical ground upon which all this is to be taken from him. It is little wonder that the king and his ministers would take pains to answer the Declaration. They do so in part by a legal brief that we will describe later.3That legal brief, it is no surprise, focuses on this middle section.

Now, the Revolution is justified in the first instance and in general by the laws of nature and of nature’s God, and the self-evident truth of human equality, which are named in the opening sentences of the Declaration. But these are not by themselves enough. The Declaration says that “Governments long established should not be changed for light and transient causes.” It is only “when a long train of abuses and usurpations . . . evinces a design to reduce them under absolute Despotism” that it becomes both the right and the “duty” of the people to “throw off such Government.”

This means that in these charges against the king and Parliament, everything is at stake. The Declaration in this respect is a syllogism.4 The major premise is that governments are formed (and necessary) to protect our natural rights. The minor premises are to be found in these claims of despotism against the British. The conclusion is that the American people are justified to declare their independence, and they do so. If the premises are true, then the conclusion follows necessarily.

This means that the Declaration supplies both an example and a principle. The principle is stated beautifully in its opening sentences. It is universal in its scope and application. Each individual is born with unalienable rights. Individuals come together to form peoples, and each people has a natural standing to a separate and equal station. No man may be governed except by his consent. No people may be governed except by its consent.

The Declaration also gives examples to indicate how government should be organized. The rights of the individual and the duties of government are reciprocal: if an individual has a right, then the government has a duty to protect it. If the government does not, then the individual is justified in joining with others to throw off the government.

9781595554727_INT_0030_001

The list of charges against the king has a curious feature. It is not just a list of the individual rights that the king has violated. There are several of them, and they are important. In addition, there are several things the king has done that concern no direct action on individuals (“depriving us . . . of the benefits of Trial by Jury”), but rather the manner in which the government is arranged (“dissolved Representative Houses”; “made Judges dependent on his Will alone”). Both the infringements of individual rights and the misarrangements of government are stated emphatically and with little qualification. The evil of them is apparent on their face; the fact that they have happened is, by itself, the cause of revolution. For this reason, they provide guidance almost as comprehensive in their application as the universal principles named at the beginning of the Declaration. Whenever these things happen, the people are justified in throwing off their government. Any government that commits these evils forfeits its legitimacy. Such a government has no claim upon the loyalty of its people.

The Declaration does say that whenever the people throw off a government and institute a new one, they may lay “its foundation on such principles” and organize “its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.” No one may prescribe precisely or in complete detail the forms under which a people may organize its government. On the other hand, any government must derive its “just powers from the consent of the governed” if its powers are to be justly derived. A people who granted to its rulers absolute authority to rule over it would be a foolish and wrong-headed people, destined for misery. The Declaration provides guidance on this point and others.

This guidance includes several matters of form that must be present in government for it to be trustworthy and effective in its function. The violations of these key features of government are among the particular cause of the Revolution. One might say, in short, that every government must be so constituted as to prevent these evils. In this fact is to be found the constitutional view of the Declaration of Independence. The Declaration uses the term constitution once only, and it uses it in the singular. It refers to the apparently existing constitution of the Americans: “He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation” (emphasis added).

This constitution that exists among the Americans is not, it seems, a written constitution. Whatever it is, it is only one thing. One may surmise from the rest of the text in this section of the Declaration that it includes some authority for the king and Parliament in Great Britain, but also it includes the whole system of colonial government, the representative bodies, the courts, the town meetings. These arrangements are different from those of the foreign jurisdiction to which the king is wrongfully subjecting the people of America. They are different because they operate with the consent of the governed.

Begin at the beginning of this list of complaints. The first of them is, of course, the most prominent: who can miss the first thing in a list? The answer is, many people can miss it, including many of high intellectual accomplishment. Apparently Professor Ellis missed it when he says that in the Declaration, government is regarded as an “alien force.” On the contrary, the first complaint of the Declaration says of the king: “He has refused his Assent to Laws, the most wholesome and necessary for the public good.”

“Wholesome and necessary” are not synonyms for “alien.” In the Declaration laws and government are not alien. To the contrary, when they are wholesome, they are “necessary for the public good.” Apparently to be without such laws is to live in anarchy or despotism, which are unnatural and miserable states. Governments have the duty to provide these laws. A monarch who fails to provide them forfeits his claim to rule. The American Revolution is not justified by the fact that government is an alien force. The truth is the opposite: the Revolution is justified by the fact that government is necessary. The king has sometimes failed to provide it, and other times he has provided it in ways that subvert the purpose of government.

Not only the first, but also the second and the third charges against the king concern the necessity of government. The king has forbidden his governors to pass laws except after long delays to wait for the king to make up his mind about them. Also he has refused to agree to laws that the people need for their well-being, unless the colonies should first agree to give up the right of representation. The right of representation, we shall see, is fundamental to the American Founding. Here the Declaration says that the right of representation is “inestimable” to the people and “formidable to tyrants only.”

Some laws are apparently wholesome, and some laws are not. The justification for revolution consists in this distinction between good laws and bad. This distinction—and by extension the distinction between just and unjust government—is the fundamental concern of political science from its birth in the classical world. It seems to be a fundamental concern of the Founders too. When the Declaration demands laws “wholesome and necessary for the public good,” it raises the question what kinds of laws those are. The rest of the charges against the British provide an outline of these laws and their chief characteristics.

There are seventeen paragraphs in this middle section of the Declaration. They take up 652 of the document’s 1,320 words, or just under half. They may be understood in three categories, and these three categories are congruent with those that form the structure of the Constitution and its rationale, as especially James Madison explains that rationale in the Federalist.

9781595554727_INT_0033_001

The first category is representation. James Madison writes that the Constitution is distinguished from all its predecessors in being a purely representative form of government. No government either ancient or modern had accomplished the “total exclusion of the people” from a share in the actual operation of the government.5 As we shall see in chapter 8, Madison regarded this distinction as pivotal. It makes possible decisive advantages, especially two: the location of sovereignty outside the government and the separation of powers. The structure of the Constitution and its specific genius are found in these two features. Both features are forecast in the Declaration, and this is no accident. The rallying cry of the American Revolution, after all, had been “no taxation without representation.”

The right and principle of representation is proclaimed in numbers three through six of the Declaration’s charges against the British, right after and intermingled with the charge that the king has failed to provide government. The third of the complaints states that he has “refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.” The right of representation has therefore a value beyond any estimating. Notice how, in this passage, the king has placed one right in conflict with another: if the people want laws, they must agree that he alone gets to make them, giving up their right to be represented. That is the practice of what the Declaration calls “a tyrant.”

The Declaration recites several specific ways in which the right of representation has been obstructed. The king has called legislatures together “at places unusual, uncomfortable, and distant from the depository of their public Records.” He has dissolved them repeatedly. After their dissolution he has refused the election of replacements. Nonetheless, no king can deprive the people of their ultimate powers of legislation. Those powers are “incapable of Annihilation,” and so they have “returned to the People at large for their exercise.”

This implies that the vehicle of representation is a proxy for the direct making of laws by the sovereign people. When representation is obstructed, the laws revert to the control of the rightful sovereign— the people who are to live under them. The Declaration does not say anything in criticism of this direct form of democracy, although later many of the Founders would do so.6 The consensus of the Founding generation is that representative institutions are an essential feature of government that is both stable and free and the only kind adaptable to the New World.7 For its part, the Declaration fiercely defends representative institutions.

To make a government purely representative alters the operation and the effect of government in far-reaching ways. This begins with the simple fact that representation requires two parties. There must be someone who is represented, and there must be someone who represents. In this way representative government makes the people distinct from the government. This has larger effects than one might guess.

For one thing, to appoint a representative is an alternative to doing it oneself. Neville Chamberlain’s brother Austen once wrote to Winston Churchill (with whom he was friendly) that he had declined to discuss certain business with foreign statesmen because that business was Churchill’s responsibility. He referred them to Churchill with the words: “. . . it is unnecessary to bark oneself when one keeps a dog.”8 Likewise, if you keep a representative, you let him make the laws.

Now, obviously the dog and the representative are the subjects of their masters. A wild dog need obey nothing except his natural instincts; a domesticated dog must obey the will of his master. Similarly an absolute king holds his authority in his own person and must obey only his own will. A representative, on the other hand, is accountable to the people on behalf of whom he rules. He is not his own master. His status as a representative is a limited status. (It is also a station of great dignity and therefore not doglike.) To be the representative of a free people is to be an elevated thing indeed. It is so elevated that the Founders thought it the highest station to which they could aspire. It is not, however, to hold an absolute power or to hold any power in one’s own right.

Having said this, one must also realize that it is not only the representative who is limited by the purely representative arrangements of the American Revolution. Think about the man who keeps a dog and is relieved of the necessity of barking. He also gives up some of the opportunity to bark (it is hard to be heard over a barking dog). Likewise, if you keep a representative, you deprive yourself of the ability to make laws directly. You must wait for an election. You may throw the representative out, but only when it is time to vote. If in the meantime you become angry with the representative, you may write him a letter or say dirty things about him in the newspaper. Indeed it is an advantage that you may do these things because you are compelled to think and talk rather than to act. James Madison had a particular belief in the power of public discourse to make the nation and the public better.9 This follows from a belief that thinking before acting is a hallmark of human excellence. Therefore it is an advantage that the sovereign people of our country have plenty of time to talk and many fewer opportunities to act. That is a good situation in which to place anyone who holds the final authority. And while the people talk, their representatives will still hold their offices until the next time there is a vote. And they will be cast out only if a sufficient number of the citizens want that to happen.

In other words, representation provides a restraint upon the ruled as well as upon the rulers. In this sense, too, it is an institution of limited government.

9781595554727_INT_0035_001

The second category into which the charges against the king are arranged is limited government. One can see how limited government would be necessary for there to be a form of government that is purely representative. Government is a very powerful thing. It is natural to people: they always form governments and make laws. Wherever there are laws, the laws have a monopoly on force. To place control of that force in a people who are entirely outside the government is to forbid ultimate control of that force to the people who are in government. For the people outside government to be strong enough to hold that force in check requires that there be a large and vibrant private society—a society full of families, churches, businesses, charities, clubs, and teams. All of these operate independently of the government and are able to ask, to paraphrase some famous words, not what their government can do for them, but what they can do for their government. If the government is too large in relation to the private sphere, it will dominate. A government that is not too large is the old meaning of the term liberal government. It has come to mean something rather different today. But more on that later.

In any case, there can be no doubt that the men who wrote the Declaration, and the generation who rallied to its cry, favored this liberal kind of society in the old sense. After all, they had come across the great ocean and made their way in a wilderness. They had built their governments by their own contrivance and with almost no help from the people back home, especially the monarch. They were used to doing for themselves, and they thought they ought to continue to do it. It was not just that they valued their freedom, although they valued that very much. They were accustomed to being rulers, to exercising self-government over themselves and in concert with their fellow citizens over the whole nation, and this was precious to them. They felt that they were made for it.

Some of the strongest words in the Declaration of Independence concern this matter of limited government. One can see from the chain of events that led to the Declaration how the colonists feared that they were losing control of their lives. They had achieved so much and learned so much about the art of government while achieving it. And then emissaries from the king, including armed forces, began to appear to enforce the will of London. The Declaration declared in response:

He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance.

He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.

He has affected to render the Military independent of and superior to the Civil power.

He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:

For Quartering large bodies of armed troops among us:

For protecting them, by mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States:

For cutting off our Trade with all parts of the world:

For imposing Taxes on us without our Consent.

This is the source of the wrath of the American people in the Founding generation. They had built a society of self-government. They would live in no other kind. Representation depends on this kind of society and also makes it possible. There can be no doubt that the Declaration proposes a government of limited scope; it is a fighting document, written to defend that kind of government to the death.

9781595554727_INT_0037_001

The third category of charges against the king concerns the separation of powers, which forms the organizing principle of the Constitution and is fundamental to its operation. It is fundamental to the Declaration too.

Separation of powers is an arrangement by which the main functions of government are divided into different hands. These “functions” of government are simply the three main things a government must do in order to operate. First, it must make the laws, the rules by which people live together. This is the legislative function. Second, the laws have to be “executed,” meaning that the army must be organized and commanded; taxes, alas, must be collected and spent for the purposes prescribed in the law; lawbreakers must be caught and restrained. This is the executive function. Third, cases of dispute that arise under the law must be tried. These cases of dispute arise between private parties: you promised to give me this if I gave you that, and you did not do your part. These are civil cases. Sometimes they arise between the public and a private party: you harmed another person, stole his goods, burned his house, or disturbed the public peace. These are called criminal cases. The function of deciding these cases is the judicial function.

Separation of powers means simply the division of these powers so that no one person or small group may do them all. You can see why this might be important. For one thing, you can see why the king might not like it. In early British political history, which is much longer than the American, kings enjoyed heavy influence in all three areas. If you ran afoul of the king, he could threaten you in a lot of ways. He never had full control of the legislature, but he had plenty of influence, and he could use it to get a law passed that would forbid you to do something that he knew was important to you. In this case he was legislating. The next thing you knew, his bailiffs or marshals or soldiers would come knocking at your door to take you into custody. Then he was executing. Then you would be taken before judges beholden to him, and they would pass down a harsh sentence. Effectively the king was judging.

Over the course of history, the legislative and judicial functions were taken away from the king, and then finally the executive authority, too, and it was placed in the hands of officers accountable to the people. Much blood was spilled along the way. Also along the way political philosophers, especially Montesquieu, made much of this practice of separation of powers that was growing in Great Britain.

Interestingly, the birth of the British Empire and its colonies became the scene of another great controversy over separation of powers. What the king had done to the British people, now the king and Parliament together were attempting to do to the American people.

Separation of powers can be much more firmly maintained in a purely representative system. A system is called “purely” representative because the sovereign has no place in the operation of the government. By “sovereign,” we mean the one holding, in any nation, the authority to rule, blessed by the principles held by that nation to be highest and most commanding. In many nations the idea has been that God or the gods appoint certain people to rule. In other nations the idea has been that a certain family was chosen to rule, either because there was something special about that family or because things would not run properly unless some family was chosen, and the rule of this one or that one became hallowed by time. In the American nation government is believed for the first time to serve the high purpose of defending the equal rights of every citizen, that no human being may be rightly governed except by his consent. This doctrine places the people, or rather a majority of them, in control of the government. They are sovereign. All or nearly all of the people believe them to be the ultimate authority, and no one may rightly supersede their will.

In any nation, whoever is the sovereign commands vast authority. The sovereign has the kind of prestige and legitimacy that tends to give it the final say. If the sovereign is in the government, even as only one branch of the government, that branch tends to be the most powerful and to overcome the other branches. In a monarchy, where everyone believes that the king has legitimate title to rule, the monarch often constitutes the executive branch. The legislature and the judiciary tend to give way to him, and there is always the danger that they will lose their separate identity and authority. The history of monarchies is full of such events.

The Founders believed that the same rules applied in a popular government, a government in which authority is vested in the people or in the majority of them. They looked at the democracies of the past, such as Athens in ancient Greece, and they saw a record of turbulence, of inconsistent policy, of impulses and fashions carrying the assembly to the point that harm was done. There are plenty of stories in the ancient histories of the popular assembly of Athens getting angry with a neighbor or colony, dispatching a military force, and soon after reconsidering and sending another force to stop the first. Sometimes both sets of generals were prosecuted, one for suggesting the attack and the other for suggesting retreat.10

When the people are sovereign, they are the strongest force, and nothing can stand up to them. Anything in the way of separation of powers tends to collapse. The executive and the judiciary bow before the superior strength of the sovereign majority, and the next thing you know some minority is being oppressed.

In the colonies, and later most famously in the Constitution of the United States, separation of powers is taken to a high state of perfection. And in the Constitution, separation of powers is strengthened by the fact that the government is purely representative. The people, there can be no doubt, are sovereign, but they do not occupy any place in the government. Therefore they can only delegate their powers in pieces: some of the powers to one branch, some of the powers to another branch, some of the powers to local government, and some of the powers to the state and federal governments. There is great safety in delegating the strength of government force in this way.

The Declaration of Independence has several provisions critical of the king for violating this separation of powers. Also a grand theme, the grandest of themes, runs right through the fabric of the Declaration to emphasize the high authority of the principles that justify the Revolution and the importance of the separation of powers.

The first three of the complaints against the king, the ones concerning his failure to provide government, are also complaints about the violation of the separation of powers. The king and his colonial governors—the executive branch of the colonies—are interfering with the operation of the legislature. They have crossed over a line. The same can be said of the next group of complaints, the ones that concern the king’s obstructions of representative government. These, too, are intrusions on the legislative function by the executive.

The Declaration also complains that the king has interfered with the judicial function. He has “obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers.” He has “made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.” He has held “mock” trials for his soldiers accused of murder of civilians. An independent judiciary is crucial because it is in the judicial power that the government and the individual meet. If the judges are independent—if they are not dependent on the other branches for their offices or pay, and if they are appointed by a different process than the other branches—then they may look at the case with different eyes than the executive and the legislature. One can see why the king would find this inconvenient. One can see why the colonies would insist that it be maintained.

There is also in the Declaration the grandest indication of the importance of the separation of powers.11 God is mentioned four times. He appears first in the expression “the Laws of Nature and of Nature’s God.” He appears next as “Creator.” He appears the third time as “the Supreme Judge of the world.” And finally, the authors of the Declaration express a “firm reliance on the protection of divine Providence.”

God appears, therefore, as each branch of government—legislator, executor, and judge—and as something like a Founder. And the attitude toward God in the Declaration is as the source of perfection, or rather perfection itself. In the great controversy with the mother country, God can be trusted to judge the “rectitude of our intentions.” No man can be so trusted. Facing war and death, we can trust “divine Providence” to protect us. Our own powers are apparently insufficient. And the “Laws of Nature and of Nature’s God” apply always and must always be obeyed. These are the only laws so applying and so commanding.

9781595554727_INT_0042_001

Implicit in this is a fact to which we will return, namely, that the Declaration is as much an act of obedience as it is of rebellion. For now it is safe to conclude that the Declaration supports without variance and profoundly the institution of separation of powers, which gives the Constitution its structure. On the highest level, the Constitution is a simple document. True, it is full of details about how this branch and that branch must operate, and about how this officer or that officer must be appointed or elected. But above that, it reduces simply to the principle of representation, which demands in turn that the government be limited in size and scope in relation to the private society, and which makes possible a firmer system of separation of powers.

Also, there can be no doubt that the Declaration of Independence is built around these same three conceptions. The king is to be discarded because he refuses to act as the representative of the people. In one of the most beautiful passages written during the long controversy that led to the Declaration of Independence, Thomas Jefferson appeals to the king in his Summary View of the Rights of British America:

Open your breast Sire, to liberal and expanded thought. Let not the name of George the Third be a blot in the page of history. You are surrounded by British counsellors, but remember that they are parties. You have no ministers for American affairs, because you have none taken from among us, nor amenable to the laws on which they are to give you advice.12

The king is also to be discarded because he has invaded not only the private rights of the individual colonists, regarded in the Declaration as sacred, but also the private realm of a liberal society that must thrive and grow in order to control and benefit from the necessary force given the government.

And finally the king is to be discarded because he has violated the separation of powers, the only device by which a free government can be strong enough to do the necessary job of government and still remain safe, the protector rather than the usurper of the rights of the people.

In this way, the Declaration of Independence argues that the king has styled himself to be like God. But he is not God. And in the firmest possible way, the Founders assert that they will obey God over him or any man.

We may conclude then that the Declaration of Independence does not treat government as an alien force. It says the contrary both positively and negatively. It insists that government be provided to a people, that it be based upon their consent, and that it be arranged so that it can be relied upon to respond to their will and protect their rights. Government being necessary, it matters very much how it is arranged. The Declaration lays the general rules for that arrangement. Those rules, says the Declaration, are to be found in the “Laws of Nature and of Nature’s God.”

If you find an error please notify us in the comments. Thank you!