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DECLARATION OF INDEPENDENCE 1 Stat. 1 (July 4, 1776)

America's most fundamental constitutional document was adopted by the United States in Congress on July 4, 1776. The Declaration of Independence may carry little weight in the courts; it may, for all its being placed at the head of the Statutes at Large and described in the United States Code as part of the "organic law," have no legally binding force. Yet it is the Declaration that constitutes the American nation. John Hancock, president of the Continental Congress, transmitting the Declaration to the several states, described it as "the Ground & Foundation of a future Government." james madison, the Father of the Constitution, called it "the fundamental Act of Union of these States."

The Declaration of Independence is the definitive statement for the American policy of the ends of government, of the necessary conditions for the legitimate exercise of political power, and of the sovereignty of the people who establish the government and, when circumstances warrant, may alter or abolish it. No mere tract in support of a bygone event, the Declaration was and remains the basic statement of the meaning of the United States as a political entity.

The historical event, the Revolution, provided the occasion for making that statement. richard henry lee, on instructions from the Virginia convention, introduced three resolutions on June 7, 1776: to declare the colonies independent, to establish a confederation, and to seek foreign alliances. Each of the resolutions was referred to a select committee, one of which was charged with preparing "a declaration to the effect of the first resolution." Lee's motion was adopted on July 2, the Declaration two days later.

Although the Congress had appointed for the task a distinguished committee, including john adams of Massachusetts, benjamin franklin of Pennsylvania, roger sherman of Connecticut, and robert livingston of New York, thomas jefferson of Virginia actually penned the Declaration. So well did Jefferson express the sentiments of the Congress that his committee colleagues made only a few changes in his draft.

Jefferson, by his own account, turned to neither book nor pamphlet for ideas. Nor did he seek to expound a novel political theory. His aim was to set forth the common sense of the American people on the subject of political legitimacy. To be sure, there are ideas, and even phrases, that recall john locke : the Declaration follows Locke in stressing the natural rights of man as the foundation of the political order. But the concept of man's natural autonomy, modifiable only by his consent to the rule of others in a social compact, was long acknowledged in the American colonies; it inhered in congregational church polity, and it was transmitted through such theoretical and legal writers as emerich de vattel, Jean-Jacques Burlamaqui, and Samuel Pufendorf, as well as by the authors of cato ' sletters and other popular works.

The Declaration of Independence has a structure that emphasizes its content. It begins with a preamble, by which the document is addressed not to the king of Great Britain or to the English public, but to the world at large, to the "opinion of mankind." Moreover, the purpose of the document is said explicitly to be to "declare the causes" that impelled the Americans to declare their independence from Britain.

There had been other revolutions in British history, but this one was different. From the barons at Runnymede to the Whigs who drove James II from the throne, British insurgents had appealed to the historic rights of Englishmen. The declarations they extracted—from magna carta to the bill of rights—were the assurances of their kings that the ancient laws obtaining in their island would be respected. The preamble of the Declaration of Independence makes clear that this is not the case with the American Revolution. The case of Britain's rule in America was to be held up to a universal standard and exposed as tyrannical before a "candid world." Against the selfsame standard all government everywhere could be measured. Everyone who reads the Declaration with his eyes open must be struck by this fact: the Declaration justifies the independence of the American nation by appeal not to an English or an Anglo-American standard, but to the universal standard of human rights.

There follows next a statement of the ends of government and of the conditions under which obedience to government is proper. "All men are created equal … endowed by their Creator with certain unalienable rights … among [which] are life, liberty, and the pursuit of happiness." Equality is the condition of men prior to government—logically prior, not chronologically. But that equality is not equality of condition, or even equality of opportunity; certainly it is not equality of intelligence, strength, or skill. The equality that men possess by nature is equality of right. There is, among human beings, none with a right to rule the others; God may claim to rule human beings by right, human beings may rule the brutes by right, but no human being has a claim to rule another by right.

The rights with which men are endowed are said to be "unalienable." That is, human rights may be neither usurped nor surrendered, neither taken away nor given up. The Declaration rejects the false doctrine of Thomas Hobbes (more gently echoed by william blackstone) that men on entering society and submitting to government yield their natural rights and retain only "civil" rights, dispensed and revoked at the pleasure of the sovereign.

"To secure these rights, governments are instituted among men." The purpose of government is to protect the natural rights which men possess, but which, in the absence of government, they are not secure enough to enjoy. Government in society is not optional, it is a necessary condition for the enjoyment of natural rights. But the institution of government does not create an independent motive or will in society. All just powers of government derive "from the consent of the governed."

The Declaration asserts that the people retain the right of revolution, the right to substitute new constitutions for old. But it also asserts that the exercise of that right is properly governed by prudence—a prudence that the Americans had shown in the face of great provocation.

The next section of the Declaration is a bill of indictment against George III on the charge of attempted tyranny. The specifications are divided almost evenly between procedural and substantive offenses. The fact that the king—by his representatives in America—assembled the provincial legislatures at places far from their capitals or required persons accused of certain crimes to be transported to England for trial, evinced a tyrannical design by disregard of procedural safeguards. But even when the established procedures were followed, as in giving or withholding assent to legislation, the result could be tyrannical; for example, the suppression of trade, the discouragement of population growth, and the keeping of standing armies in peacetime were acts according to the forms of due process that unjustly deprived the Americans of their liberty. Still other acts, such as making the royal assent conditional on surrender of the right of representation and withholding assent from bills to create provincial courts, were tyrannical in both form and substance.

The most critical charge, the thirteenth, was that the king had conspired with others—the British Parliament—to subject the Americans to a jurisdiction foreign to their constitution. The Americans had come to see that a compact existed between the British king and each of his American provinces by which the king exercised executive power in each even as he did in the home island, and that the common executive was the sole governmental connection between America and Britain. The imperial constitution, as the Americans had come to understand it, no more permitted the British legislature to regulate the internal affairs of Massachusetts or Virginia than it did the provincial legislatures to regulate the internal affairs of England or Scotland. But the British legislature could not breach the compact between the king and the provinces because Parliament was not a party to that compact. The king, however, by conniving at that usurpation, did breach the compact.

The final five accusations deal with the fact that Britain and America were at war. One charge that Jefferson included, but Congress struck out, accused the king of waging "cruel war against human nature itself" by tolerating the introduction of slavery into the colonies and sanctioning the slave trade. Only two states, Georgia and South Carolina, objected to the passage, but the others acquiesced to preserve unanimity. In any case, the condemnation of slavery was implicit in the opening paragraphs of the Declaration.

The conclusion of the document asserts that the Americans had tried peaceably to resolve their differences with the mother country while remaining within the empire, and in a final paragraph contains the actual declaration that the erstwhile colonies were now independent states.

Whether the colonies became independent collectively or individually was a matter of debate for at least a hundred years. At the constitutional convention of 1787, james wilson, and alexander hamilton advanced the former position, while luther martin maintained the latter position. At least until the Civil War, different theories of the union arose based on differing interpretations of the act of declaring independence.

Considered as a tract for the times, as a manifesto for the Revolutionary cause, the Declaration marks an important step in American constitutional development. The resistance to British misrule in America had, at least since the French and Indian Wars, been based on an appeal to the British constitution. The Americans had charged that the imposition of taxes by a body in which they were not represented and the extension to them of domestic legislation by a Parliament to whose authority they had not consented violated the ancient traditions of British government. The constitution, that is, the arrangement of offices and powers within the government and the privileges of the subjects, had been overridden or altered by the British Parliament. Although the differences between the American provinces and the mother country were great, they were differences about, and capable of resolution within, the British constitutional framework. The liberties that the colonists had claimed were based on prescription.

When independence was declared, the British constitution became irrelevant. The liberties claimed in the Declaration are grounded in natural law; they are justified by reason, not by historical use. The American Revolution was, therefore, the first and most revolutionary of modern revolutions. Not the quantity of carnage but the quality of ideas distinguishes the true revolution. In the Declaration was recognized a higher law to which every human law—constitution or statute—is answerable. The British constitution, as it then existed, was tried by the standards of that higher law and found guilty of tyranny. As the British constitution, so every constitution, including the American Constitution, may be tried; and on conviction the sentence is that the bonds of allegiance are dissolved.

Much of American constitutional history has revolved around the attempt to reconcile the nation's political practice with the teachings of the Declaration. The gravest problem in our constitutional history was slavery. Although the Congress struck out Jefferson's condemnation of slavery as "cruel war against human nature," the founders clearly understood that slavery was incompatible with the principles of liberty and equality that they espoused.

Chief Justice roger b. taney, in dred scott v. sandford (1857), tried to read the black man out of the Declaration. But this was a distortion of the history and the plain meaning of the document. Even john c. calhoun had not stooped to this, choosing rather to denounce the Declaration than to pervert its meaning. The antithesis between the Declaration and the existence of chattel slavery was recognized by the slave power in Congress when, during the gag rule controversy, any petition referring to the Declaration of Independence was automatically treated as a petition against slavery and laid on the table.

The intimate connection between the Declaration of Independence (and therefore of antislavery) and the Constitution became the theme of the political career of abraham lincoln. When the slavery question divided the nation, Lincoln, with the voice of an Old Testament prophet, called for rededication to the principles of the Declaration. During Lincoln's presidency, the Civil War, begun as a challenge to the Union, was won as a struggle to vindicate the Declaration of Independence. It was fought to prove that a nation "dedicated to the proposition that all men are created equal" could endure.

The putative antagonism between America's two basic documents, invented by the slave power in the nineteenth century, was revived as a political theme during the Progressive movement. Authors like j. allen smith and charles a. beard contended that the Constitution's system of federalism, separation of powers, checks and balances, and bicameralism frustrated the unfettered will of the people allegedly set free by the Declaration. Smith and Beard posited a virtually bloodless coup d'état by wealthy conservatives—a "Thermidorian reaction" to the success of the democratic revolution. Thus constitutional forms were attacked as illegitimate, notwithstanding that they were intended to preserve the Declaration's regime of limited government.

The Beard-Smith thesis remained popular as long as the Constitution seemed to be a barrier to social reform and redistribution of wealth and income by the government. The later twentieth century, however, witnessed another change in the attitude of intellectuals toward the two documents. President franklin d. roosevelt appointed a sufficient number of Supreme Court Justices to insure that the Court would ratify his policies as constitutional. Later, the warren court devised a host of new "constitutional" rights and remedies for criminal defendants, ethnic minorities, and political dissenters. The Constitution was transformed into a "living" document, that is, one almost infinitely malleable in the hands of enlightened judges. History, understood as progress, rather than nature thereafter dictated the ends of government. The Declaration of Independence, with its references to "the laws of nature and of nature's God," although revered as a symbol of American nationality, ceased to be regarded as the source of authoritative guidance for American politics.

The Constitution of the United States is sometimes pronounced, by scholars or politicians, to be neutral with respect to political principles. But the Constitution was not framed in a vacuum. It was devised as the Constitution of the nation founded by the Declaration of Independence. The Declaration prescribes the ends and limits of government, and proclaims the illegitimacy of any government that fails to serve those ends or observe those limits. The Constitution is thus ruled by the Declaration. The Constitution provides for the government of the regime created by the Declaration: the regime of equality and liberty.

Dennis J. Mahoney
(1986)

Bibliography

Becker, Carl L. 1922 The Declaration of Independence. Cambridge, Mass.: Harvard University Press.

Diamond, Martin 1975 The Declaration and the Constitution: Liberty, Democracy and the Founders. The Public Interest 42:39–55.

Hawke, David 1964 A Transaction of Free Men: The Birth and Course of the Declaration of Independence. New York: Scribner's.

Jaffa, Harry V. 1959 The Universal Meaning of the Declaration of Independence. Chap. 14 of The Crisis of the House Divided. New York: Doubleday.

White, Morton 1978 The Philosophy of the American Revolution. New York: Oxford University Press.

Declaration of Independence 1 Stat. 1 (July 4, 1776)

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Declaration of Independence 1 Stat. 1 (July 4, 1776)