Essay 14 – Guest Essayist: Val Crofts

“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.— 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 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.”

The Declaration of Independence serves as the cornerstone of our nation, and the men who created this statement of natural rights did not do so lightly. Their causes to break from Great Britain were not “light and transient causes” and they wanted to make sure that the world who was going to be reading this declaration would understand the events and circumstances that brought the colonies to the point of separation in the summer of 1776.

The above portion of the Declaration shows us the point in the document where the necessary change that is required by the colonies should be independence, as well as showing how we have arrived at this point and who is to blame. The document had previously stated that we were separating from Great Britain and started to explain the justification for doing so. It also details that the colonies are not taking this usurpation lightly, but have strong reasons for doing so. The Declaration details that most people throughout history have been content to suffer under oppressive forms of government, but these men are not. In this section, the writers of the Declaration are submitting to the world why they will not be suffering under the rule of King George III any longer.

A long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism..”  – The colonies had been enduring what they felt were abuses and usurpations (abuses of power with no right to do so) for years. The French and Indian War had ended in 1763 and the British Empire was heavily in debt as a result. The British felt that the American colonies were going to have to shoulder some of the burden of paying this debt.

The colonies were also told where they could and could not settle by the Proclamation of 1763, which told the colonists that they could not settle West of the Appalachian Mountains. The colonists were outraged by this and the subsequent taxes and acts that followed from 1763 through the beginning of the American Revolution in 1775. The colonists, as British subjects, also felt that their rights under the English Constitution were not being recognized or respected. Some colonists also believed that King George III was abusing his power at the expense of the colonists and that, because of this, he was not fit to be their king.

“..it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”

After realizing that their king had betrayed them, the colonists now felt that they needed to do something about it. They believed that not only was it their right to get rid of the king and the British Empire as their rulers: it was their duty! They felt called to do this for themselves and the future generations of their new nation. The king’s actions had led the colonists to this place in history and their sense of betrayal was felt very heavily. The colonies then adopted measures to prevent these actions from continuing. Those who boycotted British goods and protested the king and Parliament’s legislation believed they were being deprived of their rights as free Englishmen and that they deserved representation by the British Parliament as a voice for their concerns as well. They took action when those rights were not given to them and those actions would lead the colonists towards revolution.

“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.”

Most colonists had tried to maintain patience throughout the various acts of Parliament and the effects and consequences that had resulted from them. That patience partially came from the fact that most colonists believed a reconciliation would occur with the King. They wanted that to happen. They were British subjects and hoped for an amicable reunion. However, after several acts, taxes and policies that the colonists felt were unfair and oppressive of their rights as English subjects, they had had enough and felt that it was time to do something to remedy it. The colonist arrived at the conclusion that they needed to change their situation. By the summer of 1776, after over a year of open warfare, it was difficult, if not impossible to reconcile with the mother country. The colonists wanted to escape an oppressive government that they believed was not respecting them or looking out for them; they wanted a better life for themselves and their future ancestors. The results of that oppression now made it absolutely necessary for the colonists to change their form of government from a monarchy to, eventually, a republic.

“The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States.”

In the recent years of history (the 1760s and 1770s), the actions of the King and Parliament indicated to the colonists that England was trying to oppress them. An objective of these actions was to harm and mistreat the colonies. Furthermore, King George III also had an objective to rule as a tyrant. As a result of these actions, the colonies were now going to leave the British Empire.

“To prove this, let Facts be submitted to a candid world.”

The Declaration will now be transitioning to a list of grievances that will give the evidence to the world that will show how the colonists had been suffering under this monarch and his actions. These facts attempt to prove that the king is an oppressive ruler and an unfit king to these colonies. They will also attempt to show that he has been and will continue to be, an oppressive and tyrannical ruler, which is why we are declaring our independence.

Val Crofts is a Social Studies teacher from Janesville, Wisconsin. He teaches as Milton High School in Milton, Wisconsin and has been there 16 years. He teaches AP U.S. Government and Politics, U.S. History and U.S. Military History. Val has also taught for the Wisconsin Virtual School for seven years, teaching several Social Studies courses for them. Val is also a member of the U.S. Semiquincentennial Commission celebrating the 250th Anniversary of the Declaration of Independence.

Podcast by Maureen Quinn

 

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Essay 13 – Guest Essayist: The Honorable David L. Robbins

“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.”

The above passage in the United States Declaration of Independence, warns of revolution for “light and transient causes” by overthrowing government, long established. The British Monarchy dates to 1066 when England was conquered by the Normans. And, while some monarchs were removed forcefully, the monarchs ruled England since this early beginning. The Declaration of Independence was challenging a “long established” government that ruled England for 710 years, and the members of the Second Continental Congress were aware there would be challenges in forming a new nation.

The American revolutionary leaders included many well-educated, wealthy, businessmen. They all realized signing this document would be signing their death sentences if the revolution was unsuccessful. Plus, their links to England were not casual, but well embedded in colonial life. Family, customs, education, language, business, and even religion were long-term bonds between the colonies and England. But, actions by England had become insufferable.

The Founders of America did not necessarily want to change the whole world, even though they did, but after years of insufferable treatment by King George, his government and military, they believed they had to attempt to throw off the “forms to which they are accustomed.” The Founders pulled material from many different sources to form a new government, but they didn’t necessarily have all the answers to form a successful government to replace the British monarchy.

The initial Articles of Confederation were deemed inadequate by 1785, just two years after the end of the Revolutionary War. In 1786, Congress met and debated the Constitution of the United States. While the Constitution was deemed immensely superior to the Articles of Confederation, several states refused to ratify the new Constitution without additional assurances which produced the first ten amendments, referred to as the Bill of Rights.

The Constitution of the United States is an incredible document. It has survived over 230 years and after the original ten amendments, only 17 additional amendments have been approved, fewer than one every 13 years. Through the election of Representatives, Senators, and the President and Vice-President, this document permits peaceful change in our government via elections every two, four, and six years. Most of these “mini-revolutions” have been peaceful. However, the history of change in the United States has not always been peaceful.

The U.S. Civil War was about drastically different visions of government, society, and treatment of people. While these may not have been viewed as “light and transient causes,” the impacts were devastating to the entire country. The U.S. Civil War lasted over four years from April 12, 1861 to May 9, 1865 and cost over 655,000 lives.  It ended with massive changes and new amendments to the Constitution. The U.S. Revolutionary War, by contrast, resulted in approximately 25,000 American deaths and approximately 50,000 in total.

In 1968, the United States was in turmoil during a presidential election year with a war in Viet Nam, riots at home, the assassination of two prominent national leaders: one a civil rights leader and another a presidential candidate. During this chaos, a British pop music group, the Beatles, released a song called “Revolution” in August with lyrics to demand change while casting aside violence or destruction. The line from the song, “we all want to change the world” still resonates today as it did over 200 years ago.

Many individuals, organizations, and political groups over the history of the United States have pushed for change in our country, some minor, some drastic. Change is inevitable, but the Founders of the United States left a cautionary note in the Declaration of Independence, one hopefully taken to heart by both those wanting change and those resistant to change.

David L. Robbins serves as Public Education Commissioner in New Mexico.

 


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Essay 12 - Guest Essayist: Will Morrisey

“…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.”

In declaring their independence from the British empire, Americans did not merely assert themselves. They declared “the causes which impel them to the Separation” and submitted facts, evidence “to a candid World.” In doing so, they selected a way of arguing that can be understood not only by Americans and Englishmen but by human beings as such. Human beings are by their nature capable of reasoning, of thinking according to the principle of non-contradiction. If I say, ‘Think of a circle,’ you know what I mean, so long as you know the meaning of the words in that sentence. If I say, ‘Think of a square,’ you also know what I mean. But if I say, ‘Think of a square circle,’ you don’t know what I could possibly mean. I have contradicted myself.

A formal argument founded on the principle of non-contradiction is called a logical syllogism. That is exactly what the Declaration of Independence is. A logical syllogism consists of one or more ‘major premises’—the foundations of the argument—one or more ‘minor premises’—typically, specific facts—followed by a conclusion. To give the standard example: ‘All men are mortal. Socrates is a man. Therefore, Socrates is mortal.’ The major premise is a general or foundational statement; the minor premise is a factual statement; the conclusion follows from the two premises. You could disprove the argument by showing that either or both premises is false, or that the conclusion doesn’t follow from the premises, that it somehow violates the principle of non-contradiction. So, for example, if the ‘Socrates’ you are referring to is an angel, the conclusion is wrong, since angels may not be mortal.

In the Declaration of Independence, the clause we are considering is one of the several main premises of the argument; the minor premises are the specific, factual charges against the British king and parliament. The major premises stated before this are the famous ones: that all men are created equal respecting their unalienable rights to life, liberty, and the pursuit of happiness; that men institute government to secure those rights; that the governments they institute derive their just powers from the consent of the governed; and that, conversely, a people whose government violates their unalienable rights may rightly be abolished.

According to the logic of the argument, then, the “consent” of the governed cannot mean simply the assent of the governed. Consent can only mean assent to a government that really does secure the rights human beings have by nature, thanks to their Creator, before they form the government. Once they no longer consent to their government because it no longer serves the “end” or purpose a government ought to have, not only do we have the right to alter or abolish it, we also have the right, even the obligation, to frame a new government, one that does secure the rights they old government failed to secure.

How will we do that? By doing two things. First, we do it by “laying its foundations” on the foundations or major premises of the Declaration of Independence: the natural, unalienable rights of human beings. Second, we do it by founding a new regime, a regime which includes a government with a new “form,” a new structure, an architecture, which is logically consistent with those natural foundations. By so shaping the means to the end, the form of the government to the defense of natural rights, we can effect our safety and happiness—secure our natural rights in practice, not merely recognize them in theory.

This clause of the Declaration is the link between the Declaration and the preamble to the United States Constitution. Justice, domestic tranquility, common defense, the general welfare, and securing the blessings of liberty are all elements of our safety and happiness as an independent, self-governing people. The Constitution lays out exactly the form or structure of the government designed to achieve those purposes, replacing the Articles of Confederation, which had not achieved them, which in turn had replaced the regime of the British empire, which had violated them.

Thus the right of revolution follows logically from the purpose of government, just as the purpose of government follows logically from the existence of unalienable natural rights in all human beings. In presenting their Declaration of Independence in the form of a logical syllogism, the American Founders justified their action not only to themselves, not only to their “British brethren,” but to a “candid world”—to all human beings who think rationally, wherever and whenever they live.

 

Will Morrisey is Professor Emeritus of Politics, Hillsdale College; Editor and Publisher, Will Morrisey Reviews

 

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Essay 11 - Guest Essayist: James D. Best

“That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it.”

The “right of the people to alter or abolish” their government is derived from our natural right to self-governance. The notion of self-governance is relatively new. In 1776, the world was ruled by royalty or warrior chieftains. Some upstart colonialists then penned the most revolutionary document in the history of man. Kings and queens no longer enjoyed a Divine Right to rule. Instead, the individual was now the one endowed by their Creator with certain unalienable rights. Like most revolutionary visions, this one didn’t suddenly spring onto the world stage. Baron de Montesquieu, John Locke, David Hume, Adam Smith, Thomas Paine, and many others had advocated that “consent of the governed” was dictated by the laws of nature and of nature’s God. Of course, not everyone accepted this concept—certainly not King George III or English nobility. It took seven years of warfare for the colonies to solidify their claim of self-governance.

“The infant periods of most nations are buried in silence, or veiled in fable, and perhaps the world has lost little it should regret. But the origins of the American Republic contain lessons of which posterity ought not to be deprived.” — James Madison

The Founders, however, were steeped in this incendiary idea. Self-governance had been part of their experience in the New World. The colonists were subjects of England, but a round-trip sail across the great Atlantic put three to four months between them and their king. Self-rule started with the Pilgrims. The Mayflower Compact began by pledging loyalty to King James, but then decreed that the colonists would

“combine together into a civil body politick, for our better ordering and preservation, and furtherance of the ends aforesaid: and by virtue hereof do enact, constitute, and frame, such just and equal laws, ordinances, acts, constitutions, and officers, from time to time, as shall be thought most convenient for the general good of the colony.”

Basically, the Mayflower Compact was a written statement declaring self-government in colonial America.

“under absolute Despotism, it is their right, it is their duty, to throw off such Government” —Declaration of Independence.

Geography may have allowed the early colonists to govern themselves, but it was the writings of the Enlightenment that declared that self-rule was a natural right. This grand idea eventually led to the Declaration of Independence, which asserted that it was the right of the people “to institute a 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.” This founding principle basically said that the people themselves held the power to form a new government at any time and in any shape that met their needs. It was a radical concept used to justify radical action.

The power to “institute a new government” also conveys the power to “alter or to abolish it.” The 1787 replacement of the Articles of Confederation with our Constitution is a historical example of this concept. Since that date, we have not seen a need to abolish our government because we have been able to alter it continuously with amendments, laws, and political movements.

Our government at the national level is not a direct democracy. (Half of the states allow ballot initiatives which, if passed by a majority of the voters, have the force of law.) Instead, we elect representatives to write laws and a president to administer those laws. When the people’s will is thwarted, regular elections give them the opportunity to dismiss their representatives and appoint new ones. As a further safeguard, our government theoretically only has powers delegated by the people, reinforcing the concept that power resides with the people, not political leaders. The principle of self-governance is echoed in the 9th and 10th Amendments to the United States Constitution.

As long as people believe their voices count, fair and honest elections prevent the more drastic action of abolishment. Revolutions are bred when people believe their voices go unheard, especially in periods of hardship.

 

James D. Best is the author of Tempest at Dawn, a novel about the 1787 Constitutional Convention, Principled Action, Lessons From the Origins of the American Republic, and the Steve Dancy Tales.

Podcast by Maureen Quinn

 

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Essay 10 - Guest Essayist: Tony Williams

The Declaration of Independence laid down several important principles about free government predicated upon all humans being created with an equality of natural rights. From that equality flowed the idea that all who made a political regime through a social contract equally gave their consent to that government. The American polity was a republican form of government rooted upon a continuing consent of the sovereign people.

The American colonists were drawn to the principle of consensual government in the decade of resistance before the Declaration of Independence. The main argument of the American Revolution was, of course, “no taxation without representation.” The colonists were willing to pay taxes as British subjects, but they demanded in countless pamphlets, newspapers, petitions, declarations of rights, and speeches that they could only be taxed by their consent. This consent would be given in their colonial legislatures since they were not and could not reasonably be represented in Parliament.

In 1774, George Washington said it well when he described it with a practical example: “I think the Parliament of Great Britain hath no more Right to put their hands into my Pocket, without my consent, than I have to put my hands into yours, for money.” Washington thought it was violated constitutional and natural rights. Taxation without consent was “repugnant to every principle of natural justice…that it is not only repugnant to natural Right, but Subversive of the Laws & Constitution of Great Britain itself.”

In Federalist #39, James Madison described the principle of consent:

“We may define a republic to be, or at least may bestow that name on, a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during pleasure for a limited period, or during good behavior. It is essential to such a government that it be derived from the great body of the society…It is sufficient for such a government that the persons administering it be appointed, either directly or indirectly, by the people.”

Madison’s quote points us to important considerations about consensual republican government. First, it derives its power from the sovereign people. Second, it is governed by representatives of the people (from among the people) they have elected directly or indirectly in free elections.

The Constitution contained several provisions that institutionalized popular consent. “We the People” established the constitutional government divided into three branches of government with the Congress, and specifically the House of Representatives, representing the people most directly. As Madison wrote, “In republican government, the legislative authority necessarily predominates.” The Constitution provided for free direct and indirect elections and limited terms of office. The document guaranteed “to every State in this Union a Republican Form of Government.”

Representative government was naturally and reasonably based fundamentally upon majority rule. The majority, however, was guided and limited by the principles of natural law and natural justice. Madison explained in Federalist #51: “It is of great importance in a republic, not only to guard the society against the oppression of its rulers; but to guard one part of the society against the injustice of the other part.” Thomas Jefferson agreed in his First Inaugural: “All, too, will bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable; that the minority possess their equal rights, which equal law must protect, and to violate would be oppression.” According to the founders, majority tyranny was just as bad as tyranny of the few or one. Majority rule was only just if minority rights were protected.

During the mid-nineteenth century, the idea of popular consent and majority rule was challenged. John Calhoun’s “concurrent majority” created the idea that the means of preventing supposedly tyrannical majority rule was by allowing the minority to have a veto on what it believed unjust. Concurrence was virtually akin to unanimity and laid the basis for nullification. Stephen Douglas’ view of “popular sovereignty” advocated that the people of each state govern their affairs however they want including owning slaves. Douglas’ “don’t care” policy on slavery was a gross violation of natural rights and justice by an oppressive majority against a racial minority. His relativist stance on popular government did not accord with the ideas of Madison and Jefferson above about majority rule/minority rights.

In his First Inaugural, Abraham Lincoln reasserted the underlying principle of majority rule and consent. Lincoln focused attention on the need for a sense of restraint in popular government and the checks and balances and other devices that help provide limits. Moreover, he noted that republican governments based upon the consent of the governed are rooted in free and reasonable deliberation and persuasion are necessary in shaping just majorities. But, it also means that the minority must submit to just rule. It cannot reject majority rule because it disagrees with a chosen course of action or does not win the debate. Lincoln said:

“A majority, held in restraint by constitutional checks, and limitations, and always changing easily, with deliberate changes of popular opinions and sentiments, is the only true sovereign of a free people, Whoever rejects it, does, of necessity, fly to anarchy or to despotism. Unanimity is impossible; the rule of a minority, as a permanent arrangement, is wholly inadmissible; so that, rejecting the majority principle, anarchy, or despotism in some form, is all that is left.”

The twentieth century witnessed several challenges to consensual self-government. The executive agencies of the administrative state that were overseen by experts in the public interest were seen as a counter to the messy, slow, and deliberative lawmaking of Congress. The later rise of the “imperial presidency” subverted the other branches of government and popular consent. Many observers argued that an “imperial judiciary” allowed unelected judges to substitute their personal views for the will of the people. Today, many are concerned that big tech elites and their political allies attempt to control and limit popular will. The debate has continued and will endure because of the central importance of the constitutional principle of consent in the American regime and national character.

Tony Williams is a Senior Fellow at the Bill of Rights Institute and is the author of six books including Washington and Hamilton: The Alliance that Forged America with Stephen Knott. Williams is currently writing a book on the Declaration of Independence.


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Essay 9 - Guest Essayist: Gary Porter
Founding Fathers John Adams, Benjamin Franklin, Thomas Jefferson kneeling in prayer at Valley Forge, PA, bronze sculpture by Stan Watts at Freedoms Foundation of Valley Forge

“that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness,”

 

According to Mr. Thomas Jefferson, it is a self-evident truth (or, if you prefer: a “sacred and undeniable truth”[1]) “that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness,”

This is one of the most memorable and yet controversial statements in English prose. Memorable it has become due to its striking simplicity. Controversial? It shouldn’t be. Jefferson is writing to the Americans of 1776; but his words also apply to Americans of 2021. A truth is a truth.

In 1776, Jefferson’s was a claim few would dispute or even take much notice of; it expressed an idea that had been “hackneyed about” in America for fifty to a hundred years. This was, simply, “an expression of the American Mind” of 1776. But today? While only 1 in 10 Americans believe there is no God at all, only about half of Americans believe God is an active participant in their lives.[2] Only 40% of Americans believe God actually created the world as Jefferson alludes,[3] and fewer still believe in the existence of God-given rights. Some today even claim there is danger in insisting that rights come from God. Instead, these people insist that these rights come from “human progress.”[4] There are grave implications to this alternative view, as we will see in a moment.

But, as author Brian Vanyo points out:

the Founding Fathers and other Natural Law philosophers did not take for granted that God existed. They did not base their strong conviction in God on religious dogma. Rather, they deduced that God must exist because an alternative conclusion was irrational…Belief in God was so common among the founding generation that further validation of God’s existence was often unnecessary and unwelcome.” [5]

Jefferson claimed these unalienable rights were an endowment – a gift – from our Creator: natural rights result from “the Laws of Nature and Nature’s God.” Later in life, in the only book he ever wrote, Jefferson reiterated this view.[6] The colonists had been making this claim to their King – that these were their natural rights, and they were being violated – for many years.

The standard formula up until 1776 had been: “Life + Liberty + Property = Our Fundamental Natural Rights.” [7] Why did Jefferson now substitute “pursuit of happiness”?  Some scholars insist Jefferson borrowed the “pursuit of happiness” idea from John Locke. Locke indeed explored this idea in An Essay Concerning Human Understanding (published 1689), which Jefferson no doubt studied. And it is undisputed that Jefferson modeled other phrases in the Declaration after Locke.[8]  But “pursuit of happiness” and similar phrases were commonly encountered during the Founding period. Take this excerpt from a 1773 Election Sermon by Pastor Simeon Howard:

“In a state of nature, or where men are under no civil government, God has given to every one liberty to pursue his own happiness in whatever way, and by whatever means he pleases, without asking the consent or consulting the inclination of any other man, provided he keeps within the bounds of the law of nature. Within these bounds, he may govern his actions, and dispose of his property and person, as he thinks proper, Nor has any man, or any number of men, a right to restrain him in the exercise of this liberty, or punish, or call him to account for using it. This however is not a state of licentiousness, for the law of nature which bounds this liberty, forbids all injustice and wickedness, allows no man to injure another in his person or property, or to destroy his own life.”[9]

Much has been written dissecting Jefferson’s choice of “pursuit of happiness” over “property,”[10] so I won’t take more time with the subject here other than to say there is no evidence that suggests Jefferson did not believe the right to property to also be a natural right.

Alexander Hamilton concurred that God was the source of the colonists’ rights. Answering an essayist calling himself “The Farmer,” Hamilton wrote:

The fundamental source of all your errors, sophisms and false reasonings is a total ignorance of the natural rights of mankind. Were you once to become acquainted with these, you could never entertain a thought, that all men are not, by nature, entitled to a parity of privileges. You would be convinced, that natural liberty is a gift of the beneficent Creator to the whole human race, and that civil liberty is founded in that; and cannot be wrested from any people, without the most manifest violation of justice. Civil liberty is only natural liberty, modified and secured by the sanctions of civil society. It is not a thing, in its own nature, precarious and dependent on human will and caprice; but it is conformable to the constitution of man, as well as necessary to the well-being of society…The sacred rights of mankind are not to be rummaged for, among old parchments, or musty records. They are written, as with a sun beam, in the whole volume of human nature, by the hand of the divinity itself; and can never be erased or obscured by mortal power.”[11]

So did James Wilson:

“What was the primary and principal object in the institution of government? Was it – I speak of the primary and principal object – was it to acquire new rights by a human establishment? Or was it, by human establishment, to acquire new security for the possession or the recovery of those rights, to the enjoyment or acquisition of which we were previously entitled by the immediate gift, or by the unerring law, of our all-wise and all-beneficent Creator? The latter, I presume, was the case…”[12]

And John Adams:

I say RIGHTS, for such they have, undoubtedly, antecedent to all earthly governments; rights that cannot be repealed or restrained by human laws; rights derived from the Great Legislator of the Universe.”[13]

And John Dickinson:

Kings or parliaments could not give the rights essential to happiness… We claim them from a higher source – from the King of kings, and Lord of all the earth. They are not annexed to us by parchments and seals. They are created in us by the decrees of Providence, which establish the laws of our nature. They are born with us; exist with us; and cannot be taken from us by any human power without taking our lives. In short they are founded on the immutable maxims of reason and justice.”[14]

The prevailing understanding of the founding era was that God was the source of natural rights, period. But, even in the founding era that understanding was beginning to change, and the change has picked up speed in the modern era.

Today, it is not uncommon to encounter people claiming that man himself is the source of his rights. When interviewing controversial Judge Roy Moore, then Chief Justice of the Alabama Supreme Court, CNN commentator Chris Cuomo famously declared:  “Our rights do not come from God, your Honor, and you know that, they come from man.”

But, there is a problem with this belief, a big problem. If our rights come from man, i.e., from the laws we human beings enact, then how can these rights ever be considered unalienable? Does this mean certain men can pass a civil law creating a certain civil right with the understanding that future men will somehow be prevented from revoking that law and thus revoking the right it created? Manmade rights can simply not be unalienable.

Could there be a middle ground where both unalienable and alienable rights are part of the human condition? What if both Cuomo and Moore are right each in their own unique way?

I think we must acknowledge that man can indeed create rights through civil law. The right to vote, for instance (some insist it is a privilege, not a right), could not be a natural right. In the hypothetical state of nature, voting would have no meaning, there being no society and no government. So, some rights, as Cuomo insists, do indeed “come from man.” These rights must be considered alienable. The law that creates a right for certain individuals to vote today can easily be revoked tomorrow.

But, what then of natural rights, rights that would be part of the human condition were there no society, no government? Some today suggest that even these need not have a Heavenly source – as most of the Founders would insist – but that these rights became part of the human condition as man “evolved.”

The idea that human beings have inherent rights, inherent to being human, goes back to antiquity, but it began to gain significant adherents during The Enlightenment. One of those new adherents was Englishman Jeremy Bentham (1748-1832). Regarded as the founder of modern utilitarianism, Bentham explained the “fundamental axiom” of his philosophy as the principle that “it is the greatest happiness of the greatest number that is the measure of right and wrong.” Bentham famously called the idea of natural rights sourced in God as “nonsense upon stilts.”

John Dewey thought that “[n]atural rights and natural liberties exist only in the kingdom of mythological social zoology.”[15]

We do find some Founders using the “inherent” terminology; George Mason begins the Virginia Declaration of Rights by stating:

“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.”[16]

George Washington spoke of inherent natural rights in a Letter to the Hebrew Congregation of Newport, Rhode Island, August 17, 1790.[17]

Even Jefferson himself wrote that “Nothing is unchangeable but the inherent and unalienable rights of man.[18]

However, “inherent” and “natural” rights are not irreconcilable concepts.  Being inherent does not exclude God as the ultimate source. If God, as Creator, wished his human creations to understand they had these rights, he need only “embed” them into our consciousness. Both Jeremiah 31:33 and Hebrews 8:10 remind us that God’s law will be “written upon our hearts;” is it not reasonable to assume our rights are “inscribed” there as well?

We will not settle the “inherent” versus “natural” argument today, suffice it to say that if you like your rights “unalienable,” you best look to God as their source.

Which natural rights exist?  How many are there?

Note that in our subject phrase Jefferson points to only “certain” unalienable rights as included in the Creator’s endowment. “Life, Liberty and the pursuit of Happiness” are among the rights created and given by God. Jefferson thus implies that other rights, beyond these three, are part of God’s endowment. This understanding, that there are other, perhaps even uncountable natural rights, was also part of the “American Mind,” so much so that we see it codified in the Ninth Amendment.[19]

One of the frequent objections to including a Bill of Rights in the Constitution was that “it would not only be useless, but dangerous, to enumerate a number of rights which are not intended to be given up; because it would be implying, in the strongest manner, that every right not included in the exception might be impaired by the government without usurpation; and it would be impossible to enumerate every one…”[20]

James Madison, in proposing the Bill of Rights on the floor of Congress in 1789, acknowledged the power of this objection but showed it had been anticipated. He said: “This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the 4th resolution (which would eventually become the Ninth Amendment).”[21]

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

But, we can see an obvious question arise here: if there are unenumerated rights which government should not “deny or disparage,” what are they? Who gets to identify or “enumerate” them? The Framers of the Constitution gave us no hint.

Thus far in our country’s history we have let the court system identify them. In 1965, the Supreme Court identified, for the first time, a right to privacy lurking in a “penumbra” of the Constitution. Eight years later the Justices expanded this right to include the “right” to terminate the life of an unborn baby. In 2008, the court pulled out of the “inkblot”[22] of the Ninth Amendment the “right” of two homosexuals to marry.

Note, however, that the Constitution begins not with the words: “We the Congress,” “I the President,” or even “We the Judges.” The Constitution represents a contract between the American people and the government the document creates. The people are sovereign; they hold the ultimate political power over the government. It is We the People who have the rightful authority to identify the rights we wish secured by the words of the Constitution. And the rightful mechanism for bringing those rights into the security of the Constitution is amendment, not judicial decree.

Thomas Jefferson’s words are as sacred and undeniable today as they were 245 years ago. Since Congress has declared the Declaration of Independence to be part of the Organic Law of the United States,[23] we would do well to reflect on and heed them.

Natural rights?  I’ll take mine unalienable, please.

Gary Porter is Executive Director of the Constitution Leadership Initiative (CLI), a project to promote a better understanding of the U.S. Constitution by the American people. CLI provides seminars on the Constitution, including one for young people utilizing “Our Constitution Rocks” as the text. Gary presents talks on various Constitutional topics, writes periodic essays published on several different websites, and appears in period costume as James Madison, explaining to public and private school students “his” (i.e., Madison’s) role in the creation of the Bill of Rights and the Constitution. Gary can be reached at  gary@constitutionleadership.org, on Facebook or Twitter (@constitutionled).

Podcast by Maureen Quinn

[1] These were Jefferson’s words in the original draft of the Declaration.

[2] https://www.pewresearch.org/fact-tank/2018/04/25/key-findings-about-americans-belief-in-god/

[3] https://news.gallup.com/poll/261680/americans-believe-creationism.aspx

[4] https://www.psychologytoday.com/us/blog/our-humanity-naturally/201610/the-danger-claiming-rights-come-god

[5] Brian Vanyo, The American Ideology, Taking Back our Country with the Philosophy of our Founding Fathers, Liberty Publishing, 2012. p. 20-21.

[6] “And can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are the gift of God?” Thomas Jefferson, Notes on the State of Virginia, 1785.

[7] See both Declaration and Resolves, October 14, 1774 and A Declaration on the Causes and Necessity of Their Taking Up Arms, July 6, 1775

[8] See Two Treatises on Government, Bk II

[9] A sermon preached to the Ancient and Honorable Artillery-Company, in Boston, New-England, June 7th, 1773. : Being the anniversary of their election of officers, by Pastor Simeon Howard, accessed at: https://christiancivicfoundation.files.wordpress.com/2009/07/artillery-sermon-on-liberty-simeon-howard.pdf

[10] https://en.wikipedia.org/wiki/Life,_Liberty_and_the_pursuit_of_Happiness

[11] The Farmer Refuted, 1775

[12] Mark David Hall, The Political and Legal Philosophy of James Wilson, 1742-1798 (Columbia: University of Missouri Press, 1997) pp. 1053-1054

[13] A Dissertation on the Canon and Feudal Law, 1765

[14] An Address to the Committee of Correspondence in Barbados, 1766

[15] John Dewey, Liberalism and Social Action, 1935, page 17.

[16] George Mason, Virginia Declaration of Rights, 1776, accessed at https://www.archives.gov/founding-docs/virginia-declaration-of-rights.

[17] https://founders.archives.gov/documents/Washington/05-06-02-0135

[18] Letter to John Cartwright, 1824.

[19] “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

[20] James Iredell, speaking at the North Carolina Ratifying Convention, July 29, 1788.

[21] https://usconstitution.net/madisonbor.html

[22] “An inkblot” is the way Judge Robert Bork characterized the Ninth Amendment in his unfruitful confirmation hearing for a seat on the Supreme Court.

[23] https://uscode.house.gov/browse/frontmatter/organiclaws%26edition=prelim

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Essay 8 - Guest Essayist: Tony Williams

The Declaration of Independence made a bold assertion about human nature and natural rights. The central claim that “all men are created equal” had profound implications for the American regime of liberty. The “self-evident truth” of human equality meant that humans had equal natural rights, equally gave their consent to create a republican government, had equal dignity, and were equal under the law.

Throughout history, most societies were either monarchies, aristocracies, or despotisms. In those societies, leaders and elite social classes (or those of a certain ethnicity or religion) had certain rights and privileges that common people did not have. These societies were characterized by inequality.

The Enlightenment and ideas of John Locke significantly influenced the founders’ belief that all humans were created equal and had equal natural rights. The Declaration stated, “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 nature of the political regime was then shaped by this idea of natural human equality.

Again, influenced by Locke, the Declaration stated that all were equally free and independent to give their consent to create a free, representative government. The Declaration stated, “That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.” This was the basis of social contract or social compact theory. It created an equal citizenry and self-governance in a republic.

The citizens in the republican government enjoyed equality under the Constitution. The Constitution created an equal rule of law for all in which they could enjoy their liberties. It equally protected the individual rights of all citizens and guaranteed due process. The Fifth Amendment to the Constitution reads, “No person shall be…deprived of life, liberty, or property, without due process of law.” The Constitution banned titles of nobility and aristocratic privileges showing that it was a republican constitution not one that supported oligarchy, or rule by the few.

The principle of equality protected the liberties of all citizens to create a just society. All citizens enjoyed equal political liberty by giving their consent to representative government at all levels and by participating in government. All possessed freedom of conscience regarding their religious beliefs and worship. They also had economic equality. This understanding of equality did not mean that all people had the same amount of income or property, but that they had property rights and ought to have equal opportunity to pursue their happiness and keep the fruits of their labor in a free society. During the 1858 Lincoln-Douglas debates, Lincoln explained that the idea, “You work and toil and earn bread, and I’ll eat it,” is the “tyrannical principle” of monarchy and slavery.

Human beings had the same natural rights and enjoyed equality under the law in the political regime, but they were unequal in some important and obvious ways. The founders understood that human beings can never be perfectly equal in society because of the differences among individuals. Humans are unequal in physical strength, intelligence, talents, abilities, and character. Thus, individuals have different faculties, abilities, and virtues to make use of in pursuing their happiness. These differences result in social inequalities especially in terms of how much wealth a person might earn or some advantages in opportunities. Republican government must guard against allowing natural inequalities to create the conditions under which oligarchy and tyranny rule, but it can never create a utopian society of perfect equality.

For the founders, human equality was an axiomatic principle that was universally true for all people at all times. However, the principle was increasingly challenged by the middle of the nineteenth century. Senator John C. Calhoun called the equality principle an “utterly false view of the subordinate relation of the black to the white race” and the idea of equality of the races “an error.” In the infamous Dred Scott v. Sanford (1857) decision, Chief Justice Roger Taney opined that, “it is too clear for dispute that the enslaved African race were not intended to be included,” in the Declaration of Independence. In his 1858 debates with Lincoln, Senator Stephen Douglas stated, “I hold that the signers of the Declaration of Independence had no reference to negroes at all when they declared all men to be created equal.” In 1861, the vice-president of the Confederacy, Alexander Stephens, said that the “corner-stone [of the Confederate States of America] rests, upon the great truth that the negro is not equal to the white man.”

Many abolitionists and statesmen, including Frederick Douglass and Lincoln, took exception to the arguments of the opponents of black equality and inclusion in the Declaration of Independence. Their repeated claims that blacks were equal human beings endowed with equal natural rights was a significant demand for racial egalitarianism.

The equality principle continued to influence American thinking about their republican regime. While Lincoln continued to believe in the self-evident truth of the Declaration, he conceded that it was being fundamentally challenged before and during the Civil War. Lincoln was a student of ancient Greek mathematician Euclid and used the language of a proposition in the Gettysburg Address. The proposition of human equality was either true or false, and he believed in its truth and that it could be proven. “Four score and seven years ago our fathers brought forth on this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal.”

In 1963, Martin Luther King, Jr. delivered his “I Have a Dream” speech on the steps of the Lincoln Memorial. He opened the speech by stating, “Five score years ago, a great American, in whose symbolic shadow we stand today, signed the Emancipation Proclamation.” Using the biblical language of the Gettysburg Address, King rhetorically appealed to the liberty and equality of the Emancipation Proclamation and Declaration of Independence. He referred to the equality principle of the Declaration of Independence as a “promissory note” because it had been unfulfilled for black Americans. “When the architects of our republic wrote the magnificent words of the Constitution and the Declaration of Independence, they were signing a promissory note to which every American was to fall heir. This note was a promise that all men – yes, black men as well as white men – would be guaranteed the unalienable rights of life, liberty and the pursuit of happiness.” King had not given up on the American ideal of equality. Black Americans attended the March on Washington and demonstrated peacefully in places like Birmingham to make that promise a reality.

The principle of equality has powerfully stood at the core of the American regime for more than two centuries. The challenges and debates over the principle have animated American deliberations about their national character of their free government and free society throughout that time and will continue to do so.

Tony Williams is a Senior Fellow at the Bill of Rights Institute and is the author of six books including Washington and Hamilton: The Alliance that Forged America with Stephen Knott. Williams is currently writing a book on the Declaration of Independence.

Podcast by Maureen Quinn

 

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Essay 7 - Guest Essayist: Tony Williams

The Americans of the founding period were a strongly Protestant people of various denominations including dissenting Presbyterians, Baptists, and Congregationalists. Some historians have estimated that Protestants made up over 98% of the American population. Their Protestantism was characterized by a strong dissenting tradition against religious and civil tyranny as well as a strong streak of individualism.

Their Protestantism—especially the Puritan tradition—was also exemplified by appeals to the natural law in its covenant theology that was consistent with Lockean social compact theory. Covenant theology caused Americans to view themselves as a Chosen People of a new Israel who formed a covenant with God. The natural law of covenant theology was consistent with both reason and revelation as they reconciled their reason and faith in the natural law and natural rights philosophy of the American Revolution.

The American founders drew from a variety of traditions in arguing for their natural rights and liberties. Ancient thought from Greece and Rome, the English tradition, and the ideas of John Locke and other Enlightenment thinkers combined with Protestantism for a rich tapestry. While the Enlightenment provided a strong influence on the founders, the contribution of their religious beliefs has often been downplayed or ignored. The average American colonial farmer or artisan may not have read John Locke’s Two Treatises of Government or ancient philosophy, but they heard dissenting religious ideals and Lockean principles from the pulpit at religious services.

Toward the end of his life, Thomas Jefferson had cause to reflect on the meaning of the Declaration of Independence. He wrote to Henry Lee in 1825 about the purpose of the Declaration:

“This was the object of the Declaration of Independence. Not to find out new principles, or new arguments, never before thought of, not merely to say things which had never been said before; but to place before mankind the common sense of the subject, in terms so plain and firm as to command their assent…it was intended to be an expression of the American mind, and to give to that expression the proper tone and spirit called for by the occasion. All its authority rests then on the harmonizing sentiments of the day.”

The “harmonizing sentiments” of the 1760s and 1770s supported a natural law opposition to British tyranny in the American colonies. James Otis was one of the earliest articulators of natural law resistance. In 1764, he wrote, “Should an act of Parliament be against any of his natural laws, which are immutably true, their declaration would be contrary to eternal truth, equity, and justice, and consequently void.”

In 1774, Thomas Jefferson expressed the same sentiments in his Summary View of the Rights of British America. In the pamphlet, he wrote that God was the author of natural rights inherent in each human being. The Americans were “a free people claiming their rights, as derived from the laws of nature, and not as the gift of their chief magistrate… the God who gave us life gave us liberty at the same time: the hand of force may destroy, but cannot disjoin them.”

A year later, a young Alexander Hamilton wrote a pamphlet, Farmer Refuted, in which he eloquently described the divine source of universal rights. “The sacred rights of mankind are not to be rummaged for, among old parchments, or musty records. They are written, as with a sun beam, in the whole volume of human nature, by the hand of the divinity itself; and can never be erased or obscured by mortal power.”

These “expressions of the American mind” were common formulations of natural rights that influenced the Declaration of Independence. The four mentions of God in the document demonstrate their understanding of the divine, but it also showed that God was the author of good government according to natural law.

First, the Declaration appeals to 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 mention of God is that of Protestant and Enlightenment natural law. They saw God as the author of truth in the moral order of the universe. This moral order defined their thinking about republican self-government.

Second, the Declaration asserts that, “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.” God is the Creator and author of natural rights in this formulation. Since rights are from a higher authority, no earthly power can violate an individual’s inherent rights. Interestingly, God here acts as a supreme legislator who makes the natural law and grants natural rights.

Third, the Declaration appealed to “the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States.” God is a judge who authored the idea of justice and who judges human actions. God here represents the judicial branch of government.

Fourth, the Declaration stated that, “With a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.” Americans believed that God was a providential God who intervened in human affairs and protected his Chosen People. This conception of God represents the executive branch of government.

The Declaration of Independence was a reflection that the American natural rights republic was rooted in the natural law. Reason and divine revelation supported the natural law that shaped a good government built upon the understanding of human nature and the rights given to humans by God.

Tony Williams is a Senior Fellow at the Bill of Rights Institute and is the author of six books including Washington and Hamilton: The Alliance that Forged America with Stephen Knott. Williams is currently writing a book on the Declaration of Independence.

 

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Essay 6 - Guest Essayist: Joerg Knipprath

On June 7, 1776, delegate Richard Henry Lee of Virginia rose to move in the Second Continental Congress, “That these United Colonies are, and of right ought to be, Independent States, that they are absolved from all allegiance to the British Crown, and that all connection between them and the State of Great Britain is, and ought to be, totally dissolved….” The motion was not immediately considered, because four states, lacking instructions from their assemblies, were not prepared to vote. Nevertheless, Congress appointed a committee of five to prepare a declaration of independence. The committee, composed of Benjamin Franklin, John Adams, Roger Sherman, Robert R. Livingston, and Thomas Jefferson, assigned the task of preparing the initial draft to Jefferson.

After numerous revisions by Adams and Franklin and, eventually, by Congress itself, the final draft and report were presented to Congress on July 2, 1776. Formal adoption of the Declaration had to await a vote on Lee’s motion for independence. That was approved by the states the same day, with only the New York delegation abstaining. After a few more minor changes, the Declaration was adopted on July 4, 1776. Copies were sent to the states the next day, and it was publicly read from the balcony at Independence Hall on the 8th. Finally, on August 2nd, the document was signed.

General Washington, at New York, received a copy and a letter from John Hancock. The next day, July 9, Washington had the Declaration read to his troops. Whereas those troops responded with great enthusiasm for the cause, reaction elsewhere to the Declaration was divided, to say the least. Supporters of independence were aware of the momentousness of the occasion. As Washington’s commander of artillery, Henry Knox, wrote, “The eyes of all America are upon us. As we play our part posterity will bless or curse us.” Others were less impressed. The anti-independence leader in Congress, John Dickinson, dismissed it as a “skiff made of paper.”

The Declaration’s preamble embraced four themes fundamental to Western political philosophy in the 17th and 18th centuries: Natural law and rights, popular sovereignty exercised through the consent of the governed, the compact basis of the legitimate state, and the right of revolution.

The idea of a universal moral law, obligatory on earthly rulers and to which human law must conform, went back at least to the Stoics nearly two millennia prior, and indirectly even to Aristotle’s conception of natural justice. Cicero, among Roman writers, and the Christian Aristotelian Thomas Aquinas, among medieval Scholastics, postulated the existence of a natural order directed by universal laws. Humans were part of this order created by God and governed by physical laws. More important for these writers was the divinely-ordained universal moral law, in which humans participated through their reason and their ability to express complex abstract concepts. By virtue of its universality and its moral essence, this natural law imposed moral obligations on all, ruler and ruled alike. All were created equal, and all were equal before God and God’s law. Viewed from a metaphysical and practical perspective, these obligations provided the best path to individual flourishing within a harmonious social order in a manner that reflected both the inherent value of each person and man’s nature as a social creature. The need to meet these universal obligations of the natural moral law necessarily then gave rise to certain universal rights that all humans had by nature.

However, the shattering of universal Christendom in the West, with its concomitant shattering of the idea of a universal moral law and of a political order based thereon, changed the conception of natural law, natural rights and the ethical state. No longer was it man’s reason that must guide his actions and his institutions, including government and law, for the purpose of realizing the ends of this order. Rather, in the emerging modernity, there was a “turn to the subject” and, in the words of the ancient Greek pre-Socratic philosopher Protagoras, “man [became] the measure of all things.”

Political legitimacy and, thereby, the basis for political and legal obligation came to rest on individual acts of will. The most prominent foundation for this ethical structure was the construct of the “social contract” or “social compact.” “Natural law” became deracinated of its moral content and was reduced to describing the rules which applied in a fictional state of nature in which humans lived prior to the secular creation of a political commonwealth, in contrast to the civil law that arose after that creation. Natural rights were those that sovereign individuals enjoyed while in the state of nature, in contrast to civil rights, such as voting, which were created only within a political society.

Although expositors of the social contract theory appeared from the 16th to the 18th centuries, and came from several European cultures, the most influential for the American founding were various English and colonial philosophers and clergymen. Most prominent among them was John Locke.

Locke’s version of the state of nature is not as bleak and hostile as was that of his predecessor Thomas Hobbes. Nor, however, is it a romanticized secular Garden of Eden as posited by Jean-Jacques Rousseau, writing a century later. For Locke, existence in the state of nature allows for basic social arrangements to develop, such as the family, economic relationships, and religious congregations. However, despite Locke’s general skepticism about the Aristotelian epistemology then still dominant at the English universities, he agreed with the ancient sage that human flourishing best proceeds within a political commonwealth. Accordingly, sovereign individuals enter into a compact with each other to leave the state of nature and to surrender some of their natural rights in order to make themselves and their estates more secure. They agree to arbitrate their disputes by recourse to a judge, and to be governed by civil law made by a legislator and enforced by an executive. Under a second contract, those sovereign individuals collectively then convey those powers of government to specified others in trust to be exercised for the benefit of the people.

Thus, the political commonwealth is a human creation and derives its legitimacy through the consent of those it governs. This act of human free will is unmoored from some external order or the command of God. For Hobbes, the suspected atheist, human will was motivated to act out of fear.

Locke allows for much greater involvement by God, in that God gave man a nature that “put him under strong Obligations of Necessity, Convenience, and Inclination to drive him into Society, ….” Moreover, the natural rights of humans derive from the inherent dignity bestowed on humans as God’s creation. The human will still acts out of self-interest, but the contract is a much more deliberate and circumscribed bargain than Hobbes’s adhesion contract. For Locke, the government’s powers are limited to achieve the purposes for which it was established, and nothing more. With Hobbes, the individual only retained his inviolate natural right to life. With Locke, the individual retains his natural rights to liberty and property, as well as his right to life, all subject to only those limitations that make the possession of those same rights by all more secure. Any law that is inimical to those objectives and tramples on those retained rights is not true law.

There remained the delicate issue of what to do if the government breaches its trust by passing laws or otherwise acting in a manner that make people less secure in their persons or estates. Among private individuals, such a breach of fiduciary duty by a trustee would result in a court invalidating the breach, ordering fitting compensation, and, perhaps, removing the trustee. If the government breached such a duty, recourse to the English courts was unavailable, since, at least as to such constitutional matters, the courts had no remedial powers against the king or Parliament.

Petitions to redress grievances were tried-and-true tools in English constitutional theory and history. But what if those petitions repeatedly fell on deaf ears? One might elect other members of the government. But, what if one could not vote for such members and, consequently, was not represented therein? What if, further, the executive authority was not subject to election? A private party may repudiate a contract if the other side fails to perform the material part of the bargain. Is there a similar remedy to void the social contract with the government and place oneself again in a state of nature? More pointedly, do the people collectively retain a right of revolution to replace a usurping government?

This was the very situation in which many Americans and their leaders imagined themselves to be in 1776. Previous writers had been very circumscribed about recognizing a right of revolution. Various rationales were urged against such a right. Thomas Aquinas might cite religious reasons, but there was also the very practical medieval concern about stability in a rough political environment where societal security and survival were not to be assumed. Thomas Hobbes could not countenance such a right, as it would return all to the horrid state of nature, where life once again would be “solitary, poor, nasty, brutish, and short.” Moreover, as someone who had experienced the English Civil War and the regicide of Charles I, albeit from his sanctuary in France, and who was fully aware of the bloodletting during the contemporaneous Thirty Years’ War, revolution was to be avoided at all cost.

Locke was more receptive than Hobbes to some vague right of revolution, one not to be exercised in response to trivial or temporary infractions, however. Left unclear was exactly who were the people to exercise such a right, and how many of them were needed to legitimize the undertaking. Locke wrote at the time of the Glorious Revolution of 1688. His main relevant work, the Second Treatise on Civil Government, was published in 1689, though some scholars believe that it was written earlier. The Catholic king, James II, had been in a political and religious struggle with Parliament and the Church of England. When Parliament invited the stadholder (the chief executive) of the United Netherlands to bring an army to England to settle matters in favor of itself, James eventually fled to France.

Parliament declared the throne vacant, issued a Declaration of Rights and offered the throne to William and his wife, Mary. In essence, by James’s flight, the people of England had returned to an extra-political state of nature where they, through the Parliament, could form a new social contract.

The American Revolution and Jefferson’s writings in the Declaration of Independence follow a similar progression. When King George declared the colonies to be in rebellion on August 23, 1775, and Parliament passed the Prohibitory Act in December of that year, they had effectively placed the colonies outside the protection of the law and into a state of nature. At least that was the perception of the colonists. Whatever political bands once had existed were no more. In that state of nature, the Americans were free to reconstitute political societies on the basis of a social contract they chose.

That project occurred organically at the state level. Massachusetts had been operating as an independent entity since the royal governor, General Thomas Gage, had dissolved the General Court of the colony in June, 1774. That action led to the extra-constitutional election by the residents of a provincial congress in October. Thereafter, it was this assemblage that effectively governed the colony. The other colonies followed suit in short order.

In Virginia, a similar process occurred in the summer of 1774. It culminated two years later in the “Declaration of Rights and the Constitution or Form of Government,” begun by a convention of delegates on May 6, 1776, and formally approved in two stages the following month. The initial document was a motley combination of a plan of government, a declaration of independence, and a collection of enumerated rights and high-sounding political propositions. In the part regarding independence, the accusations against King George are remarkably similar, often verbatim, precursors to Jefferson’s language in the Declaration of Independence of the “united States” two months later. George Mason, whom Jefferson praised as the “wisest man of his generation,” was the principal author. Still, it may have been Jefferson himself who proposed this language through the drafts he submitted to the Virginia convention.

Both documents, the Virginia declaration and the Declaration of Independence, cite as a reason for “dissolv[ing] the Political Bands” that the king had abandoned the government by declaring the Americans out of his protection. George III, like James II a century before, had breached the social contract and forced a return to an extra-political state of nature. The Declaration of Independence merely formalized what had already occurred on the ground. With those bands broken, the next step, that of forming a new government, already taken by Virginia and other states, now lay before the “united States.”

Joerg W. Knipprath is an expert on constitutional law, and member of the Southwestern Law School faculty, Professor Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at: http://www.tokenconservative.com/

 

 

 

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Essay 5 - Guest Essayist: Tony Williams
AppleGoldSilverFrame

In 1861, President Abraham Lincoln had occasion to reflect upon the principles of the American Founding. Using a biblical metaphor, he thought that the Declaration of Independence was an “apple of gold” because it contained the foundational principles of the new country. The Constitution was the “picture of silver” framing the apple with the structures of republican government. In the mind of Lincoln—and those of the Founders—an inextricable link bound together the two documents in creating a free government.

The Declaration of Independence and Constitution seem to have had different purposes. The Declaration was an assertion of independence that included laying down the Enlightenment and Lockean principles of natural rights and republican self-government based upon consent. The Constitution created the framework of the national government with three separate branches operating with certain powers. However, a close reading of the Declaration of Independence and the Preamble to the Constitution reveal a common set of republican principles as Lincoln saw it with his metaphor.

The Declaration of Independence affirmed the republican principle of popular government. The people were the source of all sovereignty, or authority, in the representative government and gave their consent for it to govern. It stated, “That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”

The Constitution was significantly rooted in popular sovereignty. The Preamble to the Constitution agreed that the new constitutional government was to be based upon the principle of popular sovereignty. It began, “We the People of the United States, in Order to form a more perfect Union.” The previous government under the Articles of Confederation (1781-1789) did not have sufficient powers to govern the nation adequately so the Framers decided to create a new government with powers to achieve its ends.

The Constitution supported popular sovereignty in several ways. The Congress, and especially the House of Representatives, was closest to the people and represented them. As James Madison wrote in Federalist #51, “In republican government, the legislative authority necessarily predominates.” The people directly or indirectly elected several offices in free elections and for fixed terms. In addition, the people and their representatives were responsible for ratifying the Constitution as fundamental law in popular ratifying conventions.

Republican government was predicated upon majority rule of the sovereign people and their representatives. Majority rule was based upon reason as well as justice in preserving minority rights. President Thomas Jefferson reminded Americans of the moral basis for majority rule in his First Inaugural Address: “All, too, will bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable; that the minority possess their equal rights, which equal law must protect.”

The core principle—the “apple of gold—of the Declaration of Independence was human equality in natural rights. “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.” This principle of equality was enshrined in the constitutional government and closely related to building a just and equal political order.

The Constitution created a system whereby all were equal under the law and equal in their rights. The Fifth Amendment reads, “No person shall be…deprived of life, liberty, or property, without due process of law.” In Federalist #51, Madison recognized the defining importance of justice when he wrote, “Justice is the end of government. It is the end of civil society.”

The Declaration supports the rule of law based upon popular consent. The people form a government with a rule of law to protect their rights. They have the power to overthrow a tyrannical government but have a responsibility 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.” A rule of law allows citizens to live their lives peacefully and civil society to function normally.

The Declaration claimed that the natural rights to “Life, Liberty, and the pursuit of Happiness” were self-evident. Political, economic, and religious liberty were among the fundamental and inalienable rights of the individual. The very purpose of republican government is to protect liberty, and its powers would be limited to achieve that goal.

The weakness of the Articles of Confederation actually endangered liberty by allowing unjust laws and little power to govern properly to preserve liberty. The more robust constitutional system was intended to do a better job of preserving liberty with laws that were more just and national security that was more vibrant.

The Founders created a free constitutional republic so that Americans might govern themselves by their own consent through their representatives. Limited government meant that its powers were restricted to guarding the people’s rights and governing effectively so that the people might live their lives freely. A free people would pursue their happiness and interact amicably in the public square for a healthy civil society.

In Federalist #1, Alexander Hamilton explained the entire purpose of establishing free government based upon the principles of the Declaration of Independence and Constitution. He stated that Americans had the opportunity and responsibility to form good government by “reflection and choice,” not by “accident and force.” The United States was founded uniquely upon a set of principles and ideals.

Tony Williams is a Senior Fellow at the Bill of Rights Institute and is the author of six books including Washington and Hamilton: The Alliance that Forged America with Stephen Knott. Williams is currently writing a book on the Declaration of Independence. 

 

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Essay 4 - Guest Essayist: Joerg Knipprath

There are two recognized types of war, war between nations (“international war”) and war within a nation (“civil war”). In a civil war, some portion of the inhabitants forcibly seeks political change. The goal often is to replace the existing constitutional government with their own by taking over the entire structure or by separating themselves and seeking independence from their current compatriots.

A civil war may be an insurrection or a rebellion, the stages being distinguished by a rebellion’s higher degree of organization of military forces, creation of a formal political apparatus, greater popular participation, and more sophistication and openness of military operations. By those measures, the American effort began as an insurrection during the localized, brief, and poorly organized eruptions in the 1760s and early 1770s. Various petitions, speeches, and resolves opposing the Revenue Act, the Stamp Act, the Quartering Act, and others, were reactive, not strategic. Even circular letters among colonial governments for unified action, such as that by the Massachusetts assembly in February, 1768, against the Townshend Acts, or hesitant steps toward union, such as the Stamp Act Congress of 1765, were of that nature. Much rhetoric was consumed along with impressive quantities of Madeira wine, but tactical successes were soon superseded by the next controversy.

In similar vein, local bands of the Sons of Liberty, the middle-class groups of rabble-rousers that emerged in 1765, fortified in their numbers by wharf-rats and other layabouts, might destroy property, intimidate and assault royal officials, and harass locals seen as insufficiently committed to opposing an often-contrived outrage du jour. They might incite and participate in violent encounters with the British authorities. But, while they engaged in melodramatic and, to some Americans, satisfying political theater, they were no rebel force. Moreover, the political goals were limited, focused on repeal or, at least, non-enforceability of this or that act of Parliament.

Yet, those efforts, despite their limited immediate successes, triggered discussions of constitutional theory and provided organizational experience. In that manner, they laid the groundwork that, eventually, made independence possible, even if no one could know that and few desired it. Gradually, the vague line between insurrection and rebellion was crossed. The consequences of the skirmishes at Lexington and Concord have made it clear, in retrospect, that, by the spring of 1775, a rebellion was under way.

The Second Continental Congress met on May 10, 1775, and, in contrast to its predecessor, did not adjourn after concluding a limited agenda. Rather, it began to act as a government of a self-regarding political entity, including control over an organized armed force and a navy. Congress sent diplomatic agents abroad, took control over relations with the Indian tribes, and sent a military force under Benedict Arnold north against the British to “assist” Canada to join the American coalition. It appointed George Washington as commander-in-chief of the “Army of the United Colonies.” That army, and other forces, achieved several tactical military successes against the British during 1775 and early 1776, although the Canadian expedition narrowly failed.

Still, something was lacking. The scope of the effort was not matched by an equally ambitious goal. The end was not in focus. Certainly, repeal of the Coercive Acts, which had been enacted in the spring of 1774, urgently needed to be achieved. Those acts had closed the port of Boston, brought the government of Massachusetts under more direct royal control by eliminating elected legislative offices, and authorized the peacetime quartering of troops in private homes. These laws appeared reasonable from the British perspective. Thus, the Quartering Act intended to alleviate the dire conditions of British soldiers who were forced to sleep on Boston Common. The Government and Administration of Justice Act was to ensure, in part, fair trials for British officials and soldiers accused of murder as had happened in 1770 in the “Boston Massacre.” At the same time, though these acts were limited to Massachusetts, many colonists feared that a similar program awaited them. These laws were so despised that they were collectively known to Americans also as the “Intolerable Acts.”

Was there to be more? In unity lay strength, and the Second Continental Congress was tasked with working out an answer. But Congress was more follower than leader, as delegates had to wait for instructions from their colonial assemblies. That meant the process was driven by the sentiments of the people in the colonies, and the Tory residents of New York thought differently than the Whigs of beleaguered Massachusetts. Within each colony, sentiments, quite naturally, also varied. The more radical the potential end, the less likely people were to support it. Even as late as that spring of 1775, there existed no clear national identity as “American.” People still considered themselves part of the British Empire. The rights that they claimed were denied them by the government in London were the “ancient rights of Englishmen.” The official American flag, used by the armed forces until June, 1777, was composed of the familiar, to us, thirteen red and white stripes in its field, but its canton was the British Union Jack. Without irony, Congress’s military operations were made in the name of the king. General Washington was still toasting the king each night at the officer’s mess in Cambridge while besieging the British forces in Boston.

The gentlemen who met in Philadelphia came from the colonial elite, as would be expected. But they were also distinguished in sagacity and learning, more so than one has come to expect from today’s Congress drawn from a much larger population. Almost none favored independence. Those few that did, the Adams cousins from Massachusetts, Sam and John; the Lees of Virginia, Francis Lightfoot and Richard Henry; Benjamin Franklin of Pennsylvania; and Christopher Gadsden of South Carolina, the “Sam Adams of the South” as he came to be known, kept their views under wraps. Instead, the goal initially appeared to be some sort of conciliation within a new constitutional relationship of yet-to-be-determined form. Many delegates had also served in the First Continental Congress dedicated to sending remonstrances and petitions. On the other hand, Georgia had not sent delegates to the First, so its delegation consisted entirely of four novices. Peyton Randolph of Virginia was chosen president, as he had been of the First Continental Congress. He was soon replaced by John Hancock when Randolph had to return to Virginia because of his duties as Speaker of the House of Burgesses.

One person missing from the assemblage was Joseph Galloway of Pennsylvania. He had attended the First Continental Congress, where he had drafted a plan of union between the colonies and Britain. Parliament would control foreign affairs and external trade. As to internal colonial affairs, Parliament and a new American parliament would each effectively have veto power over the acts of the other. His plan would have recognized a degree of colonial sovereignty, but within the British system. It was rejected by one vote, six colonies to five, because a more confrontational proposal, the Suffolk Resolves, had recently been adopted by the towns around Boston which outflanked his proposal politically. Congress instead endorsed the Resolves, and voted to expunge Galloway’s plan from the record. Still, his proposal was a prototype for the future federal structure between the states and the general government under the Articles of Confederation. Repulsed by what he saw as the increasing radicalism of the various assemblies, he maintained his allegiance to the king. By 1778, he was living in London and advising the British government.

Congress sought to thread the needle between protecting the Americans from intrusive British laws and engaging in sedition and treason. In constitutional terms, it meant maintaining a balance between the current state of submission to a Parliament and a ministry in which they saw themselves as unrepresented, and the de facto revolution developing on the ground. The first effort, by John Dickinson of Pennsylvania and Thomas Jefferson of Virginia, was the “Declaration on the Causes of Taking Up Arms.” It declared, “We mean not to dissolve that union which has so long and so happily subsisted between us…. We have not raised armies with ambitious designs of separation from Great Britain, and establishing independent States.” Then why the effort? “[W]e are reduced to the alternative of choosing an unconditional submission to the tyranny of irritated ministers, or resistance by force. The latter is our choice.” Note the problem: not the king, not even Parliament, but “irritated ministers.” The path to resolution of the conflict, it seemed, was to appeal to the king himself, who, it was surmised, must have been kept in the dark about the dire state of affairs of his loyal colonial subjects by his ministers’ perfidy.

On July 8, 1775, Congress adopted the “Olive Branch Petition,” also drafted by John Dickinson. That gentleman, a well-respected constitutional lawyer, member of the First Continental Congress, and eventual principal drafter of the Articles of Confederation in 1777, wanted to leave no diplomatic stone unturned to avoid a breach with Great Britain. The historian Samuel Eliot Morison relates remarks attributed to John Adams about the supposed reasons for Dickinson’s caution. According to Adams, “His (Dickinson’s) mother said to him, ‘Johnny you will be hanged, your estate will be forfeited and confiscated, you will leave your excellent wife a widow, and your charming children orphans, beggars, and infamous.’ From my Soul, I pitied Mr. Dickinson…. I was very happy that my Mother and my Wife…and all her near relations, as well as mine, had been uniformly of my Mind, so that I always enjoyed perfect Peace at home.” A new topic of study thus presents itself to historians of the era: the effect of a statesman’s domestic affairs on his view of national affairs.

The Petition appealed to the king to help stop the war, repeal the Coercive Acts, restore the prior “harmony between [Great Britain] and these colonies,” and establish “a concord…between them upon so firm a basis as to perpetuate its blessing ….” Almost all who signed the later Declaration of Independence signed the Petition, largely to placate Dickinson and, for some, to justify more vigorous future measures. As feared by many, and hoped by some, on arrival in London, the American agents were told that the king would not receive a petition from rebels.

British politicians were as unsure and divided about moving forward as their American counterparts in Congress. But George III could rest assured of the support of his people, judging by the 60,000 that lined the route of his carriage from St. James Palace to the Palace of Westminster on the occasion of his speech to both houses for the opening of Parliament on October 26, 1775. The twenty-minute speech, delivered in a strong voice, provides a sharp counterpoint to the future American Declaration of Independence. Outraged by the attempted invasion of Canada, a peaceful and loyal colony, the king already on August 23 had declared that an open rebellion existed.

He now affirmed and elaborated on that proclamation. Leaders in America were traitors who in a “desperate conspiracy” had inflamed people through “gross misrepresentation.” They were feigning loyalty to the Crown while preparing for rebellion. Now came the bill of particulars against the Americans: “They have raised troops, and are collecting a naval force. They have seized the public revenue, and assumed to themselves legislative, executive, and judicial powers, which they already exercise in the most arbitrary manner…. And although many of these unhappy people may still retain their loyalty…the torrent of violence [by the Americans] has been strong enough to compel their acquiescence till a sufficient force shall appear to support them.”

Despite these provocations, he and the Parliament had acted with moderation, he assured his audience, and he was “anxious to prevent, if it had been possible, the effusion of the blood of my subjects, and the calamities which are inseparable from a state of war.” Nevertheless, he was determined to defend the colonies which the British nation had “encouraged with many commercial advantages, and protected and defended at much expense of blood and treasure.” He bemoaned in personal sorrow the baleful effects of the rebellion on his faithful subjects, but promised to “receive the misled with tenderness and mercy,” once they had come to their senses. Showing that his political sense was more acute than that of many Americans, as well as many members of Parliament, the king charged that the true intent of the rebels was to create an “independent empire.”

Two months later, Parliament followed the king’s declaration with an act to prohibit all commerce with the colonies and to make all colonial vessels subject to seizure as lawful prizes, with their crews subject to impressment into the Royal Navy.

The king’s speech was less well-received in the colonies, and it gave the radicals an opportunity to press their case that the king himself was at the center of the actions against the Americans. It was critical to the radicals’ efforts towards independence that the natural affinity for the king that almost all Americans shared with their countrymen in the motherland be sundered. Some snippets about the king’s character from the historian David McCullough illustrate why George III was popular. After ascending the throne in 1760 at age 22, “he remained a man of simple tastes and few pretensions. He liked plain food and drank but little, and wine only. Defying fashion, he refused to wear a wig…. And in notable contrast to much of fashionable society and the Court, … the king remained steadfastly faithful to his very plain Queen, with whom [he ultimately would produce fifteen children].”  Recent depictions of him as unattractive, dull, and insane, are far off the mark. He was tall, well above-average in looks at the time, and good-natured. By the 1770s, he was sufficiently skilled in the political arts to wield his patronage power to the advantage of himself and his political allies. One must not forget that, but a decade earlier, colonial governments had voted to erect statues in his honor. It was the very affability of George III and his appeal as a sort of “people’s king” that made it imperative for Jefferson to portray him in the Declaration of Independence as the ruthless and calculating tyrant he was not.

Between November, 1775, and January, 1776, New York, New Jersey, Pennsylvania, and Maryland still explicitly instructed their delegates to vote against independence. But events soon overtook the fitfulness of the state assemblies and Congress. Parliament’s actions, once they became known, left no room for conciliation. The colonies effectively had been declared into outlawry and, in Lockean terms, reverted to a “state of nature” in relation to the British government. The struggles in the colonial assemblies between moderates who had pressed for negotiation and radicals who pushed for independence now tilted clearly in favor of the latter.

Yet before news of Parliament’s actions reached the colonies, another event proved to be even more of a catalyst for the shift from conciliation to independence. In January, 1776, Thomas Paine, an English corset maker brought to Pennsylvania by Benjamin Franklin, published, anonymously, a pamphlet titled “Common Sense.” Paine ridiculed monarchy and denounced George III as a particularly despicable example. The work’s unadorned but stirring prose, short length, and simplistically propagandistic approach to political systems made it a best seller that delivered an electric jolt to the public debate. The extent to which it influenced the deliberations of Congress is unclear, however.

The irresolution of the Congress, it must be noted, was mirrored by the fumblings of Parliament. The Americans had many friends for their cause in London, even including various ministries, some of which nevertheless were reviled in the colonies. This had been the case beginning the prior decade, when American objections to a particular act of Parliament resulted in repeal of the act, only to be followed by another that the Americans found unacceptable, whereupon the dance continued. Still, the overall trend had been to tighten the reins on the colonies. But that did not deter Edmund Burke, a solid—but at times exasperated—supporter of the Americans, to introduce a proposal for reconciliation in Parliament in November, 1775. Unfortunately, it was voted down. Others, including Adam Smith and Lord Barrington, the secretary at war, urged all British troops to be removed and the Americans to be allowed to determine whether, and under what terms, they wished to remain in union with Britain.

Other proposals for a revised union were debated in Parliament even after the Americans declared independence. These proposals resembled the dominion structure that the British, having learned their lesson too late, provided for many of their colonies and dependencies in subsequent generations. The last of these, the Conciliatory Bill, which actually was passed on February 17, 1778, gave the Americans more than they had demanded in 1775. Too late. The American alliance with France made peace impossible. Had those proposals, allowing significant control by the colonists over local affairs, been adopted in a timely manner, the independence drive well may have stalled even in 1776. Even Adams, Jefferson, and other radicals of those earlier years had urged a dominion structure, whereby the Americans would have controlled their own affairs but would have remained connected to Britain through the person of the king. The quote attributed to the former Israeli Foreign Minister Abba Eban about the Arabs of our time might as well have applied to the British of the 1770s, “[They] never miss[ed] an opportunity to miss an opportunity.”

Reflecting the shifting attitudes in the assemblies, and responding to the seemingly inexorable move to independence by the states, the Second Continental Congress also bent to the inevitable. The Virginia House of Burgesses on May, 15, 1776, appointed a committee to draft a constitution for an independent Commonwealth, and directed its delegates in Congress to vote for independence. Other states followed suit. Finally, Richard Henry Lee moved in Congress, “That these United Colonies are, and of right ought to be, Independent States, that they are absolved from all allegiance to the British Crown, and that all political connection between them and the State of Great Britain is, and ought to be, totally dissolved.” The die was cast.

Joerg W. Knipprath is an expert on constitutional law, and member of the Southwestern Law School faculty, Professor Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at: http://www.tokenconservative.com/

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Essay 3 - Guest Essayist: Tony Williams

In an 1857 speech criticizing the Supreme Court decision in Dred Scott v. Sanford (1857), Abraham Lincoln commented that the principle of equality in the Declaration of Independence was “meant to set up a standard maxim for a free society.” That maxim, however, that the Declaration of Independence and its principles have been debated and contested throughout history.

American constitutional democracy needs vigorous deliberation and debate by citizens and their representatives. This civil and political dialogue helps Americans understand the principles and ideas upon which their country was founded and the means of working on achieving them. Indeed, throughout American history, many Americans appealed to the Declaration of Independence to make liberty and equality a reality for all.

In the 1770s and 1780s, enslaved persons in New England immediately appealed to the natural rights principles of the Declaration and state constitutions as they petitioned state legislatures and sued in state courts for freedom and the abolition of slavery. For example, a group of free blacks in New Hampshire stated, “That the God of nature gave them life and freedom, upon the terms of the most perfect equality with other men; That freedom is an inherent right of the human species, not to be surrendered, but by consent.” As a result, they won their freedom and helped to end slavery there.

The women and men who assembled at the 1848 Seneca Falls Convention for women’s rights adopted a Declaration of Rights and Grievances. The document was modeled after the Declaration of Independence, but changed the language to read, “We hold these truths to be self-evident: that all men and women are created equal.”

The Declaration of Independence was one of the centerpieces of the national debate over slavery. Abolitionists such as Frederick Douglass and William Lloyd Garrison all invoked the Declaration of Independence in denouncing slavery. Douglass stated that the Declaration “contains a true doctrine—that ‘all men are born equal.’” Douglass thought the document was an expression of the “eternal laws of the moral universe.” Garrison publicly burned the Constitution because he believed it to be a pro-slavery document, but always upheld the principles of the Declaration.

On the other hand, Senators Stephen Douglas and John Calhoun, Chief Justice Roger Taney, and Confederate vice-president Alexander Stephens all denied that the Declaration of Independence was meant to apply to black people. Calhoun thought slavery a “positive good” and asserted that the idea that all men are created equal was “the most false and dangerous of all political errors” because black persons were inferior and subordinate to the white race. Stephens stated,

“Our new government is founded upon exactly the opposite idea; its foundations are laid, its corner-stone rests, upon the great truth that the negro is not equal to the white man…our new government, is the first, in the history of the world, based upon this great physical, philosophical, and moral truth.”

Abraham Lincoln’s political philosophy and statesmanship was rooted upon the principles of the Declaration of Independence and their realization according to constitutional means. He consistently held that the Declaration of Independence had universal natural rights principles that were “applicable to all men and all time.” In his Gettysburg Address, Lincoln stated that the nation was “conceived in Liberty, and dedicated to the proposition that all men are created equal.”

The expansion of American world power in the wake of the Spanish-American War of 1898 triggered another debate using the Declaration of Independence. Supporters of American expansion argued that the country would bring the ideals of liberty and self-government to those people who had not previously enjoyed them. On the other hand, anti-imperialists countered that American empire violated the Declaration of Independence by taking away the liberty of self-determination and consent from Filipinos and Cubans.

Politicians of differing perspectives viewed the Declaration in opposing ways during the early twentieth century. Progressives such as Presidents Theodore Roosevelt and Woodrow Wilson argued that the principles of the Declaration of Independence were important for an earlier period in American history to gain independence from Great Britain and set up the new nation. However, they argued, modern America faced new challenges introduced by an industrial economy and needed a new set of principles based upon equality of condition.

Progressive John Dewey represented this line of thinking when he wrote,

“The ideas of Locke embodied in the Declaration of Independence were congenial to our pioneer conditions that gave individuals the opportunity to carve their own careers….But the majority who call themselves liberal today are committed to the principle that organized society must use its powers to establish the conditions under which the mass of individuals can possess actual as distinct from merely legal liberty.”

Modern conservatives such as President Calvin Coolidge argued that the ideals of the Declaration of Independence should be preserved and respected. On the 150th anniversary of the Declaration, Coolidge stated that the principles formed the American creed and were still the basis of American republican institutions. Coolidge was a conservative who wanted to preserve the past, “reaffirm and reestablish” American principles, and generate a “reverence and respect” for principles of the Declaration and American founding. They were still applicable regardless of how much society changed. Indeed, Americans needed to revere the principles precisely because of rapid social change.

Modern American social movements for justice and equality called upon the Declaration of Independence and its principles. For example, Martin Luther King, Jr., stated in his “I Have a Dream” speech:

“When the architects of our republic wrote the magnificent words of the Constitution and the Declaration of Independence, they were signing a promissory note to which every American was to fall heir. This note was a promise that all men – yes, black men as well as white men – would be guaranteed the unalienable rights of life, liberty and the pursuit of happiness.”

King demanded that the United States live up to its “sacred obligation” of liberty and equality for all.

The natural rights republican ideals of the Declaration of Independence influenced the creation of American constitutional government founded upon liberty and equality. They also shaped the expectations that a free people would live in a just society. Achieving those ideals has always been part of a robust and dynamic debate among the sovereign people and their representatives.

Tony Williams is a Senior Fellow at the Bill of Rights Institute and is the author of six books including Washington and Hamilton: The Alliance that Forged America with Stephen Knott. Williams is currently writing a book on the Declaration of Independence. 

 

 

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Essay 2 - Guest Essayist: George Landrith

The Magna Carta created the moral and political premise that, in many ways, the American founding was built upon. The Magna Carta came to represent the idea that the people can assert their rights against an oppressive ruler and that the power of government can be limited to protect those rights. These concepts were clearly foundational and central to both the Declaration of Independence and the United States Constitution.

First, a bit of history about Magna Carta — its full name was Magna Carta Libertatum which is Latin for “Great Charter of Freedoms.” But, it became commonly known as simply Magna Carta or the “Great Charter.” It was written in 1215 to settle an intense political dispute between King John of England and a group of barons who were challenging King John’s absolute right to rule. The terms of the charter were negotiated over the course of three days. When they reached agreement on June 15, 1215, the document was signed by the King and the barons at Runnymede outside of London.

This was a time when kings asserted the absolute right to rule, and that they were above the law and that they were personally chosen to rule by God. At this time, even questioning the King’s power was both treasonous and an act of defiance to God himself.

The Magna Carta limited the king’s absolute claim to power. It provided a certain level of religious freedom or independence from the crown, protected barons from illegal imprisonment, and limited the taxes that the crown could impose upon the barons, among other things. It did not champion the rights of every Englishman. It only focused on the rights of the barons. But, it was an important start to the concept of limiting the absolute power of governments or kings that claimed God had given them the absolute right to rule.

Magna Carta is important because of the principles it stood for and the ideas that it came to represent — not because it lasted a long time. Shortly after signing the charter, King John asked Pope Innocent III to annul it, which he did. Then there was a war known as the First Barons War that began in 1215 and finally ended in 1217.

After King John died in 1216, the regency government of John’s nine-year-old son, Henry III reissued the Magna Carta, after having stripped out some of its more “radical” elements in hopes of reuniting the country under his rule. That didn’t work, but at the end of the war in 1217, the original Magna Carta’s terms became the foundation for a peace treaty.

Over the following decades and centuries, the importance of Magna Carta ebbed and flowed depending on the current king’s view of it and his willingness to accept it, or abide by it its concepts. But subsequent kings further legitimized or confirmed the principles of Magna Carta — often in exchange for some grant of new taxes or some other political concession. But the path towards limited government and individual rights had been planted and continued to grow.

Despite its relatively short political life as a working document, Magna Carta created and memorialized the idea that the people had the right to limit the powers of their government and they had the right to protect basic and important rights. By the end of the Sixteenth Century, the political lore of Magna Carta grew and the idea of an ancient source for individual rights became cemented in the minds of reform-minded political scholars, thinkers and writers.

Obviously, it wasn’t as written in 1215 a document that protected the rights of the average Englishman. It only protected English barons. But the concepts of individual rights and the limitations of governmental power had grown and were starting to mature. Magna Carta was the seed of those powerful concepts of freedom and constitutionally limited government.  By the 17th and 18th Centuries, those arguing for reforms and greater individual rights and protections used Magna Carta as their foundation. These ideas are at the very center of both the Declaration of Independence and the United States Constitution.

As English settlers came to the shores of North America, they brought with them charters under the authority of the King. The Virginia Charter of 1606 promised the English settlers all the same “liberties, franchises and immunities” as people born in England.[1]  The Massachusetts Bay Company charter acknowledged the rights of the settlers to be treated as “free and natural subjects.”[2]

In 1687, William Penn, an early American leader, who had at one point been imprisoned in the Tower of London for his political and religious views, published a pamphlet on freedom and religious liberty that included a copy of the Magna Carta and discussed it as a source of fundamental law.[3] American scholars began to see Magna Carta as the source of their guaranteed rights of trial by jury and habeas corpus (which prevented a king from simply locking up his enemies without charges or due process). While that isn’t necessarily correct history, it is part of the growth of the seed of freedom and liberty that Magna Carta planted.

By July 4, 1776, the idea that government could, and should be, limited by the consent of its citizens and that government must protect individual rights was widely seen as springing forth from Magna Carta. The beautiful and important words penned by Thomas Jefferson in the Declaration spring from the fertile soil of Magna Carta:

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. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed — 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.

Obviously, Thomas Jefferson’s ideas of liberty and freedom had developed a great deal since Magna Carta was penned in 1215. But, it is impossible to read Magna Carta and the Declaration of Independence and not see the common DNA.

When the Founders debated, drafted and ratified the U.S. Constitution, it is also clear they were creating a set of rules and procedures to limit and check the power of government and to guarantee basic, individual rights.

The Fifth Amendment to the Constitution which guarantees “no person shall be deprived of life, liberty, or property, without due process of law,” is a concept that comes from Magna Carta. Our constitutional guarantees of “a speedy trial” as found in the Sixth Amendment are also founded in the political thought that grew from Magna Carta. The Constitution’s guarantee of the “privilege of the writ of habeas corpus” (Art.1, Sec. 9) is also a concept that grew from Magna Carta.

Even the phrase “the law of the land” comes from Magna Carta’s history. And now we use that phrase in the United States to describe our Constitution which we proudly label “the law of the land.”

To this day, Magna Carta is an important symbol of liberty in both England and the United States.

The Declaration of Independence and the U.S. Constitution are in my estimation the two most important and influential political documents ever written. What they did to provide promote and protect the freedom, opportunity and security of the average person is almost impossible to overstate. As British Prime Minister William Gladstone said in 1878, “the American Constitution is the most wonderful work ever struck off at a given time by the brain and purpose of man.”[4]

I believe Gladstone was correct. But, Magna Carta was an important development in political thought and understanding about government power and individual rights. It is difficult to imagine the Declaration of Independence or the U.S. Constitution without the foundational elements provided by Magna Carta.

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Podcast by Maureen Quinn.

 

 

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[1] The Library of Congress (www.loc.gov/exhibits/magna-carta-muse-and-mentor/rights-of-englishmen-in-british-america.html#obj022) as shown on 2/13/2021.

[2] The Library of Congress (www.loc.gov/exhibits/magna-carta-muse-and-mentor/rights-of-englishmen-in-british-america.html#obj023) as shown on 2/13/2021.

[3] Ralph V. Turner, Magna Carta: Through the Ages (2003).

[4] William E. Gladstone, “Kin Beyond Sea,” The North American Review, September–October 1878, p. 185-86.

Essay One - Guest Essayist: Judge Michael Warren

The importance of the Declaration of Independence can hardly be overstated. It established for the first time in world history a new nation based on the First Principles of the rule of law, unalienable rights, limited government, the Social Compact, equality, and the right to alter or abolish oppressive government.

Contrary to the beliefs of some, the American Revolution was not fought for lower taxes or to protect slavery. In fact, the tea tax which provoked the Boston Tea Party actually lowered the price of tea, and many of the Founding Fathers were opposed to slavery.

Indeed, the second paragraph of the Declaration of Independence announces for the whole world to see our underlying motivation for the American Revolution:

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. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. That whenever any form of government becomes destructive to 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.

The Declaration announced the Founding Fathers’ belief in the “truth” –

there was no relative moralism here. They believed some truths were so obvious, that they were “self-evident,” that is, that they need not be proven: 2 + 2 = 4, not a cow. You, our dear reader, are not the moon. This essay is in English, not water. The Founders declared, against the historical experiences and beliefs of the ages, six founding First Principles, all of which were quite revolutionary at the time, and remain revolutionary today:

1. The Rule of Law: Although not articulated expressly, undergirding the entire Declaration of Independence is the idea of the rule of law. In other words, the government and the People are both bound by the law. The reason we needed to declare independence was because the British Empire was no longer following the fundamental unwritten English Constitution. Until 1776, it was just assumed that most rulers did not need to follow the law, and that huge swaths of the privileged were exempt from the laws that applied to the vast majority of the People. The Declaration of Independence declared – no more! The law should apply equally to all in society, whether they be in the government or the masses, the richest or the most poor. We turned the world upside down.

2. Equality: All men are created equal. This idea is perhaps the most controversial of them all, because the Founding Fathers fell so short of its ideal in practice. But, the Founding Fathers were the very first to proclaim that a nation should be dedicated in this belief. It is based on the belief that the Creator (Nature and Nature’s God) created all people, and therefore we are all equal in His eyes and under our law. Until 1776, no government was established on equality or even declared it should be so. Instead, inequality was the key historical reality and belief of the day. A privileged few lorded over subjects. It was done as a matter of tradition and codified into the law. We fell short in our reality, but we were the first to commit our nation to equality.

3. Unalienable Rights: We are used to thinking we have rights that government must respect, but this was quite revolutionary in 1776. In fact, the People were “subjects” and had “privileges” which means that the government lorded over the people and the people could only do was permitted by the government. A right means the People do not have to seek permission from the government. Moreover, “unalienable” means that the rights cannot be taken away, they are born within each person and can never be taken away by the government. “Alienability” is an old-fashioned word for the ability “to sell” or “transfer” something. Because our rights come from God, they cannot be sold or taken away. Today, too many act like their rights come from government, and they need to ask for permission to do things. Not so. No other society in human society has rested on the foundation of unalienable rights.

4. Social Compact: The idea of the Social Compact is that the People have come together and created a government to protect their unalienable rights. If we don’t have a government, we have the natural right to defend ourselves, but without a police force, we have to resort to vigilante justice. By allowing the government to create a police force, fire department, border patrol, and military, we have given up some of our unalienable rights to self-defense and agreed to abide by the government. This means that the government rests on the consent of the People and only acts justly with that consent. Before 1776, likely no government believed in a true Social Compact, they usually took power by force and violence, and coerced its subjects to follow its dictates.

5. Limited Government. Because the government is formed to protect our unalienable rights, the just limit of its powers is to protect those rights and some ancillary powers. To ensure that the government remains free and just, we limit its powers and authority. In most of human history, governments were developed with the opposite belief that they were unlimited unless they carved out some privileges to their subjects.

6. Reform and Revolution: If a government becomes unjust and violates our unalienable rights, we have the right to reform or even abolish it. That is, after all, the whole point of the Declaration of Independence. If reform failed, and the government undertook a long train of abuses with the intention to assert an absolute despotism on the People, then the People have the right – in fact, the duty – to overthrow the government and start anew. We are a revolutionary people and had no intention of giving away the rights we enjoyed.

Religious texts aside, the Declaration of Independence may be the most important document in human history. It totally upended the prevailing orthodoxy about government and has led to momentous changes across time and the world. Certainly we have fallen short, over and over again, of its ideals. But without the First Principles of the Declaration of Independence, we would live in the total darkness of oppression as mankind had for a millennia before.

Judge Michael Warren is the co-creator of Patriot Week (www.PatriotWeek.org), author of America’s Survival Guide, and host of the Patriot Lessons: American History & Civics Podcast.

 

Podcast by Maureen Quinn.

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Introduction