The Declaration Of Independence And The United States Congress – Guest Essayist: Gary R. Porter

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Most Americans realize that the Declaration of Independence established our separation from Great Britain and that sometime later the U.S. Constitution established the U.S. Congress, the Legislative Branch of government, along with its sister branches: the Executive and the Judiciary.  But most Americans would be surprised to learn that the Congress, through the Constitution, has a connection to the Declaration of Independence as well.  Many view the two documents as separate and distinct; they were, after all, drafted eleven years apart by two different groups of men for different purposes.[1] But the U.S. Supreme Court has affirmed their connection; in Gulf, C. & S. F. R. CO. v. Ellis , 165 U.S. 150 (1897), the Court declared that while the Constitution was indeed the “body and letter” of our government, the Declaration was the “thought and spirit.”

“Thought and spirit?” Whatever could that mean?  Webster’s 1828 Dictionary contains several usages of “thought,” but one particularly fits here: “purpose.”  Couple that with “spirit,” which Webster defines as: “life or strength of resemblance; essential qualities,” and we can deduce that the Court sees the Declaration of Independence as elucidating the essential qualities and purpose of our government.  What are these “essential qualities and purpose?”

For starters, the oft-ignored middle section of the Declaration, Jefferson’s “complaints,” contains a list of “repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States.”  If these 27-28 “facts”(depending on how they are counted) can be considered examples of “bad” government, then their reverse can become examples of “good” government. For example, Jefferson lodges a complaint against the King by proclaiming that he “dissolved [the colonists legislatures] repeatedly, for opposinga with manly firmness his invasions on the rights of the people.” If this is taken as an example of poor government operation or design, then to guard against that when designing a new government (ala 1787) we should withhold from the Executive the power to act as did King George.  Do we find this in the Constitution?  Yes! The President does not have the power to dissolve the Congress, or even send them into recess except under the narrowest of circumstances (only when the two chambers of Congress cannot agree on the “Time of Adjournment”).

Following this example we can discern more than twenty examples of good government in the Declaration, and we find many of them show up in the Constitution.

Concerning the Executive, we find:

  • The Executive must not become tyrannical
  • The Executive must not dissolve Representative bodies unilaterally

Concerning the Legislature, we find:

  • The Legislature’s laws must be implemented, they cannot be ignored
  • Legislative bodies must have the latitude to set their own agenda and rules, free from constraint or influence from the Executive
  • The power to legislate is permanent and devolves to the people when suspended
  • Rules for immigration and naturalization fall under the purview of the Legislature, not the Executive (unless expressly delegated)

Concerning the Judiciary and the Law, we find:

  • Government should have a Judiciary power (the Articles of Confederation did not)
  • Judges should be independent and act free from influence by the Executive
  • Military law should be subservient to civil law
  • Infractions by the military must be punishable in civil court

Concerning the people’s rights, we learn:

  • The people have the right to be secure in their life, liberty and their pursuit of happiness (or, as was the standard of the time: property)
  • The people have the right of representation in government
  • The people have the right of habeas corpus and local trial
  • The people have the right of petition for redress of grievances
  • The people have the right to be taxed only by consent
  • The people have the right to first consent to quartering troops

Concerning general principles of government, we learn:

  • The purpose of Government is to secure man’s unalienable, God-given rights
  • Government derives its “just” power from the governed
  • Government should not incite its citizens to insurrection
  • Government is not permanent, it can be abolished and replaced by new forms
  • But, the form of government is unalterable without the consent of the governed

These principles should guide the design and operation of the Congress as they do the rest of the national government.  Do they?

We know from Article 1 Section 7 that unless the President vetoes a bill it automatically becomes law (unless presented to him in the last 10 days of a session); thus, “the Legislature’s laws must be implemented, they cannot be ignored.”  Check.

Article 1, Section 5 gives each House the power to “determine the Rules of its Proceedings.” Check.

Article 1, Section 8 gives Congress the power to set rules for naturalization ( and by implication, immigration). Check.

“The power to legislate is permanent and devolves to the people when suspended?”  This principle of government is not explicit in the Constitution, but if the government under the Constitution should ever be dissolved and replaced with another, I think it is generally understood that the people are the only legitimate sovereignty to do so.

But how about the general principles of government we outlined above; shouldn’t the Congress be held to comply with them?  Great point; let’s see how they’ve done:

Congress should be working diligently to secure our unalienable, God-given rights.  This, according to Jefferson, is the primary reason “governments are instituted among men.”  In this regard, I think there remains some work to do, particularly in the area of the Right of Conscience.

Madison wanted to include an explicit right of conscience in what became the Bill of Rights; he was outvoted.  His original draft of what eventually became our 1st Amendment read: “The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience by in any manner, or on any pretext infringed.”(Emphasis added)  Madison went even further to suggest that “No state shall violate the equal rights of conscience, ….” (Emphasis added)  Both of these references to the right of conscience were omitted by the Congress as the draft passed back and forth between the two chambers.  Why?  We can’t really tell from the Congressional debate, but I for one wish both ideas had been retained.  An explicit right of conscience would prevent it having to be “teased out” of the Ninth Amendment or, as the case today, trampled underfoot.[2]

Congress could “fix this” with a properly worded Constitutional amendment that secures the Right of Contract based on the Right of Conscience.  But they show no inclination to do so, leaving it to be fixed through the second amendment method found in Article V, a “convention for proposing amendments” demanded by the states.

Government derives their ‘just’ powers from the governed?”  Too often, I think, Congress sets its own agenda instead of listening to We the People. The Affordable Care Act would never have passed in 2009 if it had been put to a vote of the people; polls consistently showed 60% or so of Americans in opposition.  Yet, the Democrat-controlled Congress passed the legislation in a blatant exercise of partisan power.  Part of this is our fault; the American people are largely disengaged from their government other than at election time.  “Keeping the republic” as Dr. Franklin urged, requires far more than mere voting (and many Americans will not even do that.

“The form of government is unalterable without the consent of the governed.”  Hmmm, I don’t recall being asked whether the Department of Education was a good idea, or the FDA, or EPA, or any of the other “alphabet agencies” in the federal government today.  Congress just went ahead and created these entities.  “But they are our representatives, we should let them do what they think is best,” comes the reply.  With a 97% reelection rate in the House of Representatives,[3] Congress is either doing exceptionally well or the American people simply aren’t paying attention (I’m leaning towards the later).

Each incoming Congress normally conducts a ceremonial reading of the Constitution in the first few days of the session.  Some complain this is merely for show, that Congressmen and women then proceed to completely ignore their oaths to “support and defend the Constitution.”  Perhaps there is some truth to this charge.  But might we humbly suggest that before reading the Constitution, that Congress also read, out loud, the Declaration of Independence, and then take a moment (or several moments) to reflect on the “thought and spirit” of our government before proceeding with their appointed tasks?

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 a weekly essay: Constitutional Corner which is published on multiple websites, and hosts a weekly radio show: “We the People, the Constitution Matters” on WFYL AM1140.  Gary has also begun performing reenactments of James Madison and speaking with public and private school students about Madison’s role in the creation of the Bill of Rights and Constitution.  Gary can be reached at gary@constitutionleadership.org, on Facebook or Twitter (@constitutionled).

[1] There were actually eight men who signed both documents; but the first document was the product of a Congress while the second a product of a convention.

[2] See Masterpiece Cakeshop v. Colorado Civil Rights Commission, and Burwell v. Hobby Lobby, among others.

[3] See: http://www.opensecrets.org/overview/reelect.php

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8 replies
  1. Ron Meier
    Ron Meier says:

    The idea of “good government” vs. “bad government” reminds me of the City Hall in Siena Italy. In the City Hall are two very large murals depicting just that. Anyone traveling through Siena in Tuscany should take a day off from wine tasting to visit City Hall and just sit there reflecting on the deeper meaning of the murals.

    Reply
      • Ron Meier
        Ron Meier says:

        Go during her feast day in Siena, April 29; there are three days of very memorable celebrations over the long weekend. The 17 neighborhoods with their individual flags and drummers make for a fun-filled long weekend. The good wine adds to the joy. 🙂

        Reply
      • Publius Senex Dassault
        Publius Senex Dassault says:

        We were in Tuscany when ALS [Alice] first whispered her presence. Had we not gone in 2010 we would have never been able to go. Within a year Sharon was already so routinely exhausted that walking through D’Orsay in Paris was too much and we never got to the Louvre. Tuscany beautiful hill towns, Florencia were almost too much. She was too tired to tour Rome.

        So go now, tomorrow never comes.

        Reply
  2. Ralph Howarth
    Ralph Howarth says:

    [Quote author=Gary Porter]The power to legislate is permanent and devolves to the people when suspended?” This principle of government is not explicit in the Constitution…[/Quote]

    Article V does have a sunset clause condition that the union would be dissolved if the international slave trade or 3/5ths clause were amended before 1808 OR if the states lose their equal suffrage in the Senate without their consent. The ramifications of any such amendments is that the amendment so ratified is either invalid or the union be dissolved because the compact among the states of the original agreement is based the states that ratified it. Art VII then lists the signatories to the agreement at the convention. Any compact that is broken, like that of breaking a treaty (a constitution of a federation of states is a private treaty), then devolves back to the parties in that compact. And the parties in the compact are the states.

    Reply

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