The Declaration of Independence Against Itself; E. Opitz

THE DECLARA TION OF INDEPENDENCE AGAINST ITSELF tlJ GJmunJ-4. Opitz DURING the nineteenth century the world of the defeated and the oppressed looked to America as a land of liberty and justice for all. In large numbers people came here to find freedom for themselves and their children. It goes without saying that they didn't always find what they were seeking; reality, here as everywhere, fell short of the professed ideal. But even when the ideal failed to show through the practice, it was never wholly without influ ence; for this ideal was inscribed in a basic national document for all to see and many to memorize. The docu ment contains a dangerous ambiguity, to be discussed later, which eventually drained away its main strength. But until that happened the Declaration of Indepen dence was a beacon of liberty. The actual writing of the Declaration was Jefferson's work, but his purpose as drafter was not, he wrote, "to find out new principles, or new arguments . . . hut to place before mankind the common sense of the subject."

The Reverend Mr. Opitz is a member of the staff of the Founda tion for Economic Education. 320 THE DECLARATION OF INDEPENDENCE AGAINST ITSELF 321 The document was intended, he said, "to be an expres sion of the American mind." And .indeed it was. The basic political ideas embodied in the Declaration-in herent natural rights and consent of the governed-have a long ancestry and were the common coin of eighteenth century political discussion. Nevertheless, Jefferson must be credited with the originality of phrasing and com position which gave a creative thrust to ideas which, till that time, had lacked momentum. This momentum carried over into the next century as well. Abraham Lincoln spoke for the consensus when he declared, "The principles of Jefferson are the definitions and axioms of a free society." Many American reformers and social critics expressed sinrilar sentiments. They were sensitive to social ills and injustices, but they traced them to infractions of the principles laid down in the Declara tion-inherent, individual rights, and a limited govern ment set up solely for their protection. Freedom was the remedy they advocated, and they knew that somebody's freedom was being impaired the moment government exceeded its proper limits. The first reform, on which all others hinged, was to confine government within the boundaries defined in the Declaration. Only so could the rights of all persons be secured.

The Declaration of Independence refers, in paragraph one, to "the laws of Nature and Nature's God." In para graph two, the signers say that, as far as they are con cerned, they believe, or accept as axiomatic, the proposi tion that the Creator endowed men with certain rights. Other men might hold that "rights" are granted by the 322 EDMUND A. OPITZ State, or else have a purely naturalistic basis. "We hold" that these rights have a supranatural derivation, i.e., they are God-given. The Creator is sovereign! In other words, our Declaration has a built-in religious dimension; and the importance of this fact is underscored by the absence of a similar dimension from a comparable document is sued in 1789-the French Declaration of the Rights of Man and of Citizens. The French Declaration wishing to set forth "these natural, imprescriptable, and unalienable rights" says: "The National Assembly doth recognize and declare, in the presence of the Supreme Being, and with the hope of His blessings and favor, the following sacred rights of men and of citizens." It will be noted that, although the Supreme Being is mentioned, he is invoked as a mere gesture of formality; he is not acknowledged as the source of human rights. What then is this source, according to the French Declaration? Paragraph three tells us. "The nation is essentially the source of all sovereignty; nor can any individual, or any body of men, be entitled to any authority which is not derived from it." The French and American Revolutions are, in short, based on con trary principles.

The philosophy back of the Constitution of the United States is substantially the same natural rights doctrine that is set forth in our Declaration. And social critics in the early Republic, accepting this doctrine, traced social evils to the door of government; because it was govern ment which either legitimized violations of equal liberty -as in the case of slavery-or sanctioned violations by reTHE DECLARATION OF INDEPENDENCE AGAINST ITSELF 323 fusing to enforce the laws against predation. The remedy they urged was to cut government back to the limits pre scribed in the Declaration-defense of the lives and prop erty of all men alike. But if this was our ideal, it must be admitted that our practice was different, even from the beginning. We set .up a no-privilege government-equality before the law, no politically dispensed special favors for some at the expense of others-and the first law of the First Congress (after the motion organizing itself as a body) was a tariff law!

Political Favors Now, whatever else may be said about a tariff, no one can deny that it has the effect of penalizing certain con sumer interests, and by the same token advantaging cer tain producer interests. It denies to some people the right to buy in the markets of their choice, i.e., to make any peaceful use they choose of their resources. And to others this· political intervention grants a monopoly of certain markets by excluding foreign competition, thus forcing customers to pay a price above the market price which free and fair competition would determine. In short, a tariff enables its beneficiaries to get something for nothing; it is a political subvention giving some peo ple an income for which no equivalent services are rendered. A political principle may be adduced from such prac tice: It is one function of government to intervene in the 324 EDMUND·A. OPITZ affairs of men so as to benefit a segment of the nation at the expense of the nation as a whole, or to sacrifice a portion of the people so that another portion may pros per. This was not the kind of government we thought we were setting up, and although government intervention steadily proliferated during the nineteenth century-the necessity for each succeeding intervention being sold as a means of correcting the evils caused by prior interven tions-we could still think of ours as "a government of liberty and justice for all," i.e., a government shorn of the power to dispense privilege.

As an ideal we still looked to the equal rights doctrine of the Declaration, and this doctrine filtered down through popular oratory and literature. Granted that we didn't practice what we preached, at least we had a plumb line of sound principle by which we could meas ure our deviation from the norm. But there came a time when we acquiesced in deviations from the norm and cast about for a political principle to justify them. When we took this tack, such a principle was easy to find be cause it was enshrined in the Declaration itself, as a tech nique, along with the natural rights philosophy. It was the consent of the governed idea. The "consent of the governed" idea is an implement ing principle, not a primary one. Deriving the just pow ers of a government "from the consent of the governed," as the Declaration does, is a natural means of implement ing the "self-evident" truths "that all men are created equal, that they are endowed by their Creator with cer tain unalienable Rights, that among these are Life, LibTHE DECLARATION OF INDEPENDENCE AGAINST ITSELF 325 erty, and the Pursuit of Happiness." This is the primary principle, the axiom about rights. But when these truths are no longer self-evident, when the belief in God-given rights dies out, leaving "consent of the governed" as the sole political expedient, the road ahead leads to tyranny.

The tyranny will not conform to the pattern of a divine right monarchy or an enlightened despotism which needs a different sanctioning principle; it will be a demo cratic tyranny. "'Consent of the governed" introduces the majoritarian principle into politics. However useful this may be as a device for choosing personnel, it is vicious when it ex pands into the delusion that the majority has competence in the realms of faith and morals, and has therefore a right to rule unrestrained except by prudential and ex pedient considerations. This delusion is crassly put by a University of Chicago political scientist: "For in a de mocracy right is what the majority makes it to be." Con sent of the governed, without the restraining influence exerted by the belief in God-given rights, which disap peared as religion lost its hold on the modern mind, has led logically, directly, and implacably to totalitarianism and the so-called People's democracies.

Democratic despotism is the inevitable consequence of the "consent of the governed" idea-unless it be accom panied by a virile doctrine of rights which derives them from a source beyond society. From the classical world to the time of our Declaration of Independence, this source was God. But about the time the God concept found a meaningful political expression in the Declara326 EDMUND A. OPITZ tion, the concept itself lost its hold on the minds of men. The relationship between the explicitly articulated con cept of equal rights in the Declaration and the God con cept was that of effect and cause. When a cause ceases to operate, trace effects or an after-image may persist for a time; and in the modern world the idea of inherent rights moved men even after they had cut themselves adrift from its religious rnoorings. The eighteenth century de natured God and deified Nature; the nineteenth century mechanized Nature, and the twentieth century deperson alized man. If the universe and man correspond to such a picture, there is no place in it for anything resembling the traditional doctrine of rights.

Traditions of Civility The poet, Coventry Patmore, observed that we are the inheri tors of The fair sum of six thousand years Traditions of civility. In the course of this long human experience of living together under relatively stable conditions there gradu ally evolved an awareness that man is more than a thing, that there is a dignity and grandeur in the human soul because it is a portion of the divine in man, coterminous with that aspect of the divine interpreted as the moral order or the Natural Law. To the extent that such beliefs took hold of ancient peoples they attempted to base their political structures on the explicit consent of those inTHE DECLARATION OF INDEPENDENCE AGAINST ITSELF 327 volved-"those involved" numbering less than the total population which included slaves and unassimilated foreigners. Conquest and subjugation do not supply a principle of rule; rule is always based on some degree of implicit consent. Consent, in a republic, is deliberately courted. Such was the case in the Hebrew common wealth, in the Greek city-states, and in the Roman re public. It is even more true of Christendom which fell heir to these three strands of tradition. Christian doc trine, writes Wilhelm Roepke, "starts from man as an individual endowed with an immortal soul striving for its salvation. Before the State there is now the Person, whereas above the State there is God, His love and His justice common to all men.

H Judging by the record of history, man seems to have a natural tendency to seek a cosmic foundation for his social way of life; no culture of record has been wholly secular. Men posit a divine order of reality transcending the natural world which meets the senses. A relationship to this divine order gives added meaning and significance to the natural order, and the divine law fllrnishes the norms by which the different patterns of behavior in society are coordinated. These moral norms, in other words, are believed to be anchored in the nature of things; they exist independ ently of men's interpretation of them, and neither in dividual persons nor majorities can flout them with im punity. This was the concept of the Natural Law, by vir tue of which man was believed to possess inherent rights, as our Declaration of Independence explicitly states. Such 328 EDMUND A. OPITZ a conviction kept the "consent of the governed" idea in secondary spot.

The Founding Fathers hung their case from a theo logical premise, al though their own religious philosophies were anemic affairs and the eighteenth century ideology which they partly shared was not hospitable to theism. The colonists, however, were a theologically minded peo ple, and the Church played an important part in their affairs. Thus they were easily appealed to with the idea that they were supernaturally endowed with inherent rights. It is one of the end products of the religious herit age of Christendom to claim natural rights for every hu man being as such, and to proclaim God's sovereignty over the social and political affairs of men. These re ligious beliefs are reflected ·in the Declaration. But with draw these religious elements from the philosophy of the Declaration and we are in trouble. The concept of God given rights goes when belief in God is suspended. This was happening even as the Declaration was being writ ten; it· has happened at an accelerated tempo since that time. It started as far back as Hobbes and Locke, in the middle and latter part of the seventeenth century.

There was a state of nature, Locke argued, of "peace, good will, mutual assistance, and preservation." Fully endowed· human beings existed in this presocietal condi tion, each one possessing a natural right to protect him self and his property. After a rational weighing of the personal gains to be derived from living in civil society, individual men contracted with other individuals to form one, "by barely agreeing to unite into one political THE DECLARATION OF INDEPENDENCE AGAINST ITSELF 329 society, which is all the compact that is, or needs be." As history, this is, of course, pure moonshine; men, by virtue of their genes, are biologically anthropoids; it is only by assimilation of their social legacy that they be come fully human and members of a particular society. But social contract theories, which linked the ideas of natural rights and consent, were useful fictions during the political revolutions of the seventeenth and eight eenth centuries which were aimed at monarchy, and Locke furnished much of the ammunition used by our Founding Fathers. All this was fine when it came to de posing the kings-the only kind of authoritarianism which seemed to frighten the men of those centuries. But if we depose the kings only to set up a more far-reaching tyranny-parliamentary absolutism or the despotism of a majority-where's the gain?

Actually, the seeds of majoritarian democracy are in John Locke: "And thus every man, by consenting with others to make one body politic under one government, puts himself under an obligation to everyone of that society, to submit to the determination of the majority, and to be concluded by it; or else this original compact, whereby he with others incorporates into one society, would signify nothing, and be no compact .... The body (of the community) should move that way the greater force carries it, which is the consent of the majority." (Italics supplied) Jefferson himself blows hot and cold in these matters. No one talked more than he about "our natural rights," or was more aware than he of the potential tyranny in the 330 EDMUND A. OPITZ "consent of the governed" idea when reduced to mere majority rule. "An elective despotism is not the govern· ment we fought for," he wrote in 1781. But in 1787 he wrote to Madison, "It is my principle that the will of the majority should always prevail." And a year later, also to Madison, "I readily suppose my opinion wrong, when opposed by the majority." It is this phase of his thought which enabled Lord Acton to speak of "Jefferson's deter· mined aversion to every authority which could oppose or restrain the will of the sovereign people."

Jefferson W asn't Sure But in 1816 the tide came back in with the "natural rights" idea, and he wrote, "Our legislators .... true office is to declare and enforce only our natural rights and duties and to take none of them from us.... The idea is quite unfounded that on entering into society we give up any natural right." But then he veered again, and in 1824 said, "All power is inherent in the people." And in his last extant letter, written ten days before his death in 1826, when the idea of inherent rights had all but been abandoned by the learned, he affirmed his be· lief that "all eyes are opened, or opening, to the rights of man." He was quite mistaken in this, even of his own coun· try. Seven years earlier in the epoch-making Supreme Court decision in McCulloch vs. Maryland, John Marshall had written: "The government of the Union is em phatically and truly a government of the people. In form THE DECLARATION OF INDEPENDENCE AGAINST ITSELF 331 and in substance it emanates from them. Its powers are granted by them, and are to be exercised directly on them and for their benefit."

Jefferson may have been right in affirming that we didn't fight for an "elective despotism," but given the situation which existed in the eighteenth and nineteenth centuries, it is obvious to hindsight that that is what we were going to get. The tyranny of the majority is simply the unhindered application of the "consent of the governed" idea, with no restraining influence which might come from virile belief in Natural Law and in herent rights. Edwin Corwin writes that " 'Natural Law' in the sense of 'the observed order of phenomena' has tended in recent years to crowd the earlier rationalistic conception to the wall, thus aiding the triumph of the idea of human and governmental law as an expression solely of will backed by force." John Stuart Mill uttered many timeless truths about liberty on the basis of the utilitarian standard that liberty provides conditions conducive to the greatest happiness.

But although his rhetoric was gorgeous, he didn't make his case. Who will decide which one,of several alternative courses of action should be adopted so as to maximize happiness? Majority rule again I The decision is based on "the judgments of those who are qualified by knowl edge of (the consequences), or, if they differ, that of the majority among them, must be admitted as final." And Herbert Spencer, who in his early writings defended the rights of man against the State, concluded somewhat sadly in his Autobiography (1904) that "the unlimited right of 332 EDMUND A. OPITZ the majority to rule is probably as advanced a conception of freedom as can safely be entertained at present; if in deed, even that can safely be entertained." "The unlimited right of the majority to rule" can, in practice, mean only one thing: that a determined and articulate few will create ad hoc majorities for the sole purpose of ratifying minority demands. Such is the in evitable end result of popular sovereignty, as Francis Lieber foresaw a century ago: Woe to the country in which political hypocrisy first calls the people almighty, then teaches that the voice of the people is divine, then pretends to take a mere clamor for the true voice of the people, and lastly gets up the desired clamor.

"Consent of the governed" was an altogether inept phrase in the Declaration, out of step with the main body of the American political vision. The dream was that if men knew the right principles of social integration, no one would be governed, i.e., the creature of another man's will. The society would be free, i.e., comprised of self-governing units whose social agency of arrest and restraint served individual liberty by maintaining the inherent rights of each person. But remove the idea of inherent rights and this structure collapses. When the idea of inherent rights is abandoned, people will still go on using the word "rights," after distorting its original meaning. On· the one hand, "rights" will be used as if it were synonymous with "desires" or "privi leges." Thus we are presented with long lists of "human rights" to such things as housing, education, medical THE DECLARATION OF INDEPENDENCE AGAINST ITSELF 333 care, a job, and so on. The source and dispenser of these "rights" is, of course, the sovereign state. On the other hand, the air is filled with talk about "civil rights," which means certain patterns of conduct permitted or enforced by the sovereign majority. The conduct in question may be ethically desirable, provided it is voluntary; but the majority has power, and is willing to use it on minorities.

Members of minorities have no inherent rights, so of course they have no "civil rights" either until they join forces with the majority. Can we recover the idea of inherent rights? Only if we can rehabilitate the belief that man is not wholly resolv able into a social being, that part of him is inviolable, shielded always from the prying hands of either majori ties or rulers. Two main lines of argument have been used to sup port this conviction, one religious, the other secular. According to the former, rights have a reference above and beyond society, in a transcendent order. The in dividual is a creature of God and therefore he is sov ereign as a person in relation to his fellows. When re ligious belief waned, and the concept of a transcendent order was abandoned, many thinkers sought support for the idea of "natural rights" in theories of an original social contract. Locke, for instance, thought he could de duce rights from the nature of abstract, ideal men who were imagined to have existed as isolates before they got together and formed themselves into societies.

These two approaches exhaust the field; abandon these and the idea of inherent rights is no more than a 334 EDMUND A. OPITZ pious wish. And we have to abandon one of them, for social contract theories are no longer believable. This means that the preservation of the idea of inherent rights depends on a contemporary restatement of the an cient truth that "in the center of his being, in that knower who is never known, man is in touch with God and even in his most wretched wandering in the wilder ness of this world, is always rooted in the eternal being of God." Sovereignty must locate in the Creator or liberty has no roots. A National Ambiguity Americans, Lord Bryce observed last century, have Han aversion to the investigation of general principles as well as to trains of systematic reasoning." Perhaps it may be more accurate to say that Americans have been uncom fortable with the ambiguity in their own political heri tage. They have an apprehension that something is wrong without being aware of just what it is. With one part of their being they have looked to the Creator as the source .of their rights; with another part, they have lavishly abused those rights at the behest of now this majority, now that. The split in principles is becoming more painful, and soon the choice wi)l have to be made to ride one or the other.

It is possible for a people to live without clear-cut prin ciples for a time, sustained by the forces of habit, custom, and convention. A man may live according to his father's code, even after abandoning the faith which gave the THE DECLARATION OF INDEPENDENCE AGAINST ITSELF 335 father his code. But the grandson will have neither faith nor code. Such is, roughly, our predicament, and there is no guarantee that even a determined effort will get us out of it. But the first step in solving a problem is to face a bleak statement of it; for where there is no understand ing, there can be no intelligent response.