The Founding of the American Republic 10; C. Carson

CLARENCE B. CARSON THE FOUNDING OF THE AMERICAN REPUBLIC 10 The DeclaraOtion of Independence THE DECLARATION OF INDEPEND ENCE is a peculiar, unusual, and in many ways, unique document in the modern world. Of revolutions there have been a surfeit, and more, in the last two hundred years. And accompanying them have been pronouncements, direc tives, statements, proclamations, and declarations enough for a good start on papering the walls of the Pentagon. Of all such documents, however, one stands out and looms above the rest - the Declaration of Independence. Not only has it been revered usually by the people of the United States, provided the grist for innumerable orations, been memorized - in part - by school children; it also has been almost endlessly quoted in reproach of actual American ways and has been looked to by peoples of other lands as a standard. Supreme Court justices have appealed to it, would-be revolutionaries have claimed its rhetoric, while those of a conservative bent have sought their principles within it. For most of the history of the United States only one national holiday Thanksgiving - has ranked with the 4th of July, the day set aside for celebrating the signing of the Declaration of Independence.

Dr. Carson shortly will join the faculty of Hillsdale College in Michigan as Chairman of the Department of History. He is a noted lec turer and author, his latest book entitled Throttling the Railroads. 273 274 THE FREEMAN May It is somewhat strange and a matter for wonder that this docu ment among all those of an era rich with elegant statements should have attained its unique position. John Adams thought tha.t the second day of July would be celebrated, for it was on that day that the resolution for independ enee was adopted. Moreover, he later declared of the Declaration that "There is not an idea in it, but what had been hackneyed in Con gress for two years before."l That portion of the document to which people usually refer is exceedingly brief, comprising, at most, two paragraphs, the first of which is only a sentence in length. The re mainder of the. document is of his torical interest only. Moreover, the Declaration is not now, and never has been, a pa.rt of the funda mental law of the United States.

It lies outside the structure of law which is made up of constitutions, statutes, and the common law. There are, of course, reasons for its position, and they will come out in an· analysis of the document and discussion of its background and extension. There are three dimensions of the Declaration of Independence which should be carefully con':' sidered for a clear understanding of it. The first is the contemporary context within which it was writ ten, adopted, proclaimed, and served its purpose. However much it ma.y have come to belong to the ages, the Declaration had a defi nite purpose and a particular role at the time. The second dimension is its past. The words and phrases are given their meaning not only within the contemporary rhetoric but also from historical doctrines and beliefs. Too, the later applica bility of anything said is condi tioned by the context of a then past history. The third dimension is its future. What men have made of the document, frequently out of context and with no attention to the concepts which give it any con tinuing validity, tells us something of the reason for its importance.

The Declaration in Context The story of the composition and adoption of the Declaration is fairly simple. Richard Henry Lee's resolution for independence, intro duced on June 7,1776, was not im mediately adopted. On June 10, Congress decided to delay further discussion of it until July 1, for many delegates awaited instruc tions, or changes in instructions, from their legislatures before act ing affirmatively for independence. Lee's simple and straightforward resolution would have been ade quate for the formal declaring of independence. But America badly needed aid from foreign powers if the appeal to arms was to be suc1972 THE DECLARATION OF INDEPENDENCE 275 cessful. Thomas Paine had sug gested in Common Sense that some sort of manifesto be published in order to gain friends with other nations: "Were a manifesto· to be published and dispatched. to for eign courts, setting forth the mis eries we have endured and the peaceable methods which we have ineffectually used for redress; de claring at the same time that ... we had been driven to the necessity of breaking off all connections . . .

- such a memorial would produce more good effects to this continent than if a ship were freighted with petitions to Britain."2 This was apparently the origin of the idea for a declaration. Therefore, fol lowing the determination to delay adopting Lee's resolution, Con gress appointed a committee to produce such a document. The com mittee was composed of Benjamin Franklin, John Adams, Robert Liv ingston, Thomas Jefferson, and Roger Sherman. Thomas Jefferson was assigned the task of producing a draft of the proposed declaration. Had John Dickinson been favorably disposed toward independence at this juncture, the task would prob ably have been his. Jefferson had only lately acquired a considerable reputation as a writer with his Summary View of the Rights of British America. In any case, his selection turned out to have been one of the happiest decisions ever made by a committee. Some minor changes were suggested by Frank lin and Adams, and these were in corporated· in the document. Con gress also made a few alterations. 3 But the finished work was sub stantially what Jefferson had pre sented to the committee. Much of the honor which has fallen to the Declaration should be ..credited to J efferson's felicity of style, grace ful turns of phrase, .and the evoca tive power of words appropriately juxtaposed.

Congress acted quickly once the Lee resolution came before it again on July 1. The next day it was approved unanimously by 12 colo nies, though the New York dele gation abstained. And then - on the July 4 date which was to be celebrated by posterity - Congress approved the Declaration of In dependence. The stated purpose of the Dec laration was to declare to "man kind" the "causes which impel them to the separation." It was ad dressed, then, to the world at large. It can be conveniently divided into three parts for purposes of discus sion: the first is a theoretical justi fication of revolution and inde pendence; the second is an enumer ation of the abuses suffered at the hands of the British;· and the third is the formal declaring of inde pendence.

276 THE FREEMAN May A Dangerous Action The theoretical justification of revolution is contained in the first two paragraphs, which are also the most often quoted parts of the Declaration. Interspersed through these paragraphs runs a litany of phrases which have become etched in the minds of Americans: "Laws of Nature' and of Nature's God," "truths to", be self-evident," "all men are created equal," "endowed by their Creator," "unalienable Rights," and "Life, Liberty and the pursuit of Happiness." The ideas may have been hackneyed, as John Adams said, but the phrases in which Jefferson caught them elevated above the trite and ordi nary to the sublimity of enduring poetry. Yet, ideas are dangerous, as every tyrant knows and even par ents of small children suspect; and there is no more dangerous con text for setting forth thoughts than the one for which these were written. The Declaration not only declares independence but also proclaims revolt - revolution.

Sages may debate as long as they will whether the American revolu tion was indeed a revolution - and the question is important in some of the later meanings of the word - but there can be no doubt that it was a revolution in the root sense of the word. That is, it was a revolt against and a casting off of the governmental authority which had been exercised over the colonies. Not only that, but it was successful-the basic distinction between a revolution and a rebel lion. Nothing more dangerous to the peace and safety of a people can be imagined than a revolu tion: the former authority is cast off,whether law and order will be maintained is gravely in doubt, and man's bent to destruction is likely to be loosed from the ulti mate means of confining it. The point of emphasizing the danger of revolution is to enter a warning: the opening paragraphs of the Declaration of Independence are not something to be casually trotted out on any and all occa sions. They are a theoretical justi fication of revolution, and those who intend less than revolution may well take care in how they re fer to them. But the point is also to note the qualifying conditions of the document as to what justi fies revolt: "Prudence, indeed will dictate that Governments long es tablished should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more dis posed to suffer, while evils a.re sufferable, than to right them selves by abolishing the forms to which they are accustomed."

The case for revolution, as Jef ferson presented it, can be sum1972 THE DECLARATION OF INDEPENDENCE 277 marized in this way. The Creator has endowed men with certain rights. Governments exist for the purpose of securing these rights to those under them. When agov ernment rather than performing these ends primarily begins de stroying them, and· indicates by a long term trend that it cannot be brought back to its purpose, "it is the Right of the People to alter or abolish it.... " This is the nub of the argument. A Majority Form of Action There is much that is left out of the simple statement of the doc trine of the right of revolution contained in the, Declaration of In dependence. There was no need to spell it out on this occasion, and many of the restrictions are im plicit. The oppressions must afflict the people generally; they must, therefore, be by a power alien to the generality of the people. And the right to revolt belongs, at the least, only to a majority, probably only to a consensus, and, ideally, to the people generally. This is to say that a mino'flity does not have a right to revolution. The whole idea of a minority having such a right is shot through with contra dictions. The minority could only effect this "right" by overcoming the majority. If a minority had a "right" to alter or abolish a gov ernment and to erect another in its stead, it would be a "right" to impose its will on a majority.

Do minorities not have rights, then? Assuredly, they do, or so Jefferson and many of his contem poraries thought. All men have rights; but the recourse to revolu tion belongs only to the preponder ance of the people. But suppose a minority (or, for that matter, a combination of several minorities) is oppressed and persecuted, what recourse do the members have ? The Founders believed that the members of a minority have rights as individuals which should be pro tected in the system along with the rights of those who happen to be long to the majority or consensus. For example, they have the right to persuade others of the justice of their cause - that is, to become the maj ori ty. Freedom of speech and of the press are devices for assuring the opportunity of exer cising the right of persuasion. But suppose all fails within the system to relieve the oppression? What is the ultimate recourse of a minor ity? The ultimate recourse of an oppressed minority is migration.

The right to migrate for a minor ity is the corollary of the right to revolution for a majority. Metaphysical Foundations The right of revolution is meta physical, not existential (and none may logically claim such a right 278 THE FREEMAN May who have not a metaphysics on which to found their case). No government can, in practice, admit the right of its people to revolt against it at any time. The mo ment such a right is acknowledged effectively, the government abdi cates its former power and anoth er government takes its place. No governmental system can be con trived which provides for the right of revolution (though, in terestingly, the right of migration can be established). The matter is as clear as it can be when it is seen that the right of revolution involves the right to take up arms against the government. A govern ment ceases to be the government when men take up arms against it with impunity. The United States government can decree that the 4th of July is a national holiday - Independence Day -, and cele brations can be held in which the first two paragraphs of the Decla ration of Independence are read, but the United States Constitu tion could not, and does not, in corporate within it the right of revolution. (It does, however, pro vide for turning out of office some of those who govern, at stated intervals, but the discussion of this can wait.) That is to say, again, the right of revolution is metaphysical, not existential, an explanation of which follows.

The right of revolution has its being prior to, outside of, and be yond government. Jefferson was making his case within a tradition whose groundwork was laid long before. The Declaration of Inde pendence had a past, then, which needs to be a little explored. The two main traditions appealed to are theism and natural law. The rights alluded to are said to be derived from "the Laws of Nature and of Nature's God," and ones with which "they are endowed by their Creator." If there were only history and present existence, no right to revolution could be estab lished, for no government that ever did or does exist could or would accord it. The appeal to right, in this sense, requires an appeal to right that existed before history. It is an appeal to that which and He who was before governments came into being. Although our language has no tense for it, it is an appeal to the timeless and the enduring, to that which has no tense.

In this timeless sphere, J effer son tells us, "all men are created equal," and are endowed by their Creator "with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Hap piness." This has been, no doubt, the most troublesome passage in the Declaration. What can it mean that all men are created equal? The most immediate meaning, 1972 THE DECLARATION OF INDEPENDENCE 279 within the time context, is that Americans are equals of English men. They had been contending for this since the dispute between the two had occurred. Americans had claimed that they had the same right to tax themselves as Englishmen, the same right to legislate, and eventually they claimed the same trading pri vi leges. It was the failure of the British government to accord them equal rights which had pro voked the dispute. The justifica tion for revolt now became the fact that they had been deprived of their rights. This needs further discussion in terms of what men were to make of the phrase later.

Before going into that, one other matter from the past needs to be considered. The· justification for revolt by the colonies was tied up with the institution of monarchy. Whether or not they would have their grievances redressed depended in considerable measure upon the will of the king. Hereditary monarchy had long posed a problem in. po litical theory, at least for Western thinkers. Suppose the monarch were a tyrant? Suppose he im posed his will, in an arbitrary and despotic fashion, over the people? It had long been held, by some, that it was the right of the people to kill a tyrant. However attractive the idea might have been. to some Americans, they never seriously considered it. And for very good reason: it would not have settled the issues in contention. But the fact that they were ruled by a monarch gave the colonists a justi fication for revolution that is de nied to those who live underelec tive executives.

EqualitySefore the Law Returning to the matter of equality, it should be stated that the phrase "all men are created equal" had and has a much broad er potential of application than to the simple proposition of the equal ity of Englishmen and Americans. Its meaning is fairly clear in the context: all men have an .equal claim to certain natural rights. More, the case is implicit for equality before the law, that is, that the law shall deal with acts and not classes of people. Nor is there any reason to doubt that Jefferson believed this principle applied to blacks as well as whites, and that there shou~d only be free men, not slaves. Later in American history, some have read the Declaration of In dependence into an idealistic framework. It is from this angle that some would see the Declara tion as calling for continuing rev olution and as a dream for Amer ica that is yet to be realized. Such notions separate the doctrines al28Q THE FREEMAN May most entirely from the context of ideas behind them as well as the temporal context in which they were written. Continual revolution is a nonsensical notion; within this context, at least, it could only mean a continual warfare over who is to govern. Jefferson based his argument on metaphysical propositions, not idealistic ones.

The equality upon which he bases his position is one that has always been, not one that might someday be achieved. True, he declares that the purpose of government is to secure men their rights. It is surely true, also, that governments have most frequently not done this well. The point may be too ab struse to be readily grasped, but Jefferson was not saying that an ideal government would establish this ideal equality; he was saying that a government performing its appropriate function would do so. Of course, the phrases do not touch upon equality within society at all; they apply to equality be fore the law. The theoretical justification of revolution contained in the first two paragraphs tells us only that there can occur situations in which a people may be justified in revolt ing against the authority over them. This is the case, we are told, when the government has consistently abandoned its role of protecting the people in' their rights and become the persistent violator of them. It is the burden of the body of the Declara tion to show that the British government had done this to America.

The Case Against the King The case is summed up in the next to last sentence of the second paragraph: "The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct obj ect the establishment of an ab solute Tyranny over these States." It should be noted here that all the acts are blamed upon the monarch. There was, of course, a reason for doing this as a tactic. Loyalty to the king was the tie that Americans had clung to the longest. It was the one which now must be disavowed and broken if independence was to be achieved. Some purport to see in this blam ing of all the acts of the govern ment upon the king disingenuous ness by Jefferson and those who concurred in his formulations. The charge has little merit; the tactic is fully justified in British consti tutional theory. By that theory, the acts of ministers are acts of the king. Even the acts of Parlia ment are acts of the Crownin Parliament. Moreover, the king had neither disallowed nor disa vowed the acts in question, which he might have done. If there was 1972 THE DECLARATION OF INDEPENDENCE 281 disingenuousness to be charged, it should be about the fact that they had delayed so long in laying upon the king the blame for what was happening. Colonists had, for a decade, blamed Parliament and ministers for what was happen ing. But this, too, is understanda ble; it was a means of resisting without revolt. Now the case could be stated bluntly, and the blame could be placed where it justly rested, in the final analysis.