The American Declaration

   Commentary at jeromehuyler.com

Jefferson's July 4 Declaration & the U. S. Constitution

What's the connection and What Does It Matter? 

Because the "self-evident" truths enshrined in the Declaration of Independence were never inserted into the U. S. Constitution, the founding principles, as originally conceived, would not survive the founding era.

(1)  Introduction

 

               The U. S. Constitution (1787) is the supreme law of the land.  It is the law to which all other laws, executive actions, administrative procedures and judicial rulings are meant to conform. 

               The Declaration of Independence (1776), on the other hand, was never legally binding on any public servant. It merely (1) identified a set of moral principles to explain the origins and legitimate ends of any government's power, (2) described how Great Britain repeatedly violated those principles, and, so (3) explained to a candid world the reasons for taking up arms against "legally" constituted authority.  

               From the time the Constitution took effect,  policy disputes turned not so much on the question is it compatible with the Declaration's moral principles, but is it legal, i.e., Constitutional?[i]  The Constitution quickly became a virtual stand-in for philosophy. Only the Declaration's philosophical underpinnings were left behind.

               Lacking the force of law, the Declaration could not stand vigil over the young republic's exercise of power.  It was not able to continually remind the new nation's public servants that there are certain "self-evident" truths with which they have no choice but to comply: (1) that all men are created equal, (2) that they are endowed by their Creator with certain unalienable rights, (3) that among these are Life, Liberty, and the pursuit of Happiness.1It was "to secure the blessings of liberty to ourselves and our posterity" that the Constitutional Convention was convened.2

               A  mere six years separated the last Revolutionary War battle at Yorktown in 1781 and the convening of the Constitutional Convention in the spring of 1787.  Considering the grievous sacrifices so many Americans made to preserve their liberties and resist tyranny, it is not likely that the spirit of '76 grew any fainter in the intervening period. 

 

2.  On the fundamentals of politics

 

               Well, what if the framers' novel plan of Union was designed for no other purpose than to achieve the specific ends Jefferson laid out in 1776?   What is the full measure of Liberty the Patriots of '76 wanted so much and fought so hard to preserve?  And what did that understanding signify for the limits of lawful power in the new republic?   

To answer those questions, one must look more closely at Jefferson's Declaration and sort of read between the lines.  First, it was perfectly self-evident that "all men are created equal."  What did that mean?  John Locke holds the key.   Conjuring up an imaginary state of nature, but really talking about the nature of  man, as such,  Locke describes that equality: 

There is nothing more evident than that creatures of the same species and rank, promiscuously born to the same advantages of nature and use of the same faculties should be equal one amongst another, without subordination or subjection . . . . [For] The state of nature has a law of nature to govern it, and reason which is that law teaches all mankind who will but consult it that being all equal and independent no one ought to harm another in his life, health, liberty or possessions . . . . [i]

               Hence, said Jefferson closely following Locke, men possess "certain unalienable rights." The right to Life is the most basic of all.  It is the Right to live one's life as one chooses, so long as one allows others to do as much. Nowadays, we just say "live and let live." 

              

               The right to live one's life is nothing but the right to Liberty. a full allowance for self-directed, unencumbered action in pursuit of  one's freely chosen goals. What is this Liberty, exactly? It is a safe, secure bank with many branches.  As the concept of "food" subsumes all types of meats, poultry, fish, dairy products, juices, fruits and vegetables, cereals, seasonings, and snacks, so the concept of Liberty covers a broad range of specific allowances for self-directed action. 

               There is freedom of thought and expression, freedom of the press, freedom of association, religious freedom, the right to keep and bear arms, a Right of Privacy, protection against unjust criminal convictions and unreasonable searches and seizures, and the right to petition government for a redress of grievances.

 

               Above all, Liberty embraced the full complement of economic freedoms - i.e., the freedom to work in the field of one's choice, to freely seek advancement in one's line of work (or just stay put), and the freedom to gain, keep, use, trade or otherwise dispose of the possessions one acquires by one's honest labor and legally-binding contractual agreements.  There is also a natural right to accumulate by all honest means, as much wealth as one will.  The founders saw nothing wrong with making money, per se. 

               Locke and Jefferson were no arm-chair utopians.  They understood that not everyone will respect the rights of others.   And it only takes a few rotten, unrepentant apples to render life precarious for the rest. Without government to impose law and order, men's lives and liberties would forever be insecure.    So that Liberty may find shelter under an unyielding rule of law, said Jefferson, "governments are instituted among men deriving their just powers from the consent of the governed."[i]

 

               The question Jefferson passed over was this:  Precisely what powers do people originally possess and, so, can delegate to their governing bodies?

 

               The answer to that query establishes for all time the precise limit on the power a lawful government may exercise. Here, again, John Locke's formulation tells the tale

               Men cannot transmit more power to their government, than they, themselves, possess.  As no person has a right to "take away, or impair the life, or what tends to the Life, Liberty, Health, Limb or Goods of another,"  so no society or public institution can ever claim or acquire such a power - not a single despot and not a duly-constituted legislative majori­ty.  Locke is clear as crystal on the point:

 

for nobody can transfer to another more power than he has in himself; and no Body has an absolute Arbitrary Power to . . . take away the Life or Property of another . . . . [A]nd having in the State of Nature no Arbitrary Power over the Life, Liberty or Possessions of another, but only so much as the Law of Nature gives him to the preservation of himself; . . . this is all he doth, or can give up to the Commonwealth . . . so that the Legislative can have no more than this.[i]

               There is but one right men originally possess and will happily cede to government in order to ensure their safety.  

3)  The Right of Self-Defense (Locke's "Executive Power")

               Prior to the establishment of government,  living in what Locke called a "state of nature," the innocent have every right to prevent those who would, and punish those who did, deprive them of what is theirs -  their lives, liberties and possessions.   However, It's far from a perfect arrangement.

               To avoid the anarchy of a "might-makes-right," "to-the-victors-go-the-spoils" jungle, men form governments.  They thereby agree not to take the law into their own hands, but to rely on a firm rule of law to settle all disputes and rectify all wrongs.  The ceding of this power establishes Government's essential role as a Protector of man's natural rights.

               There is  an explosive implication for government in all this:   If so much of a man's liberty is consumed in labor, i.e., the use of one's faculties to satisfy one's needs, and the fruit of one's labor is one's property, than any act that willy-nilly transfers the just fruits of one man's labor to another or restricts this man's freedom of action for the sake of benefiting that man's fortunes is no law.  It is what the founders called usurpation.

               Governments can, of course, reach beyond their lawful role as protector and become a provider.  But when they do, i.e., deciding to benefit some individual, family, faction or "establishment" interest at others' expense, they morally and fatally exceed their just powers  Why? 

               Because where Congress confers special benefits or privileges on SOME it necessarily denies equal protection under law to ALL.  It employs public power for private advantage and, in so doing, paves the way for every imaginable form of corruption.  From a Constitutional perspective, it can be said that government promotes the "General Welfare" only insofar as it provides for the "Common Defense." 

        

               Otherwise, it merely helps some and harms others, the general welfare, to the contrary, notwithstanding.  How did the Constitution's framers feel about turning government from Protector to Provider in this unseemly sense?  One founding father gave a good indication. 

(4)  Factions and the Coming of the Establishment  

               No American worked harder for Constitutional reform than did James Madison.  After playing a vital role at the Convention of 1787, he joined Alexander Hamilton and John Jay in an effort to persuade New Yorkers and others to ratify the proposed plan of Union.  The result of that collaboration is known as The Federalist Papers.

               In Federalist #10, James Madison pointed out that since all men are created equal, once in civil society they are equally entitled to be politically protected.  Before there was an Establishment, (the "swamp" much of the country wishes president Trump would drain), there was so many ad hoc associations united by common interests and in search of special political advantages.  Madison refers to them as "factions."  "Among the numerous advantages promised by [this Constitution], Madison wrote, is ""its tendency to break and control the violence of faction." Madison explains:

By a faction I understand a number of citizens, whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community."[i]

               In today's parlance we can say that Mr. Madison's factions eventually organized themselves into a full-blown establishment, what presidential candidate Ted Cruz called the "Washington Cartel." 

A well-read student of ancient and modern history, Madison understood that every society actually divides along a multitude of lines.

 

The diversity in the faculties of men, from which the rights of property originate, is not less an insuperable obstacle to a uniformity of interests.  The protection of these faculties is the first object of government.  From the protection of different and unequal faculties . . . the possession of different degrees and kinds of property immediately results . . a division of the society into different interests and parties [emphasis added].

               Citizens, of course, may be divided by dozens of different criteria, such as their artistic tastes, ideological inclinations, religious commitments, and recreational pursuits. "But the most common and durable source of factions," Madison believes,

has been the various and unequal distribution of property.  Those who hold and those who are without property have ever formed distinct interests in society.  Those who are creditors, and those who are debtors, fall under a like discrimination.  A landed interest, a manufacturing interest, a mercantile interest, a moneyed interest, with many lesser interests, grow up of necessity in civilized nations, and divide them into different classes, actuated by different sentiments and views. 

 

              Each faction is partial to its own welfare and eager to advance its own fortunes.  In this regard, government can be great help. There will always be some who will not hesitate to take full advantage of that fact.  Thus, Madison concludes 

 

The regulation of these various and interfering interests forms the principal task of modern legislation and involves the spirit of party and faction in the necessary and ordinary operations of government . . . . (emphasis added).

               Madison's confidence in the Constitution's capacity to thwart the undue influence of selfish and competing factions lay in the plan's many separation of powers and checks and balances. More than that, Madison expected that so extended a territory, housing so many diverse interests (farmers, planters, ranchers, shippers, artisans manufactures, transporters, financiers, etc.), would prevent any one combination from seizing and employing power for its own advantage.  That was the hope. So it is quite ironic that Madison, himself, would inadvertently sponsor the first faction to gain a political foothold in the new nation, domestic manufactures (see below for details).

4.  Of Missing Messages and Missed Opportunities

 

               If the framers of 1787, like the founders in 1776, believed in the natural rights of man and everything that implied about the limits of power, they didn't say so

 

            Even after the Bill of Rights was added, a clear statement affirming the sacred source and full significance of men's "unalienable rights" turned up missing.  The language was clearly available.  Thus George Mason could attach a stunning statement to his state's Bill of Rights at the Virginia state Constitutional Convention on June 12, 1776.  It proclaimed: 

 

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.

              

            Four years later, John Adams added this to the Massachusetts state Constitution: 

 

All men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing and protecting property; in fine, that of seeking and obtaining their safety and happiness."[1]

 

               No such acknowledgement found its way into the U. S. Constitution. To the contrary.  terms were inserted which could be so loosely construed as to permit an ever-expanding assortment of "implied powers."  Over time, Congress would claim that the Constitution authorized it to construct a full-blown corporate/social Welfare State. It would be comprised of a privilege-seeking Establishment and a grab bag of social "Entitlements."  In the end, economic growth would be held hostage to the unrelenting growth of government. 

 

               None of this would come as a surprise to those who doubted the Constitution's capacity to preserve individual liberty and so opposed its ratification. Upon reading the proposed plan of Union, Richard Henry Lee complained to Patrick Henry: "The English language has been carefully culled to find words feeble in their Nature or doubtful in their meaning![3]  He was right. Not long after the Constitution took force, "strict" and "loose" constructions of the fundamental frame would compete for President Washington's attention.

               From the start, Antifederalists who opposed ratification seriously doubted  the Constitution's  ability to check the corrupting effects of power.  "My object," wrote "AN OLD WHIG," is to consid­er the undefined, unbounded and immense power which is comprised in the following clause---

 

'And to make all laws which shall be necessary and proper for carrying into execu­tion the foregoing powers, and all other powers vested by this constitution in the government of the United States; or in any department or offices thereof." 

 

            Under such a clause as this, he stormed, can anything be said to be reserved and kept back from Congress?  Can it be said that the Congress have no power but what is expressed? 

 

            "To make all laws which shall be necessary and proper"---or, in other words, to make all such Laws which the Con­gress shall think necessary and proper---for who shall judge for the Legislature what is necessary and proper?  Who shall set themselves above the sovereign?[4]

 

               Given this undefined and unbounded authorization, "SYDNEY" (New York's Robert Yates), could easily envision "the general government . . . arrogating to itself the right of interfering in the most minute objects of internal police, and the most trifling domestic concerns of every state." 

               The object of "SYDNEY's" anxiety, however, was not the "necessary and proper" clause alone.  For by this Constitution, he cautioned, the Congress shall have "a power of passing laws 'to provide for the general welfare of the United States,' which [laws] may affect life, liberty and property in every modification . . .

 

unchecked by cautionary reservations and unrestrained by a declaration of any of those rights which the wisdom and prudence of America in the year 1776 held ought to be at all events protected from violation." ((emphasis added)  ([5]

               Just as the Antifederalists expected, the debate over the lawful powers possessed by Congress came to rest on the meaning of the words "necessary" and "proper" and the hopelessly open-ended phrase, "the general welfare."   

              And so it came to pass that the second bill signed into law by our first president, the Tariff Act of 1789, authorized Congress not just to pay the expense of government and retire the public debt, but to "encourage and promote manufactures."

(5)  The Establishment Comes Too Town

              As historians tell us,  it was not until 1824 that Congress began adoptinig measures to

materially assist domestic manufactures.  No matter. Manufactures' agents  had been lobbying for protection from the start, and the 1789 provision authorizing Congress to "encourage and protect manufactures" was all the precedent future Republican administrations needed to enact a  succession of often ruinous tariff lbills.

             Subsequent tariff acts, enacting stiff protectionist duties on all manner of foreign goods entering U. S. ports substantially bolsted the fortunes of American industry.  By avoiding the risks inherent in international competition, (aka a free market),  domestic manufactures certainly benefited, as did their gainfully employed workers,.

 

            Farmers, planters, shipbuilders, seaport merchants, thousands employed in the maritime trades and near every consumer in the country were not as fortunate.  Some lost their livelihood and overseas markets, Many more had to pay artificially inflated prices for the tools, utensils, furnishings, clothes,

textiles, and weapons they purchased. 

 

            Before the first president's first term was up, Congress felt itself free to incorporate businesses, open a bank (the BUS), and finance sundry "internal improvement" projects, all to advance the "general welfare."  The well-connected could benefit.  In time,l many more would pay heavily for the privilege.  

            How did we get from that day to this?  Once the nation decided that some of its citizens have a right not to go out and get, but to sit still and be given, it found itself torn by two thorny questions:

Who else should be given, and how much should everybody get?

 

There was only one answer:  POLITICS