On 'The Unanimous Declaration'
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“The Declaration of Independence … [is the] declaratory charter of our rights, and the rights of man.” –Thomas Jefferson
The search for the origins of American government could begin in many places: Mount Sinai, the Athenian Assembly or the Roman Forum, to name but a few. But the history of the West has many strands, and no essay can follow them all. With this limitation in mind, our account of the origins of American government – democratic republicanism and the liberal state – we will leap forward to Clarendon, England, southeast of Salisbury in the year 1164.
Here, the Constitutions of Clarendon struck the decisive blow in the battle over royal prerogatives was struck between Henry II, King of England, and Thomas a Becket, the Archbishop of Canterbury. The student of English history will remember Becket as the archbishop installed as a puppet, who then found true faith and refused to bow to the whims of a tyrannical king. Thomas a Becket’s refusal to sign and submit to the Constitutions of Clarendon forced him into exile and, ultimately, led to his assassination at the hands of Henry’s knights.
Ever since, Clarendon has been remembered as a loss of rights for the church – a triumph of the secular over the sacred. However true this interpretation of events may be, Clarendon’s significance for the movement toward the modern, liberal state is equally important. Regardless of Henry’s intentions, however dubious, Clarendon begins to delineate the modern relationship between church and state; civil law, not Rome, would hereafter take precedence in governing temporal affairs.
Clarendon insured that the church in England would no longer be able to use excommunication to enforce the church’s temporal demands over the subjects of the crown. Rather, through Clarendon, the institution of trial by jury would come to new prominence. Clarendon’s statements on trial by jury served to end the arbitrary judgments of the church in temporal affairs; but the church’s arbitrary justice in civil affairs was not to be replaced by the same sort of capricious judgment at the hands of the crown. Rather, the idea of justice was taking on new normative dimensions. Trial by jury began to remove arbitrary justice from the hands of bishops and kings alike, and replace it with justice dispensed under a code of law administered by fellow citizens.
Half a century later, 1215, the next major leap forward in modern, liberal governance would be ushered in with Magna Carta, the “Great Charter,” issued by King John of England at the demand of his rebellious barons. Magna Carta was reissued several times and comes to us in its final form, issued in 1297 by Edward I, John’s grandson.
Though the context for Magna Carta is a very different one, it is nonetheless an important corrective to the abuses of Clarendon. John’s and later Edward’s proclamation of Magna Carta established the inviolable freedom of the Church of England from the English crown. If Clarendon established protections of the state from the church, Magna Carta protected the church from the intrusions of the state.
Far from limited to church-state relations, Magna Carta formalized the fundamental rights enjoyed by all citizens of the modern, liberal state. Among others, Magna Carta codifies: Rights of inheritance, property rights, protections for debtors, the rights of localities to a degree of self-government, trade rights, retributive justice (designing punishments to fit the crime, as opposed to one punishment for all crimes), protections for citizens from the abuses of domestic authorities, requirements of witnesses to establish guilt and the right to trial by one’s peers.
Most importantly, at its heart Magna Carta established the objective rule of law over and above the subjective rule of any king. Rex Lex (“The king is law”) was slowly being replaced by the idea of Lex Rex (“The law is king”). (Three hundred fifty years later, the idea would be explicated fully by Samuel Rutherford (1644) in his aptly named tome, Lex Rex.) With Magna Carta, the king was bound under the law by a national covenant: A concept of mutual obligations of the ruler and those ruled to one another. The idea of a binding covenant of law between the ruler and his people was not altogether new: Magna Carta was prefaced millennia earlier by the Code of Hammurabi and the Suzerain Treaties. Magna Carta establishes its superiority over these earlier social contracts by not only guaranteeing certain rights to the people, but by binding the reach of the king’s hand under the same law. Unlike the covenants of ancient oriental dictatorships, the sovereign now actually was contained under the same law as his subjects.
The rights established under Magna Carta were certainly in the minds of the Pilgrims, English Puritans seeking religious liberty in the New World, when they penned the Mayflower Compact (1620):
Having undertaken for the Glory of God, and Advancement of the Christian Faith, and the Honour of our King and Country, a voyage to plant the first colony in the northern parts of Virginia; do by these presents, solemnly and mutually in the Presence of God and one of another, covenant and combine ourselves together into a civil Body Politick, for our better Ordering and Preservation, and Furtherance of the Ends aforesaid; And by Virtue hereof to enact, constitute, and frame, such just and equal Laws, Ordinances, Acts, Constitutions and Offices, from time to time, as shall be thought most meet and convenient for the General good of the Colony; unto which we promise all due submission and obedience.
To evaluate the sincerity of the Puritan commitment to the rule of law, we need go no further than the Compact’s prologue, establishing the colony as “the Loyal Subjects of our dread Sovereign Lord, King James, by the Grace of God, of England, France and Ireland, King, Defender of the Faith.” This was the same King James I, of course, whose hostility toward their faith forced the Puritans’ withdrawal to America.
Such a commitment to the rule of law, itself governed by objective norms of justice, would develop in the context of the New World. Only in this setting – one that respected the absolute rule of law, but a law that honored the rights of the individual – could democratic republicanism be born.
Seventy years after the Pilgrims established the Mayflower Compact at Plymouth Rock, John Locke would articulate this vision of a government of laws existing to protect the liberties of its citizens in the Second Treatise on Government (1690). The context for Locke’s thought was the Glorious Revolution (1688) and the English Bill of Rights (1689), where William and Mary of Orange affirmed the limits of government to protecting the liberties of its citizens, correcting the gross abuse of royal power under James II.
In this setting, Locke summarizes the purpose of the state in Chapter 9 of his Second Treatise, “Of the Ends of Political Society and Government”:
IF man in the state of nature be so free, as has been said; if he be absolute lord of his own person and possessions, equal to the greatest, and subject to no body, why will he part with his freedom? why will he give up this empire, and subject himself to the dominion and controul of any other power? To which it is obvious to answer, that though in the state of nature he hath such a right, yet the enjoyment of it is very uncertain, and constantly exposed to the invasion of others: for all being kings as much as he, every man his equal, and the greater part no strict observers of equity and justice, the enjoyment of the property he has in this state is very unsafe, very unsecure. This makes him willing to quit a condition, which, however free, is full of fears and continual dangers: and it is not without reason, that he seeks out, and is willing to join in society with others, who are already united, or have a mind to unite, for the mutual preservation of their lives, liberties and estates, which I call by the general name, property.
The great and chief end, therefore, of men’s uniting into commonwealths, and putting themselves under government, is the preservation of their property. To which in the state of nature there are many things wanting. First, There wants an established, settled, known law, received and allowed by common consent to be the standard of right and wrong, and the common measure to decide all controversies between them: for though the law of nature be plain and intelligible to all rational creatures; yet men being biassed by their interest, as well as ignorant for want of study of it, are not apt to allow of it as a law binding to them in the application of it to their particular cases.
Locke goes on to add that governments exist to judge and enforce this rule of law. In this way men voluntarily covenant together to form governments, each surrendering some freedom in order to preserve the liberty of all. The goal is for the one (the state) and the many (its members) to mutually serve the cause of liberty.
When the Stamp Act was passed for the American colonies in 1765, courts of admiralty established to enforce justice without trial by jury, and a standing army held in the colonies during a time of peace, the purpose of government to guarantee the liberties of its citizens was foremost in the minds of many colonists. When the First Continental Congress met in October 1774 to seek redress for the colonies’ grievances, their Declaration and Resolves laid claim to the rights that had evolved over the centuries, from Clarendon to the English Bill of Rights. The colonies are entitled, Congress declared, to “life, liberty and property,” and that “they have never ceded to any foreign power whatever, a right to dispose of either without their consent.”
When the British crown and parliament refused to recognize the equal rights of the colonists as British citizens, the Americans seized upon another essential feature of the idea of government as covenant: If a government ceases to exist under its obligations to its citizens as the preserver of liberty, then the contract is broken and the citizens reserve the right to abjure their delinquent government. In other words, government is by consent of the governed.
Virginia’s Declaration of Rights, Thomas Jefferson’s Lockean forerunner to the colonies’ Declaration of Independence, articulated this concept of government in no uncertain terms:
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. … That all power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants, and at all times amenable to them. … That government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation or community; of all the various modes and forms of government that is best, which is capable of producing the greatest degree of happiness and safety and is most effectually secured against the danger of maladministration; and that, whenever any government shall be found inadequate or contrary to these purposes, a majority of the community hath an indubitable, unalienable, and indefeasible right to reform, alter or abolish it, in such manner as shall be judged most conducive to the public weal.
Over the course of America’s struggle for independence, this theme would be rearticulated and expanded upon by some of the colonies’ greatest minds: George Mason’s Lockean Virginia Declaration of Rights, which was drawn upon by Thomas Jefferson in his draft of the colonies’ Declaration of Independence; Patrick Henry’s Resolutions of the Stamp Act (1765) and his later cry of, “Give me liberty or give me death!” (1775); Thomas Paine’s Common Sense (1776) and The Rights of Man (1792); and Samuel Adams’ speech at the statehouse in Philadelphia (1776), to name a few. Government is a covenant, they said, and a covenant cannot be broken without consequence.
Later, these patriots would turn from justifications for their declaration of independence from the old government, to articulations of what should replace it. This would be a long process, beginning with the Articles of Confederation to maintain the maximal autonomy of the individual states, to the United States Constitution, which would turn a confederation of states into a federal republic. Which model would better guarantee the objective of a government existing to preserve the liberties of its citizens? Having thrown off one tyrannical government, federalists and anti-federalists were sharply divided on this issue, which would constitute the next leap forward in the development of the liberal state.
Having thrown off one tyrannical government, federalists, who advocated a strong central government, and anti-federalists, who advocated states’ rights, were sharply divided as to the powers of the new government. Which model would better guarantee the objective of a government existing to preserve the liberties of its citizens?
The federalists won that debate, but two centuries later, it is clear that many of the elements of a “tyrannical government” have re-emerged, as predicted by anti-federalist protagonist Thomas Jefferson. Most notably, Jefferson warned that the judiciary would become a “despotic branch” and that the Constitution would be “a mere thing of wax in the hands of the judiciary which they may twist and shape into any form they please.”
Indeed, the despotic branch has twisted and shaped our government’s foundational document into what in now called in common parlance, a “Living Constitution”, effectively undermining “constitutional eisegesis” – the constructionist interpretation of the Constitution as written and ratified.
If the Constitution can be amended by judicial diktat rather than as prescribed by law, then we are a nation governed by men rather than the law, and the consequences are dire.
Where does that leave us today? Few who serve in the Executive, Legislative or Judicial branches of our national government honor their oaths to “support and defend” our Constitution.
Of course, the Constitution is subordinate to the Declaration of Independence. The Constitution’s author, James Madison, wrote Thomas Jefferson on 8 February 1825, these words concerning the supremacy of the Declaration of Independence over our nation’s Constitution: “On the distinctive principles of the Government … of the U. States, the best guides are to be found in … The Declaration of Independence, as the fundamental Act of Union of these States.”
The Declaration elucidates, “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.” It also records “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…”
The debate waged between the early American federalists and anti-federalists is as profound today as it was more than two centuries ago. The outcome of that debate has been mixed: America’s model of government has spread the world over and continues to defend liberty, but modern “welfare democracies” continue to exceed the limits prescribed to them. Though the foundations of American government were centuries in the making, the evolution of the relationship between peoples and states, for better or for worse, appears far from complete.