DECLARATION OF INDEPENDaENCE

Transcription

1 DECLARATION OF INDEPENDaENCE Is the Declaration of Independence a constitutional document? Viewpoint: Yes. America was established as a nation by the recognition of the universal human rights of life, liberty, and equality expressed in the Declaration of Independence. Viewpoint: No. The Declaration of Independence has no standing in American constitutional law because its authors did not give it any constitutional authority and because it was never ratified by the people. 108 Most people agree that the Constitution (1787) functions as the supreme law of the United States. More divisive, however, is the question of whether the Declaration of Independence (1776) shares a constitutional role with the national charter. Americans certainly hold the Declaration in esteem equal to, perhaps even higher than, that of the Constitution. This veneration is not unwarranted. After all, the Declaration established the creation of the American union and, in dramatic and eloquent prose, expressed principles that are now fundamental to the political framework: the doctrines of natural law, natural rights, and popular sovereignty. Of course, the reason for the inclusion of Enlightenment political philosophy in the document was to justify the American rebellion ( ). Some scholars, therefore, interpret the Declaration of Independence as simply that: a declaration of independence, "no more and no less." However, others view the Declaration and its recognition of the natural human rights of equality and liberty as "America's most fundamental constitutional document." Those scholars who take the latter position argue that Americans were constituted as a people and as a nation by the recognition of the universal standard of human rights expressed in the Declaration of Independence. After all, constitutional government is founded upon the recognition that humans possess natural and self-evident rights of equality and liberty. Yet, the Declaration is more than a "great constituent act"; it is also the "definitive statement for the American polity" because it prescribes the ends of government, the necessary conditions for the legitimate exercise of political power, and the sovereignty of the people who establish the government and who may alter or abolish it. In short, the Declaration is the essential link between the rights of men and the authority of the people; it is a precursor to the Bill of Rights (1791) and a preamble to the Constitution. Opponents to this interpretation maintain that the Declaration of Independence has no standing in American constitutional law because it was never ratified by the people. Any fundamental law that is binding on the people must be ratified popularly. The Second Continental Congress, which adopted the document, was a mere gathering of state ambassadors with no authority to bind the nation to any political philosophy. Rather, the congressional delegates were instructed only to formalize American independence, not to create a document enshrined with constitutional authority. Because the Declaration was to have a limited purpose, this arrangement may explain why the "signers" did not spend much time debating its contents. Nor did the Founding Fathers, in debating the ratification of the Constitution, use the Dec-

2 laration as the "yardstick Of the proposed charter's acceptability." The Declaration was therefore intended only as a statement of independence and nothing more. Viewpoint: Yes. America was established as a nation by the recognition of the universal human rights of life, liberty, and equality expressed in the Declaration of Independence. The document unanimously approved by the Second Continental Congress in July 1776 was more than a simple declaration severing American ties of allegiance with the British Crown. The somewhat tardy unanimity of the endorsement (New York's delegates abstained until its Assembly could authorize a positive vote) clearly announced to the world that the thirteen British colonies north of Florida and south of Canada wanted to share a common fate outside the emerging, yet ill-defined, British Empire. Indeed, the Declaration of Independence did not define plans or hopes for a common destiny for the states except that they were joined in the cause of independence. Does the Declaration contain sentiments deeper and more profound than separation from the Crown? Indeed, the sentiments in the document reflected fundamental values, beliefs, and ideas of the signatories. The succinct Preamble and the subsequent list of grievances provide a window into the mind and the genius of eighteenthcentury Enlightenment philosophy and thought on government. The eighteenth-century mind looked for explanations of nature in human reason and, while their approach to governments was varied, scholars of the Age of Reason respected the questioning of old traditions and values. Philosophical efforts sought fundamental wisdom in human reason and the laws of nature. This search often involved a return to the basics of logic as well as inductive and deductive reasoning. In this intellectual environment one looked for what "constituted" good, just, and, in the language of the Enlightenment, virtuous government. The Declaration of Independence represents not only Virginia politician Thomas Jefferson's literary eloquence (his ideas and language owe much to other authors, especially to British philosopher John Locke) but also the enlightened experience of perhaps one of the most quintessential Americans of the century, Philadelphia printer and inventor Benjamin Franklin. Massachusetts lawyer John Adams, steeped in the traditions and knowledge of English common law and constitutional rights, joined Franklin on the drafting committee. Indeed, one could argue that Adams possessed the brightest mind in constitutional law and theory on either side of the Atlantic Ocean in the late eighteenth century. Imbedded in the Declaration of Independence is a century and a half of American experience with English constitutional law. In the years after the Glorious Revolution (1688) subjects of the Crown in America absorbed Enlightenment philosophy. The focus of the Age of Reason on the nature of government, as well as its fundamental importance to a society, was not lost upon the American mind. Basic to much thought about government was that of the political nation as a structure. Eighteenth-century thinkers such as Locke, English philosopher Thomas Hobbes, and French philosopher Baron de Montesquieu differed among themselves as to what might constitute the best structure, but most agreed that the nation-state was superimposed upon society. Human society was nature's, or God's, entity and, as a "natural" entity, was seen as an association of stakeholders with common interests including proprietary, landed, commercial, social, and religious interests. If this association were the case, and Locke argued effectively that it was, then government should not be an end in itself but rather a structure that enables people of property to fulfill societal goals without encumbrances inherent in the chaos of a state of nature. Locke, in his classic Second Treatise on Government (1690), did not view the social contract between society and its chosen government as one between equals. Rather, society should be the superior partner and the state the lesser partner of the two. The social contract, alluded to in the Preamble of the Declaration of Independence, was not a contract between equals. Government did not find purpose independent of society but as an integral part of society. Thus, the state as a dependent entity could not enter into an agreement without the support of the various proprietary interests that made up a society. In turn, the state's contract (social contract) was a binding agreement with property owners and those with proprietary interests in the success of society. The government existed to protect the social contract in a trust arrangement with clear and defined fiduciary responsibilities to serve, protect, and expand the interests of those governed. If a government failed in this awesome responsibility, proprietary interests not only had a natural right but, as Jefferson also argued, a responsibility to abrogate the social contract through overt action. In HISTORY IN DISPUTE, VOLUME 12: THE AMERICAN REVOLUTION 109

3 DECLARATION OF INDEPENDENCE (1776) WHEN IN THE COURSE OF HUMAN EVENTS, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the Powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation. We hold these truths to be self-evident, 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, That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. 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, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shown, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world. He has refused his Assent to Laws, the most wholesome and necessary for the public good. He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them. He has refused to pass other Laws for the accommodation of targe districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only. He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public Records, for the sole purpose of fatiguing them into compliance with his measures. He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people. He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within, He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands, He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers. He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries. He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people, and eat out their substance. He has kept among us, in times of peace, Standing Armies without the Consent of our legislature. He has affected to render the Military independent of and superior to the Civil Power. 110 HISTORY IN DISPUTE, VOLUME 12: THE AMERICAN REVOLUTION

4 He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation: For Quartering large bodies of armed troops among us: For protecting them, by a mock Trial, from Punishment for any Murders which they should commit on the inhabitants of these States: For cutting off our Trade with ail parts of the worid: For imposing taxes on us without our Consent: For depriving us of many cases, of the benefits of Trial by jury: For transporting us beyond Seas to be tried for pretended offences: For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies: For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments: For suspending our own Legislatures, and declaring themselves invested with Power to legislate for us in all cases whatsoever. He has abdicated Government here, by declaring us out of his Protection and waging War against us. He has plundered our seas, ravaged our Coasts, burnt our towns, and destroyed the lives of our people. He is at this time transporting large armies of foreign mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation. He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands. He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of ail ages, sexes and conditions, in every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people. Nor have We been wanting in attentions to our British brethren, We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which, would inevitably interrupt our connections and correspondence. They too must have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends. We, THEREFORE, the Representatives of the UNITED STATES OF AMERICA, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare. That these United Colonies are, and of Right ought to be FREE AND INDEPENDENT STATES; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm reliance on the Protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor. Source: Georg& Brown Undatl, Aimrtca; A Narrative History (New York; Nation, WB4) t pp, A1-A4. HISTORY IN DISPUTE, VOLUME 12: THE AMERICAN REVOLUTION 111

5 reality, the contract had been abrogated by the government's failures of commission or omission. Thus, the emergence of the concept of the fundamental right of revolution occurred during the Age of Reason. This popular interpretation of Lockean thought was not lost upon the primary author or drafting committee of the Declaration of Independence. Jefferson began by posing and answering the all-important question for history, "Why?" Jefferson's answer was indeed original in the deferential, hierarchical, and monarchical societies of the eighteenth century. Many countries cannot produce so clear a statement of why they exist and for what they stand. In the words of future President Abraham Lincoln, penned in a letter to Massachusetts politician Henry L. Pierce (6 April 1859), Jefferson "had the coolness, forecast, and capacity to introduce into a merely revolutionary document, an abstract truth, applicable to all men and all times." Jefferson's wording in the Declaration drew heavily upon Locke and was familiar and understood by his colleagues in Congress. The ideas in the Preamble were fundamental not only to Lockean thought but also to the politics of the Whig, or Country, Party in eighteenth-century British politics. Therefore, the Preamble subsumed the experience as well as the genius of the Age. Those delegates assembled in Philadelphia in the spring and summer of 1776 were well versed in classical and contemporary writings on government and politics. Their knowledge of constitutional theory, as well as its application in English common law, provided Jefferson's committee with more than enough talent to justify the reality of revolution in defense of liberty that had been present in the colonies since spring In this sense the Declaration of Independence is a fundamental, and therefore constitutional, statement replete with meaning and guidance for the future. In addition to justifying the right of revolution, the Declaration also provided the ideological underpinnings for actions that preceded and followed its mid-1776 adoption by Congress. Political ideas influence as well as reflect how people think and act, and this basic reality was no less true in the eighteenth century. Two of the most important political ideas in the Declaration are equality and liberty. In emphasizing these concepts, Jefferson later said that he did not seek to be original or "to find out new principles, or new arguments never before thought of." Rather his goal was to "place before mankind the common sense of the subject." Jefferson noted that his purpose in the Preamble was to present an ideology that was anchored in the predominant theory of natural and inalienable rights found in the "harmonizing sentiments of the day, whether expressed in conversation or letters, printed essays, or in the elementary books of public right, as Aristotle, Cicero, Locke, Sidney, etc." In other words, Jefferson was responding to the real or perceived threats and actions by British authorities against what were understood to be the "constitutional" liberties of American Englishmen. Jefferson asserted that liberty and equality were founded not in government but in "nature and in nature's God." The wording selected meant much to the literate and educated American who understood that their conception of dependence upon England did not track with the view held by British authorities. It was not just important, but essential, that Jefferson's words have universal meaning and application. British authorities and Parliament assisted the movement toward independence with the passage of legislation in that had a unifying effect throughout the colonies. The acts threatened well-understood "constitutional liberties" of individuals, such as trial by jury, right of representation, and freedom of commerce and trade, among other rights. The Coercive Acts (1774) in particular were directed at the stronghold of radical action and thought, Massachusetts. The acts provided Crown authorities the ability to prorogue colonial liberties. To Jefferson, John Adams, Samuel Adams, John Hancock, Patrick Henry, and other Rebel leaders, such liberties subsumed their individualism. The rights under attack were not just the general rights of Englishmen but specific individual freedoms, such as representation in a legislative assembly. Thus, if Parliament could take individual freedoms, tax at will, impose military tribunals, confiscate property, close the port of Boston, and place restraints on intercolonial trade, liberty in the sense of self-propriety was also at the whim of British authorities. Set against this background and a hardening of the Crown's view of American resistance, Thomas Paine's Common Sense, published in January 1776, presented a persuasive argument that independence was the only choice left for those who had gradually come to realize that their idea of dependence was not similarly held by British authorities. British policy under the administration of Lord North was nothing if consistent in its failure to realize that colonials were Lockean and believed there was a critical relationship between liberty and property. Without property or the ability to be self-supporting (self-propriety in eighteenth-century language), one is dependent. To Americans, the unfettered ability of the state to take property was the same as taking one's independence. One word for that condition to the colonial mind was slavery,, which had a unique connotation on the American side of the Atlantic. To the men who met in Philadel- 112 HISTORY IN DISPUTE, VOLUME 12: THE AMERICAN REVOLUTION

6 phia in 1776, the control of property was freedom, and freedom and equality differentiated these men from servitude. To tax without representation was not just bad government but a violation of human freedom and autonomy. Upon this concept the diverse group of delegates represented in Philadelphia could agree. Artisans such as Franklin, Paine, and Philadelphia astronomer David Rittenhouse found common ground with merchants, planters, and professionals. They were much closer to the classical traditions of disinterested statesmanship and personal honor than twenty-first-century Americans. In that tradition, the straw that broke the back of future attempts at conciliation with Britain was the knowledge on the part of men such as Jefferson, Adams, Washington, Patrick Henry, and finally John Dickinson that, under the definition of Empire evolving since 1763, they would be mere servants or "placements" at best, bureaucrats with no real political future. When they adopted Jefferson's ideas in the Declaration, especially those in the Preamble, they knew they were fighting for their political lives. They expressed this self-interest in fundamental, constitutional language that was timeless and selfless. Jefferson's committee sent to Congress a document that defined liberty in a definite manner. They viewed liberty from the perspective of what government cannot do, not what it can do. This notion of limited government applied to the circumstances generated by Lord North's ministry. This relativistic or negative approach to the description of liberty was accompanied by the understanding that equality did not connote rights to economic prosperity, social status, or intellectual prowess. Equality was an absolute right in the same sense that liberty was. The government must not violate absolute rights guaranteed by nature to everyone. Individuals are equal in the sense that to be human is to possess basic rights to life, liberty, and the pursuit of happiness. Government is not expected to pursue those rights for each individual because that is a matter of personal responsibility. Government is expected to respect the right of citizens to equal protection of these basic rights. These concepts, included in the unwritten British constitutional tradition, were now committed to parchment by the Second Continental Congress. These fundamental concepts would be written into each state constitution and into the Federal Constitution. The list of grievances in the main body of the Declaration of Independence bore the greatest editorial and substantive scrutiny of the Congress, sitting as a committee of the whole. Taken together, items on the list again negatively define the powers of government by providing a basic and fundamental understanding of what a government that respects individual liberty and equality cannot do. Ultimately, this list also appears in the state constitutions and in the Bill of Rights (1791). While the Declaration of Independence is at heart a document stating the causes for the separation of the Thirteen Colonies from Great Britain, it also outlined differences between colonists and the British over what dependence should not mean for an American. In so doing, the Declaration justified separation from the Crown in terms that were and remain unmistakably constitutional. On a continuum from simple statement of independence to one that contains both implied and specific references to matters constitutional, the document tilts toward the deeper meaning of fundamental and constitutional that Jefferson and Congress intended. As such it succeeded in providing a sense of unity of purpose that extended beyond the educated elite of the new states. Tradesmen, yeoman farmers, merchants, and professionals could relate to the issues listed, as well as to the fundamental constitutional philosophy imbedded, in the Declaration. -SAMUEL H. RANKIN JR., CHADRON STATE COLLEGE Viewpoint: No. The Declaration of Independence has no standing in American constitutional law because its authors did not give it any constitutional authority and because it was never ratified by the people. The status of the Declaration of Independence (1776) in American constitutional law is a result of the fact that it was never ratified in the characteristically American way. Members of the Second Continental Congress, the body that promulgated the Declaration, were mere ambassadors of the states. They spoke for their state legislatures, which had sole power to elect and remove them and had instructed them only to declare independence. The Second Continental Congress never received any power to bind the United States to any particular philosophical position, and so that was not what anyone at the time thought the Declaration of Independence had done. Had they intended for the Declaration to serve such a purpose, the state legislatures would have insisted either on reviewing and passing on it or upon submitting it to the people for ratification. HISTORY IN DISPUTE, VOLUME 12: THE AMERICAN REVOLUTION 113

7 As Virginia delegate James Madison put it in speaking of the mode of enactment of the federal constitution, popular ratification would be the difference "between a league or treaty, and a Constitution" In other words, fundamental law binding on the government had to be ratified popularly, and anything else was a mere ordinance that would leave state law superior to federal. From Madison and fellow Virginian Thomas Jefferson on the left of the political spectrum to New Yorker Alexander Hamilton on the right, America's Founding Fathers agreed that the greatest achievement of the Revolution ( ) lay in devising and implementing means of enshrining popular sovereignty in fundamental law. The Declaration of Independence, as the act of a Continental Congress, did not meet the test of fundamental law. Hamilton said that it had been given to the Americans "to decide the important question, whether societies of men are really capable or not, of establishing good government from reflection and choice, or whether they are forever destined to depend, for their political constitutions, on accident and force." The mechanism for erecting a government on the basis of "reflection and choice," popular ratification, was one of the key innovations of the American Revolution. Vox populi vox dei (the voice of the people is the voice of God) replaced the divine right of kings in the American political primer. In Massachusetts, John Adams insisted on popular ratification of the first republican state constitution in 1780, and people voted on the issue throughout the Commonwealth. In Virginia, the first permanent American constitution was implemented on 29 June 1776 by the May Convention, which was nothing other than the old General Assembly acting as the government of Virginia in the absence of the royal governor. Jefferson, off in Philadelphia to attend the Continental Congress, wrote home to Virginia to assert that the Convention had not been properly empowered to enact a republican constitution. No body of men could undertake to perform that function, in Jefferson's view, unless it had been elected directly by the people specifically for that purpose. The Virginia Convention's leadership Edmund Pendleton, George Mason, and Patrick Henry agreed with Jefferson concerning the conditions necessary to enact a republican constitution, but disagreed with his claim that the people had elected the May Convention without thinking it would be drafting a new constitution. They believed that the people had known both that their Convention likely would declare independence and, thus, that it would erect a new government. The Convention therefore proceeded to enact a new charter for the commonwealth. When Virginia congressman Richard Henry Lee moved in the Continental Congress on 7 June 1776 to declare that the Thirteen Colonies "are, and of right ought to be, free and independent States," he acted according to the wishes of the Virginia Convention, the de facto governing body of Virginia. The language of his resolution came virtually verbatim from instructions given him. No such epochal initiative could conceivably have originated in the Congress. Famously, the second paragraph of the Declaration of Independence incorporated arguments about rights made by English philosopher John Locke, various Enlightenment figures, and American pamphleteers of the 1760s and 1770s. Those arguments were included because Americans felt a need to justify their actions to the world. However, the behavior of prominent members of Congress leading up to 4 July 1776 gives the lie to the idea that the theoretical contents of the Declaration were understood as especially significant. On 11 June Congress appointed a committee chaired by Adams to draft a declaration to that effect. Adams, busy with more pressing matters and little realizing the fame that would accrue to the chief draftsman of the Declaration, asked Jefferson to submit a draft for the committee's consideration. Jefferson would have preferred to return to the Virginia capital, Williamsburg, to assist in what he considered to be the Revolution's central task: drafting his state's new republican constitution. Virginia's more senior statesmen simply refused to send a replacement to Philadelphia; so, in order to retain a quorum of Virginia's congressional delegation, Jefferson had to remain in the City of Brotherly Love. Writing the first draft of the Declaration seemed small consolation at the time. Jefferson's draft version was revised in consultation with his fellow committee members Adams and Benjamin Franklin before being submitted to the Continental Congress. As Jefferson described it, the debate over the Declaration of Independence in Congress pained him. Despite Adams's efforts in championing the draft, Congress redacted fully one-third of it before finally accepting the amended version. On 4 July the Declaration of Independence was issued to the public, and eventually its fame spread throughout the world. Some delegates lamented that Congress was a mere agglomeration of state ambassadors, a meeting place for representatives of sovereigns. In fact, its adoption of the name Congress underscored this self-understanding, for European congresses were precisely meeting places of sovereigns' representatives. As a mere conference of ambassadors, Congress had only the powers its constituents, the state governments, had dele- 114 HISTORY IN DISPUTE, VOLUME 12: THE AMERICAN REVOLUTION

8 First page of Thomas Jefferson's rough draft of the Declaration of Independence with corrections by John Adams and Benjamin Franklin (Manuscript Division, Library of Congress, Washington, D.C.) HISTORY IN DISPUTE, VOLUME 12: THE AMERICAN REVOLUTION 115

9 gated to it. Other than those from New York and Virginia, all of the delegations to the Second Continental Congress had been instructed to declare independence in case the other states did so. New York's delegates had no such instructions. Virginia's congressmen, as representatives of the only state that had established its independence by June 1776, led the way in calling for a declaration of American independence because they thought it better to hang together than to hang separately. Lee's motion that the United States declare that they "are, and of right ought to be, free and independent states" echoed the Virginia General Assembly's instructions. That was all that the Virginia delegation was empowered to do: to declare American independence, not to join with delegates from other states in concocting a philosophy of government by which all of the states would be bound permanently despite conflicting provisions in their own states' highest laws. Other delegates faced similar "domestic" circumstances. When the Declaration was read to people up and down the East Coast, then published in newspapers throughout the country and abroad, the effect was electric. Debate over the content of the Declaration was minimal, because its legal effect was understood to be minimal. In fact, contrary to the assertions of later statesmen and propagandists, the American Founders did not understand the Declaration of Independence to be truly foundational. If they had, one might expect to find frequent references to it during the debates over ratification of the Constitution of the United States a decade later. Yet, during the pivotal Virginia debate on ratification of the federal constitution, no one broached the idea of using the Declaration as the yardstick of the proposed federal charter's acceptability. Indeed, the contrast between the procedure leading to promulgation of the Declaration and the process for ratifying the federal constitution is instructive. In the latter case, each of the states was required by the proposed constitution itself to convene a ratification convention elected specifically and solely for that purpose. Thus, the federal constitution was the product of an open deliberative process in each of the states and designed to secure the broadest consent possible. The Continental Congress adopted the Declaration of Independence on its own, couching the actual declaration in philosophical argument and historical justification congenial to, but not strictly endorsed by, the state governments for which Congress spoke. In fact, even those who assert that the Declaration has constitutional standing do not mean it. If they did, they would be required to put some legal gloss on the Declaration's reference to the "merciless Indian savages"; on its reference to the right of the people in some jurisdictions to rescind their consent to the government (that is, to depart from the empire) despite others' continued adherence to it; and on its assertion that all men are endowed by their "Creator" with "inalienable" rights, including a right to life. How would they deal with a document that at once claims that "all men are created equal" and chastises King George III over his having "excited domestic insurrections amongst us"? Few are interested in undertaking the task of defining the status of a people thus constitutionally denominated "savage," defending secession from the United States, or working to abolish capital punishment. Nor is there any reason to think that the authors of the Declaration thought in 1776 that it enshrined particular positions on those issues into constitutional law. No one mentions that the Declaration of Independence upbraided the British king for supposedly having encouraged slaves to resist slavery in his North American colonies. As to the bill of particulars that makes up the bulk of the Declaration, what exactly its constitutional meaning could be is entirely unclear; obviously, this list of George Ill's real and imagined transgressions was intended as a justification for a particular act. The Declaration was intended to be precisely that: a declaration, no more and no less, and that was certainly enough. References -K. R. CONSTANTINE GUTZMAN, WESTERN CONNECTICUT STATE UNIVERSITY Carl Becker, The Declaration of Independence: A Study in the History of Ideas (New York: Harcourt, Brace, 1922). M. E. Bradford,.A Better Guide Than Reason: Federalists and Anti-Federalists, second edition (New Brunswick, N.J.: Transaction Publishers, 1994). Jon Butler, Becoming America: The Revolution Before 1776 (Cambridge, Mass.: Harvard University Press, 2000). Joseph J. Ellis, The American Sphinx: The Character of Thomas Jefferson (New York: Knopf, 1997). Ellis, ed., What Did the Declaration Declare? (Boston: Bedford/St. Martin's Press, 1999). Foundin0.com: A User's Guide to the Declaration of Independence < 116 HISTORY IN DISPUTE, VOLUME 12: THE AMERICAN REVOLUTION

10 Jack P. Greene, Interpreting Early America: Historiographical Essays (Charlottesville: University Press of Virginia, 1996). Alexander Hamilton, James Madison, and John Jay, The Federalist) edited by Jacob E. Cooke (Cleveland: World, 1961). Ronald Hamowy, "The Declaration of Independence," in The Blackwell Encyclopedia of the American Revolution, edited by Greene and J. R. Pole (Cambridge, Mass.: Blackwell Reference, 1991). Thomas Jefferson, Writings, edited by Merrill D. Peterson (New York: Literary Classics of the United States, 1984). Jefferson, The Writings of Thomas Jefferson, edited by Andrew A. Lipscomb (Washington, D.C.: Thomas Jefferson Memorial Association, ). John P. Kaminski and Gaspare J. Saladino, eds., Documentary History of the Ratification of the Constitution, volumes 8-10 (Madison: State Historical Society of Wisconsin, ). John Locke, The Second Treatise of Civil Government and a Letter Concerning Toleration, edited by J. W. Gough (Oxford: Blackwell, 1948). Pauline Maier, American Scripture: Making the Declaration of Independence (New York: Knopf, 1997). Edmund S. Morgan, Inventing the People: The Rise of Popular Sovereignty in England and America (New York: Norton, 1988). Richard B. Morris, The American Revolution Reconsidered (New York: Harper & Row, 1967). Edmund Randolph, History of Virginia, edited by Arthur H. Shaffer (Charlottesville: University Press of Virginia, 1970). C. Bradley Thompson, John Adams and the Spirit of Liberty (Lawrence: University Press of Kansas, 1998). Gary Wills, Inventing America: Jefferson's Declaration of Independence (Garden City, N.Y.: Doubleday, 1978). Gordon S. Wood, The Creation of the American Republic, (Chapel Hill: University of North Carolina Press, 1969). Wood, The Radicalism of the American Revolution (New York: Knopf, 1992). HISTORY IN DISPUTE, VOLUME 12: THE AMERICAN REVOLUTION 117