DECLARATION OFINDEPENDaENCE

Is the Declaration of Independence aconstitutional document?

Viewpoint: Yes. America was established as a nation by the recognition ofthe universal human rights of life, liberty, and equality expressed in the Decla-ration of Independence.

Viewpoint: No. The Declaration of Independence has no standing in Ameri-can constitutional law because its authors did not give it any constitutionalauthority and because it was never ratified by the people.

Most people agree that the Constitution (1787) functions as the supremelaw of the United States. More divisive, however, is the question of whetherthe Declaration of Independence (1776) shares a constitutional role with thenational charter. Americans certainly hold the Declaration in esteem equal to,perhaps even higher than, that of the Constitution. This veneration is notunwarranted. After all, the Declaration established the creation of the Ameri-can union and, in dramatic and eloquent prose, expressed principles that arenow fundamental to the political framework: the doctrines of natural law, natu-ral rights, and popular sovereignty. Of course, the reason for the inclusion ofEnlightenment political philosophy in the document was to justify the Ameri-can rebellion (1775-1783). Some scholars, therefore, interpret the Declara-tion of Independence as simply that: a declaration of independence, "no moreand no less." However, others view the Declaration and its recognition of thenatural human rights of equality and liberty as "America's most fundamentalconstitutional document."

Those scholars who take the latter position argue that Americans wereconstituted as a people and as a nation by the recognition of the universalstandard of human rights expressed in the Declaration of Independence.After all, constitutional government is founded upon the recognition thathumans possess natural and self-evident rights of equality and liberty. Yet,the Declaration is more than a "great constituent act"; it is also the "definitivestatement for the American polity" because it prescribes the ends of govern-ment, the necessary conditions for the legitimate exercise of political power,and the sovereignty of the people who establish the government and whomay alter or abolish it. In short, the Declaration is the essential link betweenthe rights of men and the authority of the people; it is a precursor to the Bill ofRights (1791) and a preamble to the Constitution.

Opponents to this interpretation maintain that the Declaration of Inde-pendence has no standing in American constitutional law because it wasnever ratified by the people. Any fundamental law that is binding on the peo-ple must be ratified popularly. The Second Continental Congress, whichadopted the document, was a mere gathering of state ambassadors with noauthority to bind the nation to any political philosophy. Rather, the congres-sional delegates were instructed only to formalize American independence,not to create a document enshrined with constitutional authority. Because theDeclaration was to have a limited purpose, this arrangement may explain whythe "signers" did not spend much time debating its contents. Nor did theFounding Fathers, in debating the ratification of the Constitution, use the Dec-108

laration as the "yardstick Of the proposed charter's acceptability." The Declaration was thereforeintended only as a statement of independence and nothing more.

Viewpoint:Yes. America was established as anation by the recognition of theuniversal human rights of life,liberty, and equality expressed inthe Declaration of Independence.

The document unanimously approved bythe Second Continental Congress in July 1776was more than a simple declaration severingAmerican ties of allegiance with the BritishCrown. The somewhat tardy unanimity of theendorsement (New York's delegates abstaineduntil its Assembly could authorize a positivevote) clearly announced to the world that thethirteen British colonies north of Florida andsouth of Canada wanted to share a common fateoutside the emerging, yet ill-defined, BritishEmpire. Indeed, the Declaration of Indepen-dence did not define plans or hopes for a com-mon destiny for the states except that they werejoined in the cause of independence. Does theDeclaration contain sentiments deeper and moreprofound than separation from the Crown?Indeed, the sentiments in the documentreflected fundamental values, beliefs, and ideasof the signatories. The succinct Preamble and thesubsequent list of grievances provide a windowinto the mind and the genius of eighteenth-century Enlightenment philosophy and thoughton government.

The eighteenth-century mind looked forexplanations of nature in human reason and,while their approach to governments was varied,scholars of the Age of Reason respected the ques-tioning of old traditions and values. Philosophi-cal efforts sought fundamental wisdom inhuman reason and the laws of nature. This searchoften involved a return to the basics of logic aswell as inductive and deductive reasoning. In thisintellectual environment one looked for what"constituted" good, just, and, in the language ofthe Enlightenment, virtuous government.

The Declaration of Independence repre-sents not only Virginia politician Thomas Jeffer-son's literary eloquence (his ideas and languageowe much to other authors, especially to Britishphilosopher John Locke) but also the enlight-ened experience of perhaps one of the mostquintessential Americans of the century, Phila-delphia printer and inventor Benjamin Franklin.Massachusetts lawyer John Adams, steeped inthe traditions and knowledge of English com-mon law and constitutional rights, joined Frank-

lin on the drafting committee. Indeed, one couldargue that Adams possessed the brightest mindin constitutional law and theory on either side ofthe Atlantic Ocean in the late eighteenth century.

Imbedded in the Declaration of Indepen-dence is a century and a half of American experi-ence with English constitutional law. In theyears after the Glorious Revolution (1688) sub-jects of the Crown in America absorbed Enlight-enment philosophy. The focus of the Age ofReason on the nature of government, as well asits fundamental importance to a society, was notlost upon the American mind. Basic to muchthought about government was that of the polit-ical nation as a structure. Eighteenth-centurythinkers such as Locke, English philosopherThomas Hobbes, and French philosopher Baronde Montesquieu differed among themselves as towhat might constitute the best structure, butmost agreed that the nation-state was superim-posed upon society. Human society was nature's,or God's, entity and, as a "natural" entity, wasseen as an association of stakeholders with com-mon interests—including proprietary, landed,commercial, social, and religious interests.

If this association were the case, and Lockeargued effectively that it was, then governmentshould not be an end in itself but rather a struc-ture that enables people of property to fulfillsocietal goals without encumbrances inherent inthe chaos of a state of nature. Locke, in his classicSecond Treatise on Government (1690), did notview the social contract between society and itschosen government as one between equals.Rather, society should be the superior partnerand the state the lesser partner of the two. Thesocial contract, alluded to in the Preamble of theDeclaration of Independence, was not a contractbetween equals.

Government did not find purpose indepen-dent of society but as an integral part of society.Thus, the state as a dependent entity could notenter into an agreement without the support ofthe various proprietary interests that made up asociety. In turn, the state's contract (social con-tract) was a binding agreement with propertyowners and those with proprietary interests inthe success of society. The government existedto protect the social contract in a trust arrange-ment with clear and defined fiduciary responsi-bilities to serve, protect, and expand theinterests of those governed. If a governmentfailed in this awesome responsibility, propri-etary interests not only had a natural right but,as Jefferson also argued, a responsibility to abro-gate the social contract through overt action. In

HISTORY IN DISPUTE, VOLUME 12: THE AMERICAN REVOLUTION 109

DECLARATION OF INDEPENDENCE(1776)WHEN IN THE COURSE OF HUMAN EVENTS,

it becomes necessary for one people to dis-solve the political bands which have con-nected them with another, and to assumeamong the Powers of the earth, the separateand equal station to which the Laws of Natureand of Nature's God entitle them, a decentrespect to the opinions of mankind requiresthat they should declare the causes whichimpel them to the separation.

We hold these truths to be self-evident,that all men are created equal, that they areendowed by their Creator with certainunalienable rights, that among these are Life,Liberty and the pursuit of Happiness, That tosecure these rights, Governments are insti-tuted among Men, deriving their just powersfrom the consent of the governed. Thatwhenever any Form of Government becomesdestructive of these ends, it is the Right of thePeople to alter or to abolish it, and to institutenew Government, laying its foundation onsuch principles and organizing its powers insuch form, as to them shall seem most likelyto effect their Safety and Happiness. Pru-dence, indeed, will dictate that Governmentslong established should not be changed forlight and transient causes; and accordingly allexperience hath shown, that mankind aremore disposed to suffer, while evils are suf-ferable, than to right themselves by abolish-ing the forms to which they are accustomed.But when a long train of abuses and usurpa-tions, pursuing invariably the same Objectevinces a design to reduce them under abso-lute Despotism, it is their right, it is their duty,to throw off such Government, and to providenew Guards for their future security. Suchhas been the patient sufferance of these Col-onies; and such is now the necessity whichconstrains them to alter their former Systemsof Government. The history of the presentKing of Great Britain is a history of repeatedinjuries and usurpations, all having in directobject the establishment of an absolute Tyr-anny over these States. To prove this, letFacts be submitted to a candid world.

He has refused his Assent to Laws, themost wholesome and necessary for the pub-lic good.

He has forbidden his Governors to passLaws of immediate and pressing importance,unless suspended in their operation till hisAssent should be obtained; and when so sus-pended, he has utterly neglected to attend tothem.

He has refused to pass other Laws forthe accommodation of targe districts of peo-ple, unless those people would relinquish theright of Representation in the Legislature, aright inestimable to them and formidable totyrants only.

He has called together legislative bodiesat places unusual, uncomfortable, and distantfrom the depository of their public Records,for the sole purpose of fatiguing them intocompliance with his measures.

He has dissolved Representative Housesrepeatedly, for opposing with manly firmnesshis invasions on the rights of the people.

He has refused for a long time, aftersuch dissolutions, to cause others to beelected; whereby the Legislative powers,incapable of Annihilation, have returned tothe People at large for their exercise; theState remaining in the mean time exposed toall the dangers of invasion from without, andconvulsions within,

He has endeavoured to prevent the pop-ulation of these States; for that purposeobstructing the Laws for Naturalization ofForeigners; refusing to pass others toencourage their migrations hither, and raisingthe conditions of new Appropriations ofLands,

He has obstructed the Administration ofJustice, by refusing his Assent to Laws forestablishing Judiciary powers.

He has made Judges dependent on hisWill alone, for the tenure of their offices, andthe amount and payment of their salaries.

He has erected a multitude of NewOffices, and sent hither swarms of Officers toharass our people, and eat out their sub-stance.

He has kept among us, in times ofpeace, Standing Armies without the Consentof our legislature.

He has affected to render the Military inde-pendent of and superior to the Civil Power.

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He has combined with others to subjectus to a jurisdiction foreign to our constitution,and unacknowledged by our laws; giving hisAssent to their Acts of pretended Legislation:

For Quartering large bodies of armedtroops among us:

For protecting them, by a mock Trial,from Punishment for any Murders which theyshould commit on the inhabitants of theseStates:

For cutting off our Trade with ail parts ofthe worid:

For imposing taxes on us without ourConsent:

For depriving us of many cases, of thebenefits of Trial by jury:

For transporting us beyond Seas to betried for pretended offences:

For abolishing the free System ofEnglish Laws in a neighbouring Province,establishing therein an Arbitrary govern-ment, and enlarging its Boundaries so as torender it at once an example and fit instru-ment for introducing the same absolute ruleinto these Colonies:

For taking away our Charters, abolishingour most valuable Laws, and altering funda-mentally the Forms of our Governments:

For suspending our own Legislatures, anddeclaring themselves invested with Power tolegislate for us in all cases whatsoever.

He has abdicated Government here, bydeclaring us out of his Protection and wagingWar against us.

He has plundered our seas, ravaged ourCoasts, burnt our towns, and destroyed thelives of our people.

He is at this time transporting largearmies of foreign mercenaries to compleatthe works of death, desolation and tyranny,already begun with circumstances of Cruelty& perfidy scarcely paralleled in the most bar-barous ages, and totally unworthy the Headof a civilized nation.

He has constrained our fellow Citizenstaken Captive on the high Seas to bear Armsagainst their Country, to become the execu-tioners of their friends and Brethren, or to fallthemselves by their Hands.

He has excited domestic insurrectionsamongst us, and has endeavoured to bringon the inhabitants of our frontiers, the merci-

less Indian Savages, whose known rule ofwarfare, is an undistinguished destruction ofail ages, sexes and conditions,

in every stage of these Oppressions Wehave Petitioned for Redress in the most hum-ble terms: Our repeated Petitions have beenanswered only by repeated injury. A Prince,whose character is thus marked by every actwhich may define a Tyrant, is unfit to be theruler of a free people.

Nor have We been wanting in attentionsto our British brethren, We have warned themfrom time to time of attempts by their legisla-ture to extend an unwarrantable jurisdictionover us. We have reminded them of the cir-cumstances of our emigration and settlementhere. We have appealed to their native jus-tice and magnanimity, and we have conjuredthem by the ties of our common kindred todisavow these usurpations, which, wouldinevitably interrupt our connections and cor-respondence. They too must have been deafto the voice of justice and of consanguinity.We must, therefore, acquiesce in the neces-sity, which denounces our Separation, andhold them, as we hold the rest of mankind,Enemies in War, in Peace Friends.

We, THEREFORE, the Representatives ofthe UNITED STATES OF AMERICA, in GeneralCongress, Assembled, appealing to theSupreme Judge of the world for the rectitudeof our intentions, do, in the Name, and byAuthority of the good People of these Colo-nies, solemnly publish and declare. Thatthese United Colonies are, and of Rightought to be FREE AND INDEPENDENT STATES;that they are Absolved from all Allegiance tothe British Crown, and that all political con-nection between them and the State ofGreat Britain, is and ought to be totally dis-solved; and that as Free and IndependentStates, they have full Power to levy War,conclude Peace, contract Alliances, estab-lish Commerce, and to do all other Acts andThings which Independent States may ofright do. And for the support of this Declara-tion, with a firm reliance on the Protection ofDivine Providence, we mutually pledge toeach other our Lives, our Fortunes and oursacred Honor.

Source: Georg& Brown Undatl, Aimrtca; A Narra-tive History (New York; Nation, WB4)t pp, A1-A4.

HISTORY IN DISPUTE, VOLUME 12: THE AMERICAN REVOLUTION 111111

reality, the contract had been abrogated by thegovernment's failures of commission or omis-sion. Thus, the emergence of the concept of thefundamental right of revolution occurred dur-ing the Age of Reason.

This popular interpretation of Lockeanthought was not lost upon the primary authoror drafting committee of the Declaration ofIndependence. Jefferson began by posing andanswering the all-important question for history,"Why?" Jefferson's answer was indeed original inthe deferential, hierarchical, and monarchicalsocieties of the eighteenth century. Many coun-tries cannot produce so clear a statement of whythey exist and for what they stand. In the wordsof future President Abraham Lincoln, penned ina letter to Massachusetts politician Henry L.Pierce (6 April 1859), Jefferson "had the cool-ness, forecast, and capacity to introduce into amerely revolutionary document, an abstracttruth, applicable to all men and all times."

Jefferson's wording in the Declaration drewheavily upon Locke and was familiar and under-stood by his colleagues in Congress. The ideas inthe Preamble were fundamental not only toLockean thought but also to the politics of theWhig, or Country, Party in eighteenth-centuryBritish politics. Therefore, the Preamble sub-sumed the experience as well as the genius of theAge. Those delegates assembled in Philadelphiain the spring and summer of 1776 were wellversed in classical and contemporary writings ongovernment and politics. Their knowledge ofconstitutional theory, as well as its application inEnglish common law, provided Jefferson's com-mittee with more than enough talent to justifythe reality of revolution in defense of liberty thathad been present in the colonies since spring1775. In this sense the Declaration of Indepen-dence is a fundamental, and therefore constitu-tional, statement replete with meaning andguidance for the future.

In addition to justifying the right of revolu-tion, the Declaration also provided the ideologi-cal underpinnings for actions that preceded andfollowed its mid-1776 adoption by Congress.Political ideas influence as well as reflect howpeople think and act, and this basic reality wasno less true in the eighteenth century. Two ofthe most important political ideas in the Declara-tion are equality and liberty. In emphasizingthese concepts, Jefferson later said that he didnot seek to be original or "to find out new prin-ciples, or new arguments never before thoughtof." Rather his goal was to "place before man-kind the common sense of the subject." Jeffer-son noted that his purpose in the Preamble wasto present an ideology that was anchored in thepredominant theory of natural and inalienablerights found in the "harmonizing sentiments of

the day, whether expressed in conversation or let-ters, printed essays, or in the elementary booksof public right, as Aristotle, Cicero, Locke, Sid-ney, etc." In other words, Jefferson was respond-ing to the real or perceived threats and actions byBritish authorities against what were understoodto be the "constitutional" liberties of AmericanEnglishmen. Jefferson asserted that liberty andequality were founded not in government but in"nature and in nature's God." The wordingselected meant much to the literate and educatedAmerican who understood that their conceptionof dependence upon England did not track withthe view held by British authorities. It was notjust important, but essential, that Jefferson'swords have universal meaning and application.

British authorities and Parliament assistedthe movement toward independence with thepassage of legislation in 1774-1776 that had aunifying effect throughout the colonies. The actsthreatened well-understood "constitutional liber-ties" of individuals, such as trial by jury, right ofrepresentation, and freedom of commerce andtrade, among other rights. The Coercive Acts(1774) in particular were directed at the strong-hold of radical action and thought, Massachu-setts. The acts provided Crown authorities theability to prorogue colonial liberties. To Jeffer-son, John Adams, Samuel Adams, John Han-cock, Patrick Henry, and other Rebel leaders,such liberties subsumed their individualism. Therights under attack were not just the generalrights of Englishmen but specific individual free-doms, such as representation in a legislativeassembly. Thus, if Parliament could take individ-ual freedoms, tax at will, impose military tribu-nals, confiscate property, close the port ofBoston, and place restraints on intercolonialtrade, liberty in the sense of self-propriety wasalso at the whim of British authorities.

Set against this background and a hardeningof the Crown's view of American resistance, ThomasPaine's Common Sense, published in January1776, presented a persuasive argument that inde-pendence was the only choice left for those whohad gradually come to realize that their idea ofdependence was not similarly held by Britishauthorities. British policy under the administra-tion of Lord North was nothing if consistent inits failure to realize that colonials were Lockeanand believed there was a critical relationshipbetween liberty and property. Without propertyor the ability to be self-supporting (self-proprietyin eighteenth-century language), one is depen-dent. To Americans, the unfettered ability of thestate to take property was the same as takingone's independence. One word for that condi-tion to the colonial mind was slavery,, which hada unique connotation on the American side ofthe Atlantic. To the men who met in Philadel-

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phia in 1776, the control of property was free-dom, and freedom and equality differentiatedthese men from servitude. To tax without repre-sentation was not just bad government but a vio-lation of human freedom and autonomy. Uponthis concept the diverse group of delegates repre-sented in Philadelphia could agree.

Artisans such as Franklin, Paine, and Phila-delphia astronomer David Rittenhouse foundcommon ground with merchants, planters, andprofessionals. They were much closer to the clas-sical traditions of disinterested statesmanshipand personal honor than twenty-first-centuryAmericans. In that tradition, the straw thatbroke the back of future attempts at conciliationwith Britain was the knowledge on the part ofmen such as Jefferson, Adams, Washington,Patrick Henry, and finally John Dickinson that,under the definition of Empire evolving since1763, they would be mere servants or "place-ments"—at best, bureaucrats with no real politi-cal future. When they adopted Jefferson's ideasin the Declaration, especially those in the Pream-ble, they knew they were fighting for their politi-cal lives. They expressed this self-interest infundamental, constitutional language that wastimeless and selfless.

Jefferson's committee sent to Congress adocument that defined liberty in a definite man-ner. They viewed liberty from the perspective ofwhat government cannot do, not what it can do.This notion of limited government applied tothe circumstances generated by Lord North'sministry. This relativistic or negative approach tothe description of liberty was accompanied bythe understanding that equality did not connoterights to economic prosperity, social status, orintellectual prowess. Equality was an absoluteright in the same sense that liberty was. The gov-ernment must not violate absolute rights guaran-teed by nature to everyone. Individuals are equalin the sense that to be human is to possess basicrights to life, liberty, and the pursuit of happi-ness. Government is not expected to pursuethose rights for each individual because that is amatter of personal responsibility. Government isexpected to respect the right of citizens to equalprotection of these basic rights. These concepts,included in the unwritten British constitutionaltradition, were now committed to parchment bythe Second Continental Congress. These funda-mental concepts would be written into each stateconstitution and into the Federal Constitution.

The list of grievances in the main body ofthe Declaration of Independence bore the great-est editorial and substantive scrutiny of the Con-gress, sitting as a committee of the whole. Takentogether, items on the list again negatively definethe powers of government by providing a basicand fundamental understanding of what a gov-

ernment that respects individual liberty andequality cannot do. Ultimately, this list alsoappears in the state constitutions and in the Billof Rights (1791).

While the Declaration of Independence isat heart a document stating the causes for theseparation of the Thirteen Colonies from GreatBritain, it also outlined differences between col-onists and the British over what dependenceshould not mean for an American. In so doing,the Declaration justified separation from theCrown in terms that were and remain unmistak-ably constitutional. On a continuum from sim-ple statement of independence to one thatcontains both implied and specific references tomatters constitutional, the document tiltstoward the deeper meaning of fundamental andconstitutional that Jefferson and Congressintended. As such it succeeded in providing asense of unity of purpose that extended beyondthe educated elite of the new states. Tradesmen,yeoman farmers, merchants, and professionalscould relate to the issues listed, as well as to thefundamental constitutional philosophy imbed-ded, in the Declaration.

-SAMUEL H. RANKIN JR.,CHADRON STATE COLLEGE

Viewpoint:No. The Declaration ofIndependence has no standingin American constitutional lawbecause its authors did not giveit any constitutional authorityand because it was never ratifiedby the people.

The status of the Declaration of Indepen-dence (1776) in American constitutional law is aresult of the fact that it was never ratified in thecharacteristically American way. Members of theSecond Continental Congress, the body thatpromulgated the Declaration, were mere ambas-sadors of the states. They spoke for their statelegislatures, which had sole power to elect andremove them and had instructed them only todeclare independence. The Second ContinentalCongress never received any power to bind theUnited States to any particular philosophicalposition, and so that was not what anyone at thetime thought the Declaration of Independencehad done. Had they intended for the Declara-tion to serve such a purpose, the state legisla-tures would have insisted either on reviewingand passing on it or upon submitting it to thepeople for ratification.

HISTORY IN DISPUTE, VOLUME 12: THE AMERICAN REVOLUTION 113

As Virginia delegate James Madison put itin speaking of the mode of enactment of the fed-eral constitution, popular ratification would bethe difference "between a league or treaty, and aConstitution" In other words, fundamental lawbinding on the government had to be ratifiedpopularly, and anything else was a mere ordi-nance that would leave state law superior to fed-eral. From Madison and fellow VirginianThomas Jefferson on the left of the politicalspectrum to New Yorker Alexander Hamiltonon the right, America's Founding Fathers agreedthat the greatest achievement of the Revolution(1775-1783) lay in devising and implementingmeans of enshrining popular sovereignty in fun-damental law. The Declaration of Independence,as the act of a Continental Congress, did notmeet the test of fundamental law.

Hamilton said that it had been given to theAmericans "to decide the important question,whether societies of men are really capable ornot, of establishing good government fromreflection and choice, or whether they are for-ever destined to depend, for their political consti-tutions, on accident and force." The mechanismfor erecting a government on the basis of "reflec-tion and choice," popular ratification, was one ofthe key innovations of the American Revolution.Vox populi vox dei (the voice of the people is thevoice of God) replaced the divine right of kingsin the American political primer.

In Massachusetts, John Adams insisted onpopular ratification of the first republican stateconstitution in 1780, and people voted on theissue throughout the Commonwealth. In Vir-ginia, the first permanent American constitutionwas implemented on 29 June 1776 by the MayConvention, which was nothing other than theold General Assembly acting as the governmentof Virginia in the absence of the royal governor.Jefferson, off in Philadelphia to attend the Con-tinental Congress, wrote home to Virginia toassert that the Convention had not been prop-erly empowered to enact a republican constitu-tion. No body of men could undertake toperform that function, in Jefferson's view, unlessit had been elected directly by the people specifi-cally for that purpose. The Virginia Conven-tion's leadership—Edmund Pendleton, GeorgeMason, and Patrick Henry—agreed with Jeffer-son concerning the conditions necessary to enacta republican constitution, but disagreed with hisclaim that the people had elected the May Con-vention without thinking it would be drafting anew constitution. They believed that the peoplehad known both that their Convention likelywould declare independence and, thus, that itwould erect a new government. The Conventiontherefore proceeded to enact a new charter forthe commonwealth.

When Virginia congressman Richard HenryLee moved in the Continental Congress on 7June 1776 to declare that the Thirteen Colonies"are, and of right ought to be, free and indepen-dent States," he acted according to the wishes ofthe Virginia Convention, the de facto governingbody of Virginia. The language of his resolutioncame virtually verbatim from instructions givenhim. No such epochal initiative could conceiv-ably have originated in the Congress.

Famously, the second paragraph of the Dec-laration of Independence incorporated argu-ments about rights made by English philosopherJohn Locke, various Enlightenment figures, andAmerican pamphleteers of the 1760s and 1770s.Those arguments were included because Ameri-cans felt a need to justify their actions to theworld. However, the behavior of prominentmembers of Congress leading up to 4 July 1776gives the lie to the idea that the theoretical con-tents of the Declaration were understood asespecially significant. On 11 June Congressappointed a committee chaired by Adams todraft a declaration to that effect. Adams, busywith more pressing matters and little realizingthe fame that would accrue to the chief drafts-man of the Declaration, asked Jefferson to sub-mit a draft for the committee's consideration.Jefferson would have preferred to return to theVirginia capital, Williamsburg, to assist in whathe considered to be the Revolution's centraltask: drafting his state's new republican consti-tution. Virginia's more senior statesmen simplyrefused to send a replacement to Philadelphia;so, in order to retain a quorum of Virginia'scongressional delegation, Jefferson had toremain in the City of Brotherly Love. Writingthe first draft of the Declaration seemed smallconsolation at the time.

Jefferson's draft version was revised in con-sultation with his fellow committee membersAdams and Benjamin Franklin before being sub-mitted to the Continental Congress. As Jeffer-son described it, the debate over the Declarationof Independence in Congress pained him.Despite Adams's efforts in championing thedraft, Congress redacted fully one-third of itbefore finally accepting the amended version. On4 July the Declaration of Independence wasissued to the public, and eventually its famespread throughout the world.

Some delegates lamented that Congress wasa mere agglomeration of state ambassadors, ameeting place for representatives of sovereigns.In fact, its adoption of the name Congress under-scored this self-understanding, for Europeancongresses were precisely meeting places of sov-ereigns' representatives. As a mere conference ofambassadors, Congress had only the powers itsconstituents, the state governments, had dele-

114 HISTORY IN DISPUTE, VOLUME 12: THE AMERICAN REVOLUTION

First page of ThomasJefferson's rough draftof the Declaration ofIndependence withcorrections by JohnAdams and BenjaminFranklin(Manuscript Division, Library of

Congress, Washington, D.C.)

HISTORY IN DISPUTE, VOLUME 12: THE AMERICAN REVOLUTION 115

gated to it. Other than those from New York andVirginia, all of the delegations to the SecondContinental Congress had been instructed todeclare independence in case the other states didso. New York's delegates had no such instruc-tions. Virginia's congressmen, as representativesof the only state that had established its indepen-dence by June 1776, led the way in calling for adeclaration of American independence becausethey thought it better to hang together than tohang separately. Lee's motion that the UnitedStates declare that they "are, and of right oughtto be, free and independent states" echoed theVirginia General Assembly's instructions.

That was all that the Virginia delegation wasempowered to do: to declare American indepen-dence, not to join with delegates from otherstates in concocting a philosophy of governmentby which all of the states would be bound perma-nently despite conflicting provisions in theirown states' highest laws. Other delegates facedsimilar "domestic" circumstances. When theDeclaration was read to people up and down theEast Coast, then published in newspapersthroughout the country and abroad, the effectwas electric. Debate over the content of the Dec-laration was minimal, because its legal effect wasunderstood to be minimal.

In fact, contrary to the assertions of laterstatesmen and propagandists, the AmericanFounders did not understand the Declaration ofIndependence to be truly foundational. If theyhad, one might expect to find frequent referencesto it during the debates over ratification of theConstitution of the United States a decade later.Yet, during the pivotal 1787-1788 Virginiadebate on ratification of the federal constitution,no one broached the idea of using the Declara-tion as the yardstick of the proposed federal char-ter's acceptability.

Indeed, the contrast between the procedureleading to promulgation of the Declaration andthe process for ratifying the federal constitutionis instructive. In the latter case, each of the stateswas required by the proposed constitution itselfto convene a ratification convention elected spe-cifically and solely for that purpose. Thus, thefederal constitution was the product of an opendeliberative process in each of the states anddesigned to secure the broadest consent possible.The Continental Congress adopted the Declara-tion of Independence on its own, couching theactual declaration in philosophical argument andhistorical justification congenial to, but notstrictly endorsed by, the state governments forwhich Congress spoke.

In fact, even those who assert that the Dec-laration has constitutional standing do not meanit. If they did, they would be required to put

some legal gloss on the Declaration's referenceto the "merciless Indian savages"; on its refer-ence to the right of the people in some jurisdic-tions to rescind their consent to the government(that is, to depart from the empire) despite oth-ers' continued adherence to it; and on its asser-tion that all men are endowed by their "Creator"with "inalienable" rights, including a right tolife. How would they deal with a document thatat 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 ofdefining the status of a people thus constitution-ally denominated "savage," defending secessionfrom the United States, or working to abolishcapital punishment. Nor is there any reason tothink that the authors of the Declarationthought in 1776 that it enshrined particular posi-tions on those issues into constitutional law. Noone mentions that the Declaration of Indepen-dence upbraided the British king for supposedlyhaving encouraged slaves to resist slavery in hisNorth American colonies. As to the bill of par-ticulars that makes up the bulk of the Declara-tion, what exactly its constitutional meaningcould be is entirely unclear; obviously, this list ofGeorge Ill's real and imagined transgressionswas intended as a justification for a particularact. The Declaration was intended to be preciselythat: a declaration, no more and no less, and thatwas certainly enough.

-K. R. CONSTANTINE GUTZMAN,WESTERN CONNECTICUT

STATE UNIVERSITY

References

Carl Becker, The Declaration of Independence: AStudy in the History of Ideas (New York: Har-court, Brace, 1922).

M. E. Bradford, .A Better Guide Than Reason: Fed-eralists and Anti-Federalists, second edition(New Brunswick, N.J.: Transaction Publish-ers, 1994).

Jon Butler, Becoming America: The RevolutionBefore 1776 (Cambridge, Mass.: HarvardUniversity Press, 2000).

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