The Political Philosophy of the Declaration of Independence in the Constitution

Was Abraham Lincoln right in arguing that the political philosophy of the Declaration of Independence is implicit in the Constitution, and thus the Declaration can help us interpret the Constitution? 

Of course, the Constitution never explicitly refers to the Declaration.  And yet much of the Constitution does seem to implicitly assume the political philosophy of the Declaration.  Moreover, if one looks at the first page of the first volume of the United States Code,  one will see the Declaration of Independence along with the Articles of Confederation, the Northwest Ordinance, and the Constitution printed as the four documents that constitute the "Organic Laws of the United States of America."

Among the justices of the current Supreme Court, Justice Clarence Thomas has been a leader in appealing to the Declaration of Independence as fundamental law for the United States and as a guide for interpreting the Constitution.  Although Justice Antonin Scalia often agrees with Thomas in their decisions, Scalia disagrees with him about this.  For example, in Grutter v. Bollinger (2003), in which the majority upheld the affirmative action admissions process at the University of Michigan Law School, Thomas and Scalia dissented, because they argued that this violated the Equal Protection Clause of the 14th Amendment.  Scalia signed on to almost all of Thomas's opinion, but Scalia refused to accept the last paragraph of Thomas's opinion, in which Thomas declared that the majority was weakening "the principle of equality embodied in the Declaration of Independence and the Equal Protection Clause" (539 U.S. 306, 378 [2003]).  Unlike Thomas, Scalia refused to see the Equal Protection Clause as an expression of the Declaration's principle of equality.

In Troxel v. Granville (2000), the Supreme Court struck down as unconstitutional a Washington state law authorizing courts to give visitation rights to any person who argued that this was in the best interests of the children, even when this was contrary to the wishes of the parents.  The Court declared that this law violated the fundamental right of parents to rear their children.  Although Justice Scalia agreed that this was one of the unalienable rights that would be recognized by the Declaration of Independence and the Ninth Amendment of the Constitution, he dissented in this case, because he denied that judges had the authority to secure this right.

The Declaration of Independence affirms as self-evident that all human beings are naturally endowed with "certain unalienable rights," and "that among these are life, liberty, and the pursuit of happiness."  The phrase "among these" suggests that there are other natural rights that are not being enumerated here, and that "life, liberty, and the pursuit of happiness" are prominent illustrations.  Similarly, after enumerating certain rights, including "life, liberty, and property" in the first eight amendments, the Constitution in the Ninth Amendment declares: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."

In Troxel v. Granville, Justice Scalia argued:

"In my view, a right of parents to direct the upbringing of their children is among the 'unalienable Rights' with which the Declaration of Independence proclaims 'all men . . . are endowed by their Creator.'  And in my view that right is also among the 'othe[r] [rights] retained by the people' which the Ninth Amendment says the Constitution's enumeration of rights 'shall not be construed to deny or disparage.'  The Declaration of Independence, however, is not a legal prescription conferring powers upon the courts; and the Constitution's refusal to 'deny or disparage' other rights is far removed from affirming any one of them, and even further removed from authorizing judges to identify what they might be, and to enforce the judges' list against laws duly enacted by the people.  Consequently, while I would think it entirely compatible with the commitment to representative democracy set forth in the founding documents to argue, in legislative chambers or in electoral campaigns, that the State has no power to interfere with parents' authority over the rearing of their children.  I do not believe that the power which the Constitution confers upon me as a judge entitles me to deny legal effect to laws that (in my view) infringe upon what is (in my view) that unenumerated right" (530 U.S. 57, 91-92 [2000]).

It is hard to see the logic of Scalia's claim that in refusing to affirm "unalienable rights" that are protected by the Constitution, he is not thereby denying or disparaging them.  He asserts that the Constitution confers upon judges the authority to secure those unalienable rights specifically enumerated in the Constitution but not those unalienable rights that are protected by the Constitution but not enumerated.  He does not support this assertion with any citation of the constitutional text or any evidence that this was the original meaning of the text.

Scalia asserts that the protection of the unalienable rights affirmed in the Declaration of Independence and the Ninth Amendment must depend upon debates "in legislative chambers or in election campaigns," without any interference by judges.  This ignores the argument by the Framers of the Constitution that the greatest threat to the rights of the people is the legislative power and the power of the majority to infringe on the rights of the minority.

In James Madison's speech to the House of Representatives in the First Congress, on June 8, 1789, in which he proposed a bill of rights as amendments to the Constitution, he stated that the purpose was to protect these rights "sometimes against the abuse of the executive power, sometimes against the legislative, and in some cases, against the community itself; or, in other words, against the majority in favor of the minority."  A declaration of rights would be "one means to control the majority from those acts to which they might be otherwise inclined."

To explain the need for what become the Ninth Amendment, Madison observed:

"It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow, by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure.  This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into his system; but, I conceive, that it may be guarded against.  I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution [the Ninth Amendment]."

The effectiveness of such a bill of rights would depend upon the judiciary: "If they are incorporated into the constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the constitution by the declaration of rights."

Scalia might assert that "rights expressly stipulated" indicates that judges can be guardians of those rights that have been enumerated in the Bill of Rights but not the unenumerated rights of the Ninth Amendment.  But Madison did not say that "expressly stipulated" meant "enumerated," because this would have nullified the whole point of the Ninth Amendment.  The constitutional protection of "those rights which were not singled out" was "expressly stipulated" by the Ninth Amendment.

Moreover, as Madison indicated in his speech, the rights to be protected by the Bill of Rights were not just the rights of Englishmen or the rights of Americans but "the great rights of mankind," which echoes the language of the Declaration of Independence in affirming the natural rights of all human beings.

If one lays the text of the Declaration of Independence alongside the text of the Constitution, one can easily see many points of contact between them. 

This begins with the Preamble to the Constitution.  "WE THE PEOPLE of the United States, in order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this CONSTITUTION for the United States of America." 

This assumes the self-evident truths of the Declaration of Independence, including the truth that it is the right of the people to institute governments by consent of the governed to secure their natural rights, and that it is also their right to alter or abolish any government that has become destructive of these ends, and to institute new government that is most likely to effect their safety and happiness.

The Constitution's Preamble and Article 7 (on how the Constitution is to be ratified) implicitly invoke the natural right of the people to revolution.  The delegates to the Constitutional Convention in Philadelphia in 1787 were originally supposed to propose revisions to the Articles of Confederation.  But instead of that, they wrote a totally new constitution.  In Article 13 of the Articles of Confederation, it was prescribed that any "alteration" of the Articles would have to be approved by the Congress of the United States and by the legislature of each state.  But Article 7 of the Constitution prescribed that its ratification would require only the ratification of state conventions in nine states.  Thus, the ratification of the Constitution was an unconstitutional overthrow of the Articles of Confederation!

In The Federalist (Number 43), Madison explained that justifying the revolutionary overthrow of the Articles of Confederation and the ratification of the Constitution required an appeal to the principles of the Declaration of Independence--"to the great principle of self-preservation; to the transcendent law of nature and of nature's God, which declares that the safety and happiness of society are the objects at which all political institutions aim, and to which all such institutions must be sacrificed."  Thus, the legitimacy of the Constitution as ordained and established by the people depends on affirming the laws of nature and of nature's God as recognized in the Declaration of Independence and as superior to the positive laws of the Articles of Confederation.

The first and longest article of the Constitution is the legislative article.  This primacy given to the legislative power reflects the primacy in the Declaration of Independence of "the right of representation in the legislature, a right inestimable to them [the people] and formidable to tyrants only."

The constitutional qualifications for the two houses of the national Congress are restricted to age, residency, and citizenship, which reflects the Declaration's principle of equality, because there are no requirements of wealth, birth, education, sex, or race.  Unlike the British House of Lords, the United States Senate is not based on noble birth.  Moreover, both the national government and the States are prohibited from granting titles of nobility (Article I, sections 9-10).  This must be so in a government based on the self-evident truth that all men are created equal.

The Constitution does provide some accommodations to the existence of slavery in the South, and this has been said by some people as evidence that the Constitution denies human equality, because slavery is obviously the most unjust denial of equality.  But, remarkably, the Constitution never refers to "slaves" or "slavery."  Instead, the Constitution speaks of the slaves as "persons" (see Article I, Sections 2 and 9; Article 4, Section 2). 

As Madison observed in The Federalist (Number 54), "slaves are considered as property, not as persons," and thus slavery requires seeing some human beings "in the unnatural light of property."  In identifying slaves as "persons," therefore, the Constitution implicitly suggests the natural injustice of treating them as property. 

Those who wrote the Confederate Constitution of 1861 understood this, because while most of the language of the United States Constitution is preserved in this constitution, the framers of the Confederate Constitution repeatedly use the word "slaves," and they never refer to slaves as "persons."  Furthermore, they depart from the United States Constitution in explicitly protecting "the right of property in negro slaves" (see Article I, section 9, of the Confederate Constitution).

The taxing power belongs to Congress, and all bills for raising revenue must originate in the House of Representatives (Article I, sections 7-8).  This confirms the Declaration's condemnation of the King for "imposing taxes on us without our consent."

The Congress also has the power to declare war and to provide for the military.  This confirms the Declaration's condemnation of the King for leading "standing armies without the consent of our legislature."

The second and second longest article of the Constitution is on the executive power.  While the President has some of the powers of the British King (such as being Commander in Chief in time of war), the President does not have those monarchic powers that were often abused by the King (such as the arbitrary power to declare war).  In The Federalist (Number 69), Alexander Hamilton emphasized how different the President was from the British King.  This conforms to the teaching of the Declaration of Independence, because over half of that document was an indictment of the King of England for being "a prince" who acts as a "tyrant" and is thus "unfit to be the ruler of a free people."

The third and third longest article of the Constitution establishes the judicial power of the United States.  While judges are appointed through the nomination of the President and the approval of the Senate, judges have the independence that comes from serving a life-time term "during good behavior."  This responds to the complaint of the Declaration of Independence that the King had "made judges dependent on his will alone."

In the fourth and fourth longest article, the Constitution declares that "the citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."  This can be read as affirming the Declaration's principle of equality in that national citizenship confers equality to all the rights of citizenship to all citizens.  And while the Articles of Confederation had recognized the equal entitlement of citizens to "all privileges and immunities" as restricted to "free citizens" (Article 4), the Constitution removes this restriction, which leaves the implication that slaves can be citizens and thus have "all privileges and immunities" of citizens.  This was reiterated in the Fourteenth Amendment: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."

The amendments adopted after the Civil War--Amendments 13-15--can be seen as a reaffirmation of the political philosophy of the Declaration of Independence.  The authors of the Fourteenth Amendment often identified "privileges or immunities" as the sort of natural rights that had been identified by Supreme Court Justice Bushrod Washington in 1823 in Corfield v. Coryell as the "fundamental" rights, "which belong, of right, to the citizens of all free governments."  According to Justice Washington, privileges and immunities included "protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole" (Corfield v. Coryell, 6 F. Cas. 546, 551-52 [C.C.E.D. Pa 1823]).  (See also Timothy Sandefur, The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty [Cato Institute, 2014], 33-70.)

The most common objection to the argument that judges have a constitutional duty to enforce the unenumerated unalienable rights affirmed in the Declaration of Independence, the Ninth Amendment, and the Fourteenth Amendment is that this would turn unelected judges into super-legislators, which would deny the right of the people to rule through a majoritarian representative democracy.

This objection is evident in the opinions of the dissenters in Obergefell v. Hodges (2015).  Chief Justice Roberts describes the vigorous political debate over same-sex marriage and then declares: "That ends today.  Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law" (2).  According to the majority decision in this case, Justice Scalia complains, "the Ruler of 320 million Americans coast-to-coast is a majority of the nine lawyers on the Supreme Court."

This objection is mistaken in its assumption that once a majority of the Supreme Court has made a decision, the Constitution provides no means for citizens and politicians to challenge and eventually overturn the decision.  This is false, because, as Hamilton indicated in The Federalist (Number 78), any careful reading of the Constitution shows that the judiciary is "the weakest of the three departments of power," and that it has "neither FORCE nor WILL, but merely judgment."  That is to say, the Court can exercise its judgment and try to persuade citizens and politicians that its judgment is correct; but it cannot prevail against the hostile opinions of a persistent majority working its will through the political process set up by the Constitution.

If Obergefell is a deeply unpopular Supreme Court opinion, as the dissenters in the case suggest, then it can be overturned constitutionally in many ways.  The Senate can impeach Justice Kennedy.  Or the President and the Senate can look for the first opportunity to appoint new justices pledged to overturn Obergefell. Or the Congress can deny the appellate jurisdiction of the Supreme Court in cases involving same-sex marriage.  Or the Congress can pass legislation to overturn the Court's interpretation of the 14th Amendment, because Section 5 of that amendment gives Congress the "power to enforce, by appropriate legislation, the provisions of this article."  Or the Constitution can be amended to state that same-sex marriage is not a constitutional right.  Or the other branches of government can refuse to enforce the Court's decision.  If none of these means are employed to overturn the Court's opinion, that will show that the great majority of the people are not intensely and persistently opposed to the opinion.  In fact, the majority in Obergefell waited until this year to issue this decision, because they were waiting for public opinion to shift in the direction of supporting same-sex marriage.

What this shows is that the Constitution did not set up a pure democracy.  Indeed, the word "democracy" does not appear anywhere in the Constitution.  Rather, the Constitution set up a constitutional republic (see Article 4, Section 4 ["a Republican Form of Government"], in which the majority of the people cannot get whatever they want whenever they want it, because the Constitution forces delay and deliberation. 

Alexander Hamilton in The Federalist (Number 78) argued that it would be important for "the independence of the judges . . . to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community."  The judges must do their duty "as faithful guardians of the Constitution, where legislative invasions of it had been instigated by the major voice of the community."

But if the majority is very intense and persistent in their demands, it can eventually work its will, even against the Supreme Court. As a result, the Constitution does not make it impossible for a powerful majority to deprive individuals of their natural rights, but it does make this less likely to happen than would be the case if the Constitution had not been written to secure the natural rights of all citizens.

The Discovery of the Declaration of Independence by the American People: A Response to Pauline Maier

Pauline Maier's American Scripture: Making the Declaration of Independence (1997) is the best single book on the history of the Declaration of Independence.  I say that because I have learned more about the Declaration from this book than from any other.  Nevertheless, I disagree with some of her primary claims.

Here is her summary of her argument:

". . . The Declaration was at first forgotten almost entirely, then recalled and celebrated by Jeffersonian Republicans, and later elevated into something akin to holy writ, which made it a prize worth capturing on behalf of one cause after another.  The politics that attended its creation never entirely left its side, such that the Declaration of Independence, which became a powerful statement of national identity, has also been at the center of some of the most intense conflicts in American history, including that over slavery which threatened the nation itself.  In the course of those controversies, the document assumed a function altogether different from that of 1776: it became not a justification of revolution, but a moral standard by which the day-to-day policies and practices of the nation could be judged" (154).

Here and throughout her book, Maier was elaborating ideas first set forth in 1962 in an article by Philip Detweiler--"The Changing Reputation of the Declaration of Independence: The First Fifty Years."  She was also developing the arguments from people like Willmoore Kendall, Mel Bradford, Garry Wills, and the young Harry Jaffa about Lincoln's "inventive" interpretation of the Declaration at Gettysburg.

Although I agree with much of this, I disagree with three points:  her sneering scorn for the elevation of the Declaration "into something akin to holy writ," her claim that the Declaration was "at first forgotten," and her assertion that originally the Declaration did not provide a "moral standard" for government.

POLITICAL RELIGION

As suggested by her mocking title, Maier was disdainful of the religious language and rituals that treated the Declaration as "American Scripture."  She began and ended her book describing her visit to the "Shrine" for the Declaration of Independence and the other "Charters of Freedom" in the Rotunda of the National Archives in Washington.  This reminded her of "the awesome, gilded, pre-Vatican II altars of my Catholic girlhood," and she was disgusted by it all (xiv).

Well, of course, many of us--particularly, those who are academic scholars--will find this sacralization of American political documents a bit ridiculous.  But what's the harm in doing this?  Maier thought this really was harmful.  Here's the last sentence of her book:  "The vitality of the Declaration of Independence rests upon the readiness of the people and their leaders to discuss its implications and to make the crooked ways straight, not in the mummified paper curiosities lying in state at the Archives; in the ritual of politics, not in the worship of false gods who are at odds with our eighteenth-century origins and who war against our capacity, together, to define and realize right and justice in our time" (215).

But she offered no evidence to support this claim.  And a few paragraphs before this passage, Maier praised Martin Luther King for his "I have a dream" speech in 1963--the centennial of Lincoln's Emancipation Proclamation--delivered in front of the Lincoln Memorial in Washington.  King's quoting from the Declaration was part of a sermon filled with Biblical references and imagery.  And so, he was promoting the religiosity of "American Scripture."  But he did this to advocate political change to fulfill the Declaration's promise of equality of rights for all, which advanced the Civil Rights Movement, and thus expressed "our capacity, together, to define and realize right and justice in our time."

ALMOST FORGOTTEN?

Maier said the Declaration was "at first almost entirely forgotten."  That "almost" is significant.  I agree that from 1776 to 1790, there were few prominent references to the Declaration--particularly, the second paragraph (the self-evident truths).  But even so, it was not entirely forgotten during this period.

In his critical review of Maier's book, Michael Zuckert pointed to two important references to the Declaration in the 1787 debate over the Constitution (Zuckert 1998:358-59).  First, Zuckert cited Federalist Number 40, where James Madison quoted from the Declaration.  Second, Zuckert quoted the Antifederalist writer Brutus as saying: "If we may collect the sentiments of the people of America, from their own most solemn declaration, they hold these truths as self-evident, that all men are by nature free.  No one man, therefore, or any class of men have a right by the law of nature, or of god, to assume or exercise authority over their fellows.  The origin of society then is to be sought, . . . in the united consent of those who associate."

I have a copy of a letter that Maier sent to Zuckert about his review (October 16, 1999), in which she said that this evidence actually supported her argument.  She noted that Zuckert had not actually quoted the passage from Madison, which referred to "the transcendent and precious right of the people to 'abolish or alter their governments as to them shall seem most likely to effect their safety and happiness.'"  She said that since this "imprecise quotation" referred to the Declaration's assertion of the right to revolution, this supported her argument that the Declaration was originally understood as declaring the Americans' right of revolution, but without giving any attention to the Declaration's assertion of equality and inherent rights and the government's duty to secure those rights.

Maier said that the passage from Brutus also sustained her book's argument.  Although Brutus's reference to "self-evident" truths echoes the Declaration of Independence, his statement "that all men are by nature free" sounds more like Virginia's Declaration of Rights adopted in June 1776 after revising George Mason's draft--"all men are by nature equally free and independent."

In her book, Maier did indeed argue that Mason's draft of the Virginia Declaration of Rights had much more influence on the other revolutionary state bills of rights than did the Declaration of Independence.  But it's hard to see the point of this argument given that she had written that Jefferson's "rewriting of Mason produced a more memorable statement of the same content" (134).  If Jefferson's Declaration had "the same content" as Mason's Declaration, then it would seem that the two declarations were in agreement in their principles.

In her article in the Washington and Lee Law Review, Maier rightly noted that Zuckert had misquoted the passage from Brutus. Brutus had not referred to the Americans' "most solemn declaration" but to their "most solemn declarations" (Storing 1981, 2:372).  Brutus was surely referring not just to the Declaration of Independence but to the state declarations of rights, such as the Virginia Declaration of Rights.  But if these state declarations of rights have "the same content" as the Declaration of Independence in their statement of principles, it's hard to see Maier's point here.

Moreover, there were other clear examples of the Declaration of Independence being cited in the constitutional ratification debates that Zuckert did not mention.  An Antifederalist--"A Georgian"--referred to "our glorious Declaration of Independence" as a model for "the principles of republican liberty and independence" that should be the model for a federal constitution (Storing 1981, 5:129, 135).  In the Pennsylvanian Ratification Convention, John Smilie complained about the lack of a bill of rights in the proposed Constitution, and insisted: "Let us recur to the memorable declaration of the 4th of July, 1776."  He then quoted in full the first two paragraphs of the Declaration of Independence (Bailyn 1993, 1:805).

Clearly, the Declaration of Independence was not "completely forgotten" during this period from 1776 to 1790.

A MORAL STANDARD FOR GOVERNMENT

Maier's most fundamental argument in her book is that the Declaration of Independence as written in 1776 had only one function--to declare and justify revolution--and that it was only many years later that it was transformed so that it had a second function: to provide "a moral standard by which the day-to-day policies and practices of the nation could be judged," with the most prominent principle of that moral standard being the Declaration's assertion that "all men are created equal" and endowed with equal rights to "life, liberty, and the pursuit of happiness" (154-55).  

That "moral standard" was stated in the first two paragraphs of the Declaration of Independence.  But Maier claimed that from 1776 to 1790, almost no one thought that opening section of the Declaration was important.  It was only later, after the Jeffersonian Republicans had transformed the interpretation of the Declaration, that the "self-evident truths" of the second paragraph became the most important part of the Declaration.

Elaborating the story first told by Detweiler, Maier said that in the early years after 1776, the Declaration was celebrated as a practical event--the effective declaration of America's independence from Great Britain--but not as a statement of theoretical principles ("We hold these truths to be self-evident").   In the annual Fourth of July celebrations, almost nothing was said about those principles.

That began to change in the 1790's.  One early sign of the change was an article in a Philadelphia newspaper published on July 7, 1792, where the writer said that the Declaration was "not to be celebrated, merely as affecting the separation of one country from the jurisdiction of another; but as being the result of a rational discussion and definition of the rights of man, and the end of civil government" (Detweiler 1962, 565).

But in 1792, talk about "the rights of man" conjured up images of the French Revolution, which was politically polarizing for Americans.  The Federalists and the Republicans had become the two major parties, and while the Federalists were anti-French and pro-British, the Republicans were pro-French and anti-British.  The Federalists were not inclined to celebrate the Declaration of Independence because it was associated with the French revolutionary spirit, and it was critical of Great Britain.  And since the Federalists were opposed to Jefferson, they could not revere Jefferson's Declaration.

Once Jefferson became President in 1801, his party gained political dominance, and the Jeffersonian Republicans began to create the new image of the Declaration of Independence as the statement of the distinctively American credo of the natural equality of man and government as securing the natural rights of man.  After the War of 1812, the Federalist Party disintegrated, and the Jeffersonian Republican view of the Declaration became pervasive.

As the American debate over slavery intensified during this period, many abolitionists invoked the Declaration's principle of human equality as a moral standard for condemning slavery as naturally unjust. while many proslavery Southern leaders denounced that assertion of equality as a dangerous falsehood.  Although Lincoln did not agree with the abolitionist demand for the immediate abolition of slavery, he did agree that the Declaration's principle of equality was morally right, and that this justified prohibiting the introduction of slavery into the western territories.

Against this, Stephen Douglas argued that the principle of popular sovereignty should allow the people of the western territories to decide by majority vote whether they wanted slavery or not, and that the Declaration was never intended to assert a principle of human equality by which slavery could be morally condemned.  For Douglas, the Declaration had only one purpose--to explain and justify American Independence from Great Britain.

According to Maier, Douglas was right about the original meaning of the Declaration: it was only a Declaration of Independence, and it was not intended to assert the moral standards for a free society, as Lincoln believed (203-206).  What Lincoln did in the Gettysburg Address--finding the national identity of America in the Declaration's principles of equality and liberty--was morally inspiring but historically false.

What Maier failed to see, however, is how the actual text of the Declaration explained and justified the Revolution through a general theory of just government (in the first two paragraphs) that also set the moral standards for judging the conduct of any government.  Michael Zuckert has made the best case for this in his essay on "Locke in America: The Philosophy of the Declaration of Independence" (Zuckert 2002, 203-234).  But as I have said in a previous post, I disagree with Zuckert on one point:  while he says that the Declaration assumes a "mythic history" of human politics beginning in the state of nature, I see that history as an empirically true evolutionary history from the state of nature of our hunter-gatherer ancestors.

When the Jeffersonian Republicans directed public attention to the high moral standards for politics set in the first two paragraphs of the Declaration, they were not creating a fictional "myth," as Maier claimed, but making a true discovery of what was really there in the text of the Declaration.  As one historian of the American Revolution has described it, this was "The Discovery of the Declaration of Independence by the People of the United States" (Fitzpatrick 1924, 9-20).

REFERENCES

Bailyn, Bernard, ed.  1993.  The Debate on the Constitution: Federalist and Antifederalist Speeches, Articles, and Letters During the Struggle over Ratification.  2 volumes.  New York: The Library of America.

Detweiler, Philip F.  1962.  "The Changing Reputation of the Declaration of Independence: The First Fifty Years."  William and Mary Quarterly 19: 557-574.

Fitzpatrick, John C.  1924.  The Spirit of the Revolution: New Light from Some of the Original Sources of American History.  Boston: Houghton Mifflin Company.

Maier, Pauline.  1997.  American Scripture: Making the Declaration of Independence.  New York: Alfred A. Knopf.

Maier, Pauline.  1999.  "The Strange History of 'All Men Are Created Equal'".  Washington and Lee Law Review 56: 873-888.

Storing, Herbert J., ed.  1981.  The Complete Anti-Federalist. 7 volumes.  Chicago: University of Chicago Press.

Zuckert, Michael.  1998.  "A Work of Our Own Hands."  Review of Politics 60: 355-360.

Zuckert, Michael.  2002.  Launching Liberalism: On Lockean Political Philosophy.  Lawrence, KS:  University Press of Kansas.

The Lockean Constitutional Originalism of Abraham Lincoln and Harry Jaffa

The John Birch Society's "Impeach Earl Warren" Billboards Were Common in the 1960s in the American South

Now, more than ever before, we need to understand the jurisprudential philosophy of constitutional originalism that has been developed by American conservative Republicans over the past fifty years.  The effort of the conservative originalists to take control of most of the federal judiciary, including the Supreme Court, has succeeded, for the first time in American history.  This effort--led by the Federalist Society--reached its consummation during Donald Trump's presidency.

Of the three Supreme Court justices appointed by Trump--Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett--Gorsuch and Barrett are self-professed originalists, and Kavanaugh is sympathetic to originalism.  Justice Clarence Thomas is a proud originalist.  Justice Samuel Alito and Chief Justice John Roberts often vote with the originalists.  Because of their ages, we can easily imagine that these six justices will be the majority on the Court for at least ten to twenty years.  At the time of her confirmation, Barrett was forty-eight years old; and the other conservative justices were fifty-three (Gorsuch), fifty-five (Kavanaugh), sixty-six (Roberts), seventy (Alito) and seventy-two (Thomas).  This originalist majority will have many years to radically transform American constitutional politics.  They have already begun to do that--particularly with the overturning of Roe v. Wade.

Is the Republican originalist philosophy of the Constitution correct or not?  What are the likely consequences (good or bad) of having a Supreme Court controlled by Republican originalism?  Is there a good alternative to originalism, such as the idea of the "living constitution" favored by liberal Democrats?  Or is there perhaps another form of constitutional originalism that is better than the Republican originalism that has taken over the Court?  

I have argued for a Lockean and Lincolnian originalism that interprets the original meaning of the constitutional text in the light of the philosophic principles of the Declaration of Independence and Darwinian natural right.  In some respects, this is similar to what Jack Balkin has called "living originalism."  Some of my previous posts on this can be found here, here, and here.

I have been thinking about these questions ever since I taught my first constitutional law class at Rosary College (now Dominican University), in River Forest, Illinois, in the fall of 1977.  I am now prepared to argue that by comparison with the legal positivism of Republican originalism, the better form of originalism is the legal naturalism of the Lockean constitutional originalism of Abraham Lincoln.  Those of you who know the work of Harry Jaffa will recognize his influence here on my thinking, although I am not sure that Jaffa would have fully agreed with my grounding of Lockean/Lincolnian natural rights in Darwinian natural right.

THE LEGAL POSITIVISM OF CONSERVATIVE REPUBLICAN ORIGINALISM

Conservative Republican originalism rests on a positivist understanding of law as ultimately the command of a lawmaker enforced by punishment of those who disobey the law.  By contrast, the naturalist understanding of law is that the ultimate standard for legal justice is the natural justice of natural law or natural rights--or "the Laws of Nature and of Nature's God."  The legal positivist says that this naturalist understanding confuses the objective judgment of a law's validity and the subjective judgment of a law's morality.  The legal positivist recognizes the validity of any law enacted by the lawmaking institutions of a society as an objective fact, in contrast to the subjective value-judgment of that law as good or bad, just or unjust.  Consequently, a positivist originalist will say that judges must interpret constitutional laws exactly as they were originally understood by those who wrote and ratified those laws, and the judges must not impose any personal moral judgment of right or wrong, just or unjust.  And so, for example, judges must recognize as constitutional rights only those rights expressly enumerated in the Constitution, without claiming any supposedly natural rights that are not expressly enumerated in the constitutional text.

The conservative Republican campaign for positivist constitutional originalism began in 1954 as a reaction against the Supreme Court decision in Brown v. Board of Education striking down racial segregation in public schools as an unconstitutional violation of the Equal Protection Clause of the Fourteenth Amendment.  Newly appointed Chief Justice Earl Warren deftly persuaded a divided court to sign onto a unanimous opinion written by Warren.  This was the beginning of the modern civil rights movement for abolishing racial segregation.

Conservative Republicans and southern Democrats denounced Brown and other decisions attacking segregation as an exercise in political power that was contrary to the text of the Constitution, because those who wrote and ratified the Fourteenth Amendment did not intend that this would forbid racially segregated public schools, and because such decisions violated the constitutional principle of state's rights that allows state governments to enforce racial segregation.  The right-wing John Birch Society promoted an "Impeach Earl Warren" campaign that included billboards scattered around roads in the American South.  Because of this refusal to accept the Brown decision, many public-school systems remained segregated in the South, even into the late 1960s.  

I had some personal experience with this.  When my parents moved in 1962 from DeSoto, Missouri, to Wills Point, Texas, I entered an all-white public high school that was separated from the high school for black students, which was different from the racially integrated schools in DeSoto. When my parents then moved in 1964 to Big Spring, Texas, I discovered that Big Spring High School had been one of the few public schools in Texas that became racially integrated immediately after the Brown decision in 1954.

As the alternative to the "judicial activism" of the Warren Court, conservative Republicans insisted that the Supreme Court should adhere to "strict constructionism," so that judges would be guided by the text of the Constitution and the original intent of the Founding Fathers and of those who amended the Constitution, rather than the personal moral and political values of the judges.

The modern history of the movement for an originalist jurisprudence took a new turn in 1971 with the publication of an article in the Indiana Law Review by Robert Bork--"Neutral Principles and Some First Amendment Problems."  Initially, this article received little attention.  But later, as Bork became a famous proponent of originalism, it became one of the most cited law review articles ever written.

Bork's article was written largely as a response to Griswold v. Connecticut (1965), which Bork identified as "a typical decision of the Warren Court" (7).  Griswold struck down as unconstitutional a Connecticut law making it a crime, even for married couples, to use contraceptive devices.  The Court said that this law violated the constitutional "right to privacy."  

The obvious objection to this claim is that there is no express declaration of a "right to privacy" anywhere in the Constitution.  But in his opinion for the Court, Justice William Douglas argued that the right to privacy was within the "penumbras" of the Bill of Rights:

". . . specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. . . . Various guarantees create zones of privacy.  The right of association contained in the penumbra of the First Amendment is one, as we have seen.  The Third Amendment in its prohibition against the quartering of soldiers 'in any house' in time of peace without the consent of the owner is another facet of that privacy.  The Fourth Amendment explicitly affirms the 'right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures.'  The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment.  The Ninth Amendment provides: 'The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.'"

Although Douglas did not identify this as a natural right, he came close to saying that in at least one passage: "We deal with a right of privacy older than the Bill of Rights--older than our political parties, older than our school system.  Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred."  Is this suggesting that marriage is so deeply rooted in human nature that we should recognize a natural right to marriage--and to the right to make marital decisions such as concerning birth control?

When I first discussed the Griswold decision with my students at Rosary College, I was skeptical about Douglas's appeal to the "penumbras" of the Bill of Rights.  Since "penumbra" was not part of my vocabulary, I looked it up in some dictionaries.  I learned that it was a word borrowed from Latin meaning "a partially shaded area."  According to the Oxford English Dictionary, Oliver Wendell Holmes introduced the penumbra metaphor into constitutional jurisprudence.  In The Common Law, Holmes said: "Legal, like natural divisions, however clear in their general outline, will be found on exact scrutiny to end in a penumbra or debatable land."  This corresponds to what the OED identifies as the third sense of "penumbra"--"a faint intimation of something or a peripheral region of uncertain extent."  The OED also says that Douglas's use of "penumbra" in Griswold is considered "the locus classicus for this usage."

To speak of an unenumerated constitutional right of privacy as a penumbral emanation of the enumerated rights in the Bill of Rights sounds remarkably fuzzy.  It's so fuzzy that Bork complained that Griswold was an "unprincipled decision," because the Court was expressing its subjective value judgment endorsing the right of privacy that could not be justified by any objective principle of jurisprudence.

". . . We are left with no idea of the sweep of the right of privacy and hence no notion of the cases to which it may or may not be applied in the future.  The truth is that the Court could not reach its result in Griswold through principle.  The reason is obvious.  Every clash between a minority claiming freedom and a majority claiming power to regulate involves a choice between the gratifications of the two groups.  When the Constitution has not spoken, the Court will be able to find no scale, other than its own value preferences, upon which to weigh the respective claims to pleasure. . . ."

"In Griswold a husband and wife assert that they wish to have sexual relations without fear of unwanted children.  The law impairs their sexual gratifications.  The State can assert, and at one stage in that litigation did assert, that the majority finds the use of contraceptives immoral.  Knowledge that it takes place and that the State makes no effort to inhibit it causes the majority anguish, impairs their gratifications."

Bork went on to observe:

". . .  Unless we can distinguish forms of gratification, the only course for a principled Court is to let the majority have its way . . . . There is no principled way to decide that one man's gratifications are more deserving of respect than another's or that one form of gratification is more worthy than another.  Why is sexual gratification more worthy than moral gratification? . . . There is no way of deciding these matters other than by reference to some system of moral or ethical values that has no objective or intrinsic validity of its own and about which men can and do differ.  Where the Constitution does not embody the moral or ethical choice, the judge has no basis other than his own values upon which to set aside the community judgment embodied in the statute.  That, by definition, is an inadequate basis for judicial supremacy. . . ."

Bork concluded: "Legislation requires value choice and cannot be principled in the sense under discussion.  Courts must accept any value choice the legislature makes unless it clearly runs contrary to a choice made in the framing of the Constitution."

In support of this originalist view of constitutional jurisprudence, Bork spoke in 1982 at the founding meeting of the Federalist Society, which became the preeminent organization for lawyers and law professors who wanted to advance the originalist philosophy of law.  This position was strengthened in 1985, when Edwin Meese, Attorney General in the Reagan Administration, gave a speech to the American Bar Association pledging to promote a "jurisprudence of original intention."  In 1986, President Reagan appointed Associate Justice William Rehnquist to become the new Chief Justice of the Supreme Court and Antonin Scalia to take his place as a new associate justice.  Rehnquist and Scalia became forceful champions of originalism.  

In 1987, Reagan nominated Bork for the Supreme Court.  Since Bork had been a professor of law at Yale Law School, the Solicitor General of the United States, and a judge on the U.S. Court of Appeals for the District of Columbia Circuit, he seemed to be so highly qualified that he would be quickly confirmed by the Senate.  But the liberal opponents of Bork's originalism decided to launch a national campaign against Bork's confirmation.  The twelve days of confirmation hearings, presided over by the young senator from Delaware--Joe Biden--who was chair of the Senate Judiciary Committee, were televised, and they captured the attention of the whole country.  

Bork was questioned intensely about his opposition to the Griswold decision, because the claim that there was a constitutional right to privacy had become one ground for the decision in Roe v. Wade in 1972 that there was a constitutional right to abortion in the early stages of pregnancy, and the liberal opponents of Bork feared that he would vote to overturn Roe.  Bork argued that while the Connecticut law prohibiting contraception was wrong and even silly, this was a political question for the citizens and legislators of Connecticut and not a legal question for the Supreme Court, because there was no express constitutional language about the "right to privacy."  He also said that he would respect the Roe decision as a well-established precedent, even if he found the reasoning in Roe weak.

Bork was also questioned about whether his originalist interpretation of the Constitution would have supported Roger Taney's opinion in the Dred Scott case in 1857 upholding slavery as a constitutional right to property.  After all, Taney cited those provisions of the Constitution that protected slavery.  Senator Howard Metzenbaum quoted from Taney's opinion about protecting slavery as part of the "original intent" of the Framers.  Bork's response was to say: "the Devil can quote Scripture."  Amazingly, he seemed thereby to concede that Taney was correct in his constitutional originalism.  Bork did add, however, that Taney's decision was wrong in usurping the power of Congress by declaring unconstitutional the limitation on the extension of slavery in the Missouri Compromise of 1820.

The Senate rejected Bork's nomination by a vote of forty-two in favor and fifty-eight against.  This was one of the biggest defeats for a Supreme Court nominee in American history.  Some of Bork's supporters drew from his failure the lesson that he had answered the hostile questions in his confirmation hearings too honestly and directly.  Since then, originalist judges nominated to the Supreme Court have been evasive or even deceptive about their views in their confirmation hearings.  For example, the justices who voted last summer to overturn Roe had been careful in their confirmation hearings to deceptively create the impression that they would always uphold the precedent of Roe.

Bork could have won confirmation in 1987 if he had reaffirmed what he had said in a 1968 article in Fortune magazine about the Griswold decision, which was very different from what he had said in his 1971 Indiana Law Review article.   In that Fortune article, Bork argued:

 "A desire for some legitimate form of judicial activism is inherent in a tradition that runs strong and deep in our culture, a tradition that can be called 'Madisonian.'  We continue to believe there are some things no majority should be allowed to do to us, no matter how democratically it may decide to do them.  A Madisonian system assumes that in wide areas of life a legislative majority is entitled to rule for no better reason than that it is a majority.  But it also assumes there are some aspects of life a majority should not control, that coercion in such matters is tyranny, a violation of the individual's natural rights.  Clearly, the definition of natural rights cannot be left to either the majority or the minority.  In the popular understanding upon which the power of the Supreme Court rests, it is precisely the function of the Court to resolve this dilemma by giving content to the concept of natural rights in case by case interpretations of the Constitution" (170).

At first glance, it might appear that there is nothing in the text of the Constitution to support this, because the term "natural rights" never appears in the Constitution.  Nevertheless, Bork argued, Justice Arthur Goldberg, in his concurring opinion in Griswold, could rightly see an implicit appeal to natural rights in the Ninth Amendment: "The enumeration, in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."  Goldberg had explained: "the Ninth Amendment shows a belief of the Constitution's authors that fundamental rights exist that are not expressly enumerated in the first eight amendments . . . and an intent that the list of rights included there not be deemed exhaustive."

At his confirmation hearings, Bork was asked about his view of the Ninth Amendment.  Instead of recognizing it as pointing to unenumerated natural rights, as he had in 1968, he dismissed it as a meaningless provision of the Constitution:

"I do not think you can use the Ninth Amendment unless you know something of what it means.  For example, if you had an amendment that says 'Congress shall make no,' and then there is an inkblot, and you cannot read the rest of it, and that is the only copy you have, I do not think the court can make up what might be under the inkblot."

As I have said previously, this scorn for the Ninth Amendment illustrates the incoherence of Bork's originalism.  On the one hand, originalists insist that every provision of the Constitution must be given some meaning.  On the other hand, they throw out the Ninth Amendment because it denies their claim that the Constitution does not protect unenumerated rights.

A coherent originalism could recognize the importance of the Ninth Amendment in pointing to the principles of the Declaration of Independence--the Lockean philosophy of natural rights--as the philosophic foundation for interpreting the Constitution.  That was the originalism of Abraham Lincoln that was restated by Harry Jaffa.

LINCOLNIAN ORIGINALISM

"A word fitly spoken is like apples of gold in pictures of silver" (Proverbs 25:11).  After Alexander Stephens in a letter reminded Abraham Lincoln of this verse from Proverbs, Lincoln wrote out this passage sometime around January of 1861, shortly before his inauguration as President, and four months before the start of the Civil War with the Confederate firing on Fort Sumter:

"All this is not the result of accident.  It has a philosophical cause.  Without the Constitution and the Union, we could not have attained the result; but even these, are not the primary cause of our great prosperity.  There is something back of these, entwining itself more closely about the human heart.  That something, is the principle of 'Liberty to all'--the principle that clears the path for all--gives hope to all--and, by consequence, enterprize, and industry to all."

"The expression of that principle, in our Declaration of Independence, was most happy, and fortunate.  Without this, as well as with it, we could have declared our independence of Great Britain; but without it, we could not, I think, have secured our free government and consequent prosperity.  No oppressed people will fight, and endure, as our fathers did, without the promise of something better, than a mere change of masters."

"The assertion of that principle, at that time, was the word, 'fitly spoken' which has proved an 'apple of gold' to us.  The Union, and the Constitution, are the picture of silver, subsequently framed around it.  The picture was made, not to conceal, or destroy the apple; but to adorn, and preserve it.  The picture was made for the apple--not the apple for the picture."

"So let us act, that neither picture, or apple shall ever be blurred, or bruised or broken" (Collected Works of Abraham Lincoln, 4: 168-169). 

Although there is no evidence that Lincoln ever used this language in any of his public speeches or writings, its imagery does vividly capture the main idea of his philosophic constitutional originalism:  the text of the Constitution is the silver frame around the golden principles of the Declaration of Independence, and thus the original meaning of the constitutional text must be interpreted in the light of the Declaration of Independence and its Lockean philosophy of natural rights. 

In some ways, Lincolnian originalist jurisprudence resembles Ronald Dworkin's philosophic moral reading of the Constitution, in which the Constitution is interpreted as expressing the Lockean moral philosophy of the Declaration of Independence.

Jaffa claimed that Bork came close to this Lincolnian originalism in his 1968 article, although he failed to recognize the importance of the Declaration as the authoritative statement of natural rights.  But then in his 1971 article and in his 1987 confirmation hearings, Bork turned away from this by embracing a legal positivist interpretation of the Constitution that denied natural rights.

There are two obvious objections to Lincolnian originalism.  The first is that the text of the Constitution says nothing about the Declaration of Independence.  The second is that the constitutional protections for slavery (the Fugitive Slave Clause, for example) seem to uphold slavery and thus deny the Declaration's fundamental premise that all people are equally free and endowed with rights.

Consider the first objection:  when one looks at the constitutional picture framed in silver, one does not in fact see an apple of gold anywhere in the picture!  That's what Bork and Scalia said whenever Justice Clarence Thomas invoked the Declaration of Independence in interpreting the Constitution.  The Constitution never affirms the Declaration to be part of constitutional law.

There is evidence, however, in the constitutional text and in the history of the American Founding to support Lincoln's claim that there really is an apple of gold in the constitutional picture of silver.  Jaffa surveyed this evidence in his book Original Intent and the Framers of the Constitution (1994).

As I have already suggested, the Ninth Amendment's declaration that "the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people" affirms constitutional protection for unenumerated rights; and to say that these rights are "retained by the people" implies that these rights arose in the Lockean state of nature prior to the establishment of government.  This was indicated in Roger Sherman's version of the Ninth Amendment in his original draft of the Bill of Rights:  "The people have certain natural rights which are retained by them when they enter into Society."  James Madison indicated the same idea when he said that some of the rights protected by the Bill of Rights were "natural rights."  One cannot dismiss the Ninth Amendment as an "inkblot" on the Constitution, as Bork did, unless one denies the reality of natural rights.

Moreover, the Preamble of the Constitution also implicitly points to the natural rights of the people in a state of nature.  "We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."  By what right did We the People ordain and establish a new government for the United States?  

There was already a national government under the Articles of Confederation as ratified by the states in 1781.  The delegates to the Constitutional Convention in Philadelphia in 1787 were originally supposed to propose revisions to the Articles of Confederation.  But instead of that, they wrote a totally new constitution.  In Article 13 of the Articles of Confederation, it was prescribed that any "alteration" of the Articles would have to be approved by the Congress of the United States and by the legislature of each state.  But Article 7 of the Constitution prescribed that its ratification would require only the ratification of state conventions in nine states.  Thus, the ratification of the Constitution was an unconstitutional overthrow of the Articles of Confederation!

In The Federalist (Number 43), Madison explained that justifying the revolutionary overthrow of the Articles of Confederation and the ratification of the Constitution required an appeal to the principles of the Declaration of Independence--"to the great principle of self-preservation; to the transcendent law of nature and of nature's God, which declares that the safety and happiness of society are the objects at which all political institutions aim, and to which all such institutions must be sacrificed."  Thus, the legitimacy of the Constitution as ordained and established by the people depends on affirming the laws of nature and of nature's God as recognized in the Declaration of Independence and as superior to the positive laws of the Articles of Confederation.

Those who framed the Constitution of 1787 and proposed it for ratification by the people in the states saw themselves as reverting to a state of nature in which the people have a natural right to "institute new government."  As I have said in some previous posts, those in the First Continental Congress of 1774 also saw themselves as in a Lockean state of nature, with the natural right to revolt from Great Britain and establish new governments for the United States, which they proceeded to do.  The Declaration of Independence in 1776 was an affirmation of those "Laws of Nature and of Nature's God" that legitimated what they were doing.

The constitutions of eight of the thirteen original states explicitly affirmed the principles of the Declaration of Independence as the grounding in nature for their right to establish new governments by consent of the people.  For example, the Declaration of Rights in the Virginia Constitution proclaimed:  

"That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot by any compact deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety."

Similarly, the Massachusetts Constitution of 1780 asserted: "All men are born free and equal, and have certain natural, essential, and unalienable rights."

This is the language of the Declaration of Independence.  And that is why, in 1825, Thomas Jefferson and James Madison, speaking for the Board of Visitors of the University of Virginia, recommended to the professors "the Declaration of Independence, as the fundamental act of union of these States" (Jefferson, Writings, Library of America, 479). 

A PROSLAVERY CONSTITUTION?

It is true, of course, that the Constitution as it looked before the Civil War amendments (13-15) might seem to contradict the Declaration because of those constitutional provisions protecting slavery as it existed in the slave states.  But these were understood by the framers of the Constitution as prudential compromises to win the support of the slave states, with the expectation that over time slavery would be gradually abolished.  That explains why, as James Madison observed, the Constitution never uses the words "slaves" or "slavery," Those constitutional provisions pertaining to slaves refer to them as "persons."  This points to the inherent contradiction in slavery in treating slaves as both "persons" and "property."

That the Constitution was not really a proslavery document became clear when the Confederate States adopted their new constitution in March of 1861.  Remarkably, most of the Confederate Constitution is copied word-for-word from the U.S. Constitution.  But if you read them side-by-side, you can see that the drafters of the Confederate Constitution made important changes, and most of these changes are designed to emphatically endorse slavery and to make the right to own slaves as property permanent.

For example, Article I, Section 9, of the U.S. Constitution includes this provision:  "No Bill of Attainder or ex post facto Law shall be passed."  

Here is the corresponding provision in the Confederate Constitution: "No bill of attainder, ex post facto law, or law denying or impairing the right of property in negro slaves, shall be passed."  The Congress of the Confederate States was thus prohibited from passing any law denying or impairing the right of property in negro slaves.  The Congress of the United States was not.

Article IV, Section 2, of the U.S. Constitution includes this provision:  "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."  

Here is the corresponding provision in the Confederate Constitution: "The citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States; and shall have the right of transit and sojourn in any State of this Confederacy, with their slaves and other property; and the right of property in said slavery shall not be thereby impaired."  The Congress of the Confederate States was thus prohibited from passing any law denying or impairing the right of slaveholders to take their slaves from one state to another.  The Congress of the United States was not.

Article IV, Section 2, Clause 3, of the U. S. Constitution is commonly identified as the "Fugitive Slave Clause."  But the term "fugitive slave" does not appear in the text.  Here's what it says: "No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due."  

Now, here is the version of this clause in the Confederate Constitution: "No slave or other person held to service or labor in any State or Territory of the Confederate States, under the laws thereof, escaping or lawfully carried into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such slave belongs or to whom such service or labor may be due."

Notice how the Confederate Constitution carefully adds the word "slave" twice to the original constitutional text that does not contain this word.  This is conclusive evidence that Lysander Spooner was right that fugitive slave laws were unconstitutional because the Constitution's clause about returning fugitives refers not to slaves but to servants--people who were "held to service or labor" by some contractual agreement.  A slave is "held" by brute force, not by some legal obligation.

The Confederate Constitution is clearly a proslavery constitution.  The U.S. Constitution is not.

This also demonstrates that the primary reason for the secession of the Southern States from the Union was to protect slavery by enacting a constitution that would be reliably proslavery in a way that the U.S. Constitution was not.

This was made clear by Alexander Stephens' famous "Cornerstone Speech."  Stephens was the Vice-President of the Confederacy.  As a delegate from Georgia, he participated in the drafting of the Confederate Constitution, and he signed it on March 11, 1861.  Ten days later, he gave a speech in Savannah, Georgia, explaining the importance of this new constitution for the Confederacy as being superior to the old constitution for the Union.

He explained:

"The new constitution has put at rest, forever, all the agitating questions relating to our peculiar institution African slavery as it exists amongst us the proper status of the negro in our form of civilization.  This was the immediate cause of the late rupture and present revolution.  Jefferson in his forecast, had anticipated this, as the 'rock upon which the old Union would split.'  He was right.  What was conjecture with him, is now a realized fact.  But whether he fully comprehended the great truth upon which that rock stood and stands, may be doubted.  The prevailing ideas entertained by him and most of the leading statesmen at the time of the formation of the old constitution, were that the enslavement of the African was in violation of the laws of nature; that it was wrong in principle, socially, morally, and politically.  It was an evil they knew not well how to deal with, but the general opinion of the men of that day was that, somehow or other in the order of Providence, the institution would be evanescent and pass away.  This idea, though not incorporated in the constitution, was the prevailing idea at that time.  The constitution, it is true, secured every essential guarantee to the institution while it should last, and hence no argument can be justly urged against the constitutional guarantees thus secured, because of the common sentiment of the day.  Those ideas, however, were fundamentally wrong.  They rested upon the assumption of the equality of races.  This was an error.  It was a sandy foundation, and the government built upon it fell when the 'storm came and the wind blew.'"

"Our new government is founded upon exactly the opposite idea; its foundations are laid, its cornerstone rests, upon the great truth that the negro is not equal to the white man; that slavery, subordination to the superior race, is his natural and normal condition.  This, our new government, is the first, in the history of the world, based upon this great physical, philosophical, and moral truth."

          . . .

". . . It is the first government ever instituted upon the principles in strict conformity to nature, and the ordination of Providence, in furnishing the materials of human society.  Many governments have been founded upon the principle of the subordination and serfdom of certain classes of the same race; such were and are in violation of the laws of nature.  Our system commits no such violation of nature's laws.  With us, all of the white race, however high or low, rich or poor, are equal in the eye of the law.  Not so with the negro.  Subordination is his place.  He, by nature, or by the curse against Canaan, is fitted for that condition which he occupies in our system."

The reference here to "the curse against Canaan" refers to Noah's "cursed be Canaan; a servant of servants shall he be unto his brethren" (Genesis 9:25).  Southern Christians interpreted this as a curse upon the black race in Africa.  This was part of a general argument that the Bible ordained slavery.  As I have written about this, Fred Ross's Slavery Ordained of God was one of the most influential of the studies of the Bible's support for slavery.  Ross denounced Jefferson's Declaration of Independence as an atheistic denial of God's law of human inequality.

It should also be noted that while Stephens was emphatic in his speech in 1861 about the dispute over slavery being the cause of Southern secession, after the Civil War was over, Stephens argued in his Constitutional View of the Late War Between the States (1868) that the secession of the confederate states was only to affirm states' rights, and that slavery was not the cause of the Civil War.  He thus contributed one of the primary ideas for the Myth of the Lost Cause of the Confederacy, which sought to glorify the Confederacy as a noble cause.  That Myth of the Lost Cause lives on among those Americans today who wave the confederate battle flag as the mythic symbol of the Old South.

As I have indicated in some other posts, the defense of the Confederate Constitution founded on slavery as superior to the U.S. Constitution founded on the principles of the Declaration of Independence continues today among the neoreactionary authoritarians like Curtis Yarvin (Mencius Moldbug).

The Lockean Evolutionary State of Nature in the First Continental Congress: A Response to Barry Alan Shain

In John Adams' Notes on the Debates in the Continental Congress, September 6, 1774, Patrick Henry Declares: "We are in a State of Nature, Sir."

I have said that the American Revolution began when some of the delegates to the First and Second Continental Congresses saw that they were in a state of nature, and that they could exercise the natural right of the people to establish a new government to secure their rights.  This Lockean liberal understanding of what they were doing was then eloquently stated in the Declaration of Independence, particularly in its famous second sentence ("We hold these truths . . .").

And yet, many scholarly interpreters of the American Revolution claim that this account of the debates that led to the Declaration of Independence is deeply mistaken.  For example, Barry Alan Shain has argued this in his edited book--The Declaration of Independence in Historical Context (Liberty Fund, 2014)--which is a massive collection of material related to the first three national congresses: the Stamp Act Congress (October 7-25, 1765), the First Continental Congress (September 5-October 26, 1774), and the Second Continental Congress (May 10, 1775, to March 1, 1781).

In his Introduction to this book, Shain explains that in the scholarly study of the thinking that led to the Declaration of Independence, there are at least seven different schools of interpretation.  Of these seven, Shain suggests that what he calls "the Imperial school" interpretation is strongly confirmed by the documents he has collected in his book.  According to the Imperial school, the debates that led to the American Revolution were part of a unique historical situation--the British Imperial Crisis (from the Stamp Act Crisis of 1763 to the end of the American Revolution in 1783)--which was a seemingly irresolvable debate over how to protect the British political rights of the American colonists, within the British Empire, while maintaining Parliament's supremacy in Great Britain.  This was not, therefore, Shain argues, a debate about universal natural rights of all human beings (as assumed by Lockean liberals), but rather it was a debate about the civil rights of British citizens under the British Constitution.

If this is true, then the natural rights theorizing of the Declaration of Independence (particularly in the second sentence) is not an accurate expression of colonial political thinking over the preceding twelve years of debate over the rights of the colonists in the British Empire.  Shain agrees with the conclusion of Charles McIlwain (one of the first Imperial school scholars) in his book The American Revolution:

"The Declaration of Independence is a totally different kind of document from any of its predecessors.  For the first time the grievances it voices are grievances against the King, and not against Parliament.  It is addressed to the world, not to Great Britain, and naturally the ground of such a protest will be one understood by a world that knows little of the British constitution and cares less: it will be based on the law of nature instead of the constitution of the British Empire."

Shain asserts: "The readings that follow, I believe, will offer copious and compelling support for McIlwain's conclusion" (8).

Moreover, he believes that the readings he has chosen for his book should have a higher level of interpretive authority than other collections of source materials on the American Revolution and the Declaration of Independence.  Presumably, the documents for the three continental congresses, with delegates selected to represent all of the colonies, express a broad range of views of continental constituencies, rather than particular individuals, cities, or colonies. 

I am not persuaded, however, that those documents for the continental congresses really do support the conclusion of McIlwain and Shain that prior to the summer of 1776, the majority of the congressional delegates appealed to the legal rights of the colonists under the British Constitution, while refusing to appeal to any supposed natural rights or law of nature.

Consider, for example, the debate in the First Continental Congress over how to understand the rights of the colonies.  There were 56 delegates from 12 colonies.  On the second day that the Congress met, September 6, 1774, after Patrick Henry's declaration that "we are in a state of nature," the Congress resolved to appoint delegates to a committee to examine the colonies' rights and to compile a list of grievances.

In his Diary, John Adams described the debate in this committee: 

"The two Points which laboured the most, were 1. Whether We should recur to the Law of Nature, as well as to the British Constitution and our American Charters and Grants.  Mr. Galloway and Mr. Duane were for excluding the Law of Nature.  I was very strenuous for retaining and insisting on it, as a Resource to which We might be driven, by Parliament much sooner than We were aware.  The other great question was what Authority We should conceed to Parliament: whether We should deny the Authority of Parliament in all Cases: whether We should allow any Authority to it, in our internal Affairs: or whether We should allow it to regulate the Trade of the Empire, with or without any restrictions" (Diary and Autobiography [Harvard University Press, 1961], 3:309).

According to Shain, Adams here joined the "radicals" or "republicans" in the Congress in appealing to the law of nature, while Galloway and Duane were on the side of the "moderates" or "loyalists" in appealing only to the British Constitution.  But while Shain says the loyalists were the majority, I don't see the evidence for that.

In his book, Shain includes Adams' notes of the debate for September 8, 1774, which Shain describes as "one of the most theoretically rich documents in this collection" (Shain, 220-25).  In this debate, only three individuals reject the appeal to the law of nature--John Rutledge of South Carolina, James Duane of New York, and Joseph Galloway of Pennsylvania--a small minority in the Congress, which had 56 delegates.

Richard Henry Lee begins by claiming: "The Rights are built on a fourfold foundation--on Nature, on the british Constitution, on Charters, and on immemorial Usage."

John Jay agrees: "It is necessary to recur to the Law of Nature, and the british Constitution to ascertain our Rights."  He also says that the colonists had a right to emigrate from England, and "Emigrants have a Right, to erect what Government they please."

But Rutledge disagrees:  "An Emigrant would not have a Right, to erect what Government they please."

Lee responds: "Cant see why We should not lay our Rights upon the broadest Bottom, the Ground of Nature.  Our Ancestors found here no Government."

But Rutledge insists: "Our Claims I think are well founded on the british Constitution, and not on the Law of Nature."

Duane agrees:  "Upon the whole for grounding our Rights on the Laws and Constitution of the Country from whence We sprung, and Charters, without recurring to the Law of Nature--because this will be a feeble Support."

Lee appeals to the state of nature:  "Life and Liberty, which is necessary for the Security of Life, cannot be given up when We enter into Society."

Rutledge disagrees:  "The first Emigrants could not be considered as in a State of Nature--they had no Right to elect a new King."

Galloway joins with Rutledge and Duane in rejecting the state of nature:  "I have looked for our Rights in the Laws of Nature--but could not find them in a State of Nature, but always in a State of political Society.  I have looked for them in the Constitution of the English Government, and there found them.  We may draw them from this Source securely."

Notice that while the radicals appeal both to the laws of nature and to the British Constitution, the three loyalists here argue that any appeal to the British Constitution must exclude any appeal to the law of nature.  

As far as I can tell, Galloway, Rutledge, and Duane are the only delegates who here reject any consideration of the law of nature.  But all three contradict themselves within a few weeks by voting for resolutions that invoke the law of nature.

On September 17, the Congress was presented with the "Suffolk Resolves," resolutions approved by delegates from several towns and districts in Suffolk county of Massachusetts bay, the county that included Boston (Shain, 146-51).  They were written by Joseph Warren, with help from Samuel Adams, who were leading radicals in Massachusetts.  The Resolves defended the colonial rights of Massachusetts as "derived from nature, the constitution of Britain, and the privileges warranted to us in the charter of the province," rights to which they are "justly entitled by the laws of nature, the British constitution, and the charter of the province."  On September 18, the Continental Congress approved resolutions endorsing the Suffolk Resolves and asking that they be published in the newspapers.  By approving these resolutions, Galloway, Rutledge, and Duane appeared to implicitly endorse the appeal to the law of nature.

Then, on October 20, the Congress approved a plan for establishing the Continental Association to enforce a colonial boycott of British goods (Shain, 181-86).  Part of that plan was that a committee be chosen by popular election in every county, city, and town, which would identify those people who were violating the boycott so that they could be punished by public shaming and ostracism.  John Adams called this Continental Association "the commencement of the American Union," because this was the first time that the American people had established something like a national governmental authority.  Since the Continental Congress had no legal authority under the British Constitution to do this, the Congress was implicitly exercising the natural right of the people in a state of nature to establish new governmental institutions to secure the public good.  By voting for this, Galloway, Rutledge, and Duane were implicitly appealing to the law of nature in a state of nature.

Shortly before the Congress adjourned on October 26, the Congress approved a "Bill of Rights and List of Grievances," with language that anticipated in many ways the Declaration of Independence.  In this Bill of Rights, they declared "THAT the inhabitants of the English colonies in North-America, by the immutable laws of nature, the principles of the English constitution, and the several charters, have the following RIGHTS."  The first in the list of rights was "THAT they are entitled to life, liberty, and property: and they have never ceded to any sovereign power whatever, a right to dispose of either without their consent" (Shain, 212).  In voting for this, Galloway, Rutledge, and Duane recognized those "immutable laws of nature."

Of these three people, Galloway was the only one who ultimately decided to take the loyalist position against the Declaration of Independence and its appeal to "the Laws of Nature and of Nature's God."  In the First Continental Congress, he had proposed a "Plan of Union" that would have unified the colonies within the British Empire (Shain, 155-174).  This plan would have established an American legislature for regulating the general affairs of America, while each colonial legislature would continue to regulate its internal affairs.  General regulations could be proposed by either the new American legislature or by the British Parliament, but the enactment of these regulations would require the assent of both.  After debating Galloway's plan, the Congress voted against accepting it; and the record of the plan was expunged from the congressional Journal.

In his speech arguing for his Plan, Galloway warned that if the Plan was rejected, the colonies would remain disunited, without any national government.  "That while they deny the authority of Parliament, they are, in respect to each other, in a perfect state of nature, destitute of any supreme direction or decision whatever, and incompetent to the grant of national aids, or any other general measure whatever, even to the settlement of differences among themselves" (Shain, 168).

But when the Second Continental Congress convened on May 10, 1775, it exercised the natural right of the people in a state of nature to establish a new government, because this Continental Congress acted as a provisional national government that managed the revolutionary war and approved the Declaration of Independence in 1776 and the Articles of Confederation in 1777, which were ratified in 1781.  

In 1775, Galloway quit the Pennsylvania Assembly and refused to serve in the new Continental Congress.  He opposed the adoption of the Declaration of Independence.  After the Declaration was signed, he fled to New York to join the British and become a top advisor to William Howe, the commander-in-chief of British forces in North America.  After the British captured Philadelphia in September, 1777, Howe appointed him as one of the administrators over the city.  When the British left Philadelphia in June of 1778, Galloway escaped to England.  For the rest of the war, he was a leader of the loyalist colonists in England.

In contrast to Galloway, Rutledge and Duane both served in the Second Continental Congress, supported the Declaration of Independence, and served in the new national government.  Duane eventually became a federal judge appointed by George Washington.  Rutledge became a Justice (and later Chief Justice) of the United States Supreme Court.

So it seems that Galloway was the member of the Continental Congress who persisted in his loyalist denial that the American colonists had any natural right to declare their independence 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."

Many of the loyalists like Galloway joined the British in fighting the American revolutionaries.  And as I have argued, the debate between the loyalists and the revolutionaries was ultimately decided by what Locke called an "Appeal to Heaven"--an appeal to the God of Battles.  The Second Continental Congress recognized this in their "Second Proclamation for a Day of Humiliation, Fasting, and Prayer," of March 16, 1776, where they appealed to "the God of Armies, to animate our officers and soldiers with invincible fortitude, to guard and protect them in the day of battle, and to crown the continental arms, by sea and land, with victory and success" (Shain, 407).

The Evolutionary Origins of the American People in the Declaration of Independence

                                   John Trumbull's Painting "The Declaration of Independence"

"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."

From the beginning of the Declaration of Independence, the reader must wonder about its assertion of peoplehood.  What makes a people "one people" separate from other peoples?  This is the question posed today by Trump and other "populist" leaders around the world, who claim to defend the "people" against the evil elites who are "the enemies of the people."  Does the identity of a people depend on their shared ethnicity or race, as the ethnic nationalists would say?  Or can the identity of the American people arise from their dedication to the principles of equality of rights in the Declaration of Independence, which would allow for a multiethnic and pluralistic national identity?

I have argued that Abraham Lincoln was right to root the national identity of the American people in the Declaration of Independence as the moral foundation for the Constitution.  I have also argued that the Declaration of Independence expresses the political thought of John Locke, and therefore we can see the evolutionary history of America as the symbolic niche construction of Lockean liberalism.

The best objection to all of this is that it is based on two historical myths--the myth that the Declaration of Independence is a Lockean document and the myth that the story of the American people is the story of their efforts to fulfill the principles of the Declaration of Independence.  I have answered the first charge in my response to Claire Rydell Arcenas's book on Locke in America.  But I have not yet answered the second charge, which was most fully developed in Pauline Maier's book American Scripture (1997) and in an article in the Washington and Lee Law Review (1999) that summarized the argument of her book.

I will begin in this post with what Maier identifies as the best statement of the myth of the Declaration of Independence--by Lincoln.  Then, in a second post, I will survey Maier's account of how that myth emerged in the first 100 years of the Declaration from 1776 to 1876.  Finally, in a third post, I will argue that contrary to Maier, this myth is a true myth:  it is not a fictional fabrication of American history but a discovery of the historical truth of the Lockean story of America as captured in the Declaration of Independence.

LINCOLN'S MYTH

The best and most influential proponent of the myth of the Declaration of Independence that Maier wanted to debunk was Lincoln.  The most memorable statement of that myth is Lincoln's Gettysburg Address.

"Four score and seven years ago, our fathers brought forth on this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal."

When I was a fifth-grade schoolchild in DeSoto, Missouri, my teacher (Helen Rolfing) required all of her students to memorize the Gettysburg Address.  Each of us had to stand before the class one by one and recite it.  I remember that while the beginning and the end were easier to remember, the middle was hard--"But, in a larger sense, we can not dedicate--we can not consecrate--we can not hallow--this ground."  

We were being indoctrinated in the catechism of America's political religion.  We had little understanding of what it all meant, except that it had something to do with equality, freedom, and the Civil War.  As we looked up at the wall behind the teacher, we saw two big pictures--George Washington on the left and Abraham Lincoln on the right.  We learned the stories about Washington as the Father of the County and Lincoln as the Savior of the Country in the Civil War--whose saving message was expressed in the Gettysburg Address.

We were confused by the first sentence--what's a "score"?  Miss Rolfing explained that "score" was the language of the King James Bible meaning "twenty."  So, "four score and seven years ago," calculated from 1863, when Lincoln delivered the Gettysburg Address, would have pointed back to 1776 and the Declaration of Independence.  "Our fathers brought forth" the new American nation when it was dedicated to the principles of the Declaration of Independence--particularly, "the proposition that all men are created equal."

Many years later, as a college student, and as a college professor teaching a course on Abraham Lincoln, I saw the subtleties of the Gettysburg Address that I could not see as a fifth grader.  While the Declaration of Independence holds it to be "self-evident" that all men are created equal, Lincoln speaks of this as a "proposition."  In Euclidean geometry, which Lincoln studied, a "proposition" is a statement that is "proposed" to be true, and it must be proven to be true, in contrast to a self-evident truth or axiom that we know to be true without any need for proof.  In 1859, Lincoln had said that "the principles of Jefferson are the definitions and axioms of free society" (Speeches and Writings, 2:19).  As an example of an axiom in Euclidean geometry, that two lines equal to a third are equal to one another is a self-evident truth about equality.

But that all men are created equal did not seem to be an axiomatic or self-evident truth in 1863, because Americans were fighting a civil war caused by a disagreement over whether that was true, or whether its truth meant that slavery was morally wrong.  The second sentence of the Gettysburg Address pointed to that disagreement: "Now we are engaged in a great civil war testing whether that nation, or any nation so conceived and so dedicated, can long endure."  But this "test" in the American Civil War seemed to be not so much a test of the truth of a proposition about equality as a test of endurance or strength in war.

Lincoln's Gettysburg Address was delivered at a ceremony to dedicate a cemetery for those who died in the Battle of Gettysburg in Pennsylvania, which had become the bloodiest battle of the Civil War, and a decisive victory for the Union, fought near the anniversary of the Declaration of Independence, July 1-3, 1863.  A day later, on July 4th, the Union won another decisive victory when the Confederates surrendered to General Grant at Vicksburg, Mississippi, which gave the Union complete control of the Mississippi River, splitting the Confederacy in half.  Was Lincoln suggesting that the military victory of the Union in defeating the Confederacy would "prove" the truth of the proposition of human equality in the Declaration of Independence?  If so, would that mean that might does make right?

In 1838, in his Address to the Young Men's Lyceum, Lincoln had said that the American revolutionary founders "aspired to display before an admiring world, a practical demonstration of the truth of a proposition, which had hitherto been considered, at best no better, than problematical; namely, the capability of a people to govern themselves" (Speeches and Writings, 1:34).  Perhaps, then, in the Gettysburg Address, Lincoln was suggesting that a Union victory in the Civil War would be "a practical demonstration of the truth of a proposition"--namely, the capability of a people dedicated to popular government based on the principle of human equality to defeat a military insurrection designed to overturn that government as founded on that principle.

Surprisingly, however, Lincoln implied that both the Union and the Confederate soldiers who died at Gettysburg sacrificed themselves to preserve the American nation.  "We are met on a great battlefield of that war.  We have come to dedicate a portion of that field, as a final resting place for those who here gave their lives that that nation might live.  It is altogether fitting and proper that we should do this."

"But, in a larger sense," Lincoln observed, we cannot dedicate this ground beyond what the "brave men, living and dead, who struggled here" have already done.  "It is for us the living, rather, to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced."

Lincoln then concluded with his longest sentence, about one-third of the length of the entire Gettysburg Address.

"It is rather for us to be here dedicated to the great task remaining before us--that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion--that we here highly resolve that these dead shall not have died in vain--that this nation, under God, shall have a new birth of freedom--and that government of the people, by the people, for the people, shall not perish from the earth."

This concludes the third of the three paragraphs of the Gettysburg Address that tell a three-part story of American life and death.  First, there's birth--"our fathers brought fourth . . ."  Then, there's sacrificial death--"those who here gave their lives that that nation might live."  Finally, there's rebirth to eternal life--"a new birth of freedom," so that popular government "shall not perish from the earth."  (Doesn't this evoke the Christian story of Jesus?)

In this speech, Lincoln was speaking not only to Americans but also to all of Europe and Latin America, where people were watching to see whether the American model of democracy would indeed "perish from the earth."  Both the Union and the Confederacy had sent diplomats and special agents to Europe seeking support for their causes.  Lincoln and his Union agents had presented their cause--particularly with the promise of emancipation of slaves--as representing universal republican principles that were, as Lincoln said in 1862, "the last best, hope of earth" (2:415).  Charles Darwin was one of those British abolitionists who attentively followed the events of the Civil War in the newspapers, cheering when Lincoln issued the Emancipation Proclamation, and celebrating when Lee surrendered.

That the Civil War was indeed a crucial turning point in the geopolitical struggle between liberal republicanism and oligarchic authoritarianism is the argument of Don Doyle's book The Cause of All Nations: An International History of the American Civil War (2015).  I would say that the victory of the Union in the Civil War was a decisive turn in political evolution by cultural group selection that favored the Lockean liberalism of the Declaration of Independence.

Some of the proslavery Southerners understood this.  Before the war, George Fitzhugh had condemned the principle of equality in the Declaration of Independence as a statement of Locke's false teaching.  In 1866, Fitzhugh said that the conflict in the United States between the North and the South was a continuation of the debate in seventeenth-century England between Locke and Sir Robert Filmer.  The radical North was on the side of the Whigs and Locke.  The conservative South was on the side of the Tories and Filmer ("The Impending Fate of the Country," De Bow's Review 2 [1866]: 561-70).  The Union's victory in the Civil War was Locke's victory over Filmer.

Lincoln could see this as a vindication of what he had been saying for over ten years about how the American dedication to the Declaration of Independence had been tested in both war and peace.  In 1852, he had observed:  "On the fourth day of July, 1776, the people of a few feeble and oppressed colonies of Great Britain, inhabiting a portion of the Atlantic coast of North America, publicly declared their national independence, and made their appeal to the justice of their cause, and to the God of battles, for the maintenance of that declaration" (1:259).  This appeal to "the God of battles" is what Locke and the American revolutionaries called "the Appeal to Heaven."  Strangely, however, in both the American Revolution and the American Civil War, both of the opposing sides prayed to God for His help.

In fact, the Civil War became a theological crisis for America, because both proslavery and antislavery Americans looked to the Bible as supporting their position.  In the Second Inaugural Address, Lincoln sharply stated the problem: "Both read the same Bible, and pray to the same God, and each invokes His aid against the other" (2:687).  But the Declaration of Independence confidently appeals to "the Laws of Nature and of Nature's God" in declaring that "all men are created equal, that they are endowed by their Creator with certain unalienable rights."

And yet the fact that the Declaration of Independence did not mandate the abolition of slavery across all of America could be cited by people like Stephen Douglas as evidence that the equality of rights proclaimed in the Declaration was the political equality of free white men in America and other free white men in Great Britain, and thus it was not understood as an equality of all men of all races.  Lincoln responded by arguing that the equality affirmed in the Declaration was really meant to be an equality of all men of all races, but it was a matter of practical necessity to compromise with slavery for a limited period of time, while working for its ultimate extinction--and in particular, the national Congress should prohibit the expansion of slavery into the new Western territories and states.

Lincoln agreed with Henry Clay that "all men are created equal" is a true statement about men in the "state of nature" before the establishment of government.  Clay had said: "If a state of nature existed, and we were about to lay the foundations of society, no man would be more strongly opposed than I should to incorporate the institution of slavery among its elements."  "Exactly so," Lincoln observed.  "In our new free territories, a state of nature does exist," and therefore, as Congress lays the foundations of a new society in those free territories, "it is desirable that the declaration of the equality of all men shall be kept in view," and the introduction of slavery into those territories should be prohibited (1:822-23). 

In his 1857 Speech on the Dred Scott Decision, Lincoln insisted that both Douglas and Chief Justice Roger Taney were denying "the plain unmistakable language of the Declaration.  He explained:

"I think the authors of that notable instrument intended to include all men, but they did not intend to declare all men equal in all respects.  They did not mean to say all were equal in color, size, intellect, moral developments, or social capacity.  They defined with tolerable distinctness, in which respects they did consider all men created equal--equal in 'certain inalienable rights, among which are life, liberty, and the pursuit of happiness.'  This they said, and this they meant.  They did not mean to assert the obvious untruth, that all were then actually enjoying that equality, nor yet, that they were about to confer it immediately upon them.  In fact they had no power to confer such a boon.  They meant simply to declare the right, so that the enforcement of it might follow as fast as circumstances should permit.  They meant to set up a standard maxim for free society, which should be familiar to all, and revered by all; constantly looked to, constantly labored for, and even though never perfectly attained, constantly approximated, and thereby constantly spreading and deepening its influence, and augmenting the happiness and value of life to all people of all colors everywhere" (1:398).

This is the Story of America as the Story of the Declaration of Independence:  equal liberty for all is the "standard maxim" for America that is "never perfectly attained" but "constantly approximated" across American history "as fast as circumstances should permit."  

As I have argued in previous posts, those who see evidence in some of his debates with Douglas that Lincoln was a white supremacist are mistaken.  He did say "that I am not, nor ever have been in favor of bringing about in any way the social and political equality of the white and black races,--that I am not nor ever have been in favor of making voters or jurors of negroes, nor of qualifying them to hold office, nor to intermarry with white people" (1:636).  But notice that he is silent about what he might say in the future.  And in fact, in 1865, he endorsed a free state constitution for Louisiana "giving the benefit of public schools equally to black and white, and empowering the Legislature to confer the elective franchise upon the colored man" (2:700).  

Moreover, I have argued, there are good reasons to believe that if Lincoln has been a modern Supreme Court Justice he would have supported the constitutional rights to racial intermarriage (in Loving v. Virginia) and same-sex marriage (in Obergefell v. Hodges); and he would have said that these decisions properly enforced the principle of equal liberty in the Declaration of Independence.

But was Lincoln right about the original meaning of the Declaration of Independence?  Maier argued that Stephen Douglas's interpretation of the Declaration was actually an accurate account of the original history of the Declaration; and what Lincoln presented was a mythical distortion of that history.  I will take that up in the next post.

 

REFERENCES

Doyle, Don H. 2015. The Cause of All Nations: An International History of the American Civil War. New York: Basic Books.

Lincoln, Abraham. 1989. Speeches and Writings. 2 volumes. New York: Library of America.

Maier, Pauline. 1997. American Scripture: Making the Declaration of Independence. New York: Alfred A. Knopf.

Maier, Pauline. 1999. "The Strange History of 'All Men Are Created Equal.'" Washington and Lee Law Review 56 (Summer): 873-888.