Locke in the Declaration of Independence: A Response to Claire Rydell Arcenas's Argument

Over the years, I have written a lot about Lockean liberalism in American political thought--particularly as expressed in the Declaration of Independence.  But a new book by Claire Rydell Arcenas--America's Philosopher: John Locke in American Intellectual Life--argues that this idea that Locke's ideas (particularly in his Second Treatise of Government) influenced the Declaration of Independence is a "myth."  There are, however, two major weaknesses in Arcenas's argument that are illustrated by her handling of the intellectual history of the Declaration of Independence.

Nevertheless, I should say that her book is valuable as an intellectual history of John Locke's influence in America from the colonial period to the present.  She shows that that influence has been so deep and so enduring that Locke can indeed be identified as "America's Philosopher."  I find much of what she says persuasive.

I am not fully persuaded for two reasons.  She is not a careful reader of Locke.  And she employs a deceptive silence that allows her to ignore the best criticisms of her reasoning.  I will explain these two points, and then I will show how they are manifested in her account of the Declaration of Independence.

Although Arcenas's denial of the Lockean character of the Declaration of Independence is only a small part of her history of Locke in America, it is the crucial turn in her general argument.

A CARELESS READER

Arcenas speaks about what "careful readers of Locke's work" know about his writings (50).  Unfortunately, Arcenas offers no evidence that she is one of those careful readers.  On the contrary, she often suggests that either she has not read Locke at all, or that she has only glanced at some passages in Locke's texts with the help of some summaries by some scholarly commentators.  For example, after a brief survey of Locke's life and work, she refers her reader to "some succinct summaries of Locke's work" in The Cambridge Companion to Locke and elsewhere (6, 174, n.18).  When she writes about Locke's Reasonableness of Christianity and his Paraphrase and Notes on the Epistles of St. Paul, she does not quote or cite any passages in those books, but instead, once again, she cites some scholarly summaries of those books (28-29, 184, nn. 115, 119).

At no point in her book, does Arcenas develop a careful reading of any portion of Locke's texts.  Now Arcenas might respond by saying that she does not present her book as an accurate interpretation of Locke's writing.  She explains: "This, then, is not a book about John Locke, the seventeenth-century English philosopher, but rather a book about how Americans over time have understood and made sense of him, his work, his ideas, and his relevance.  I present interpretations of Locke's life, ideas, and works through the eyes of my subjects--not the lenses of modern scholars" (4-5).  But, as we have just seen, she does rely on "the lenses of modern scholars" to provide accurate summaries of Locke's writings.  Moreover, she often corrects what she claims to be distortions of Locke's texts.  For example, she asserts that "careful readers of Locke's works" know that what the Declaration of Independence calls "the pursuit of Happiness" cannot be found in Locke's writing (50-51, 127).

DECEPTIVE SILENCE

A second weakness in Arcenas's book is that she is deceptively silent about the many good objections to her arguments.  One of the fundamental standards for scholarly writing is that if a scholar takes a position on some controversial topic, that scholar is obligated to explain and then rebut the best arguments for the opposing positions in the debate.  Arcenas does not do that.  Nowhere in her book does she explain to her reader the objections to her reasoning and then refute those objections.  Her silence allows her to ignore her critics without directly engaging them in debate.

She might respond by saying that in fact she identifies her critics by citing their writings.  And, indeed, in a few of the endnotes to her book, she does list some articles and books that argue against her position (176, n. 8, and 190, n. 72, 191, n. 75).  But she never explains the evidence and arguments laid out by these critics, and she never attempts to show how these critics are mistaken.  In this way, she makes it impossible for her reader to weigh the opposing sides in this debate.

LOCKE'S SECOND TREATISE IN THE DECLARATION OF INDEPENDENCE

Both of these weaknesses are manifest in what she says about "a central myth of the American Revolution"--that the Declaration of Independence shows the influence of Locke's ideas, particularly his political teaching in the Second Treatise (49-51).

The most obvious way to resolve this question is to compare the texts of the Declaration of Independence and the Second Treatise to see if there are any similarities in the language and ideas of these two works.  Surprisingly, Arcenas never does that, although she does argue that the language of "Life, Liberty, and the pursuit of Happiness" in the Declaration of Independence is very different from "Lives, Liberties, and Estates" in the Second Treatise.

A careful reader who compares these two texts will see some remarkable similarities in their language, and these similarities have been noticed by many Americans from the time of the American Revolution to the present as clear evidence of Locke's influence on the Declaration.  Here I will point to ten of these similarities.

1.  In its first sentence, the Declaration appeals to "the Laws of Nature and of Nature's God."  Any careful reader of Locke's Second Treatise will recognize this as similar to expressions used by Locke.  He often speaks of the "Laws of God and Nature" (66, 142, 195), the "Law of Nature" (1, 4), and "God and Nature" (60).  Similar expressions can be found widely in authors of the seventeenth and eighteenth century.  I have written about "Nature's God" as the deity of the Declaration.

2.  The famous second sentence of the Declaration begins by invoking those "truths" that are held to be "self-evident," of which the first is that "all men are created equal."  This echoes Locke's holding the "equality of Men by Nature" as "so evident in it self," there being "nothing more evident, than that Creatures of the same species and rank" should be "equal one amongst another" (4-5).  Locke also speaks of "Men being . . . by Nature, all free, equal and independent" (95).  In Jefferson's first draft of the Declaration, he wrote that "all men are created equal & independent; that from that equal creation they derive rights inherent & inalienable" (Becker 1942, 142).  Locke's phrase "equal and independent" also appeared in George Mason's Virginia Bill of Rights: "That all men are by nature equally free and independent."

3.  Also in the second sentence of the Declaration, the "unalienable Rights" are said to include "Life, Liberty, and the pursuit of Happiness."  This is the only passage in the Declaration that draws Arcenas's attention.  She says that this language cannot be found in Locke's Second Treatise.  Locke says that in leaving the state of nature, people "unite for the mutual Preservation of their Lives, Liberties and Estates, which I call by the general Name, Property" (123).  Clearly, Arcenas claims, this language in the Second Treatise cannot be the source for the passage in the Declaration.  Most importantly, she asserts, the phrase "pursuit of Happiness" is not Locke's (Arcenas 50-51).  This assertion will seem strange to anyone who has read Locke's Essay Concerning Human Understanding, because this book has a long chapter on "Power" that speaks repeatedly of the "pursuit of happiness" (II.xxi.39, 44, 48, 52-53, 61-63, 70).  It is surprising that Arcenas says nothing about this, particularly since she argues that for most of American history, Locke's Essay Concerning Human Understanding was more widely read and studied than his Two Treatises of Government.  One has to wonder whether she has actually read Locke's Essay.  One also has to wonder why she says nothing about the passage in Locke's Letter Concerning Toleration where he summarizes the Second Treatise in arguing that governments were established to secure people in their lives and property and in the things that contribute to the "Happiness of this Life," while "leaving in the mean while to every Man the care of his own Eternal Happiness" (Locke 2010, 46-47).  In such passages, we see Locke affirming that people have a natural right to the "pursuit of happiness," the same idea that is affirmed in the Declaration.

That Arcenas is unaware of what Locke says about the "pursuit of happiness" is especially surprising because she cites C. Bradley Thompson's book America's Revolutionary Mind, which has a long section on how Jefferson could have borrowed the phrase "pursuit of happiness" from Locke's Essay Concerning Human Understanding (Arcenas 2022, 190, n. 72; Thompson 2019a, 206-220).  Arcenas either cited this book without actually having read it, or she did read it but decided to pass over Thompson's argument in silence.

4.  In the third sentence of the Declaration, it is claimed that governments are instituted among men "to secure these rights."  Similarly, the Second Treatise often says that governments are established "to secure" or "preserve" natural rights (87, 131, 222, 225).

5. This establishment of government to secure natural rights is said by the Declaration to be based on "the consent of the governed."  This idea appears many times in the Second Treatise (102, 104-106, 112, 119, 121-22, 138, 140, 168, 175, 198).

6.  When a government fails to secure these rights, then the Declaration recognizes "the Right of the People to alter or abolish it," and to institute a new government that is "most likely to effect their Safety and Happiness."  But prudence dictates caution in overthrowing any government that has been long established, "and accordingly all experience hath shown, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed."  Locke expresses a similar thought in the Second Treatise, in responding to the objection that if people are taught that they have a right to dissolve a government that they don't like, this will lead to frequent rebellions and thus anarchy.  In fact, Locke insists, people are slow to rebel.  "For till the mischief be grown general, and ill designs of the Rulers become visible, or their attempts sensible to the greater part, the People, who are more disposed to suffer, than right themselves by Resistance, are not apt to stir" (230).  This phrasing of "more disposed to suffer" is identical in the Declaration and the Second Treatise.

7.  Similarly, the Declaration's phrasing of "abolishing the forms to which they are accustomed" repeats Locke's wording in the Second Treatise: "People are not so easily got out of their old Forms, as some are apt to suggest.  They are hardly to be prevailed with to amend the acknowledg'd Faults, in the Frame they have been accustom'd to" (223).

8.  But even though people are slow to rebel against their long-established governments, the Declaration explains, "when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security."  This echoes Locke's language about how a government that shows an evident tendency towards despotism can provoke the people to revolution: "if a long train of Abuses, Prevarications, and Artifices, all tending the same way, make the design visible to the People, and they cannot but feel, what they lie under, and see, wither they are going; 'tis not to be wonder'd, that they should then rouze themselves, and endeavour to put the rule into such hands, which may secure to them the ends for which Government was at first erected" (225; compare 210, 230).

9.  Next, the Declaration asserts: "The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States.  To prove this, let Facts be submitted to a candid world."  This introduces the longest section of the Declaration--a long list of grievances, a factual indictment of Great Britain based on an asserted history of abuses.  This part of the Declaration corresponds to Locke's many references to the political history of England under the Stuart Monarchy, in which he identified acts that might have justified a revolution against Charles II and that did in fact justify the Revolution of 1688 overthrowing James II and installing King William.

10.  Finally, in the last two sentences of the Declaration that formally declare the independence of America from British rule, there is an appeal "to the Supreme Judge of the world for the rectitude of our intentions" and to "the Protection of Divine Providence."  Similarly, Locke appeals to the "Supreme Judge of all Men," which is part of his "appeal to Heaven," which is an appeal to the God of Battles to settle the revolutionary dispute between the People and the government in war (21, 240-43).  And, in fact, the Declaration of Independence was a declaration of war, an "appeal to Heaven."

The phrase "appeal to Heaven" was coined by Locke, and this phrase was put on the Americans' "Appeal to Heaven" flag, the first flag of the American Navy in 1775.  I have written about this previously.

THE AMERICAN DEBATE OVER WHETHER JEFFERSON PLAGIARIZED FROM LOCKE: 1801-1826

Arcenas might respond to all this by saying that this is irrelevant to what she has done in her book.  After all, as we have seen, she says that her book is not a book about John Locke or about what scholars today might see in Locke's texts.  Since she is writing about the intellectual history of how Locke has been interpreted by Americans from colonial times to the present, it doesn't matter for this purpose whether scholars today can see verbal parallels between the Declaration of Independence and Locke's Second Treatise.  The question is whether contemporary Americans of Jefferson's time thought that Locke's Second Treatise was a primary source for Jefferson's Declaration of Independence.  "In a word," she says, "the answer is no" (49).

But for Arcenas to say this, she must ignore the historical evidence that Jefferson's contemporaries really did see the remarkable influence of the Second Treatise on Jefferson's writing of the Declaration.  For example, Arcenas is silent about the American debate--during the last 25 years of Jefferson's life, 1801-1826--over whether Jefferson had plagiarized much of the Declaration of Independence from Locke's Second Treatise.  Oddly, in one endnote of her book (191, n. 75), Arcenas cites an article by Brad Thompson (2019b) that tells the story of this debate, but then she never explains the story or explains why this should not be considered crucial evidence against one of the main arguments of her book.

In 1800, Jefferson was elected president in one of the most acrimonious elections in American history.  This was the first presidential election in which two deeply partisan factions fought an ideological battle--with the Federalists led by John Adams and the Republicans led by Jefferson.  A few months after Jefferson's inauguration in 1801, the staunchly Republican New York City newspaper the American Citizen and General Advertiser published a two-part essay by the editors on "John Locke."  They identified Locke as "the first writer on political science that ever justly defined the principles of civil government," and they said that Jefferson's Declaration of Independence had stated those principles as first set forth in Locke's Second Treatise.  In fact, they observed, the reader of the Second Treatise "will find in it all the ideas and nearly the words verbatim, which are contained in that declaration."  They said that the "sentiments" in Jefferson's Declaration were "more elegantly expressed than in Locke's Essay, but the ideas are precisely the same, and the words nearly so."  So these pro-Jefferson newspaper editors in 1801 had seen the same similarities between the Second Treatise and the Declaration that we have just laid out.

Many Federalist newspapers were happy to reprint passages from the American Citizen's editorial as showing that Jefferson's reputation as the great author of the Declaration of Independence was fraudulent because he had plagiarized from Locke.  For example, the editors of Boston's Columbian Centinel said that Jefferson had "stolen all the ideas in the Declaration of Independence from Locke."

Writers for the Republican newspapers then tried to defend Jefferson from this charge of plagiarism.  The editors of Boston's Independent Chronicle said that if "Mr. Jefferson had copied from" Locke, "who was the parent and apologist of the modern revolutionary principles," then Jefferson "would have no reason to blush, nor his friends to be ashamed, that he had the wisdom to adopt the sentiments of that illustrious republican."

As Thompson has shown, this debate continued, off and on, until Jefferson's death in 1826.  And as Thompson indicates, what is remarkable is that everyone in this debate agreed that Locke's influence on Jefferson's Declaration was clear, and many of them compared passages from the Second Treatise and the Declaration to show the verbal echoes that confirmed the Lockean origins of the Declaration.

If the Declaration of Independence was intended to be "an expression of the American mind," as Jefferson said in 1825, then the evidence from this debate, Thompson concludes, supports a syllogism:

Major premise: The Declaration of Independence is an expression of the American mind.

Minor premise: America's revolutionary mind was an expression of Locke's political philosophy.

Conclusion: The Declaration of Independence was an expression of Locke's mind.

In writing her book, Arcenas decided not to confront and refute the evidence and arguments for this syllogism.  That was a mistake.

REFERENCES

Arcenas, Claire Rydell. 2022. America's Philosopher: John Locke in American Intellectual Life. Chicago: University of Chicago Press.

Becker, Carl L. 1942. The Declaration of Independence: A Study in the History of Political Ideas. New York: Vintage Books.

Locke, John. 1970. Two Treatises of Government. Ed. Peter Laslett. Cambridge: Cambridge University Press.

Locke, John. 1975. An Essay Concerning Human Understanding. Ed. Peter H. Nidditch. Oxford: Oxford University Press.

Locke, John. 2010. A Letter Concerning Toleration and Other Writings. Ed. Mark Goldie. Indianapolis, IN: Liberty Fund.

Thompson, C. Bradley. 2019a. America's Revolutionary Mind: A Moral History of the American Revolution and the Declaration that Defined It. New York: Encounter Books.

Thompson, C. Bradley. 2019b. "John Locke and the American Mind." American Political Thought 8 (Fall): 575-593.

The Lockean Liberal Tradition in America: An Assessment of Arcenas's Intellectual History

In America's Philosopher: John Locke in American Intellectual Life, Claire Rydell Arcenas gives us a meticulous and comprehensive intellectual history of Locke's reception in America, from the early colonial period to the end of the twentieth century.  For that reason, anyone who wants to understand that history will have to study her book.  There are, however, some flaws in her reasoning.

Arcenas tries to prove that Locke's Second Treatise of Government did not create "the Lockean liberal tradition in America," as Louis Hartz famously called it.  To prove this, she makes three arguments.  First, she says the term "Lockean liberalism" is so vague as to be meaningless, and thus open to endless conflicting interpretations.  "By merging the adjective Lockean and liberalism," she claims, "Hartz exemplified the murkiness--and malleability--of the concept of Lockean liberalism, which he was among the first to put into words" (138).

Her second argument is that throughout most of American history prior to the middle of the twentieth century, Locke's Second Treatise was not very influential in America.  Even in those cases where we might assume the influence of the Second Treatise is clear--as in Thomas Jefferson's writing of the Declaration of Independence--Arcenas insists that we are mistaken.

Her third argument is that for most periods of American history, Locke's reception in America came not through Americans reading the Second Treatise, but through his other books that were more popular--particularly, The Essay Concerning Human Understanding, The Letter Concerning Toleration, Some Thoughts Concerning Education, and The Reasonableness of Christianity.  Consequently, the political teaching of the Second Treatise was not very influential in America, at least prior to the middle of the twentieth century, because only then did Americans begin to identify Locke as primarily the author of the Second Treatise. 

I find all three of these arguments unpersuasive.

LOCKEAN LIBERALISM

First, does "Lockean liberalism" have any discernible meaning?  Of course, Locke himself did not use the term "liberalism," because this English word as a label for a moral and political idea did not come into use until sometime around 1820.  But if the word has any meaning, we can ask whether it applies to Locke's teaching.  And as Arcenas indicates, since the middle of the twentieth century, many scholars have defined liberalism in a way that seems to capture the core of Locke's teaching.

For example, in her book John Locke's Liberalism (1987), Ruth Grant identifies the "liberal premise" as the idea that "men are naturally free and equal" (66).  She explains liberal political theory as founded on this premise: "It takes its bearings from the thought that all men have an equal right to govern their actions as they see fit.  No man has an intrinsic or natural right to govern another.  In other words, men are equal in the sense that they are by nature free" (1).  Starting from this premise of the natural freedom and equality of all adult human beings, a liberal political theorist infers that no man can rightly rule over another man without that other man's consent.

Grant can then point to passages in the Two Treatises where Locke affirms this liberal premise.  Locke says that the natural condition of man is a "State of perfect Freedom" (FT, 67; ST, 4).  There is an "equal right that every Man hath, to his Natural Freedom, without being subjected to the Will or Authority of any other Man" (ST, 7, 54).  We can identify this as "Lockean liberalism," and we can then argue about whether Locke was right about this, and whether much of American political thought rests upon this Lockean idea.

Arcenas cites in an endnote of her book the work of Grant and other scholars who see Lockean liberalism as shaping the American political tradition (174n9).  But Arcenas never replies to their arguments.  She does this a lot--citing in her endnotes the work of scholars who would criticize her position but then never answering the criticisms.

THE SECOND TREATISE IN AMERICA

Arcenas begins her argument for minimizing the influence of Locke's Second Treatise in America by claiming that in early colonial America (from 1700 to 1760), there is almost no evidence that anyone read the Second Treatise, although they did read some of Locke's other books.  She sees only two pieces of evidence for the Second Treatise reaching colonial America during this time.  The first is a pamphlet by Elisha Williams published in 1744.  She summarizes this long pamphlet (over 60 pages) in one sentence: "Angry about the new limitations being placed on itinerant preachers in Connecticut, he paired the Letter Concerning Toleration with the Second Treatise and used them to demonstrate the 'essential rights and liberties of Protestants'" (27-28).  In one of her endnotes, she mentions a second reference to the Second Treatise by "Americano-Britannus" in the Maryland Gazette in 1748 (176n9).

There are many more cases of published references to the Second Treatise before 1760 about which Arcenas is totally silent.  For example, in 1701, John Montague quoted two long passages from the Second Treatise about "the Fundamental Principles and Ends of Government," and particularly about how the people established government by their consent to secure their property.  This may be the earliest appeal to Locke's ideas in British America--only twelve years after the publication of the Second Treatise in 1689.

Another example is in a pamphlet published in 1725, in which John Bulkley devoted about fifteen pages to quoting and paraphrasing "the Words of that Great Man Mr. Lock" in the Second Treatise about how "all Men are . . . Equal, Free & Independent & remain so till by Contracts" they establish a government to secure their natural rights.  So he affirmed the liberal premise.  Bulkley gave special attention to how Locke quoted from Josephus Acosta's anthropological report about the native Americans in the New World as evidence that the state of nature was a historical reality among the hunter-gatherers of America.  This explains Locke's famous claim that "in the beginning, all the world was America."  

This denies Arcenas's claim that the state of nature is an ahistorical fiction.  Americans had learned from Locke that his argument for natural rights in the state of nature is rooted in what he called "the history of mankind" (ST, 49, 100-112, 175; Essay, I.3.10; II.28.12).  In an endnote, Arcenas expresses her surprise that "observers in the eighteenth and nineteenth centuries did not shy away from taking [the state of nature] literally, i.e., historically" (186n14).

In 1728, three years after Bulkley's pamphlet, Daniel Dulany wrote a pamphlet published in Maryland in which he quoted and paraphrased the Second Treatise, including Locke's declaration that the state of nature is "a State of Equality, wherein all Power and jurisdiction, is reciprocal; no one having more than another" (ST, 4).  Here's the liberal premise again.

In 1741, an article in the American Magazine--"Remarks on the Maryland Government and Constitution"--provides another example of someone quoting and paraphrasing the Second Treatise.  This author explained Locke's radical interpretation of the Glorious Revolution of 1688-89 as a reversion to the state of nature, in which the British People could establish a new government by their consent to secure their natural rights.

Although Arcenas mentions Elisha Williams's political sermon of 1744, she passes over it in one sentence; and thus she does not allow her reader to notice that Williams devoted about eight long pages to a detailed summary of the Second Treatise that began: "First, as to the origin--Reason teaches us that all men are naturally equal in respect of jurisdiction or dominion one over another.  Altho' true it is that children are not born in this full state of equality, yet they are born to it."  Once again, there's Locke's liberal premise.

Oddly, in her one sentence on Williams's sermon, Arcenas says that "he paired the Letter Concerning Toleration with the Second Treatise."  In fact, Williams never cites the Letter Concerning Toleration.  All of his citations are to the Second Treatise.

Once we move into the early American revolutionary period (1760-1776), the references to Locke's Second Treatise become so great that Arcenas has to concede that the authority of Locke's political teaching increased during this time, although it decreased dramatically following American independence.  Still, however, she tries to minimize this evidence of Locke's political influence in the revolutionary debates either by ignoring much of it, or by arguing that many of the references to the Second Treatise were actually distortions of Locke's teaching.

One example of her ignoring the evidence is that she is silent about James Otis's courtroom speech in Boston in 1761 in "Paxton's Case," even though John Adams identified this as the true beginning of the American Revolution.  Although Arcenas might justify her silence about this speech by noting that, as reported by Adams, there is no explicit reference to Locke, the speech does nevertheless echo the language of Locke's Second Treatise.

According to Adams's report, Otis began his speech with "a dissertation on the Rights of Man in a State of Nature."  What he said sounded like Locke's state of nature.  He began with the liberal premise: "He asserted that every Man, merely natural, was an independent Sovereign; Subject to no Law but the Law written on his heart, and revealed to him by his Maker in the Constitution of his Nature and the Inspiration of his Understanding and his Conscience.  His Right to his Life, his Liberty no created being could rightfully contest.  Nor was his Right to his Property less incontestable."

Notably, Otis applied this liberal principle of natural equality and liberty to include black Americans.  Adams reported: "Nor were the poor Negroes forgotten.  Not a Quaker in Philadelphia or Mr Jefferson of Virginia ever asserted the Rights of Negroes in Stronger Terms; Young as I was and ignorant as I was, I shuddered at the doctrine he taught.  And I have all my lifetime Shuddered, and Still Shudder at the Consequences that may be drawn from Such Premises.  Shall We Say that the Rights of Masters and Servants clash?  and can be decided only by Force?  I adore the Idea of Gradual Abolitions!  But who Shall decide how fast or how Slowly these Abolitions Shall be made? (Letter to William Tudor, June 1, 1818).  Of course, these questions have reverberated throughout American history as Americans have struggled to apply Lockean liberal principles of equal liberty to the problems of chattel slavery and racial inequality.

Otis made clear his reliance on Locke's Two Treatises in the pamphlets he wrote in the early 1760s.  In A Vindication of the Conduct of the House of Representatives of the Province of the Massachusetts Bay (1762), Otis quoted extensively from the Two Treatises, including Locke's affirmation of the liberal premise: "The Natural Liberty of Man is to be free from any Superior Power on Earth, and not to be under the Will or Legislative Authority of Man, but to have only the Law of Nature for his Rule.  The Liberty of man, in Society, is to be under no other Legislative Power, but that established, by consent, in the Common-wealth" (ST, 22).  In The Rights of the British Colonies Asserted and Proved (1764), Otis once again cited Locke's Second Treatise extensively to support his argument for the rights of the American colonists.  He also suggested that the Lockean liberal premise of equal natural liberty must be extended to all human beings, including women and slaves.  He asked a radical question: "What man is or ever was born free, if every man is not?"

Arcenas recognizes Otis's references to Locke's Two Treatises in these two pamphlets.  But she argues that rather than showing the influence of Locke's political teaching on Otis, this actually shows how Otis had to distort and depart from Locke's teaching, because Otis actually rejected two fundamental principles of Locke's teaching.  He rejected Locke's idea that all government was originally created by a social compact.  And he rejected Locke's idea that in that social compact the people gave up or transferred their natural rights to the government.  I suggest, however, that Arcenas has not read Locke as carefully as Otis did, and that in fact Otis agreed with Locke on both of these points.

Arcenas correctly quotes Otis as saying in The Rights of the British Colonies that "government is . . . most evidently founded on the necessities of our nature," and therefore it is "by no means an arbitrary thing, depending merely on compact or human will for its existence."  If government is natural for human beings, it is not an artificial creation of human will.

But if Arcenas had compared everything Otis said about this with what Locke said in the Two Treatises, she would have seen that Otis agreed with what Locke said about human beings as naturally social animals who have a kind of "natural government" in the state of nature.

In his speech in "Paxton's Case," Otis said that in the state of nature, human beings would be "Social Animals by Nature," because their natural sexual desires would bring them together into families and their wider social desires would bring them into larger communities.  Similarly, in The Rights of the British Colonies, Otis spoke of how "the different sexes should sweetly attract each other, form societies of single families, of which larger bodies and communities are as naturally, mechanically, and necessarily combined," which would constitute a kind of "government . . . founded on the necessities of our nature."

Here Otis was echoing the language of Locke in the Two Treatises.  Like Otis, Locke identified human beings as social animals by nature because in the state of nature by the necessities of their nature, they live in families, which constitute "the first society," and within families, parents exercise a "natural Government," which is a "temporary government," over their minor children (ST, 67, 74-77, 105, 170).  In the state of nature, there are social networks of cooperation and exchange extending beyond the family that create communities.  This extended order of community is based on "promises and compacts" and on informal customary social norms that Locke identifies as the "law of nature."  These customary social norms are enforced through violent punishment (including capital punishment), reputational costs for those who violate the norms, and third-party mediation of disputes.  In the state of nature, every adult individual has the "executive power of the law of nature" to punish those who transgress the law of nature, where there is a "law of reputation" to enforce the law of nature through social praise and blame, and where disputes are often settled by those recognized as good mediators (ST, 6-14, 108; Essay, II.28.5-14).  

I have written previously about how Locke saw this in the state of nature in America from his reading of Jose de Acosta's report in his Natural and Moral History of the Indies.  We have seen that colonial Americans like Bulkley saw the importance of this.  In the Second Treatise (102), Locke quoted Acosta's claim that in America there were many societies with "no government at all" and "no kings," but with "captains" or "chiefs" that people chose to lead them when they needed leadership in war or peace.

It might seem confusing or even self-contradictory to say that while there was "no government at all," the people chose those who governed them.  But there's no contradiction if we understand "no government" to mean no centralized bureaucratic state in a hunter-gatherer society that does have some governance by leaders chosen by the people and a system of customary laws enforced by public approval and disapproval.

There is, therefore, a kind of government in the state of nature, although it's a government through informal social institutions and customs enforced by the social consensus of all the adult individuals, where there are no formal political institutions of law and governance.  As I have argued previously, the modern evolutionary anthropology of hunter-gatherer bands in "stateless societies" largely confirms Locke's account of the state of nature as the life of hunter-gatherers in societies governed by informal social institutions but without a centralized state apparatus.

Thus, Locke distinguished the "society" of individuals in the state of nature, where every adult individual has the power to enforce the law of nature, and "political society," where the community has consented to give the power of natural punishment to the officers in a formal legal and political structure (ST, 77, 87).  The first step towards establishing a "political society," Locke suggests, might have been when individual adults expressly or tacitly consented to delegate their natural power of punishment to their fathers: "since without some Government it would be hard for them to live together, it was likeliest it should, by the express or tacit Consent of the Children, when they were grown up, be in the Father, where it seemed without any change barely to continue; when indeed nothing more was required to it, than the permitting the Father to exercise alone in his Family that executive Power of the Law of Nature, which every Free-man naturally hath, and by that permission resigning up to him a Monarchical Power, whilst they remained in it" (74).

Thus, Locke would have agreed with Otis "that government is founded on the necessity of our natures," but Locke would distinguish between two kinds of government.  On the one hand, there is government in natural societies in the state of nature with informal institutions enforced by individuals exercising their natural right of punishment.  On the other hand, there is government in political societies where individuals have consented to give up their natural right of punishment to the formal institutions of law and politics, so long as that power to punish is exercised to secure their natural rights for the public good.

But here Arcenas sees another contradiction between Locke and Otis:  "Otis was interested in the preservation of natural rights in political society, while Locke stressed that rights had to be given up--that is relinquished or transferred" (35).  To support this claim, she correctly quotes Locke as explaining that those leaving "a state of Nature unite into a Community, must be understood to give up all the power, necessary to the ends for which they unite into Society, to the majority of the Community" (ST, 99).

In saying this, however, Arcenas ignores Otis's quotations from the Second Treatise that show that Locke understood that people "give up" their natural power to punish to government with the "trust" that government will use this power to "preserve" or "secure" their natural rights.  "The Reason why Men enter into Society, is the preservation of their Property."  Consequently, if the government acts "contrary to that trust reposed in them" in trying to destroy the natural rights of the people, "by this breach of Trust they forfeit the Power, the People had put into their hands, for quite contrary ends, and it devolves to the People, who have a Right to resume their original Liberty, and by the Establishment of a new Legislature (such as they shall think fit) provide for their own Safety and Security, which is the end for which they are in Society" (ST, 222).  Thus, Locke argued that people give up their natural power of punishing to government only to the extent that, and only so long as, this serves to preserve their natural rights.

Elisha Williams saw this in Locke--that, as Williams said, "no more natural liberty or power is given up than is necessary for the preservation of person and property," and therefore, "the members of a civil state or society do retain their natural liberty in all such cases as have no relation to the ends of such a society in a state of nature."  And so, for example, as Williams argued, "the members of a civil society do retain their natural liberty or right of judging for themselves in matters of religion."  That's Locke's argument in his Letter Concerning Toleration.  (I have written a post on the evolution of religious liberty in the state of nature.)

We should also notice that there are three circumstances in which Locke believed that people "have a Right to resume their original Liberty."  Two of them arise inside a society.  One arises outside a society.  If individuals leave their society and renounce their loyalty to it, then they are free to consent to join another society (ST, 118-22). And even as they live within their society, in those cases where they might be threatened by an attack on their life, liberty, or property, and there is no chance to call for protection by the officers of government, then they revert momentarily to a state of nature, and they have the right to protect themselves by punishing those threatening them.  So, for example, this would include the right of killing in self-defense (ST, 19).

Finally, when the people see a design for their government to assume an arbitrary power to tyrannize over the people, they have a right to resist and to rebel against the government, and to institute a new government that will secure their natural rights (ST, 214-43).  This sounds so much like the American Declaration of Independence that many Americans have seen echoes of Locke's Second Treatise in the Declaration.  

But Arcenas insists this is not true.  She rejects what she calls "the central myth of the American Revolution"--that the Declaration shows the influence of Locke's political teaching in the Second Treatise.  A few weeks ago, I wrote a post noting that Arcenas is silent about the many verbal echoes of the language of the Second Treatise, which illustrates how she uses deceptive silence throughout her book.

She is correct, however, when she says that public references to Locke decreased after 1776 and during the constitutional founding, because in the debates over the forming of constitutions in America, authors like Montesquieu and Blackstone seemed more helpful than Locke, who was better at stating the principles of good government than he was in stating the constitutional design of government.

Even though there were few direct references to Locke in the constitutional founding debates, Lockean principles can be seen both in the Constitution of 1787 as ratified in 1789 and in the Constitution of 1791 with the first ten amendments.  The structure of the new national government as organized around three separate branches--legislative, executive, judicial--conforms to Locke's account of these three separate powers, with the legislative power being supreme (ST, 124-26, 132-42).  The amended Constitution with its Bill of Rights manifested the Lockean principle that the end of government is to secure individual rights, and it implicitly incorporated the Lockean political philosophy of the Declaration of Independence into the Constitution.  I have written about this in a previous post.

After 1800, when Jefferson was first elected President, there was a lot of discussion of Locke's influence on Jefferson, particularly in his writing of the Declaration of Independence, which continued over the last 25 years of Jefferson's life (1801-1826).  Some of Jefferson's critics in the Federalist Party said that he should not be praised as the primary author of the Declaration because he had copied much of it from Locke's Second Treatise.  Some of his defenders in the Republican Party responded by saying that there was nothing wrong in borrowing some words and principles from a great political philosopher like Locke.  Notice that both sides in this debate agreed that Locke's influence on Jefferson's writing of the Declaration was clear.

Perhaps to settle this debate, Jefferson near the end of his life tried to explain his writing of the Declaration: "Neither aiming at originality of principle or sentiment, nor yet copied from any particular and previous writing, it was intended to be an expression of the American mind, and to give to that expression the proper tone and spirit called for by the occasion.  All its authority rests then on the harmonizing sentiments of the day, whether expressed in conversation, in letters, printed essays, or in the elementary books of public right, as Aristotle, Cicero, Locke, Sidney, &c" (Letter to Henry Lee, May 8, 1825).

As Roger Weightman, the mayor of Washington, D.C., was planning the celebration of the fiftieth anniversary of the Declaration of Independence in 1826, he wrote a letter to Jefferson inviting him to attend.  In what became his last letter, Jefferson wrote that his bad health would prevent him from attending.  He then wrote about the promise to all mankind opened by the Declaration:

"May it be to the world, what I believe it will be, (to some parts sooner, to others later, but finally to all,) the signal of arousing men to burst the chains under which monkish ignorance and superstition had persuaded them to bind themselves, and to assume the blessings and security of self-government.  That form which we have substituted, restores the free right to the unbounded exercise of reason and freedom of opinion.  All eyes are opened, or opening, to the rights of man.  The general spread of the light of science has already laid open to every view the palpable truth, that the mass of mankind has not been born with saddles on their backs, nor a favored few booted and spurred, ready to ride them legitimately, by the grace of God" (Letter to Weightman, June 24, 1826).

Amazingly, while the people in Washington and across America were celebrating the fiftieth anniversary of the Declaration, on July 4, 1826, Thomas Jefferson and John Adams, two of the leading drafters of the Declaration, died on that same day.  (I must say I have often wondered whether Jefferson and Adams secretly planned this, because it's just too good.)

So Jefferson saw the Declaration of Independence as "an expression of the American mind," particularly in the idea of "the rights of man" as founded on equal natural liberty; and he saw Locke as one of those influential authors who wrote about this idea.  Brad Thompson sums up all of this in a syllogism:

Major premise:  The Declaration of Independence is an expression of the American mind.

Minor premise:  America's revolutionary mind was an expression of Locke's political philosophy.

Conclusion:  The Declaration of Independence was an expression of Locke's mind.

(C. Bradley Thompson, "John Locke and the American Mind," American Political Thought [Fall 2019]: 575-93.)

Looking at Jefferson's letters, we can see one problem with Thompson's syllogism: according to Jefferson, Locke's mind was not the only mind that influenced the writing of the Declaration.  The American mind was shaped "in conversation, in letters, printed essays, or in the elementary books of public right, as Aristotle, Cicero, Locke, Sidney, etc.," all of which led to the liberal idea of "the rights of man."  If Jefferson was right, then Locke was important in the formation of the American mind, but only in combination with other philosophic writers and with many American speakers and writers.

This confirms what Michael Zuckert and a few other scholars have said about Locke as contributing to an "American Amalgam":  Locke's mind is a prominent influence, but only in combination with other minds, in forming the American mind as founded on the political philosophy of natural rights. 

As I indicated in my previous post, Arcenas is silent about all of this discussion among Jefferson's contemporaries of Locke's influence on Jefferson, particularly as manifested in the Declaration of Independence.  This is important for her argument.  Because denying the Lockean character of the Declaration of Independence then allows her to assume that whatever power the Declaration had over American political thought was not in any way a vehicle for advancing Locke's political principles in America.  So when she comes to the nineteenth century, she can say that there were few direct references to Locke's political teaching; and she can ignore the possibility that a lot of Lockean political thinking was introduced indirectly through the debates over the Declaration of Independence as a statement of American political principles.

So, for example, she can deny that Locke's thinking had any influence in the American debates over abolitionism and slavery, even though the opponents of slavery commonly appealed to the principles of the Declaration.  She does have to admit, however, that many of the proslavery apologists recognized that "Locke threatened to undermine efforts to develop intellectual justifications for slavery because his most famous thought experiments--the state of nature and social contract, articulated in the Second Treatise--emphasized the idea (catastrophic to their pro-slavery arguments) that men were born equal" (81).  But she does not allow her reader to see any of the evidence that the proslavery Southerners recognized that the principles of the Declaration of Independence were rooted in Locke's political philosophy, and therefore their attack on the Declaration had to be an attack on Locke.

For example, George Fitzhugh, in his Sociology for the South, or The Failure of Free Society (1854), says that the "abstract principles" of the Declaration of Independence are "wholly at war with slavery," and they are rooted in the "false philosophy" of Locke (175).  Fitzhugh scorns the principles of equal liberty in the Declaration as contrary to the natural fact that human beings are born unequal, and some are born to be natural slaves.  He explains:

"Men are not 'born entitled to equal rights!'  It would be far nearer the truth to say, 'that some were born with saddles on their backs, and others booted and spurred to ride them,' and the riding does them good.  They need the reins, the bit and the spur.  No two men are exactly equal or exactly alike" (179)

In 1866, he 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 John 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).

In her three sentences on Fitzhugh (81, 204n130), Arcenas is silent about this, because she wants to play down the importance of Locke's political thought in the Second Treatise as expressed in the Declaration of Independence as being part of the debate over slavery and abolition.

Arcenas does finally recognize the influence of Locke's Second Treatise in America when she comes to the twentieth century.  She sees here four transformations in Locke's role in American intellectual life.  First, from 1900 to 1930, scholars began to identify Locke as primarily a political thinker and the author of the Second Treatise.  Second, Locke's Second Treatise began to be seen as relevant to present-day problems that people were trying to solve.  Third, scholars began to emphasize Locke's apparent influence on the American founding.  Fourth, as a consequence of these three transformations, Locke's Second Treatise and his "Lockean liberalism" were seen as the pervasive political teaching of the  continuous stream of the American political tradition from the eighteenth century to the present.

Arcenas fills in this story with accounts of how scholars, journalists, politicians, and popular culture have contributed to this twentieth-century story of Locke as America's political philosopher.  Charles Beard, Carl Becker, Merle Curti, the Great Books Program at St. John's College, Life magazine, Louis Hartz, Hubert Humphrey, Leo Strauss, Willmoore Kendall, Allan Bloom, Gordon Wood, J. G. A. Pocock and many more contributors to the story come into play.  She concludes her book with a comparison of John Rawls's Theory of Justice (1971) and Robert Nozick's Anarchy, State, and Utopia (1974) as showing two sides of Locke's Second Treatise, with Rawls arguing for a version of the social contract, and Nozick arguing for natural rights in the state of nature.

It's disappointing that she ends her story in the 1970s.  It would have been instructive for her to carry her story into twenty-first century America.  For example, she could have considered the debate over Locke launched by "post-liberal" and "Integralist" critics of Lockean liberalism in America--people like Patrick Deneen, Rod Dreher, and D. C. Schindler--and by those on the new reactionary Right--people like Curtis Yarvin and "Bronze Age Pervert."  This is all part of the renewed debate today between Lockean liberalism and anti-Lockean illiberalism.

In any case, most of what she says about the various ways in which interpretations of Locke's Second Treatise deeply shaped American intellectual life in the twentieth century is persuasive.  But, for the reasons I have indicated, I am still not persuaded that she has shown that Locke's political philosophy had very little influence in most periods of American history prior to the middle of the twentieth century.

BEYOND THE SECOND TREATISE?

I am persuaded, however, that Arcenas has shown that for most of American history prior to the twentieth century, Locke's greatest influence came through books other than the Second Treatise--particularly, the Essay Concerning Human Understanding, the Letter Concerning Toleration, Some Thoughts Concerning Education, The Reasonableness of Christianity, and A Paraphrase and Notes on the Epistles of St. Paul.  For me, this is the most instructive feature of her book.

But I don't see how this proves her primary claim that Locke's political teaching had little influence in America prior to the twentieth century.  Her argument here depends on the false assumption that Locke's books other than the Second Treatise do not convey anything about his political teaching.

Many of the scholars that Arcenas relies on have pointed out that all of Locke's books convey some facets of his political thought, so that readers of Locke's books other than the Second Treatise would learn a lot about his political philosophy.  For example, she has drawn a lot from Merle Curti's "The Great Mr. Locke, America's Philosopher, 1783-1861" (1937).  But she says nothing about the fact that Curti indicates that Locke's "liberal" ideas appear in all of the books that Americans read (see Curti, 111, 115, 119-21, 131, 134-35, 151).  If she thinks Curti is wrong about this, she should explain why.

Similarly, Arcenas gives an account of Leo Strauss's interpretation of Locke's political teaching.  But she does not notice that Strauss's study of Locke's political thought in Natural Right and History cites not only the Two Treatises, but also the Essay Concerning Human Understanding and The Reasonableness of Christianity.

Consider the case of Locke's Letter Concerning Toleration.  Arcenas emphasizes the importance of this book as one of the most widely read of Locke's books.  But she doesn't notice that much of this book summarizes the political teaching of the Second Treatise.  One of many possible examples is the passage of Toleration where Locke speaks of how men must leave the state of nature and enter into a society and establish a legislative power that will secure their life, liberty, and properties (see Letter Concerning Toleration, ed. Mark Goldie [Liberty Fund, 2010], 46-47).

My conclusion from all of this is that Arcenas's book is an indispensable history of America's reception of Locke, but her attempt to minimize the influence in America of Locke's political thought fails.

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 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.

The Lockean Liberal Evolution of Symbolic Niche Construction in the Declaration of Independence: A Declaration of "Free and Independent States"

The Lockean social contract theory of morality and politics rests on the idea that human beings mentally create social institutions through collective recognition of those institutions as symbolic realities, which Locke identified as the language of "mixed modes."  While other animals can mentally create cultural traditions, only human beings have the evolved cognitive capacity to create collective symbolic traditions, because human beings are unique in having 16 billion neurons in their cerebral cortex, which probably gives them the capacity for collective symbolism.

The human capacity for language and symbolism enables us to create a reality by representing that reality in our minds as existing and agreeing among ourselves to accept that reality as existing, which allows us to create a social and institutional reality out of language, symbolism, and collective intentionality.

If Lockean social contract reasoning can be understood as symbolic evolution and niche construction, then Lockean liberalism can be understood as the symbolic niche construction of liberal institutions.  We can see this manifested in the Declaration of Independence, particularly in its famous second paragraph that echoes Locke's Second Treatise ("We hold these truths to be self-evident . . .).

The Declaration of Independence is what John Searle calls a Declaration of Status Function, which has the form "X counts as Y in C."  So, for example, a twenty-dollar bill has monetary value as long as we recognize that a twenty-dollar bill (X) counts as currency (Y) in the monetary system of the United States (C).  Similarly, the American Revolutionaries declared that "these United Colonies [X] are, and of Right ought to be Free and Independent States [Y]" in the European system of states [C].  The success of that Declaration depended on whether in their "decent respect to the opinions of mankind," they could persuade world opinion to recognize their status as "Free and Independent States."  

Their success depended on both the intellectual persuasiveness of their reasoning in the Declaration and the forceful persuasiveness of their winning the Revolutionary War.  Of those people both inside and outside the American colonies who were not persuaded by the intellectual argument of the Declaration, many were persuaded to accept it once the Americans had won the war.  Going to war to settle the dispute was what Locke called the "Appeal to Heaven"--the appeal to the "God of Battles."

In March of 1776, the Continental Congress asked for prayers "that it may please the Lord of Hosts, the God of Armies, to animate our officers and soldiers with invincible fortitude."  In the following October, King George III issued a Proclamation "putting Our Trust in Almighty God, that he will vouchsafe a Special Blessing on Our Arms, both by Sea and Land" (Shain 2014: 407-408).  This is the same as what Abraham Lincoln saw in the Civil War: "Both read the same Bible and pray to the same God, and each invokes His aid against the other" (Second Inaugural Addess).  The "God of Armies" will decide.

The first major victory for the Americans against the British was in the Saratoga Campaign, June through October 1777.  For the first time in history, an entire British army surrendered in the field.  When French King Louis XVI learned of this, he began negotiations with Benjamin Franklin to form a formal Franco-American alliance.  This proved to be a turning point in the war (Weddle 2021).  If the British had won the Saratoga Campaign, that might have been enough to refute the Declaration of Independence.  As I have argued in previous posts, there is a sense in which might does make right.

The Continental Congress was a practical demonstration of the truth of the Lockean principles of the Declaration of Independence.  Acting in a state of nature, the Congress exercised the Lockean executive power of the law of nature in punishing Great Britain for violating that natural law, in establishing the Continental Army to settle the dispute by force of arms, and in instituting a new government to secure their natural rights.

There are many good objections to my Lockean and Darwinian reading of the Declaration of Independence.  And over the years, I have responded to most of them.  

But I haven't yet answered in full an objection suggested by David Armitage in his important book--The Declaration of Independence: A Global History.  2026 will be the 250th anniversary of the Declaration of Independence.  As its subtitle indicates, Armitage's book is a global history of the Declaration from 1776 to the end of the twentieth century, concentrating mostly on its implications for international law, particularly as expressed in the many "Declarations of Independence" from Vermont in 1777 to Eritrea in 1993.  The American Declaration of Independence was the first of over one hundred such declarations over the past 250 years.

Armitage claims that the primary purpose of the Declaration of Independence is prominently stated in the opening and closing sentences of the Declaration.  It begins with one long sentence:

"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."

It concludes:

"We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do."

This shows, Armitage observes, that this was a "document of state-making" declaring that these previously dependent colonies in the British Empire were now free and independent states in the international system of states.  "The rest of the Declaration," he explains, "provided only a statement of the abstract principles upon which the assertion of such standing within the international order rested, and an accounting of the grievances that had compelled the United States to assume their independent station among 'the Powers of the Earth'" (17, 66).  Therefore, the abstract principles in the second paragraph (about the rights to "Life, Liberty, and the Pursuit of Happiness") were "strictly subordinate to these claims regarding the rights of states, and were taken to be so by contemporaries, when they deigned to notice the assertions of individual rights at all" (17). 

But notice that in the first sentence, it's "the Laws of Nature and of Nature's God" that "entitle" this "one people" to claim a "separate and equal station" among "the Powers of the Earth."  And so, the immediately following paragraph ("We hold these truths . . .") explains exactly how the Laws of Nature and Nature's God "entitle" them to become free and independent states.  Even Armitage says that their claims to independent statehood "rest upon" these principles, which provide the foundation for their claims.  This denies his attempt to denigrate the second paragraph as unimportant or dispensable, because this paragraph constitutes the indispensable ground for entitling them to independence as states.

At the end of the Declaration, the Continental Congress claimed to act "in the Name, and by Authority of the good People of these Colonies" to declare that the colonies are "Free and Independent States."  But the Congress had no legal authority under British law to do this.  Their authority came from the Laws of Nature and Nature's God, as stated in the second paragraph, that entitled them to secure the "unalienable Rights" of men by exercising the "Right of the People" to "alter or abolish" a government that fails to secure their natural rights and "to institute new Government . . . as to them shall seem most likely to effect their Safety and Happiness."

As I have argued, not only the second paragraph but the whole of the Declaration of Independence echoes the language and principles of Locke's Second Treatise of Government.  This is certainly true for the Declaration's claims about "free and independent states."  In the state of nature, men are "by Nature, all free, equal, and independent," and no one can be subjected to the political power of another without his consent (ST, 95).  But while once people have formed political societies by consent, they have left the state of nature, the governments they have formed are in themselves in a state of nature:  "all Princes and Rulers of Independent Governments all through the World, are in a State of Nature" (ST, 14).  These governments can enter into international agreements by mutual consent, but as long as they are politically independent of one another, they are in an international state of nature, and each government is naturally equal and independent.

This Lockean understanding of the law of nature in the international state of nature was elaborated in Emer de Vattel's Law of Nations in 1758:

"Nations being composed of men naturally free and independent, and who, before the establishment of civil societies, lived together in the state of nature,--nations or sovereign states are to be considered as so many free persons living together in the state of nature."

"It is a settled point with writers on the natural law, that al men inherit from nature a perfect liberty and independence, of which they cannot be deprived without their own consent.  In a state, the individual citizens do not enjoy them fully and absolutely, because they have made a partial surrender of them to the sovereign.  But the body of the nation, the state, remains absolutely free and independent with respect to all other men, all other nations, as long as it has not voluntarily submitted to them" (Vattel 2008: 68).

Armitage recognizes Vattel's book as "the standard text on the subject in Europe and the Americas for more than half a century," and thus the best guide to the American understanding of how people can claim the rights and powers of "free and independent states" as rooted in the law of nature.  But he does not recognize how this contradicts his argument that the appeal to the law of nature in the Declaration's second paragraph is unnecessary for the primary purpose of the Declaration in declaring independence for the United States in the international system of states.

Armitage also argues that the many declarations of independence after 1776 show the unimportance of the second paragraph of the Declaration in the global history of the document:  "The earliest imitations of the Declaration in Europe and beyond set the pattern for most later documents by taking the Declaration's opening and closing sentences as their template while overlooking the self-evident truths of the second paragraph" (113).  Surveying the more than one hundred such documents, he says that "relatively few . . . contained a declaration of individual rights that paralleled the second paragraph of the American Declaration" (104).

But Armitage's reader should notice that of the ten declarations that he reproduces in his book, seven contain passages that echo the language of the second paragraph (187, 199, 205, 211-12, 217-18, 227-29, 231, 239-40).  For example, the Manifesto of the Province of Flanders (January 4, 1790) opens by saying; "Since it has pleased Divine Providence to restore our natural rights of liberty and independence  by severing the bonds that once fastened us to a Prince and House whose domination was ever harmful to the interests of Flanders, we feel obliged to recount for present and future generations the events which inspired and accomplished this happy Revolution" (187).  The Declaration of Independence by the People of Texas (March 2, 1836) appeals to "the first law of nature, the right of self-preservation, the inherent and inalienable right of the people to appeal to first principles, and take their political affairs into their own hands in extreme cases, enjoins it as a right toward themselves, and a sacred obligation to their posterity, to abolish such government, and create another in its stead, calculated to rescue them from impending dangers, and to secure their welfare and happiness" (212).

Even those declarations that do not explicitly speak of the "natural rights of liberty and independence" do implicitly assume the natural right to government by consent of the governed and the right to overthrow governments that do not secure the natural rights of the people.  After all, any group of people who declare their independence from an established government and their right to establish a new government are engaged in an extralegal act that can only be justified by an implicit appeal to a natural right beyond positive law.

REFERENCES

Armitage, David. 2007. The Declaration of Independence: A Global History.  Cambridge, MA: Harvard University Press.

Shain, Barry Alan, ed.  2014.  The Declaration of Independence in Historical Context: American State Papers, Petitions, Proclamations, and Letters of the Delegates to the First National Congress.  Indianapolis: Liberty Fund.

Vattel, Emer de.  2008.  The Law of Nations.  Eds. Bela Kapossy and Richard Whatmore.  Indianapolis: Liberty Fund.

Weddle, Kevin J.  2021.  The Compleat Victory: Saratoga and the American Revolution. New York: Oxford University Press.