Liberty, Prudence, Imperfection, and Law

“The Declaration’s Grievances and the Constitution,” By Richard Reinsch

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This essay was authored by Richard Reinsch, and it is republished her by permission from The Library of Law and Liberty.

In a detailed historical review of Timothy Sandefur’s new book entitled The Conscience of the Constitution, Adam Tate raises the practice of federalism as a principled method that representatives used in the early republic for handling difficult issues. Rather than face political paralysis or endure efforts at national coercion via constitutional provisions regarding slavery or religious freedom, for example,  Tate notes that the Founders looked to the states and their separate interests as the best solution. So Tate argues that there was no natural rights code of law with exact specifications nationally applied.

If we were such a republic, then why were natural rights not relied upon in the tough cases and appealed to with precision? If there was consensus on natural rights as the baseline, then surely it would have governed these disputes, rendering them noncontroversial. More plausible is that the natural law and natural rights were seen as an ultimate source of law, but what this meant in concrete application was not firmly agreed upon by the Framers. As a result, particular resolution of constitutional questions via a detailed code of natural rights wasn’t ventured. Sandefur argues otherwise and contends that “the principles of the Constitution’s political philosophy are not left up to the judges to invent, but are stated in the Declaration of Independence.” For the “Constitution’s text implicitly incorporates the classical liberal political philosophy of the Founders.”

We are too quick to forget in our intellectual climate which finds repose in theory and generalities that the Declaration of Independence is as much a “bill of grievances” against the Crown, as it is a work of abstract principle justifying separation from Britain. As Jim Stoner argues: One can hardly deny that natural rights arguments of a Lockean strain were a key part of that fateful period from 1760-1776. Founders and framers made such arguments as rhetorical weapons in representing their grievances against the British Empire and in the eventual movement for separation and independence. However, as Greg Weiner has noted, much more was at work in the minds of colonists justifying their separation from the Empire. Weiner alludes to Friedrich Gentz’s The Origins and Principles of the American Revolution, compared with the Origins and Principles of the French Revolution, translated by John Quincy Adams, who found that the American revolution was about law, specifically: “The American colonists revolted based on the deprivation of their rights as British subjects, which, in Burke’s language, were their ‘entailed inheritance,’ the product of a long and, crucially, particular political tradition.”

Suppose the Declaration had been written as it is usually read today. It would be only about a page in length, edited down to the first two paragraphs and then the last, where the actual declaration of independence is made. No one would deny that these paragraphs—especially the famous second one, with its elegantly simple account of the first principles of natural rights and just government—contain the most memorable phrases in the document, indeed precisely the phrases that have fired the imagination of generations of Americans and of reformers and revolutionaries around the globe.

But to stay in this theoretical spot is to be forgetful. Again, Stoner notes:

[T]he famous paragraphs of the Declaration are but a part of the whole. Looked at by an age enamored of political theory and ideology, they appear to be its most important passages; but at the center of the document is a list of grievances against the king and Parliament that make the case for independence there and then. These are, the Declaration says, “Facts . . . submitted to a candid World” to “prove” that the British are intent upon “the Establishment of an absolute Tyranny over these States.”

Theory does not a separation make, what is needed is law that gives valid reasons justifying outrage over its repeated breaches by the Crown and Parliament. On this point, Stoner notes that the grievances are general, dates are not provided, rather, we are treated to a list of unlawful acts set forth in the document. What gives? Surely we need some detailed proof? Stoner asserts:

But unlike the first principles of politics, the tyranny in these rather general facts—which never name names or dates or places—is not immediately self-evident. The outrage comes from a hidden premise: the English constitutional tradition, or at least the common law rights and liberties of that tradition, which the Americans claim as their rightful heritage.

So we might agree with Sandefur that in interpreting the Constitution we must be mindful of the Declaration, but in a manner altogether different from what he’s proposing. That is, the Constitution incorporates the Declaration’s grievances, but is silent on the natural rights methodology and conclusions of the Declaration. Might that be the more plausible rendering of the evidence. So we really aren’t a natural rights republic. Consider that “nearly every grievance detailed in the Declaration is addressed and prevented by a specific provision of the Constitution and the Bill of Rights. The bill of grievances, in other words, adds gravity and substance to the abstract principles formulated in the “self-evident truths,” and thus guards against arbitrary recourse to rebellion.”

I think the deeper truth underlying the claim that we are a republic of laws, emerging from the venerable common law tradition, is that the Declaration itself which, remarkably, sets this forth, was a product of legislative compromise. The genius of American institutions is liberty, but a liberty that is considered within public debate, taking the measure of interests and ideals. For this, we need the Declaration, but we might note how its Calvinist membership brokered compromise with Jefferson on noting in the document the help of a providential God in their struggle. So we have something beyond pure political philosophy in the document. We need also to consider as Willmoore Kendall urged “that way of life bequeathed to us by the Philadelphia Convention” i.e., the examples given in the Constitutional Convention, the state ratifying conventions, the anti-Federalists letters, the Federalist Papers, and the debate over the Bill of Rights of how a republic defines itself. This is the record of a Republic predicated on self-government and representative institutions, believing that it should and must be governed by “the deliberate sense of the community.”

Richard Reinsch is a fellow at Liberty Fund and Editor of the excellent website, Library of Law and Liberty. This essay was originally published at Liberty Fund’s Library of Law and Liberty, and it republished here with permission from that web-magazine.

4 Responses to ““The Declaration’s Grievances and the Constitution,” By Richard Reinsch”

  1. Rob

    FN 13 of a Dissent, in Fullilove v. Klutznick, penned by J. Stewart and joined by J. (later C.J.) Rehnquist says this:

    The Framers of our Constitution lived at a time when the Old World still operated in the shadow of ancient feudal traditions. As products of the Age of Enlightenment, they set out to establish a society that recognized no distinctions among white men on account of their birth. See U.S. Const., Art. I, § 9, cl. 8 (“No Title of Nobility shall be granted by the United States”). The words Thomas Jefferson wrote in 1776 in the Declaration of Independence, however, contained the seeds of a far broader principle: “We hold these truths to be self-evident: that all men are created equal. . . .”

    The horse has well left the stable.

    I don’t think anyone of intellectual standing or power today believes that the Declaration meant to say what it is taken to say at this moment–universal equality. And certainly not the Constitution.

    It is an open secret, even if the masses are preached to, otherwise.

    Most of the Revolutionary Establishment might simply state that, ‘if the words don’t of the document mean what we say that they mean–universal individual equality–then the document should be overthrown and replaced by a document that does so state. Now, our aspirational interpretation, isn’t this a less sanguinary way of doing business?’

    Reply
  2. gabe

    Richard:

    Interesting piece; however, I feel that you may have overdone it in your attempt to provide a needed corrective to the “overly aspirational” interpretation of the Declaration.

    You rightly indicate that there was much compromise in both the DOI and the constitution and that one should look at the comments of the Anti-Federalists as well as the “equality proponents.”

    Let us do that after we first look at some of the state constitutions of the time. Most, if not all of those constitutions included (indeed, highlighted by their prevalent position in the text) the notion of equality. while the wording may have been slightly different, they all appropriated Jefferson’s words in the both the D of I and in some of his Virginia writings. Moreover, the compromise that was forced upon Jefferson ameliorated his rather strident condemnation of the King for “imposing” slavery upon the Colonies and in some ways was an even stronger espousal of the “equality proposition.
    (I will leave it to others and for a separate discussion as to whether this applied only to white males!).

    Next, if we look at the anti -Feds, we will notice disagreement with the compromises worked out at Philadelphia. However, upon closer examination, it may be that the “discordance” was not due to a failure to appreciate the equality proposition but, rather, a belief that Philadelphia did not sufficiently protect the rights and equality of all citizens.
    One may wonder, as I did, why Cato and the Federal Farmer amongst others, railed against the composition, structure and tenure of the Senate. I believe that a fair reading of their objections is not simply that it was cumbersome or differed with local state practices, but rather that it was not sufficiently “democratic” and that it would tend to foster aristocracy and not equality. It being too far “removed” from the people, it would lessen the equality of the people.
    I suspect that this is not the best comparison but I will advance it nevertheless:

    The Constitution provided a governing structure that was intended as a hybrid between Burke and Paine with the House being reflective of Paine’s democratic sentiment and the Senate reflective of the Burkean prescription for prudence.
    The Anti-Feds appeared to be genuinely uncomfortable with this “prescriptive” role and would have preferred a more direct and timely structure that would be reflective of the equality based presumptions of their state / local governing sentiments.

    Additionally, while it is true that Jefferson provided a “long train of abuses” in his final draft, as Pauline Maier demonstrates in ” American Scripture,” this may have had as much to do with the traditional practice of including such grievances in any document purporting to assert the rights of a society (see Declaration of Rights associated with the Glorious Revolution of 1688 and others within British legal history) as it did with the specific grievances. Maier also points out that a number of the claims were unsubstantiated and may have served more as a polemical device than an actual charge.

    I point this out not to assert that it is only the “equality proposition” that matters when viewing our constituent law but rather that in an attempt to highlight the importance of the “structural”, “commercial” or “positivist” interpretations of the Constitution, we should be careful not to ELIMINATE what was, in fact, a rather prevalent sentiment amongst the founders and the colonists at the time and one which in their own wisdom, they almost universally incorporated into their own state and local charters.

    To my own mind, the Framers did a rather fine job blending the countering influences of both Burke and Paine – both are significant (then and now!).

    BTW:

    Good to see some cross-fertilization here between Liberty Law Blog and Nomocracy in Politics.
    Peter:
    There should be more of it!

    As always,
    take care
    gabe

    Reply
  3. John E. Jenkins

    “that way of life bequeathed to us by the Philadelphia Convention” i.e., the examples given in the Constitutional Convention, the state ratifying conventions, the anti-Federalists letters, the Federalist Papers, and the debate over the Bill of Rights of how a republic defines itself. This is the record of a Republic predicated on self-government and representative institutions, believing that it should and must be governed by “the deliberate sense of the community.”
    Thank you, Richard R., a well resounding ending.
    John

    Reply

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