Liberty, Prudence, Imperfection, and Law

M.E. Bradford’s “How to Read the Declaration: Reconsidering the Kendall Thesis”

This essay was authored by the late M.E. Bradford, and it is republished here with permission from ISI. 

Our collective confusion about the Ameri­can experience begins at the beginning. Most Americans who think about such questions imagine that they understand the Declara­tion of Independence, though many of them may be puzzled that it did not (and does not) produce the results one might expect from the commitments which they believe it makes. After much misleading, they take the task of interpreting it to be a belaboring of the obvious, even though they know very little about its text, its content, or the mo­ment in history that produced it. For by the spokesmen for one tradition in American politics they have been carefully taught to apprehend the document in a certain selec­tive way: that is, by the tradition usually acknowledged by press and electronic me­dia, pulpit and textbook maker; the tradi­tion which is perhaps too confident of itself, even though it has brought forward nothing in the way of proof for its favorite assump­tions. So much is indeed self-evident truth.

But it is likewise true that for the first one hundred years of our national existence the Declaration of Independence was usually under­stood in another way, according to a theory that reads its commitment to government based on “the consent of the governed” and to the aboriginal sameness of all men in their right to a certain order of political experience as a statement about citizens in their corporate character, as they enter the social state. In this tradition “all men” is taken as astatement about human nature that is made specific by subsequent lan­guage concerning the Creator. Men are formed to live under the authority of a particular sort of government. Or so the Signers maintained. The Marquis de Chastellux observed that they meant by “all men” primarily “all citizens or property holders”—substantial persons who owned land and probably slaves. Or all nations of men. The Marquis was attempting with this formulation to explain why almost no one among the colonial leaders of American society argued that the Declaration of Inde­pendence required of their country an in­ternal social and economic revolution. In his opinion, by the word “people” they meant nothing so universal asthe “half philosophers” among his countrymen sometimes intended when they spoke of humanity in general. He was quite correct in observing that the purpose of the American Revolution was to preserve (or restore) a known felicity, not to create a new one: not to transform and elevate mankind “in gen­eral,” even though we might, after the fact of independence, congratulate ourselves for having done so. Certainly the forms taken by the declarations of rights adopted in most of the original thirteen states would seem to support his argument. For a major­ity of them speak of the status of men “once they enter into a state of society,” or (like South Carolina) refuse to speak of rights at all. The Virginia Declaration of Rights was drawn specifically so as to prevent misun­derstanding about any disposition to free the slaves. Other documents are careful about the suffrage. But I believe there is a better way of deciding what is meant by “all men are created equal” than by falling back upon circumstantial paraphrase of an as­tute French observer. For I think the Decla­ration can be read according to the canons of formalist literary criticism, as a structure, as a literary artifact or system within which each component modifies and reinforces the implications of every other paragraph, phrase or word operating within the whole.

From the very beginning of the Declara­tion of Independence, the voice that ad­dresses us is plural: issuing from one group of people toward mankind at large. It pre­supposes a “people,” most of whom think of political life as occurring through their par­ticipation in some collectivity: or by way of several such identities operating simulta­neously. And it presupposes other nations of men (and men within nations) as audi­ence. The last sentence of the Declaration which encapsulates its form also speaks of a “we” who pledge “our lives, our fortunes and our sacred honor.” And throughout the text there is evidence that everything which is maintained subsists in the plural. Taken that way, the second sentence of the Decla­ration concerns the minimum grounds for the acceptance of a government by the people who live under it: that it not threaten the lives or properties or hopes for a future entertained by its citizen members; that it at least do better than the Great Turk. Taken this way, the human nature (and natural law) affirmed by the Declaration is the mini­mum expectation that may be assumed as the ground for the legitimacy of the state. God made men for civil life, but not for an absolute submission to a state that promises them no protection in return and denies them the hope of improving their condi­tion. All men are created equal (i.e., are alike) in this respect. For such a total state to claim a right to obedience goes against the God-given qualities of human nature.

Part of the way of testing these assump­tions about interpreting the Declaration comes from asking questions about what happens to the coherence of the text if its prologue is said to deal with the natural rights of pre-social individuals. Only thus is sentence two an epitome of the entire docu­ment. Understanding equality in the oppo­site fashion, however, creates fewer prob­lems. Writes Daniel Boorstin, recently our Librarian of Congress, “We have repeated that ‘all men are created equal,’ without daring to discover what it meant and with­out realizing that probably to none of the men who spoke it did it mean what we would like it to mean.” Just before the adop­tion of the Declaration, the Virginia Con­vention on May 15, 1776 urged that the Congress “declare the united colonies free and independent states” on the grounds of “the eternal [i.e., natural] law of self-preser­vation.” Hence a phrase concerning all men (i.e., human communities) and their expec­tations of any government not merely ty­rannical. The list of offenses under English law charged against King George III and Parliament and the body of the Declaration work outward from the given elements of law to the necessity for a prologue concerning the collective reaction to tyranny in North America. The spirit of all this mate­rial derives from the Glorious Revolution of 1688 when James II had forfeited his crown after setting himself above the law that made him king—with the English constitution being sovereign, not the will of the prince.

Above and beyond English law is the tradition alive in all Christian civilization that legitimate authority, “government long established,” should be obeyed, even though it is sometimes mistaken in its operations: that there should be no revolution for “light and transient causes.” George III in his 1775 “Proclamation for Suppressing Rebellion and Sedition” had put his North American subjects beyond the protection of law, and then made war on them. He had fostered servile insurrections, he had armed savages and had otherwise offended against “the common blood.” These charges cannot logi­cally coexist with an egalitarian and univer­salist prologue of the kind usually assumed in the now conventional reading. If origin and history and belief make no difference, why is it wrong to hire German troops or to offer freedom to the slaves or the means of self-defense to the Indians? Only by main­taining (as Lincoln does) that most of the Declaration is unimportant can the advo­cates of the popular version of its meaning sustain their position. Lifting three or four words out of context, they sail along mer­rily. On the other hand, if the text means what Stephen Douglas and Jefferson Davis, Henry Clay and Franklin Pierce thought it meant—that Americans are not inferior to Englishmen as a citizenry—then all of its parts work together to one effect, especially Jefferson’s ironic comments about a “Chris­tian King” who has “plundered our seas, ravaged our coasts, burnt our towns, and destroyed the lives of our people.” As a matter of fact, we know that the bill of particulars maintained at law is what the Signers of the Declaration thought to be important about it. Even though it is true that when representative government is es­tablished, and operates regularly over a pe­riod of time, it has as one of its side effects a degree of equalization, giving incidentally more liberty to more persons: true despite the fact that there is no design at work to effect such a purpose. About these republi­can developments no one complained—and no one but Charles Pinckney general­ized, observing how rare were our “official” inequalities.

With so much said concerning the for­malist technique for reading the Declara­tion of Independence as a forensic whole, a political bill of divorcement, I am now ready to make a few observations on the status of the document as it relates to the United States Constitution. Legal separation on grounds drawn from the English constitution was a necessary preliminary to inde­pendence, to the receipt of French and Dutch assistance and to the Confederation of those erstwhile colonies who speak with the au­thority of their instructions from the vari­ous legislatures as a “we” joined in revolu­tion and assembled in the Continental Con­gress. For that reason the Declaration is printed in the United States Code Anno­tated just before the Articles of Confedera­tion. Independence and confederation were prologue to Union. And the Articles of Con­federation as a gloss upon the second sen­tence of the Declaration warns us not to make that sentence a promise of either equal­ity of condition or equality of opportunity for all of the inhabitants of the new country. Mr. Lincoln at Gettysburg notwithstand­ing, Willmoore Kendall was correct when he maintained that “the Declaration of In­dependence does not commit us to equality as a national goal.” The document creates no authority at law. It does not mandate any legislation or policy. It alters the status of no man or woman—except as it preserves to them a portion of their heritage under the now broken British constitution. It is not a prologue to the United States Constitution. For that instrument says almost nothing about equality of any kind.

The Declaration neither obligates nor binds Court or Congress in any way—as American statesmen specify repeatedly in the period running from 1790 through 1820. Moreover, the notion that the Declaration was designed to have one meaning in its own time and another one today, sometimes the doc­trine of President Lincoln, goes against everything that we know about human nature in that it imagines Christian men obliging their children and grand­children to conduct vast and potentially dangerous social and political experi­ments that they are unwilling to see at­tempted in their own time and place. That a decision to proceed in this way was made by an en­tire generation no sensible person can believe. I call this the “ticking bomb theory” of the Declaration. It is impressive only to those anachronists who have a special interest in discovering hidden meanings in materials that have heretofore seemed to be obvious in their burden; the expression of a sentiment that becomes a command. Since these theorists of unfolding meanings can find little to encourage them in the speech, writings, or conduct of the Framers, we cannot take them very seriously. As for those who, in the tradition of abolitionist jurisprudence like that of Senator Charles Sumner and Thaddeus Stevens, would sift the Constitu­tion back and forth through the Declaration of Independence until it is swallowed up by their view of that text, I can only respond with the language of Justice James Iredell, who in the 1798 case of Calder v. Bull ob­served that “ideas of natural justice are regu­lated by no fixed standard” and are no basis for setting aside the acts or decisions of legislative powers. The legislative pro­cess, he argued, was the place for revi­sions of the national identity, especially by way of amend­ment.

Modern scholars, jurists and legal historians—such as are indeed chiefly interested in what the Constitution ought to say—are often surprised by its general silence on the laws of nature and the rights of man, its procedural, nomocratic character. Like Carey McWilliams in his afterword to the recent Ratifying the Constitution, they are often disturbed at not finding such an emphasis in our fundamental law or in the context which originally gave it force and authority. But if they are generally in search of the truth of things, they can do no other than agree with McWilliams that “the Constitution made no explicit appeal to natural right” and that this omission was functional since Governor Edmund Randolph maintained (on May 29, 1787), just before proposing what we now know as the Virginia Plan for replacing the Articles of Confed­eration, that the subject before the Great Convention was not “human rights” but how to get over too much democracy—”requisitions for men and money” and stable government.

As reported and summarized by Charles Warren, Randolph in Philadelphia says he is against “such a display of theory . . . since we are not working on the natural rights of men not gathered into society but upon those rights modified by society and inter­woven with what we call the rights of the States.” According to this teaching, “natu­ral rights may be dangerous [to the entire social and political fabric of American life] . . . since the Constitution presumes the existence of and seeks to protect [i.e., se­cure] conventional rights.” In the same spirit spoke Colonel Joseph R. Varnum of Massa­chusetts, who in that state’s ratification con­vention, insisted that Congress, under the Constitution, had no right to alter the inter­nal relations of a state; and Theophilus Par­sons, famous attorney and judge from the same state, who “demonstrated the imprac­ticability of forming a bill in a national constitution for securing . . . individual right.” So also spoke Alexander Hamilton in the New York ratifying convention at Poughkeepsie: “Were the laws of the Union to now model the internal police of any state [or to] penetrate the recesses of domestic life, and control, in all respects, the private conduct of individuals—there might be more force in the objection [made against that Constitution].” And George Champlin of Rhode Island at South Kingston: “This Constitution has no influence on the laws of the States.” But whether safe or potentially harmful, powerless or imperial in nature, according to Justice Iredell, the Constitu­tion cannot be assumed to enact natural rights since these were meant to be defined under the police power of the states and localities: in the phrase of Edmund Pendleton, “our dearest rights in the hands of our state legislatures.”

Of course, from time to time someone in Congress made reference to the Declaration before the War Between States. Lincoln’s allusions to that text are well known. And after the War, radical Republican spokes­men in the Congress appealed to the Declaration’s statement about aboriginal equality whenever they were advocating Re­construction amendments or legislation supposed to have special effect on the South. Other Republicans (and the Democratic minority) did not agree to act on such a basis. And the Chase, Waite, and Fuller Courts (to say nothing of those that fol­lowed) denied that metaphysical, a priori equality was part of the Constitution. The modern Court has of course made reference to the Declaration from time to time. Con­sider Gulf C&S F Railroad v. Ellis, 165 U.S. 150 (1897); Butchers Union Co. v. Crescent City Live-Stock Co., 3 U.S. 746 (1884); Northern Pipeland Co. v. Marathon Pipe Line Co., 458 U.S. 50, 60 (1982); United States v. Will, 449 U.S. 200 (1980); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579,641 (1952); Nevada v. Hall, 440 U.S. 410, 415 (1979); South Carolina v. Katzenbach, 383 U.S. 301, 359 (1966); Parklane Hosiery Co. v. Shore, 439 U.S. 322, 340 (1979); and Faretta v. California, 422 U.S. 806, 829 (1975). But these adversions to the Declaration in rul­ings by the Supreme Court are mostly of recent vintage. And none of the cases where they are found depend primarily on the Declaration for their authority. They merely drag it in for color.

Moreover, with legislative and judicial references to the Declaration there is always the problem of which version of that docu­ment, which reading, has been invoked—as when the Black Republicans on June 16, 1906, got a guarantee that the original state constitution for Oklahoma should contain nothing “repugnant to the Constitution of the United States and the principles of the Declaration of Independence” written into the Enabling Act allowing that territory to take such steps toward statehood. And then, one year later, allowed the Sooner State to enter the Union under basic laws providing for the establishment of a segregated system of schools. It is not the simplistic version of the Declaration of Independence that played a part in these events. Though to this day—as witness Mortimer Adler’s We Hold These Truths—the old Neoabolitionist conven­tion for twisting the Constitution into a gloss and expansion upon the Declaration continues to hold its place in the political thought of the American Left and to func­tion as an alchemical instrument for trans­forming the U.S. Constitution without leg­islation or amendment.

What the Declaration meant (and means) it achieved by way of its form. That signifi­cance is visible in what men did about its adoption. And in what they did not do.1

The late M.E. Bradford was Professor of English at the University of Dallas. This is essay was originally published in the Fall 1992 issue of Intercollegiate Review, and it is republished here with permission from the Intercollegiate Studies Institute.

Endnotes:

  1. What I have taught previously concerning the Dec­laration of Independence appears in chapters of my A Better Guide Than Reason: Studies in the American Revolution(Peru, Illinois; Sherwood Sugden, 1979). They are in sequence, “The Heresy of Equality: A Reply to Harry Jaffa” (29–57); “All to Do Over: The Revolutionary Precedent and the Secession of 1861” (153–167); and “Lincoln, The Declaration and Secular Puritanism: A Rhetoric for Continuing Revolution” (185–203). Related material appears in Remembering Who We Are: Observations of a South­ern Conservative (Athens: University of Georgia Press, 1985), xvii, 41–42; in The Reactionary Imperative: Essays Literary and Political (Peru, Illinois: Sherwood Sugden, 1990), 123–124, 141–142; and also in Against the Barbarians and Other Reflections on Fa­miliar Themes (Columbia: University of Missouri Press, 1992), 60–63, 220 and 235.
    The locus of Professor Willmoore Kendall’s thought on the Declaration is in the book finished for him by his friend George Carey, Basic Symbols of the Ameri­can Political Tradition (Baton Rouge, Louisiana: Loui­siana State University Press, 1970), 75–95, 152–­156. Also useful in discussing this question is his essay “Equality: Commitment or Ideal?,” reissued in The Intercollegiate Review 24 (Spring 1989): 25–33.

3 Responses to “M.E. Bradford’s “How to Read the Declaration: Reconsidering the Kendall Thesis””

  1. gabe

    This is what happens when one denies that the constitution supports a notion of equality:
    http://www.libertylawsite.org/2014/01/15/when-justice-plays-the-racial-numbers-racket/

    If purely nomocratic, then Holder and his bullying buddies are correct in their efforts. Yes, they do it in the name of “equality” but it is in pursuit of equality of results – something only Leftist / statist ideologues would propose.
    So what then would (or should) limit this wonderful expression of positive law such as Holder and company wish to bestow upon us.

    take care
    gabe

    Reply
  2. ncoleman01

    Gabe,
    As always, good to see your comments. They are always thoughtful. I’ve read the link you posted. It seems to me that it blurs a distinction between equal application of the law – rule of law – and equality as a social leveling. In JP Reid’s RULE OF LAW, which the author cited, Reid is not talking about equality in the leveling sense, which is what the author seems to be implying. Rather, Reid is talking about the historical understanding of the Rule of Law in 17th/18thC Anglo-American world, in which rule of law was nomocratic (not a word Reid uses) in that it was based upon procedures and was a “hedge” (a word he uses in the title of one of the chapters and is taken from 14th C. author Henri de Bracton) against arbitrary power – usually of the executive. In fact, this is why Leftists attack the very notion of rule of law (and, in fact, Reid was quoting a Leftist who is attacking the Marxist historian E.P. Thompson’s glowing endorsement of rule of law in his book on the Black Act).
    Also, Reid published a brilliant essay on the “Irrelevance of the Declaration” which Bradford would have approved (I believe) but that the author of your link – who probably knows the essay – would not. Reid asserts that the Declaration is a common law – er, nomocratic? – indictment against Parliament/King.

    I’m not sure how Holder and company’s actions can be viewed a nomocratic in any real fashion. Rule of Law and nomocracy is about limiting the power of authority by creating a hedge of proper, well-established, and known processes. What Holder and company are doing is seeking to aggrandize government at the expense of rule of law by eroding equal application of the law in favor of government-sponsored favoritism and inequality.

    Reply
  3. gabe

    Mr coleman:

    thank you for the response.

    I was aware that the linked article would appear to establish only a tenuous connection to this essay. and yes, I specifically was thinking of the rule of law in this regard. It may seem trivial but “the rule of law” if it means anything it means equality before the law (and no, as you probably know, my view does not correspond with the silly leftists). However, when i look at both the DOI and the constitution I see that there is an end state in mind (no not some Straussian telos) if one considers the totality of the document and the avowed sentiments of the authors.

    More than that, what i struggled to say was that if one accepts a purely positivist notion of the constitution, even if it entails a “limitational” sentiment, one is still, regrettably confronted with situations that can limit ordered liberty. such i believe is the case with the Holder / DOJ actions.
    Thus, I am uncomfortable without a clear “bulwark against such encroachments. If I recall, both Madison and Jefferson expressed concerns about ‘parchment barriers.” Can any serious observer today not conclude that this is what our constituent law has been reduced to – indeed, it more closely resembles cheescloth – good for sifting crystallized aged wine – but nothing more.

    I am also aware of the potential for grave mischief by advocating what I would call a “quasi- teleocratic” approach as I have lived to see our republics principles bastardized beyond all recognition. However, i fear, more greatly, a case where there is no “supra-principle” that would at least give pause to the Statists in their efforts to restrict, control and define our lives.
    And this for me is the principle intellectual struggle. It is even more concerning when i see folks on the right engaging in the same sort of ideological foolishness as those on the left.
    Prudence – above all else – Prudence and a little Burke thrown in may be helpful. (No this is not directed at you folks).

    Anyway,
    take care
    gabe

    Reply

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