The Continental Congress voted on July 2, to declare independence from Great Britain and approved the final wording of the Declaration on July 4. Invoking the people in the first line of the Declaration was not simply a rhetorical flourish or a dramatic overture; the former British subjects, now American citizens, were actively involved in severing ties and forming a new nation.
It was not, of course, a movement from the top. Revolutions do not come from that direction. It was not without the support of many of the most respectable people in the Colonies, who were entitled to all the consideration that is given to breeding, education, and possessions.
The American Revolution represented the informed and mature convictions of a great mass of independent, liberty-loving, God-fearing people who knew their rights, and possessed the courage to dare to maintain them. The people Adams and Coolidge described did not rise up spontaneously.
The recognition of duties, liberty, and rights began in the century prior to independence. It was simultaneously a civic, cultural, and political formation that continues to this day and consciously must be perpetuated. Alexis de Tocqueville, author of Democracy in America , discovered the principle and the life of American freedom in the township and recognized that it fostered self-governance.
It nurtured the growth of freedom because of what it permitted and required and because of its limited scope. In the heart of the township one sees a real, active altogether democratic and republican political life reigning. The freedom that was cultivated among the New Englanders thus became a part of the habits of the nation.
This point cannot be given too much emphasis. In his chapter on the principal causes of maintaining the democratic republic in the United States, Tocqueville points to mores, which he understands as the habits, opinions, usages, and beliefs of the people, as regulating and directing the democracy of the United States.
These mores, Tocqueville explains, are habits of the heart and of the mind; they comprehend the moral and intellectual state of a people. The experience of the township instilled in the immigrants and their descendants the love of freedom and the habit of governing that Tocqueville saw as crucial to sustaining democratic institutions.
The assertion in the Declaration that governments derive their just powers from the consent of the governed again recognizes the active participation of the people. Those who conjured up American independence were, like any group of politicians, frail and flawed human beings. They could not have foreseen all the consequences. But they nonetheless put forward, and fought to defend, claims that have set off many subsequent detonations.
When Abraham Lincoln began the Gettysburg Address by pointing to the founding of the United States, he looked not to the passage of the Constitution, but rather to the Declaration of Independence, issued four score and seven years before. If his rhetoric on that occasion summoned forth a new birth of freedom, it was in self-conscious echo of the first.
When Martin Luther King Jr. Like none other, he saw the declaration as a mirror that Americans must hold up to themselves. And if they did not like what they saw, they could change things. There have always been Americans who chafe at the universalism of the declaration, and foreigners who disdain or repudiate it.
There will never be a shortage of critics who note the ways in which the United States fails to live up to this, its founding promise. But the heart of the American creed has never been more important. Today liberal democracy is under threat from multiple quarters. New technologies make surveillance and repression easier than ever before, while some authoritarian governments have figured out ways to ensure both prosperity and political docility.
Science may undermine the premise of human equality in many ways. It is not uncommon to read sneers from foreign observers of the United States and even from quite a few Americans who charge that the United States is saddled with 18th-century dogmas and 18th-century ways of doing business.
The language of rights The 13th Amendment basically declares that chattel slavery, or involuntary servitude, unless in punishment for a crime for which one is duly convicted, shall not exist within the United States.
All of these The 14th Amendment, besides doing a lot of other things, guarantees the rights to privileges and immunities of all citizens, equal protection of the law and the due process of law, and the 15th Amendment concerns voting rights.
What I would say in answer to your question is particularly relevant to the Declaration of Independence in its own way, is that for many people, the Declaration of Independence was a charter of limited constrained government. Jefferson himself viewed government as a necessary evil and that is because he thought governments were the primary threat to individual rights. At the same time, however, there is this paradox or irony in the Declaration of Independence that it justifies and legitimated the establishment of a powerful government that itself implicitly is indispensable to the protection of rights.
The political theory of the Declaration of Independence both empowers and legitimates government to protect rights and at the same time, says that governments are the greatest threat to rights. Actually, the 13th, 14th and 15th Amendments added to Article One's grant of power to the national government and specifically to the US Congress. For Conservatives and liberals, this is going to be a point of contention ever since, many conservatives today still look back to the 18th century and view the Declaration as a charter of very limited government, but the Civil War Amendments, and this is what Lincoln meant in part by a new birth of freedom, is that we've learned from slavery that governments are not necessarily the chief threat to rights, that federalism does not protect rights as we might have initially thought, and that we need a newly empowered Congress and national government to enforce rights.
In that sense, Lincoln, and certainly the radical Republicans, really were conceiving of a new understanding of the constitution and a new addition to powers of the national government to protect rights of people.
Rosen: [] Danielle, we have at least three more eras to get through so let's get to it. I'm going to ask you now about the Progressive Era and you'd mentioned the invocation of the Declaration by women's suffrage advocates at Seneca Falls.
Tell us about that and of other indications of the Declaration during the Progressive Era, including by conservatives on behalf of property rights. Allen: [] The key feature of the Progressive Era is of course the achievement of the right to vote for women, and we are all just going through our conclusions of celebrating that th anniversary on that front, and the language of the Declaration was a very common feature of that effort.
I think it's important then also to recognize that the nature of the conversation about rights has itself been one always about the evolution of context and the concept there. FDR for example, then famously elaborated an argument about four freedoms but those four freedoms stand in a slightly different relationship to the kinds of freedoms articulated in the Declaration. They include, the freedom from want and freedom from fear alongside the freedom of religion and your more conventional views about freedom.
This is a moment in the 20th century where a question is being put on the table about social rights alongside political and civil rights. At the founding, the concepts of freedom and equality were really tied to a picture of political equality and where what you were talking about was the right to participate in the political process, to run for office, to vote.
Those were restricted rights to start but the rights continually broadened. Then we include new groups in those political and civil rights, but then in the early 20th century, what you start seeing is the conversation about expanding the rights category to include social rights.
That then really crystallizes in the UN Declaration of Rights, which lays out a big picture of human rights, which includes the political and civil rights that have always been a part of the American tradition and also includes economic rights and social rights.
This is the point at which the conversation starts to take on a really different shape as a big human rights discourse also begins to evolve. All of that, which we're now very familiar with in the early 21st century, does have its origins in the Declaration of Independence, but it's really important to see the way in which that progressive moment, that mid century World War II moment, begin to add social rights and economic rights into the discussion of what kinds of rights a government has an obligation to secure.
On that last point, I think it's important to say that again, the Declaration itself is a motor of change because when it lists those core rights, it does so as providing a set of examples. That's really the topic that the mid 20th century takes up as social rights and economic rights come into view for deliberation and consideration as basic things the government ought to secure and protect.
Rosen: [] Ken, as Danielle so powerfully said, the Declaration discourse was expanded during the Progressive Era to include not only the 18th century natural rights, but also social and economic rights and Franklin Roosevelt in his Commonwealth Club Address on the Declaration of independence in , invoked the Declaration on behalf of the protection of social and economic rights. Later, in his Four Freedoms speech, he invoked the Declaration on behalf of a second Bill of Rights, which included the right to a remunerated job, adequate clothing and so forth.
Conservatives responded to the new deal by objecting to its expansion of government authority and its attempt protect social economic rights. What's so fascinating for our discussion, is that in their reaction to the new deal, they once again invoked the Declaration in attempting to repeal it. This is a story that you tell so powerfully in your new book, Conservatives and the Constitution: Imagining Constitutional Restoration in the Heyday of American Liberalism. Give us a sense of the different strands of the conservative movement that invoked the Declaration in their opposition to the new deal.
Kersch: [] Well, Jeff, progressives at the time spoke to different categories of thinking about the Constitution that get to the question that we're talking about today. Progressives, and I'll talk about conservatives next because obviously that's the other side of the coin here, progressive historians distinguished between what they called the spirit of the Declaration versus the spirit of the Constitution. For progressives, the spirit of the Declaration meant democracy, the power of the people to set their own direction, to make their own laws that they think will best serve their needs and advance their rights.
The spirit of the Declaration embraced change, it embraced revolution, it embraced popular sovereignty. I think the way progressives would think about the developments that Danielle was talking about towards social and economic rights, and certainly FDR invoked the Declaration of Independence for this very purpose in his famous Commonwealth Club Address is, he invoked the Declaration for first of all, the idea that the Constitution is a FDR said that essentially, the country is not That the people are suffering, they are not able to exercise their rights, they are not able to make them a reality in their day to day lives and therefore the compact and the compact theory that underlies the Declaration and also its promise of popular sovereignty was being violated.
FDR was invoking the spirit of the Declaration that progressives were talking about and of course he got his start as assistant secretary of the navy in the Wilson, he came out of the Progressive Era.
In the Progressive Era , the conservatives identified progressives as upholders of the constitution and they viewed that many progressives, particularly the radicals as a negative but they appealed to the spirit of Declaration Independence in the positive.
Let me just add, to move forward to the new deal and the things that Danielle was talking about, one of the things that changes under Franklin Roosevelt is current conservatives basically label new deal liberalism, just another form of progressivism.
By that they mean, it's purely majoritarian democratic and it does not heed the spirit of the constitution that I just mentioned, protection for minority rights, protection for property rights and adherence to constitutional principles of limited government. I think what changes under FDR, particularly because of what's happening in the broader world with the rise of Nazi-ism and World War II and Hitler, is that FDR, unlike the progressives or most progressives, re-embraces the language of rights and implicitly re-embraces the limited government spirit of the Declaration while also embracing an active government spirit of the Declaration.
Therefore, he affects a synthesis. To conclude, I would just say, what are the four freedoms, freedom of speech and expression, freedom of religion. Those are what we call negative liberties, they are restrictions on the power of government and in that sense they are very Jeffersonian. That is in the spirit of the Declaration as refracted through the Civil War Amendments that calls for more government.
The Four Freedoms speech, FDR synthesizes that and says the issue isn't government limiting government or empowering government, it is doing one in one case, doing the other in the other case, to fulfill our contract to the people to advance the public interest and to advance the common good of our constitutional democracy. Rosen: [] Well, it's time for closing arguments in this fascinating debate.
Danielle, my question is, are progressives in the post New Deal era from to the present, also continuing to invoke the Declaration on behalf of efforts continually to expand equality and popular sovereignty, or has Declaration language fallen out of fashion among progressives in recent years?
Allen: [] As Ken said earlier in this conversation, use of the Declaration is ubiquitous and so you can find it all over progressive or left leaning political movements as well. It's relevant to this effort to do Equal Rights Amendment and women's rights, it comes up in various places in that context. Again, of course Martin Luther King so famously invokes it in a letter from the Birmingham jail, the Black Power movement even repurpose the language of the Declaration. Then you find surprising things outside of this country, like Ho Chi Minh's rewriting of the Declaration as he tries to establish independence for Vietnam, so it's uses are astonishingly wide and varied.
I will just share that I myself, a couple of years ago, published an op-ed in The Post, rewriting the Declaration to argue for a Declaration of Independence from the war on drugs. You could call that a kind of blend of progressive and libertarian position. It really is a rich document because it does set up a framework for judging what the purpose is of a democratic government should be, what our responsibilities are to one another and what the tools are that we have for bringing about adjustments to the framework for mutual living arrangements.
As I said at the start, it's for everybody, it has been used as much on the left as on the right. I think perhaps the conversations are more consolidated on the right than on the left, they're perhaps a bit more spread out and disparate on the left so perhaps not as visible, but the text and the ideals of the Declaration are very much alive across the political spectrum.
Rosen: [] Ken, the last word is to you. How are conservatives continuing to invoke Declaration language in our constitutional debates today ranging from abortion and fetal life to gay marriage and the scope of limited government? Kersch: [] As you mentioned, Jeff, the Declaration of Independence plays a major role in contemporary conservative thought and contemporary conservative constitutional thought, particularly within the conservative movement generally but also in some cases on the Supreme Court, and I believe you mentioned Clarence Thomas in that regard, who is acknowledged as someone who's picked up on this.
I think we might see even more of it in the future on the Supreme Court, as a new Republican justices are appointed.
Essentially the work that citations to the Declaration of Independence are doing in the contemporary conservative movement, is really to emphasize that conservatives believe that this country is founded upon certain timeless principles of natural rights, natural right and also natural law. They essentially argue that progressives and their legatees ever since the Progressive Era , have repudiated the framework that the polity needs to be anchored in certain grounding foundational principles.
They charge progressives and liberals with essentially abandoning both the principles of the Declaration of Independence and relatedly, the Constitution, which they argue is inextricably linked to the Declaration of Independence. As far as the particular issues you mentioned, abortion, fetal personhood, gay rights, conservatives have a particular reading of the meaning of the Declaration of natural rights in the Declaration of Independence. There's a considerable debate about the terms of this, but much of what's driving this is broadly a statement that Jefferson and the Founders believed in natural law.
Essentially, they end of the argument and obviously in some sense that is true. I'm not going to go into it, but I would dissent a bit from Danielle Allen saying that the creator reference, which is an interesting point that she has made and an interesting argument, but essentially what the concurrent conservatives are doing is that I think that's fairly clear.
If you want to know what the natural law is, why not look to Thomas Aquinas's Summa Theologica? Jefferson would not have agreed with that. It's that these understandings of natural law are true and it is true that these religious thinkers had explicated the natural law, but that natural law is reasonable and it is sensible.
The argument is essentially that abortion can never be a right because it violates the moral law, the fetus is a person because it's consistent with moral law, there can be no gay rights because that is inconsistent with the moral law.
By returning to the Declaration as a foundation and importing that into the Constitution, they are essentially working to align the Constitution with their understandings of right and wrong, which are found in natural law and in correct thinking, understandings of natural rights.
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