The Declaration’s Grievances and the Constitution

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.”

The Declaration Committee, New York, 1876.

The Declaration Committee, New York, 1876.

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.”

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:

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

Richard Reinsch is a fellow at Liberty Fund and the editor of the Library of Law and Liberty.

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Comments

  1. Kevin R. Hardwick says

    Richard–

    You write: “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.”

    When it comes to understanding the compromises at the Philadelphia convention over slavery, this statement does not accurately characterize what took place.

    The Founders chose compromise–and backed away from a consistent and principled application of natural rights–because if they did not do so, they believed there would have been no union. Delegates from the Deep South made it crystal clear that they would not ratify–and might well follow the example of the New York delegation and just leave the convention–if there was no compromise on slavery. They forced the other delegates at the convention, including those who understood slavery to be a profound violation of the natural rights Jefferson articulated so powerfully in the Declaration, to accept however reluctantly a constitution that contained numerous accommodations of and protections for slavery.

    So the choice they confronted as they understood it was emphatically *not* “federalism or either political paralysis of national coercion.” Rather, it was “federalism, or disunion.” As Cathy Matson and Peter Onuf have demonstrated–and my reading of the Virginia Ratifying Convention of June 1788 supports their argument–we have to take seriously the Federalist analysis that the crisis the nation faced in 1787 was the prospect of the imminent collapse of the union as manifested under the Articles of Confederation. Alexander Hamilton developed this argument in various of the Federalist essays, and James Madison and other Federalists repeated the argument in the Virginia Convention, just as did others who shared their views in the ratifying conventions of other states.

    The affirmation of federalism represented in the compromises over slavery was a by-product of the deeper concern to preserve and perfect the union. If federalism was an end in itself–the evidence for that is ambiguous–it was a considerably subordinate end to the larger goal of preventing the balkanization of the American mainland.

    All best wishes,
    Kevin

  2. gabe says

    Kevin:

    rightly stated!
    And I would add that even those opposed to the constitution as submitted for ratification recognized that slavery was a compromise that must be accepted if there was to be a union at all. Failure to recognize this consideration is dismissive of both the sentiment and the efforts of the drafters of the Constitution.

    That being said, Richard is correct in arguing that the document was the result of a “multi-intent” effort – there is clearly an intent to codify SOME natural rights (as Fed Farmer said it was impossible to list them all and would make for a cumbersome document), there was also a clear intent to form a Federal structure (with clear tension between Hamilton and the Anti’s) while also providing for a government sufficiently robust to handle the task.
    To me, the great beauty of the thing is that it was somewhat successful in reducing the tension between the adherents of Burke and Paine. Because we were so inclined to settle this difference, we had the American NOT the French Revolution.
    (Short for time – hopefully I did not compress this into incoherence).

    take care
    gabe

  3. Greg Weiner says

    I took Richard’s broader point to be that the Founders were not *abstract* natural rights theorists. This is Gentz’s point as well, and it is the key difference, or one of them, between the American and French Revolutions. I’m not sure, for that reason, why federalism can’t be both the product of compromise *and* a theoretical end. A standard by which it couldn’t would disqualify much of American political thought from the canon. Federalism certainly has the effect of preserving local self-government as a form of concrete political attachment in which principles can be given real rather than abstract expression.

    I may misunderstand Kevin’s point, but I do not see federalism itself as a compromise that was necessary to preserve the union rather than it being torn apart in its infancy by slavery. Federalism reflected the facts on the ground, which included strong cultural attachments and political identities surrounding the states. It would have been a fact had there been no slavery. Again, I may misunderstand. In any event, Richard’s larger point about the Framers not being abstract theorists, in my book, stands.

    Thanks to all for stimulating the conversation.

  4. Richard ReinschRichard Reinsch says

    Kevin, I don’t disagree with your points. However, that seems only to confirm the point Adam Tate made in his review and that I was amplifying in this post. There were natural rights arguments, that there was agreement across the board when it was time to draft and ratify the Constitution was not evident. Federalism or confederalism, as a primal feature of life in our country, was then utilized to deal with these difficult questions and issues.

    • Kevin R. Hardwick says

      Richard–

      Thanks for restating this. Framed this way, your argument makes good sense. My apologies for being obtuse. I find, sadly, that I read the posts here more hastily than I would prefer. When I read that way, I find it too easy to hung up on the minutia, at the expense of the larger argument. (I worry I’ve done that in other threads too. I think–I hope–it is a forgiveable human failing, and that my comments are, whatever else they may be, at least somewhat constructive.) What I got hung up on here was the phrase about paralysis or coercion, which did not strike me adequately to capture the choices that the Framers confronted in Philadelphia.

      I do think it is very easy to read back onto the framers positions that they and other politicians only forcefully developed afterwards. As I read them, the nationalists of the late 1780s–guys like Hamilton, Washington, Morris, Wilson, and especially Madison–had arrived at the conclusion that state sovereignty was a critical source of the crisis confronting the union, and that the best solution was to eliminate or radically reduce state sovereignty in favor of a central government strong enough effectively to exert coercive force–the sanction that everyone agreed was necessary for the rule of law.

      In the Philadelphia Convention, the delegates present perceived only Hamilton to be arguing for total elimination of the state governments. But in the commentary of the other nationalists, it least as I read what Madison reports they said, they argued for the states solely as “subordinate governments” that did not exercise meaningful sovereign authority. So as I read the nationalists at the Philadelphia convention, they went into the convention with no intention of creating anything like what we now describe as federalism.

      Other delegates, of course, forced the nationalists to compromise. I have been forcefully struck, though, on just how deeply the nationalists dug in on this issue, and just how close the nationalist delegates came to walking out of the convention. See, in this regard, Madison’s notes for July 16, and his description of the meeting that nationalists convened that morning, immediately after the convention approved the “whole Report as amended & including the equality of votes in the 2nd branch.” (Madison’s Notes, Bicentennial edition introduced by Adrienne Koch, p. 297)

      Anyway, on this issue, and on others as well that Madison felt absolutely necessary to curtail the sovereignty of the state governments–most especially the federal veto of state laws–Madison lost. The constitution produced by the Philadelphia Convention was emphatically not the constitution that Madison and the other high-nationalists wanted. Madison and Hamilton drafted their analytically powerful expositions and defenses of the federal principle only after they lost those bitterly contested battles in Philadelphia. One might argue that the rule of secrecy that almost all of the framers honored was at least in part what permitted the high-nationalists to accomplish the dramatic volte-face they articulated in the Federalist essays and elsewhere.

      None of which detracts from my fundamental agreement with both of you that the framers were realists, and not abstract theorists. Madison was capable of stunningly couragous stands-on-principle–but he was nonetheless first and foremost a brilliant legislative politician.

      I also agree that you can make a credible (I would say irrefutable) case that federalism was part and parcel of the American experience well prior to the Philadelphia Convention. So I agree as well that the Federalists’ choice to embrace it in 1788 had earlier precedents. Even so, I think it striking how many of the founders were convinced by Blackstone (and of course earlier theorists all the way back to Bodin) on the unity of sovereignty. So in that sense what the Philadelphia convention produced did represent something novel–and to my eye something that was as much the product of immediate circumstances and practical politics than it was anything else.

      All best wishes,
      Kevin

  5. says

    Excellent responses to this remarkable blog by Richard.
    “…(W)e 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 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.”
    This one paragraph, by Richard, IS the defining basis for our ‘Liberties” – our Federal and State REPUBLIC(S).
    This statement, in no way, is in no disagreement with what Kevin has commented here-with. Richard ended his blog with this paragraph. Kevin has taken, by elaboration, his comments further. I have no problem w/Kevin’s comments, except for his last paragraph sentence, “If federalism was an end in itself–the evidence for that is ambiguous … ” Kevin, if the BOR’s was not introduced into the Constitution for Amendment – we would have had – a new convention of delegates reconsidering – The Articles of Confederation – w/amendments. (And you certainly are well educated to understand this.) It was not going to happen, and it did not, thank God.

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