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Renowned scholar George Anastaplo describes a side of Abraham Lincoln that previous biographers have overlooked: the development and legacy of his legal and constitutional thought.
The Declaration of Independence:
All the political sentiments I entertain have been drawn, so far as I have been able to draw them, from the sentiments which originated, and were given to the world from this hall [Independence Hall] in which we stand. I have never had a feeling politically that did not spring from the sentiments embodied in the Declaration of Independence.... I have often inquired of myself, what great principle or idea it was that kept this Confederacy so long together. It was not the mere matter of the separation of the colonies from the mother land; but something in that Declaration giving liberty, not alone to the people of this country, but hope to the world for all future time. It was that which gave promise that in due time the weights should be lifted from the shoulders of all men, and that all should have an equal chance. This is the sentiment embodied in that Declaration of Independence.
Any examination of Abraham Lincoln's constitutionalism can usefully take its bearings, as Lincoln himself did, by the Declaration of Independence. We, in our capacity as citizens of the United States, recognize at the outset of this inquiry that the Declaration of Independence is primarily a public document.
The Declaration was issued for public purposes, at home and abroad. One can see in it passages designed to influence British and French readers, as well as passages designed to secure public support in the Colonies for the year-old rebellion.
It is a public document also in that it draws on what was commonly accepted by those--of the revolutionary persuasion, at least--who had long discussed the issues dealt with in the Declaration. Thus, John Adams could observe many years later, "There is not an idea in it but what had been hackneyed in Congress for two years before." And Thomas Jefferson could respond that it was the purpose of the Declaration
not to find out new principles, or new arguments, never before thought of, not merely to say things which had never been said before; but to place before mankind the common sense of the subject, in terms so plain and firm as to command their assent, and to justify ourselves in the independent stand we were compelled to take. 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.
Finally, the Declaration is a public document in that Jefferson's draft was carefully reviewed, and altered in many respects, by the Continental Congress, a body of men more moderate than he, which eventually adopted and promulgated the Declaration. The Congress added the appeals to "the Supreme Judge of the World" and for "the Protection of divine Providence," struck out the fierce condemnation of the slave trade penned by Jefferson (and defended by Adams), and indeed made so many other changes that Jefferson considered his work mutilated. No doubt, Jefferson anticipated many of the points on which the Congress would insist; even the draft originally submitted to the Congress (which was cut down thereafter by one-fourth) cannot be taken as simply reflecting Jefferson's thought to the extent that other of his public utterances might be.
Each of these considerations affects how the document should be read and provides support for Ralph Waldo Emerson's description of it as one of those "acts of great scope, working on a long future and on permanent interests, [which honor] alike those who initiate and those who receive them."
The contents of the Declaration of Independence, the document Daniel Webster regarded as "the title-deed of [American] liberties," suggest a division into seven parts. It is characteristic of the Declaration, however, that even the delineation of its parts, to say nothing of their meaning, is far from unambiguous and invites continuous reappraisal. Here, for example, is a simpler, three-part division of the Declaration: "This is what we believe about government. This is what has been done to us. This is what we have to do now."
We confront, first in a seven-part division, the elaborate title which indicates that this is a declaration, adopted on July 4, 1776, by "the REPRESENTATIVES of the UNITED STATES OF AMERICA, in GENERAL CONGRESS assembled." The second part consists of a long sentence in which there is stated the purpose of the document, including the worldwide tribunal to which it is directed. Venue, so to speak, is established. There is next the commencement of the argument, which contains a statement of the general principles, the self-evident truths and deductions drawn from those truths, upon which the colonists' course is based. The fourth and central part of the Declaration is by far the longest, containing well over half of its more than thirteen hundred words: it is a statement of the cause of action, of the grievances resulting from a series of improper acts on the part of the King of Great Britain, closing with the complaint that the Colonists' "repeated Petitions" had been "answered only by repeated Injury" and with the observation, "A Prince, whose Character is thus marked by every act which may define a Tyrant, is unfit to be the Ruler of a free People." There is next the conclusion to be drawn from the foregoing conjunction of principles and injuries: the Colonists must exercise a people's inalienable right to abolish a form of government thus shown to be destructive of the proper ends of government. The sixth part of the document includes the formal declaration of independence, a restatement of the resolution that had been submitted to the Congress a month earlier, as well as the mutual pledge in support of this declaration. Finally, there is the list of the signers of the Declaration, collected according to States.
It should be noted that even the term "declaration" is not without significance, for it reminds readers both of the legal form by the same name and of the historic political declarations that preceded the Declaration of Independence. The legal form is, in pleading, "a specification, in a methodical and logical form, of the circumstances which constitute the plaintiff's cause of action." Or, to take another definition, it is "a formal statement intended to create, preserve, assert or testify to a right." The terms we are able to ascribe to the parts of the Declaration conform not only in language but also in sequence to the common-law form of declaration: title, venue, commencement, statement, conclusion, and even the formal declaration (with its pledge). Thus, the case for the Americans was set forth in a tribunal comprised of both God and mankind.
Of the historic declarations preceding the Declaration of Independence, there are three of which special note should be taken here, one English, two American. The most famous, the English Declaration or Bill of Rights, the 1689 document incorporating the terms of the Glorious Revolution of the year before, consists of three parts:
a recital [by Parliament] of the illegal and arbitrary acts committed by the late king [James II], and of their consequent vote of abdication; a declaration, nearly following the words of the former part, that such enumerated acts are illegal; and a resolution that the throne shall be filled by the prince and princess of Orange, according to [specified limitations].
The Continental Congress no doubt drew in its Declaration of Independence upon the precedent of the Convention Parliament and its condemnation of a usurping monarch, even to the extent of placing the Colonists on firm constitutional ground by reporting that King George III had "abdicated Government here." But there is, of course, a vital difference: the 1689 Parliament reformed the monarchy; the 1776 Congress repudiated both parliament and monarch.
That the misdeeds of Parliament, more than those of the monarch, were responsible for the rupture in 1776 is clearly indicated in two earlier American declarations, both of them also issued by the Continental Congress: "The Declaration and Resolves of the First Continental Congress," October 14, 1774, and "The Declaration of the Causes and Necessity of Taking Up Arms," July 6, 1775. The principal complaint in both declarations is, in the words of the Declaratory Act of 1766, that the British Parliament claimed "a power, of right, to bind the people of America by statute in all cases whatsoever." In 1774, the Colonists were prepared to oppose only by "peaceable measures" the various "grievous acts and measures" to which they had been subjected. In 1775, after once again stating their grievances, having considered themselves "bound by obligations of respect to the rest of the world, to make known the justice of [their] causes," they announced that they must take up arms "for the preservation of [their] liberties." At the same time, they assured their supporters in Great Britain, "We mean not to dissolve that union which has so long and so happily subsisted between US."
A year later, however, they must "acquiesce in the Necessity" of declaring independence. Since allegiance to the British Crown was to be cast off--for it was this, not any authority Parliament might claim, that they seem to have considered to provide their only constitutional link with the British Empire--the emphasis is placed in 1776 upon the misdeeds of the King of Great Britain, the acts of Parliament being laid at his door by virtue of the royal assent that he had given to this legislation. The rhetorical advantages of this course are evident, however specious it may seem to the constitutional historian. Thus, the United States of America came into being.
The Athenians, Thucydides reports, were obliged at the beginning of the Peloponnesian War to solemnize a public funeral of the first slain in that war. On that occasion, we are told, "the man chosen to make the oration was Pericles, the son of Xantippus, who, when the time served, going out of the place of burial into a high pulpit to be heard the farther off by the multitude, spake unto them in this manner." The authors of the Declaration of Independence also chose a high pulpit for the occasion on which they delivered the decisive pronouncement of their commonwealth: for they so elevated the thought and style of their sentiments that their words, like those of Pericles, stir aspiration even as they defy imitation.
We turn now to the text of the Declaration of Independence. It is convenient to direct our efforts to discussing--or, rather, to raising questions about--five teachings of the Declaration, teachings that bear on the equality of men, on forms of government, on the right of revolution, on divine sanctions in political affairs, and on the ends of government.
The Declaration asserts as the initial politically relevant self-evident truth, if we overlook for the moment the very recognition that there are self-evident truths, that "all Men are created equal."
What can this mean? Certainly, the men responsible for the Declaration knew what we know: human beings not only differ in such physical characteristics as strength and beauty, to say nothing of color, but also, and much more important, they differ even at birth in intellectual and perhaps even in moral equipment. One could continue to enumerate differences among human beings, some of which would be politically relevant. Yet, would not the very enumeration rest upon an implicit recognition of the fact on which the self-evident truth about "all Men" draws? That is, the distinctions to be enumerated are made among human beings, among creatures who resemble one another more than any one of them resembles any of the other creatures of the earth.
This emphasis upon, as distinguished from the age-old recognition of, the essential equality of men rests on considerations of justice: why should this human being be treated differently from that one unless and until good reasons for differential treatment are advanced? This consideration of justice, which may have come to seem practicable, at least in economic matters, as a result of the material abundance promised by modern science and its technology, is reflected in the second of the "self-evident" truths enunciated by the Declaration: all men "are endowed by their Creator with certain unalienable Rights [and] among these are Life, Liberty, and the Pursuit of Happiness." The rights to life, liberty, and the pursuit of happiness are called "unalienable," a term that suggests nature and the natural: an alien, who is to be made a citizen, goes through what the Declaration calls "Naturalization."
Some rights cannot be alienated, they cannot properly be given up or taken away without good cause (and any such attempted alienation must be either mistaken or under protest and may properly be repudiated). But, as we all know, life and liberty can certainly be forfeited. There is found in the Fifth Amendment to the Constitution of the United States, for example, a recognition of this distinction: one cannot be deprived of life, liberty, or property without due process of law. Thus, an arbitrary taking--one which is a deprivation that cannot justify itself and thereby denies the essential similarity among human beings--fails to take due account of the inalienability of critical rights.
It has been said (and even by Abraham Lincoln, the most distinguished commentator thus far on the Declaration of Independence) that, strictly speaking, the enunciation of the principle that all men are created equal was "of no practical use" for the immediate purpose at hand: separation from Great Britain. Yet, was not this principle convenient, perhaps even necessary, for the argument that culminated in the affirmation of the right of any people "to alter or to abolish" any regime that fails to serve the ends appropriate to government? Thus, to go one step further, the equality of men seems vital to the argument that this community of human beings, this people, is entitled as much as any other people to independence.
This people is distinguished, or distinguishable, from "the rest of Mankind." True, "Consanguinity" inclines the Americans toward their "British Brethren," but this tie does not require acquiescence to tyranny over "a free People." What makes a "people"? What, for example, is the basis for the designation of Quebec as "a neighboring Province" rather than as one of "these Colonies"? Certainly, the "merciless Indian Savages" are not considered part of this people, nor perhaps are the slaves whose "domestic Insurrections" the Colonists fear. There is reference, on the other hand, to "fellow Citizens" who have been compelled (after having been "taken Captive on the high Seas") "to bear Arms against their Country" and to become "the Executioners of their Friends and Brethren, or to fall themselves by their Hands."
There is something called a "Country," which is somehow related to "a free People," "the good People of these Colonies," and "one People." Is it made up of "Friends and Brethren"? But not the "British Brethren"; and friendship, we are told, is governed by war and peace. Is there any test, any formula, any clear way of determining what is included or excluded? Many "nations" in Africa, Asia, and Europe today face this problem. The American Civil War testifies to the almost fatal difficulty in definition, perhaps even to the arbitrary character, of the term "one People." Perhaps, indeed, the problem of determining what constitutes a people for political purposes suggests why the intellectual virtue referred to in the Declaration is prudence rather than wisdom. Prudence can dictate political action on the basis of assumptions that may be ultimately unexamined, resulting in judgments that are probable or simply commonly accepted. Wisdom, on the other hand, strives for a nonpolitical certainty: it cannot settle for "the Rectitude of ... Intentions" or leave unquestioned the "self-evident" truths with respect to the equality of men, the meaning and significance of "Life, Liberty, and the Pursuit of Happiness," or the basis of the distinction of this people from that.
It is evident that the Declaration, despite its form, is not a logical demonstration. Demonstrations certainly do not rely on appeals to Heaven: to "the Supreme Judge of the World" and to "divine Providence." The "separate and equal Station" "among the Powers of the Earth" is provided for by the "the Laws of Nature and of Nature's God." Somehow, the world is asked to believe, it is appropriate that this should be "one People" who are entitled to "dissolve the Political Bands which have connected them with another." The world has gone on to believe--partly as a result of the American example and even more as a result of the American insistence upon the equality of men (especially as reflected in the Wilsonian doctrine of self-determination)--that all self-defining bodies of men are equal, one to another, if they but choose to insist upon the point.
We are occasionally reminded that slave owners signed the Declaration of Independence as readily as those who did not own slaves. But this does not cast light so much on the meaning of the "created equal" language as it does on the inability of human beings always to give full effect to their principles in the circumstances by which they may be confronted. Whatever the private views on slavery of the authors of the Declaration, the public language they employed provided, and continues to provide, the classic statement of the equality maxim to which the Emancipation Proclamation, the Gettysburg Address, and the Thirteenth, Fourteenth, and Fifteenth Amendments are decisive contributions.
It is good to remind ourselves today of Lincoln's inspired view "of the meaning and objects of that part of the Declaration of Independence which declares that 'all men are created equal.'" "The authors of that notable instrument," he said in 1857,
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.... Its authors meant it to be, thank God, it is now proving itself, a stumbling block to all those who in after times might seek to turn a free people back into the hateful paths of despotism. They knew the proneness of prosperity to breed tyrants, and they meant when such should re-appear in this fair land and commence their vocation they should find left for them at least one hard nut to crack.
We can see here how Lincoln put the Declaration to political use in 1857, emphasizing that aspect of its teaching appropriate to the circumstances of his age, and we can also see why he often referred to it as an "instrument." Indeed, the "hard nut" had been subjected to powerful hammer blows. The assertion of the equality of all men had recently been condemned on the floor of the United States Senate as "a self-evident lie." Other influential men, including Chief Justice Roger B. Taney and Senator Stephen A. Douglas, conceded the validity of the "created equal" assertion but denied that the African was meant to be included within its terms. Even Lincoln later recognized that the "self-evident" of earlier generations had been undermined by "a great civil war" and by the controversy that had led to that war: he was obliged to speak at Gettysburg of "the proposition that all men are created equal."
It is curiously indicative of our own equivocal attitude toward the founding sentiments of this republic that the deservedly celebrated 1954 United States Supreme Court decisions striking down public school segregation in this Country failed to mention--assuming that such segregation represents a denial of the principle that all men are created equal--the Declaration of Independence, relying instead upon the much more questionable and far less elevated findings of social science research. Perhaps, indeed, we have moved so far from the dogma of "self-evident" truths that we sometimes seem to agree with the Chief Justice who had assured us a few years before,
Nothing is more certain in modern society than the principle that there are no absolutes, that a name, a phrase, a standard has meaning only when associated with the considerations which gave birth to the nomenclature.... To those who would paralyze our Government in the face of impending threat by encasing it in a semantic straitjacket we must reply that all concepts are relative.
The "principle that there are no absolutes" is not one to which men can pledge themselves in forming or re-forming "a free People." It is as a reminder of absolutes, and indeed of the nature of human beings, that the Declaration of Independence remains our founding instrument.
What is the relevance today, for law-abiding Americans, of the calm insistence in the Declaration of Independence that whenever any form of government becomes destructive of the proper ends of government, "it is the Right of the People to alter or to abolish it, and to institute new Government"? Do Americans need to be reminded of this two-century-old reservation, which is but another of the self-evident truths? Do they need to insist on this reservation even in an age when they are generally satisfied with their form of government?
Not that the revolutionary principle has been altogether lost sight of. It is, for instance, reflected in the distinction in positive law between rebels and pirates. It may well be, however, that Americans have greater need to be explicitly reminded today of this principle, and all that it implies, than at any other time in their history. The men of 1776 could speak of "self-evident" truths. We no longer do so--at least, not the educated and sophisticated among us--whereas they would have said that it is precisely the educated who are best equipped to discern what is self-evident. Rather, we are more disposed to speak of that to which "we" are accustomed or conditioned, as distinguished from that to which "they" are conditioned or accustomed, without delving into the basis of the distinction between "we" and "they." Indeed, such an insistence upon the "we" means that there must be no possibility of questioning what "we" believe or do: it means, ultimately, that the very assertion of the right to question--the assertion of the principle of the right of revolution--is itself grounds for suspicion if not evidence of disloyalty.
To insist upon the right "to alter or to abolish" when those in power become destructive of the ends of government is more than a recognition of how human beings respond in desperate circumstances to the actions of their rulers; rather, it is an insistence upon those ends, upon ends which transcend all forms of government, including that form which happens to be incorporated in our Constitution. That Constitution can certainly be said, at this time, to promote those ends for the American people. But what if a government, proceeding pursuant to the forms of the Constitution, becomes destructive of the ends of government? What, that is, if the Constitution itself should come to be, or should be made to be, destructive of the proper ends of government?
It is assumed by the Declaration that there are, under any form of government, ends beyond the government by which the activities of governments might be judged. These are ends that can inform and guide actions and decisions in circumstances far less serious than those in which an appeal must be made to arms. The ends are left to human beings to discover and define; we are reminded here of the traditional recourse to natural law. These ends have something to do with "the Laws of Nature and of Nature's God," something to do with "certain unalienable Rights," among which are the rights to "Life, Liberty, and the Pursuit of Happiness." Men can--indeed they must--rely upon governments to effect these ends; but even if they try to do so, they cannot legitimately surrender to others the most valuable of man's inalienable rights, most valuable because of its reliance upon that which distinguishes human beings from the other creatures: they cannot surrender the right, and the duty, to examine and assess the deeds of their governors and of themselves.
The Declaration reminds us thereby of the old-fashioned proposition that there are standards outside and above the agreements and teachings of men, government, and era, standards superior even to what "the People" might at any moment believe or choose. In short, the right of revolution implies an insistence upon the supremacy of reason in human affairs. Those today who rebel against the principle of "the right of revolution" act more in self-defense than they realize: not because of any present prospect of forcible overthrow of the Government of the United States, of course, but because of the hollowness in much of current thought that is exposed by an awareness of what the right of revolution must mean. This revolutionary principle remains in our time "one hard nut to crack" for those who "might seek to turn a free people back into the hateful paths of despotism," the despotism either of tyrannical governors or of self-indulgent multitudes.
It should not be left at this. There runs through the Declaration a qualification that has been ignored by people of other times or in other lands who seize upon it as a simply revolutionary precedent and justification, and that is the qualification that reason must be exercised and the reasonable raised up. The "Opinions of Mankind" are to be respected: the causes impelling a people to separation should be declared. To state causes requires the use of reason as well as the application of principles common to, or generally accepted by, mankind. Not only are "Facts ... submitted to a candid World," but also there is advanced a kind of argument starting from self-evident premises and proceeding to probable conclusions. Particularly significant here, not least of all as testimony to the gravity of the "long Train of Abuses and Usurpations" that led to the disruption, is the list of more than two dozen "Oppressions" of the Colonists visited upon them or assented to by the British monarch.
Thus, there is a right to alter or to abolish a form of government that is destructive of the ends of government, but it is a right that does have as one condition the proper exercise of reason: "Prudence, indeed, will dictate that Governments long established should not be changed for light and transient Causes." The Declaration recognizes explicitly a duty "to throw off" offending governments, but it also recognizes the duty to move carefully and with good cause before so serious a step is taken. It relies upon the good sense, as well as the natural inertia, of human beings who "are more disposed to suffer, while Evils are sufferable, than to right themselves by abolishing the Forms to which they are accustomed."
What moved this people to act at this time? We must say something about the long list of "Abuses and Usurpations" for which the King is declared responsible. It is sufficient for our purposes here, which are only incidentally those of the scholar, to make a threefold division: there is the opening set of charges relating primarily to the refusal of the King to govern or to permit others to govern properly; there is the central portion in which there are found the "Usurpations" reflected in acts of Parliament to which the King has assented; and there is the concluding part in which murders, burnings, and other acts of violence and cruelty are predominant, following upon the announcement, "He has abdicated Government here, by declaring us out of his Protection and waging War against us." It is rhetorically sound that the opening and closing parts of the Declaration incorporate "Abuses" most apt to persuade readers generally, even in monarchical France. The charges range from the anarchy of no government to the anarchy of lawless and predatory government. Buried in the center of the list, and hence less apparent to the casual reader, are the "Usurpations" that are keyed more to American conditions and to the expectations of those familiar with the British constitution. These charges are least likely to appeal to outsiders, or even to many Americans, although it is among them that we find most of the specific complaints that had been agitated for a dozen years. The elaboration of this list of two dozen "Oppressions," following upon the statement of general principles, is intended to provide support for the conclusion that Colonial government by Great Britain had clearly become destructive of the ends to which it should have been dedicated.
Yet, the problem remains, how is it to be determined whether such conclusions are proven, whether a particular revolution is justified? There is, of course, for this revolution as for any other, the practical consideration recognized by Ulysses S. Grant in 1885:
Now, the right of revolution is an inherent one. When people are oppressed by their government, it is a natural right they enjoy to relieve themselves of the oppression, if they are strong enough, either by withdrawal from it, or by overthrowing it and substituting a government more acceptable. But any people or part of a people who resort to this remedy, stake their lives, their property, and every claim for protection given by citizenship--on the issue.
But neither the prospect of success (or failure) nor the gravity of the oppression can be decisive, however important such considerations may be. For there is a recognition, even in the Declaration of Independence, that not even the most serious denial of inalienable rights can in every instance justify revolution or attempted revolution. The slaves in North America were clearly denied the right to liberty: the fierce passage Jefferson had penned for the Declaration and that was stricken by the Congress seems to recognize this denial. Yet, there is listed among the complaints against the British the charge that "domestic Insurrections" had been excited among the Colonies. Thus, it was advanced and no doubt regarded as a serious grievance that slaves had been induced by the British to exercise the right to abolish the rule of Colonists who were denying the Africans far more vital rights than most if not all of those referred to in that part of the Declaration reciting the list of royal oppressions.
How is this to be understood? To what extent, to use Lincoln's justification of the acquiescence to slavery in the 1770s and thereafter by the authors of the Declaration, does "the necessity of the case" govern? Such questions presuppose an understanding of the ends that transcend all forms of government, an understanding that distinguishes between principle and doctrine, between political philosophy and ideology. The proper implementation of the answers to such questions depends in large part upon the precepts and examples of public-spirited men of virtue whose "Rectitude of ... Intentions" can be trusted.
The proper relation between the Constitution of the United States and the Declaration of Independence is often obscured, partly because the importance of the Declaration as the fundamental constitutional document is largely overlooked, partly because of the remarkable success of the form of government laid out in the Constitution.
For, we have to remind ourselves, the American Constitution, with its provision for what it calls "a Republican Form of Government," is but one among the alternatives left open by the Declaration. We are told that governments are "instituted among Men" to secure "certain unalienable Rights"; and we are told further that "whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its Foundation on such Principles and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness." The ends of government are based on "self-evident" truths; but the means to effect the ends of government cannot be so certain. It is recognized by the Declaration that forms of government might have to be experimented with, that the "most likely" has to be settled for; and it seems that what appears best at one time might not be appropriate on another occasion. One prince is declared "unfit to be the Ruler of a free People," but not all princes? We see in the "most likely" qualification a striking instance of tentativeness in an instrument otherwise marked by its bold and confident assertions.
And yet, the Declaration is often understood as authority for the superiority of what is now called "democratic government." What has led to this sometimes mischievous doctrine? There is, of course, historical accident playing its part: the form of government appropriate to the sentiments of the Declaration has been identified with the form of government that has been developed by the people of the Declaration. Even in the instrument itself there is reference to "the Right of Representation in the Legislature," a right described as "inestimable" to "those People"--"inestimable," it should be noted, not "unalienable"--and "formidable to Tyrants only." Democrats seem to derive support as well from the assertion that a people may on occasion replace one government with another that seems most likely to them to fulfill the purpose of government. But this, we have seen, recognizes that no single form of government is best in all circumstances. Consider, for instance, the government best (if only temporarily) either for "the merciless Indian Savages" or for the slaves whose "domestic Insurrections" are dreaded.
Perhaps even more important in establishing, not implausibly, the connection between democracy and the Declaration of Independence in the minds of people everywhere is the emphasis in the Declaration upon the proposition that governments derive "their just Powers from the Consent of the Governed." Where does "Consent of the Governed" lead? Does consent make the exercise of powers just? That might, at first glance, seem to be suggested, but a careful reading does not require this interpretation. Perhaps consent relates not to the justice of the exercise of the powers of government but rather to the legitimacy of a particular government. Perhaps it should also be said that once consent is given, it cannot be withdrawn until the government becomes destructive of the ends of government. Legitimacy, once secured, is preserved by justice. Moreover, a people is entitled to retain (and may be obliged to defend) the just government to which it has consented.
How is consent expressed? The reference to "the consent of our Legislatures," which would seem to require positive legislative action, suggests a requirement of action by the people as well if their consent is to be secured. But what kind of action? May not a popular vote or plebiscite establish a spurious consent? Are there not means other than a referendum to determine or establish consent? Perhaps the common feeling of the people, reflected in contentment, peaceableness, and prosperity, is a sufficient, even a better, indication of consent. But, we must ask further, what if a people is deceived into acquiescence? What if misery and conflict are mistaken for happiness and harmony? What if rank injustice and cruelty are mistaken for a just and civilized regime? Are mistaken or deceived peoples able to give consent to rulers and regimes that have become destructive of the ends of government? By proceeding along these lines, we bring closer together the criteria of legitimacy and justice. Are they kept as far apart ultimately as are prudence and wisdom, as far apart as the realm of action and the realm of thought? Must we have recourse here as well to a reliance upon "the Rectitude of our Intentions?"
We see in the Declaration's references to divinity an oblique anticipation of the separation of powers established in the Constitution. There are four references of this kind (and it is rhetorically appropriate that they should be placed, in pairs, at the beginning and at the end of the document):
1. "the Laws of Nature and of Nature's God"
2. "endowed by their Creator"
3. "appealing to the Supreme Judge of the World"
4. "with a firm Reliance on the Protection of divine Providence"
The first reference to God, and perhaps the second as well, regarded God, as legislator: it is He Who orders things, ordaining what is to be. He first comes to sight as the lawgiver or lawmaker. (Just as in the Constitution, so in the Declaration, the legislative aspect of government is primary, both in the order of enumeration and in importance.) Next, God is seen as judge. Finally, He is revealed as executive, as One Who extends protection, enforcing the laws that have been laid down (with a suggestion as well of the dispensing power of the executive).
Thus, the authors of the Declaration of Independence created even the Government of the World in the image of their political institutions. We should further note that the first two references to divinity were inspired by Jefferson: God is seen and known as reflected in Nature, as something that can be grasped by man's reason without the aid of revelation. The third and fourth references, on the other hand, which were added on the floor of the Congress to the Jeffersonian draft, come closer to the God of the Bible, the God of revealed religion. In fact, one must observe that the Congress in its pious contributions may have been more "realistic" politically than the free-thinking Jefferson. The testimony of George Washington in his Farewell Address of 1796 is relevant here:
Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports. In vain would that man claim the tribute of patriotism, who should labor to subvert these great pillars of human happiness, these firmest props of the duties of men and citizens. The mere politician, equally with the pious man, ought to respect and to cherish them. A volume could not trace all their connections with private and public felicity. Let it simply be asked: Where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths which are the instruments of investigation in courts of justice? And let us with caution indulge the supposition that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle.
It was from such material that Lincoln developed the "political religion" he thought vital to "the perpetuation of our political institutions." The hand of Divine Providence could be discerned by him in many incidents relating to the Declaration of Independence. Even in casual remarks in response to a serenade, the President could observe:
How long ago is it?--eighty odd years--since on the Fourth of July, for the first time in the history of the world a nation by its representatives, assembled and declared as a self-evident truth "that all men are created equal." [Cheers.] That was the birthday of the United States of America. Since then the Fourth of July has had several peculiar recognitions. The two men most distinguished in the framing and support of the Declaration were Thomas Jefferson and John Adams--the one having penned it and the other sustained it the most forcibly in debate--the only two of the fifty-five who signed it being elected President of the United States. Precisely fifty years after they put their hands to the paper it pleased Almighty God to take both from the stage of action. This was indeed an extraordinary and remarkable event in our history. Another President, five years after, was called from this stage of existence on the same day and month of the year; and now, on this last Fourth of July just passed, when we have a gigantic Rebellion, at the bottom of which is an effort to overthrow the principle that all men are created equal, we have the surrender of a most powerful position and army on that very day. [Cheers] ... Gentlemen, this is a glorious theme, and the occasion for a speech, but I am not prepared to make one worthy of the occasion.
These remarks and their theme are refined and elevated in the Gettysburg Address. There is to be seen in that address, as in Lincoln's Second Inaugural Address, a sublime blending of the political and the religious. The anticipation of such blending by the Declaration of Independence may be detected not only in its separation of powers in the Government of the World but even in its designation of "Honor" as "sacred."
Thus, we can discern not only in the history of the framing of the Declaration and in the sentiments of our greatest statesmen, but even in the language of the Declaration itself, the tension, possibilities, and problems with respect to the proper relation between religion and politics that come down to our day.
We have left, for the conclusion of this introduction to the Declaration of Independence, our return to that which is the starting point of the enterprise, the temporal ends of government. The purpose of government, we are told, is to secure "certain unalienable Rights, ... among [which] are Life, Liberty and the Pursuit of Happiness." Further along, we are induced to infer that government must be instituted with a view to the likelihood of effecting here on earth the "Safety and Happiness" of the people. The right to life and perhaps to liberty may be seen in the effort to guarantee the safety of the governed; the right to liberty and the pursuit of happiness may be reflected in the effort to promote the happiness of the governed.
Emphasis is placed throughout the instrument upon the invasions of liberty, and consequently of life, property, and the common good, at the hands of "the present King of Great-Britain." There is revealed, it is alleged, a "Design to reduce [Americans] under absolute Despotism"; the direct object of "the repeated Injuries and Usurpations" is "the Establishment of an absolute Tyranny over these States"; the King's character is marked "by every act which may define a Tyrant"; he "is unfit to be the Ruler of a free People." Thus, liberty is central not only to the famous trilogy--whether expressed in the form found in the Declaration or in the traditional (and less revolutionary) version of "life, liberty and property" affirmed in the American Bill of Rights--but also (it seems) to the view of the authors of the Declaration of how happiness might be achieved and life preserved. They may even be taken as agreeing with what Pericles said of the Athenian dead, that they placed happiness in liberty, and liberty in valor.
The Periclean formula cannot be understood without consideration of its context, for Pericles goes on to urge his fellow citizens, in imitation of the honored dead, to "be forward to encounter the dangers of War." The emphasis is placed upon valor, because war is currently the arena in which the fate of the city is to be decided. In times of peace, however, we should expect justice (or perhaps friendship) more than valor to be the secret of liberty (or perhaps mutual respect). That, too, is what the authors of the Declaration seem to suggest: their "British Brethren" are rebuked for having been "deaf to the Voice of Justice and of Consanguinity." The tie of blood should have particularly inclined Britons to listen to repeated complaints; the demands for justice, reflected in the list of royal measures that offend against laws both written and unwritten, should make all men listen, especially when the demands are supported by deeds of valor.
We are reminded of a proposition advanced by Washington, the proposition "that there exist in the oeconomy and course of nature, an indissoluble union between virtue and happiness." Both valor and justice are needed if the ends of government are to be secured: prudence dictates where the emphasis is to be placed, whether it is a time for war or a time for peace. Indeed, prudence must guide human beings not only in the development and administration of their constitution, but even in the determination of the appropriate occasions for praising the merits or exposing the defects of their revered constitutional documents.
Now we, as does the Declaration, must draw to the end of this phase of our discussion, an end which is a new beginning, a beginning which recognizes that we have, in the words of Benjamin Franklin, "no more durable preeminence than the grains in an hour glass." (We hear echoes of Benjamin Franklin's words in the mortality-minded poetry of Abraham Lincoln that we examine in Chapter 9 of this Collection.) The Declaration opens with the haunting phrase, "When in the Course of human Events," an expression that marks the practical character of the enterprise even as it reminds us of the fragility of human affairs and human existence. Yet reason and the civilization to which reason and reverence have led human beings make their demands and offer their hopes. It was in this spirit that the two giants of the Congress of 1776 continued their association into old age. It was in this spirit that Thomas Jefferson wrote to John Adams in 1813,
I have thus stated my opinion on a point on which we differ, not with a view to controversy, for we are both too old to change opinions which are the result of a long life of inquiry and reflection; but on the suggestion of a former letter of yours, that we ought not to die before we have explained ourselves to each other.
Indeed, these men, as partners and rivals, helped to lay the foundations for a government by explanation: for it is the willingness to explain oneself that displays a decent respect for the opinions and, therefore, for the reason and moral sensibilities of mankind. But, unfortunately, explanation is the mode of peace and sacrifice, the mode of war. And it is, for the Declaration of Independence, a time of war. We are assured at the conclusion of the instrument by a pledge to each other of "our Lives, our Fortunes, and our sacred Honor." The right to life is put in the balance, for each man signed in the Declaration his own death warrant, as a traitor, in the event of failure. The right to the pursuit of happiness, the fortunes that lie before them, is also put in jeopardy.
Liberty, as well, is thrown into the scale, but not as are the other two great rights. For liberty is offered up immediately, rather than in the event of failure: the liberty of choice, the liberty of action, is sacrificed to the common cause. There is a dedication, a dedication sealed by a pledge of honor--by the pledge, that is, not to exercise their liberty to abandon the cause that they dare proclaim to the world.
Excerpted from Abraham Lincoln by George Anastaplo Copyright © 2001 by George Anastaplo. Excerpted by permission.
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