The Declaration – A Constitutional Document


I’m writing this even as I’m grilling kabobs out on the barbie, so I probably haven’t adequately synthesized the couple of views presented here.  And like any long an complex story, I’m skipping a lot in a few hundred words.  But they’re worth thinking about, on this Independence Day, in a season of renewed interest and admiration for our founding.

Pauline Maier, in her reluctant study of the Declaration, American Scripture, notes that even adopting it was somewhat controversial.  Was it even necessary?  In fact, states and localities had been adopting “little” declarations for some time.  Many of them were of similar form, and took the point of view that what they did was not declare independence as a new fact, so much as recognize an existing fact.  Much of the debate in Congress over the necessity of the document was over the same question – if Congress was merely recognizing an existing fact, was it necessary or beneficial to make such a declaration.

Eventually, as we know, those in favor of the declaration won out.  The necessity of a declaration, both for national unity and for clarity of purpose, was deemed overriding.

Maier, would agree that the Declaration is descended more from the English Declaration of Rights in 1689, than from Locke.  In fact, Maier traces that descent explicitly.  Jefferson, in his preamble to the Virginia Constitution, and George Mason, in the Virginia Declaration of Rights, both drew heavily from that document, and Jefferson used it as the source text for much of the preamble for the Declaration of Independence.

Russell Kirk would agree.  In fact, he did agree, in his Rights and Duties, Our Conservative Constitution. The Declaration of 1689 was about what form the Constitution of England would take.  It was about the relative powers of King and Parliament, and established once and for all that the King ruled with the consent of Parliament, consent that could, with sufficient provocation, be withdrawn.

Constitutions need not be written; Kirk, a dyed-in-the-wool conservative, notes that they’re just the basic rulebook we all agree to play by.  It need not be written, and in the case of our own, it must be open to reasonable and limited interpretation if it is to be brief enough to belong to us all.

Kirk notes that when the Constitution was written, not Locke but Burke was uppermost on the minds of the the Framers, and that the same was true in 1776.  The Founders, whose colonies had been founded by Royal Charter, considered themselves subjects of the King, not Parliament.  They sought the protection of the King against Parliament’s rule, rule which it had asserted in “all cases whatsoever.”  Good luck getting that from a King who knew all too clearly what side his crumpet was buttered on.

Whence, then, that Lockean bit about rights of man?  Kirk argues that it was largely pragmatic.  The Congress was made up of practical politicians who held certain ideas in common.  Pragmatically, they wanted to appeal to the French, and so tossed them a bone in order to appeal to their current political-philosophical fashion.  That doesn’t mean they didn’t believe it, but it does mean that that portion, no less than the bill of particulars against George III, was an attempt to show decent respect to the opinions of mankind.

In Kirk’s view, the Revolution was not about Lockean rights, although the Founders understood those.  It wasn’t even really about taxation without representation; they weren’t interested in representation in a Parliament where such representation would mean submission to its will, “in all cases whatsoever.”  It was about what form the English Constitution would take, and whether or not their own self-government could find a place in it. When they determined, finally, that their own self-government had no place in the English Constitution, they declared that they were, indeed had been, independent, and were now declaring that as a fact for the world to see.

It is that right – the right of self-government as free born citizens, that the Declaration declares, that the Constitution protects, and that we celebrate today.

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