Why the Declaration Isn’t the Supreme Law of the Land

Assembly Hall, where the Constitution was signed.

On the 4th of July, 1776, the British subjects of thirteen colonies in North America declared through a makeshift congress that they were gunning for total independence from Britain.  They were already in a state of war against the British, but it was a defensive war against occupation, a war without aims.

Since the fighting had broken out a year earlier, representatives of the American colonies had applied themselves to the problem of how to win the war, a war against one of the world’s great military powers.  The Declaration successfully articulated the colonies’ grievances against the British Crown.  It presented a catalog of grievances against the monarchy, using the language of natural rights to justify throwing off a remote government that Americans feared would reduce them to “slaves.”  The Declaration legitimated   war on the grounds that the British government did not represent the will of Americans.  Britain’s colonial system condemned Americans to live under an authority that was not of their own making, in which they had no voice.

The Declaration was a radical document, a glorious aspirational document that, beyond firing up the colonists, has inspired oppressed people to seek independence, equality, and self-determination down through the years.  With its ringing assertion of each person’s right to “life, liberty, and the pursuit of happiness” and its rejection of government without “the consent of the governed,” the Declaration gave the colonists a sound philosophical justification for rejecting British rule.  Their rebellion was justified because becoming a self-governing nation was their aim.

Inspiring in its idealism, the Declaration was never intended as a blueprint for national government.  The Continental Congress that approved it never approached the stature of the English system of King and Parliament that the colonists threw off.  The Declaration’s fiery phrases recalling past grievances couldn’t sustain the Revolution as it dragged on.  Having put the super-capably George Washington in charge of the war effort, Congress became diffident.  Enthusiasm waned.  Each state wanted what was best for itself, and no state wanted to give up much of its newly gained independence for the sake of a more powerful collectivity.

General Washington had to beg and cajole Congress for the basics to keep the Revolution going.  Valley Forge was the shameful nadir of the states’ indifference and irresponsibility. Continental troops, encamped there for the winter, perished not from battle but for want of human necessities such as clothing, shelter, and food.  Washington despised the Continental Congress for its weaknesses, blaming it for a war that was unduly costly and long.

Peace and independence came after eight tedious years.  Congress’s deficiencies became even more glaring once the colonists’ common enemy, Britain, had been expelled.  The fragile nationhood achieved through the Revolution began crumbling, as citizens and states grew tired of the extraordinary effort that acting in concert as a nation required.  Returning home, Washington confronted his own near-bankrupt condition. He faced the same uncertain prospects that all Americans faced, after shunning membership in an imperial economy that, for all its faults, had helped power American prosperity.

No wonder that Washington and other leading Revolutionaries put their weight behind the Constitution of the United States, which, in 1789, with the consent of the states then extant, became the supreme law of the land.  In subsequent decades, as the nation grew, western states sought admission to the United States, voluntarily placing their states under subjection to the Constitution.  States like Texas, briefly an independent nation, eagerly sought to become part of the US, its sovereignty pale beside the Constitutional Union’s advantages.

All this matters because aggrieved Americans now justify their anti-federalism by quoting phrases from the Declaration, as if they do not realize that all that they owe to the Constitution, all the benefits and protections that have accrued to them and their states, thanks to this transformative Founding document.  Oddly, people who don’t know the history or limitations of the Declaration misuse the fiery document that Thomas Jefferson wrote as a young revolutionary hungry the very self-government that Americans gained.

The glorious heights this nation and its people have attained since the War for Independence rest entirely on the Constitution.  The individualism and liberty that the Declaration makes so much of would have come to nothing had the United States not subsequently embraced a strong centralized vision–the Constitution, which spells out the federal system of self-government and individual rights we live by now.

It’s disturbing to hear anti-federalists railing against the federal government using phases from the Declaration.  These benighted citizens come across as yahoos.  The Constitution, not the Declaration, supplies the legal basis of government.  It ensures our freedoms, balances our interests, and gives us sufficient power to be self-governing.  The Constitution, not the Declaration, is the font of all present-day rights, court decisions, and laws.

The Declaration of Independence was never intended to pit Americans against one another or to attack the representative self-government that, thanks to the guarantees of the Constitution, is the birthright of all Americans.

The First Fourth of July

The colonies had been warring against the English crown for more than a year. Their taking up arms on the periphery of the great British empire had at first been defensive and spontaneous, when, in April 1775, they exchanged fire with the redcoats in Massachusetts at Lexington and Concord. Behind Americans’ resort to arms was a conviction that, if they did not make a stand, the monarchy would strip them of their political autonomy, the ways of being and governing that the colonies had built up over the years. Some began associating loyalty to King George with political servitude.

So they backed up into a nasty situation: with their dander up and their more moderate tactics exhausted, thirteen weakly affiliated colonies had plunged willy-nilly into a war against a mighty power. No one of them could last against the British: they could only prevail by acting as one, by organizing. So the quest to organize the future states into something like a nation began.

It wasn’t the simplest proposition, because at that time the American colonies, though contiguous along the eastern seaboard, were largely strangers to one another. Each colony had its own character and peculiarities, its own governing traditions. They were as distinct and alien to one another, claimed John Adams in 1775, as Indian tribes.

What is most remarkable about the Revolution, yet often taken for granted, is that private citizens in the various colonies voluntarily took on these outlandishly weighty and amorphous duties. As the pace of political instability quickened, leading merchants, journalists, lawyers, intellectuals, printers, and farmers found a way to communicate, to protest, to proselytize, and to bring an entire (formerly tranquil) society together around ambitious and previously unthinkable propositions.

As the colonies became more radicalized, their leadership became shrewder, more obsessive and voluble, spewing forth oratory and addresses and declarations of such variety and power as to unite an entire population around a set of mortally dangerous yet self-respecting demands.

For more than a year, the Continental Army under George Washington had managed to hold together and to keep the British forces busy. But a rebellion that was merely negative–that merely pushed back against the British status quo–scarcely afforded the miserable and fractious colonials with a compelling reason to stay in the field. The moment they grew tired of rebelling against, the British would win.

The passage of the Declaration of Independence on July 4, 1776, marks the moment when the various grievances and injuries the colonies suffered under King George were transmuted into one simple positive, practical, political goal. The colonies (now states) declared they were and would be INDEPENDENT. But they also declared themselves to be “the United States of America.” Their first stride toward becoming a true nation came when their leadership, meeting as a “Grand Council of America,” unanimously approved of and proclaimed this as a fait accompli.

What would have happened to the colonists if they had failed to unite? They would probably have been treated as traitors and hung, their fate not too different from what is happening to political dissidents today in Hong Kong.

Today we look back on the leaders of the Revolution and marvel at their sins. We blame them for the political sins of generations of American leaders who came after them. How could they be so narrow-minded, so selfish and blind? Yet without their flawed vision, without their imperfect realization of a universal dream, without their amazing skills as political strategists and activists, where would you and I be today? What language would we be speaking? What narrow confines would shape our political dreams?

Image: “The Battle at Bunker’s Hill,”
from this source.

Mending the Flag

Fort McHenry flag (Courtesy of the Library of Congress)
EVERY FOURTH OF JULY, my head is filled with an unruly melange of memories: bits and pieces of our history, recalling the brilliant beings who charted a treacherous course away from kingly rule toward liberty, and the many subsequent Independence Day celebrations when orations, rather than fireworks and explosions, were the order of the day. Continue reading

A Meditation on the Old North Bridge

The Old North Bridge, © 2013 Susan Barsy

On a beautiful summer day, with visitors enjoying its views and waters, the Old North Bridge seems an unlikely spot for the beginning of a revolution.  Yet here the first organized and deliberate battle of the American Revolution occurred, when, in April 1775, colonial militia intent on defending their munitions forcefully repelled regulars of the British Army.  Turning them back at the Bridge, the colonials famously sniped at the British as they retreated on a heavily wooded road.

It was the beginning of an eight-year war that the revolutionaries fought with little help from outside.  Once they had killed members of the British armed forces, there was no path back to peace and submission.  There could be no end to defensive resistance, to a rebellion that at first had no unified, all-encompassing aim.  Only after more than a year of bloodshed and ad hoc organization did the thirteen colonies unite in Declaring Independence, justifying their goal, with the aid of Thomas Jefferson’s mighty pen and mind, with the most lofty and universal terms he could devise.

During this period, George Washington transformed the initially rag-tag Revolutionary Army, using stern measures to exact loyalty and obedience, while inveigling the Continental Congress (even as revolutionaries, the colonists had a regular legislative assembly) to provide the money and measures needed to fund the Army and enhance its power to fight.

Ultimately, the colonies triumphed and went on to peacetime success not because of their military might (which arguably remained inferior to the British) but because of the political culture they embodied.  The political processes and traditions that they had always relied on enabled them to retain their cohesion after throwing off the British, and, eventually, to devise a stable new nation based on the Constitution, ratified some thirteen years after the Revolution began.

Far from being alien subjects, the colonists were scarcely distinguishable from their imperial adversaries.  Their cause produced results because they knew and wished to preserve a civil society, in which they could be secure in their enjoyment of specific personal and political rights.  The American Revolution was a narrow struggle, fought by two populations infused with the same liberal traditions and similar attitudes toward the rule of law.

Unlike the revolutions we see around us today, the American revolution was not primarily about religion, nor was it fought along tribal, sectarian, or racial lines.  It was more of a family quarrel, fought between two forces of related bloodlines.

Being creatures of empire, early Americans, once free, quickly exhibited their own imperial tendencies.  Today we are quick to preach power-sharing to nations fraught with internal strife, but on this score we lack an illustrious history.  When it came to indigenous Americans, for example, the Anglo-Americans dominant in the 19th century pursued a policy of removal and territorial appropriation that makes the Japanese-American internment camps of the 20th century look like a friendly garden party.

The Native American tribes, though possessing deep claims to the lands of the American continent, were as unwieldy and threatening in a cultural sense as any terrorist is today.   The notion that white Americans could cohabit or compromise with native peoples, or that two such dissimilar cultures could be harmonized or politically integrated, was too mind-boggling to be entertained.  Instead, the American government used military and political force to extirpate Indians and push them off desirable lands.  Americans’ idea of “power sharing” with the Indian “other” was to expel remaining tribes from the American body politic, cordoning them off  on “reservations,” where they could no longer impinge on, or participate in, the ostensibly egalitarian government that was sovereign by then.

Similarly, in the 1860s, white Americans had to fight a Civil War among themselves, at the cost of some 600,000 lives, to establish the principle that we should not enslave persons whose skin color is different than ours.  It took another hundred years to provide African-Americans with the legal protections necessary for the full exercise of their political rights.

Throughout our Civil War, the rest of the world sat on the sidelines, as the nation sought its direction through a protracted conflict that refined it and left it profoundly changed.  The principles of union, federal authority, and equality that were then irrevocably established laid down the foundations of the nation’s might today.

These facts about our history must be recalled as we consider intervening in revolutionary conflicts in other countries.  The paramount importance of civil culture should be borne in mind as we contemplate giving military aid or committing ourselves militarily in other ways.  We tell ourselves that stepping in will lead to a more just result, or an earlier peace, but what process of internal development or resolution are we short-circuiting?  We say that other countries should tolerate and politically empower radicalized or militant minorities, though this isn’t something we’ve ever done with ours.

Much as our hearts are moved with compassion for the suffering that accompanies violent conflicts that are unbounded and unequal, we should be humble in our response, recalling the long path we have traveled from Revolution to tolerance and inclusion—a centuries-long struggle that continues even now, long since peace returned to the Old North Bridge.