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 Politics of Procedure

The Republican and Democratic parties remain locked in a struggle against one another.  Their parity produces an agonizing see-sawing that distracts officials from their true representative function.  Careerism and the fate of partisan “teams” dominate the national narrative, coloring the news.

Every issue, including that of the role and condition of citizens in a republic, assumes a fantastical shape when seen through partisanship’s unreliable lens. Continue reading

In Truth, No One Knows What Will Happen


We’ve heard a lot of bluster from Republicans lately, much of it pooh-poohing impeachment and the odds of President Trump’s being removed from office.

In Congress, Republicans used the House Intelligence Committee’s recently concluded public hearings to depict impeachment as uninteresting, unpopular, unfair, unnecessary, unsubstantiated, unpromising, and unwise.  The Senate majority leader, Mitch McConnell, likewise prejudged the whole endeavor, saying that should the Senate try Trump on impeachment charges, “It’s inconceivable to me there would be 67 votes to remove the president from office.”

So say the Republicans, with impressive bravado.  Meanwhile, the nation is heading straight at a moment of truth that will show what every Republican in the House and Senate is made of.

The public has received a mass of credible evidence that the president violated his oath of office to pursue a delusional personal agenda at the expense of national security.  Trump enlisted other senior White House officials to further this agenda, explicitly empowering a private citizen, former NYC mayor Rudy Giuliani, to orchestrate it.  The House Intel hearings were an effective whodunnit.  A parade of witnesses described a president at ease with sacrificing America’s public interests to those of Russia and to what matters to him personally.  Such are the “goods” Republicans are bent on defending, at the expense of nation, party, and their own place in American history.

For, if the president’s conduct is tolerated, our republic is gone.

Republicans have sought to diminish the gravity of this Constitutional crisis.  They complain mightily about the Democrats, perhaps because it’s painful to admit the turpitude embodied in the leader of their own party.  They evoke the 63 million Americans who voted for President Trump in 2016, as if the mandate he secured then forever freed him from Constitutional limits or Congressional oversight.  Republicans even assert that the riveting testimony given before the House Intel Committee was trivial and boring, whereas this great week of political theater was singularly dramatic, momentous, and often moving.  Americans are far more sophisticated and more concerned with political rectitude than Republican lawmakers care to consider.  No poll can predict what will happen to Republicans who choose to enable Trump’s abuse of power.

Republicans like Jim Jordan and Devin Nunes pander to the sort of voter they imagine forms the unshakable bedrock of Trump’s support: this voter is ill-informed, narrow-minded, and easily hurt.  Republicans point to Trump’s forty-percent approval rating, as though this were a justification for abdicating the responsibilities Congress has to the Constitution.  Congressional Republicans come across as fearful of securing office on their own terms, once this amazing charlatan leaves the public stage (which, given presidential term limits, is destined to happen anyway).

Deference to Trump’s “base” is curious and self-defeating.  Trump is one of the least popular presidents in recent history, on a par with Gerald Ford.  (For graphical comparisons to other presidents, click here and scroll down.)

A simplistic and condescending view of the voter has the Republican establishment running very scared.  Republicans wants citizens everywhere to believe that impeachment is doomed, because otherwise Republican politicians will have to face the crisis of leading their constituents into the post-Trump age.  Will Republicans continue to shirk the responsibility of leading, which, in a republic, involves educating citizens on complex matters and figuring out how to change their constituents’ minds?

Impeachment is now before the House Judiciary Committee.  In the coming weeks, Republicans in power will come under increasing pressure to lead the nation, rather than dither about how hard it is to do the right thing.

Image: Edmund S. Valtman’s “Don’t Put Up Any Resistance! Just Keep In Step,” published 13 April 1973, from this source.


WHY NOT SUPPORT AMERICAN INQUIRY?

Your donation helps ensure that American Inquiry remains freely available instead of hidden behind a paywall. Contributions can be given in $10 increments by using the quantity button. Your total will appear on the subsequent payment page. Many thanks!

$10.00

The grief and anguish after Dallas

Preparing to mend Fort McHenry flag, Courtesy Library of Congress
What more is there to offer amid the voluble discourse of this sad week, when violence took the place of order and justice?  The United States: will the terrorism of Charleston and Orlando diminish them?  Will we descend to the habit of a shrug when children are murdered in our schools, when movie-goers are gunned down in a theater, when a cafeteria worker is shot to death in the middle of a routine traffic stop, when a sniper decides to channel his anger into killing police officers?

Sadly, we may grow indifferent if the spiral of unjustified violence continues much longer. We may shun the news for fear of having to look at the latest, outrageous use of quick-murdering guns. We may all cease to bat an eye at the latest victims, the latest place when guns were used to sort out human conflicts that deserved to be aired in the courts. And when that happens, we will have lost the semblance of unity that has kept us going until now. We will be just another war-torn country, with battle-lines too subtle to stay on the right side of.

Congress, endlessly preoccupied with the 2nd Amendment, has forgotten the larger purposes that, according to the Constitution, justify our federal government, particularly its charge to ‘insure domestic Tranquility’ and ‘promote the general Welfare.’  Will Congress act, in whatever ways it sees fit, to promote the internal peace and safety that Americans of all races crave, and that, by right, we are all entitled to expect?  Or will Congress forget its obligation to the nation, its members cravenly priding themselves on dedication to some lesser cause or party?

Changes in law are needed, but America also needs something more that’s harder.  Americans need to look into their hearts and examine whether they are living up to the potentialities of our civic culture, a culture that has allowed us to dwell with one another in a relatively open and unfettered way.  Americans need to recall the great civil tradition that has inspired generations to grow into a society where people who differ from one another nonetheless co-exist, enjoying ‘the blessings of Liberty’ and fitfully recognizing in one another our mutual humanity.  We have striven according to an Americanness that is deeper than either religion or skin.  This cultural effort will be imperfect always, but without it we will be condemned to grieve forever, anguishing over the most precious republican virtue lost.

Image: from this source.

Why not challenge the constitutionality of Illinois’s pension-protection clause?

pensions-photo
Illinois citizens are expected to sit tight as the cost of meeting state and local pension obligations brings their government ever nearer to bankruptcy.  Everyday, we hear of a new head-ache: how our property-taxes are likely to begin sky-rocketing, or how short-term borrowing to pay pensions will soon destroy Chicago’s bond rating, and how people are leaving the state to avoid being stuck with the costs when the looming disaster of all-out bankruptcy finally arrives.  Yet no matter how painful to the citizenry, our government must rake together the money for public-pension obligations that are burgeoning.

All because a section of the Illinois constitution stipulates that, no matter what, one class of Illinois citizens can count on protections that no others can: the benefits of belonging to a state pension system must not be diminished or impaired.  In the service of this constitutional provision, the state may be driven into bankruptcy and the rest of the population held forever accountable for promises that by-gone politicians irresponsibly made.  The needs of ordinary citizens are being choked off so that those of lawmakers and public workers may be fulfilled.

The power of the legislature to pass laws conferring benefits on themselves and other public workers is difficult to limit.  The pension ‘system’ in Illinois is an irrational bricolage of myriad laws passed over the decades.  The Chicago Tribune has described it as a “convoluted mess of provisions riddled with giveaways, funding flaws, excessive borrowing, and pension holidays.”  The pension code is organic in the sense that’s easy to add to, but any benefit, once added, is virtually impossible to take away.

Consequently, the state’s pension system is an unholy mix of the good, the bad, and the ugly.  It pays pensions to convicted felons like Jon Burge and to brazen scoundrels who had the luck to head up our towns and public universities.  It pays millions of dollars in benefits to cagey officials who correctly perceived the advantages of ‘double-dipping.’  The fact that citizens are powerless to curb the excesses of the pension system feeds hostility to it, to the detriment of many decent and deserving public employees.

Why not take a page from the four Virginians who have mounted a potentially game-changing challenge to the Affordable Care Act by questioning the meaning of just one of its phrases?  Should the public welfare of Illinois be sacrificed to secure the well-being of one special class in perpetuity?  In fact, the pension provision defines a special class of citizens in terms of their distinctive relationship to the state and then confers unassailable privileges on them.  How can this be constitutional?

 Membership in any pension or retirement system of the
State, any unit of local government or school district, or
any agency or instrumentality thereof, shall be an
enforceable contractual relationship, the benefits of which
shall not be diminished or impaired.

As matters stand, the pension provision has become the yardstick against which any pension-reform legislation must be fearfully measured.  Sensible legislation has been struck down while legality of this patently odious and inegalitarian provision has gone challenged.  Illinois citizens should stand up and challenge the constitutionality of the pension provision itself.  A requirement that leads to such unfair and destructive outcomes is an affront to the larger purpose of government.  Does it really trump every other principle of constitutional law?

Given the urgency of Illinois’s fiscal condition, this question should be engaging the state’s best legal minds.

RELATED
Susan Barsy, “The Pension Stand-Off in Illinois”