The Declaration of Independence and Common Law and Natural Traditions

1. The Declaration of Independence and Common Law and Natural Traditions Teaching American History

2. Drafting the Declaration

3. Why was Jefferson chosen to write the Declaration? • The committee to compose the Declaration of Independence included John Adams, Benjamin Franklin, Roger Sherman, Robert R. Livingston and Thomas Jefferson. Jefferson proposed that Adams write it, but Adams later said that he gave three reasons why Jefferson should write it. • “The subcommittee met. Jefferson proposed to me to make the draft. I said, 'I will not,' 'You should do it.' 'Oh! no.' 'Why will you not? You ought to do it.' 'I will not.' 'Why?' 'Reasons enough.' 'What can be your reasons?' 'Reason first, you are a Virginian, and a Virginian ought to appear at the head of this business. Reason second, I am obnoxious, suspected, and unpopular. You are very much otherwise. Reason third, you can write ten times better than I can.' 'Well,' said Jefferson, 'if you are decided, I will do as well as I can.' 'Very well. When you have drawn it up, we will have a meeting.’” John Adams to Timothy Pickering, 1822. • Earlier in this same letter Adams refers to Jefferson’s “happy talent of composition.” Jefferson had written the “A Summary View of the Rights of British America” and co-authored “Declaration of the Causes and Necessity of taking up Arms.”

4. Signers of the Declaration of Independence • 56 delegates signed the Declaration of Independence. Most signed on August 2, 1776, not July 4th 1776. The delegates ranged in age from 26 (Edward Rutledge) to 70 (Benjamin Franklin). • Six signers of the Declaration of Independence also later signed the Constitution: Robert Morris, Ben Franklin, George Clymer and James Wilson from Pennsylvania; George Read from Delaware, and Roger Sherman from Connecticut.

5. The Dunlap Broadside

7. What was the Declaration Intended to Do? (The Declaration as an Address to Foreign Nations) • Was the American Revolution a battle between independent nations or an English civil war conducted by one group of Englishmen against another? The Crown and Parliament portrayed the American revolutionaries as riotous subjects, not as citizens of another nation. The Declaration’s immediate purpose was to counter this characterization of their rebellion, to alert other nations to the entrance of a new nation on the world theater, to secure for the fledging United States the rights of nations, and to convince other nations (especially France) to engage in treaties with us, to lend us money, and supply us with arms. The original purpose of the Declaration of Independence then was to declare the United States an equal nation among the worlds states. The Declaration asserts that the united states are “Free and Independent States” that “have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do.” Thus, the Declaration was a statement of the powers and capacities of states, according to David Armitage, even more than as of the rights and duties of individuals. David Armitage, The Declaration of Independence: A Global History (Cambridge: Harvard University Press, 2007).

8. The Declaration as Justification for Rebellion • In addition to serving as a clarion to the world that a new nation had entered the international arena, the Declaration also – and perhaps most fundamentally – justified the act to become independent. It is thus not just a statement of the relationship of a new nation to a world of other nations, but a defense of a particular understanding of the proper relationship between individuals and their government and of the nature and character of the rights of those individuals.

9. But How Was Independence Best Justified? Natural Law and Common Law Traditions on the Eve of the Revolution As they came to believe that they had to declare independence – that reconciliation was impossible- the colonists had to decide how they were going to present their case. In debate in the Continental Congress as early as 1774, the delegates explicitly considered whether they should make their case for independence based upon the universal rights of mankind or the privileges of British citizenship? Were they arguing that their rights as British citizens as embedded in the Magna Carta, the Petition of Right, the English Bill of Rights, and colonial charters were being violated or were they making the broader claim that Parliament and the King had violated the natural rights of mankind? Debate in 1774 was divided. Richard Henry Lee said that our rights rest on four foundations: nature, the British Constitution, Charters, and immemorial usage. But a New Yorker named James Duane was for “grounding our rights on the Laws and Constitution of the Country from Whence we Sprung, and Charters, without recurring to the law of nature - because this will be a feeble support. Charters are compacts between the crown and the People, and I think on this foundation the Charter Governments stand firm.”

10. The Natural Law Tradition • This debate was extremely important and required the colonists to suggest which of two broad traditions they were going to draw upon: a natural law – natural rights tradition or a common law tradition. The natural law tradition drew all the way back to Plato, Aristotle, Aquinas, and Augustine. This tradition suggested that nature provides a standard that is unchanging, permanent, and universal. These principles are said to be capable of being grasped by reason and are objective and discovered, not created. Natural Law thinkers focus on two points: establishing that there are universal principles of morality and that a life lived in accord with these principles is better than one lived in opposition to it.

11. The Transformation of the Natural Law Tradition into a Natural Rights Tradition The Natural Law Tradition as it was articulated by Aquinas and Augustine was substantially transformed during the 17th and 18th centuries by a host of political philosophers including Thomas Hobbes and most importantly for the Americans, John Locke. These thinkers said that there were indeed certain universal principles, but those principles concerned self – preservation and the autonomy of the individual, not a specific conception of human flourishing. They also suggested that their were universal axioms of political legitimacy, namely that legitimate governments rest on the consent of the governed and protect the rights of the citizenry. Most important, it was this Lockean tradition of natural rights that Jefferson and the Founders considered in making their case in 1776.

12. The Declaration of Independence as an Expression of the Natural Rights Tradition • The Declaration of Independence is deeply committed to the natural rights philosophy of John Locke. “We had no occasion to search in musty records, to hunt up royal parchments, or to investigate the laws and institutions of a semi-barbarous ancestry. We appealed to those of nature, and found them engraved in our hearts.” (Jefferson to John Cartwright, June 5, 1824 in The Portable Thomas Jefferson ed Merrill Peterson [New York: Penguin, 1975], 578.) Despite this claim, Jefferson does not wholly reject the common law tradition of the rights of Englishmen. He makes both kinds of appeal, emphasizing violations of universal rights. In particular, he suggests on the one hand that the King has violated principles of universal political legitimacy. He has violated the inalienable rights of the colonists and the principle that legitimate governments rest on the consent of the governed. But especially in his list of grievances, Jefferson suggests that the King has violated the rights the colonists had as Englishmen.

13. “The Laws of Nature and Nature’s God” • Nature’s God is not the God of Abraham and Issac. Jefferson is not appealing to the God of the Old Testament (Yahweh) or the New Testament (Jesus). He is appeal to universalistic principles established by nature. Jefferson is drawing upon a rational theology and a deistic system of nature. He is, as one scholar has put it, making reference to a natural not a revealed theology. Michael Zuckert writes: “The ‘Laws of Nature’s God’ might, for example, include laws pertaining to nonnatural subjects (e.g., salvation, grace), and be known in nonnatural or nonrational ways (e.g. revelation). The God who legislates in the Declaration is a God who speaks through reason and acts in nature. His laws, then, are none other than the laws of nature themselves, as understood by human reason. If God acts only through the mediation of nature, then the Creator would seem to be nothing other than “Nature’s God,” and his action the action of nature.” (Michael Zuckert, The Natural Rights Republic: Studies in the Foundation of the American Political Tradition (Notre Dame, IN.: University of Notre Dame Press, 1996), 25-26.

14. The Common Law Tradition: The Rights of British Subjects • The other kind of appeal that the colonists considered in 1776 stressed their rights under the Magna Carta, the Petition of Right, the English Bill of Rights, and colonial charters were being violated. This kind of claim stressed the rights and privileges that the English claimed as a result of being Englishmen. These rights and privileges were deeply embedded in the history and traditions of the English people.

15. Structure of the Argument of the Declaration (Jefferson’s Syllogism) • To understand how Jefferson interweaves both natural and common law appeals in the Declaration, we need to examine the structure of the argument of the Declaration and its most important principles. Jefferson’s argument takes the form of a transitive syllogism: • A) under certain conditions rebellion is justified (Preamble) • B) those conditions exist (List of Grievances) • C) Hence, “These United Colonies are, and of Right ought to be Free and Independent States.”

16. Substance of Jefferson’s Argument (The Philosophical Preamble) “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — 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.”

17. Substance of Jefferson’s Argument (The Philosophical Preamble) • Self- Evident Truths • Natural Equality – Opposition to Force, Divine Right, Patriarchal Authority (Lineage), and to the idea of rule by the Philosophical Few or One • Consent of the Governed • Inalienable Rights and the Formation of a Natural Rights Republic • Right to Revolution

18. List of Grievances (Jefferson’s “Bill of Indictment” Against the King) In 1774, the 1st Continental Congress had sent a petition to the King for redress of grievances. But this was never answered. Instead, in August, 1775, a royal proclamation declared that the colonists were "engaged in open and avowed rebellion." When he sat down in June of 1776 to write the Declaration of Independence, Jefferson sought to provide a comprehensive case against the King. The King was signaled out –rather than Parliament – because the colonists had asserted that Parliament had no power over them, no power to tax, no power to legislate at all. The King was thus the spokesman for the colonies in Britain and it was to the King that owed was initially owed and was now being absolved. Remember, the colonial charters that formed the colonies had been issued by the Crown.

19. List of Grievances (Jefferson’s “Bill of Indictment” Against the King) Also, Jefferson had to establish the King’s oppressive acts were part of a “long train of abuses and usurpations” deliberately undertaken with the goal of violating the colonists’ liberties. These violations could neither be recent nor frivolous. This is the language of the Declaration: “Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security…”

20. List of Grievances (continued) The list of grievances is the longest section of the Declaration and was probably the most important to Jefferson’s contemporaries. By the count of the Jeffersonian scholar Barabara Oberg, nineteen grievances against the King are listed, one of which is divided into 8 parts. These grievances had been already articulated in several prior documents, including Jefferson’s A Summary View of the Rights of British America and Declaration of the Causes and Necessity of Taking Up Arms. Some of the most prominent grievances include the King’s unwillingness to sign laws necessary for the good of the colonies, imposing a standing army in the colonies, dissolving colonial legislatures, creating new offices to harass the colonists, imposing taxes without the consent of the colonists, ravaging coasts and burning towns, and inciting “domestic insurrections” among the Indians. See Barabara Oberg, “Declaration of Independence” in Paul S. Boyer ed., The Oxford Companion to United States History (New York: Oxford University Press, 2001), 176-177.

21. Jefferson’s Effort to Blame the King for the Slave Trade • Perhaps the most remarkable grievance that Jefferson listed was that the King foisted the slave trade onto the colonies. This statement was strongly opposed by Georgia and South Carolina delegates who would not join the cause if it was included. Many other delegates also that that it would destroy the credibility of the Declaration since so many of the colonists had so obviously supported the slave trade and benefited from it. This provision read: “He has waged cruel war against human nature itself, violating it's most sacred rights of life & liberty in the persons of a distant people who never offended him, captivating & carrying them into slavery in another hemisphere, or to incur miserable death in their transportation thither. This piratical warfare, the opprobrium of infidel powers, is the warfare of the CHRISTIAN king of Great Britain. determined to keep open a market where MEN should be bought & sold, he has prostituted his negative for suppressing every legislative attempt to prohibit or to restrain this execrable commerce; and that this assemblage of horrors might want no fact of distinguished die, he is now exciting those very people to rise in arms among us, and to purchase that liberty of which he has deprived them, & murdering the people upon whom he also obtruded them; thus paying off former crimes committed against the liberties of one people, with crimes which he urges them to commit against the lives of another.”

22. The Declaration as an “Expression of the American Mind” • Late in his life, Jefferson faced charges from John Adams, Timothy Pickering, and Richard Henry Lee that he had virtually copied the Declaration of Independence and borrowed the ideas from John Locke or others. Adams in particular said “there is not an idea in it but what had been hackneyed in Congress for two years before.” Jefferson’s strategy for countering this charge was not to claim originality, but to say that while he did not directly copy anyone, he also did not aim at originality but rather to draw upon the “harmonizing sentiments of the day” to produce an “expression of the American mind.”

23. The Declaration as an Expression of the American Mind (continued) • “Pickering's observations, and Mr. Adams' in addition, "that it contained no new ideas, that it is a commonplace compilation, its sentiments hackneyed in Congress for two years before, and its essence contained in Otis' pamphlet," may all be true. Of that I am not to be the judge. Richard Henry Lee charged it as copied from Locke's treatise on government. Otis' pamphlet I never saw, and whether I had gathered my ideas from reading or reflection I do not know. I know only that I turned to neither book nor pamphlet while writing it. I did not consider it as any part of my charge to invent new ideas altogether and to offer no sentiment which had ever been expressed before. Had Mr. Adams been so restrained, Congress would have lost the benefit of his bold and impressive advocations of the rights of Revolution. …This, however, I will say for Mr. Adams, that he supported the Declaration with zeal and ability, fighting fearlessly for every word of it. As to myself, I thought it a duty to be, on that occasion, a passive auditor of the opinions of others, more impartial judges than I could be of its merits or demerits. … “ • Jefferson to Madison, August 30, 1823

24. The Declaration as an Expression of the American Mind (continued) • “The British government contravening those rights, there was but one opinion on this side of the water. All American Whigs thought alike on these subjects. When forced, therefore, to resort to arms for redress, an appeal to the tribunal of the world was deemed proper for our justification. This was the object of the Declaration of Independence. 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 are compelled to take. Neither aiming at originality of principle or sentiment, nor yet copied from any particular or previous writing, it was intended to be the expression of the American mind, and to give to that expression the proper tone and spirit called for it by the occasion. All its authority rests then on the harmonizing sentiments of the day, whether expressed in conversation, in letters, in printed essays, or in the elementary books of public right, as Aristotle, Cicero, Locke, Sidney, etc.” • Jefferson to Henry Lee, May 8, 1825.

25. “Other” Declarations of Independence • In making this claim, Jefferson was not expressing false humility, but rather giving an accurate portrayal of the “harmonizing sentiments” of the day that made up the American mind. • These harmonizing sentiments were expressed in numerous “other” declarations of independence that were issued in the colonies between April and July 1776. The historian Pauline Maier has retrieved and analyzed over 90 different “declarations of independence that were issued by groups and institutions such as Massachusetts town meetings, New York mechanics, Pennsylvania militiamen, county conventions in Maryland and Virginia, and South Carolina juries. Generally, like The Declaration of Independence, these declarations listed “grievances” – mostly against Parliament - and attempted to justify the break from the mother country. See Pauline Maier, American Scripture: Making the Declaration of Indepenence

26. The Declaration as the most Eloquent Statement of these Harmonizing Sentiments • “Jefferson gave an unparalleledly lovely and perspicuous statement of a widespread public philosophy and enshrined it in a place where the American people could readily and regularly be reminded of it. That the Declaration’s ideas were widespread does not bespeak their insignificance, or even the insignificance of the Declaration as a particularly good expression of that philosophy.” • Michael Zuckert

27. The Declaration as an Expression of the American Mind • “When forced ... to resort to arms for redress, an appeal to the tribunal of the world was deemed proper for our justification. This was the object of the Declaration of Independence. 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 to plain and firm as to command their assent, and to justify ourselves in the stand we are compelled to take. Neither aiming at originality of principle or sentiment, nor yet copied from any particular or previous writing, it was intended to be an expression of the American mind, and to give that expression the proper tone and spirit called for by the occasion.” (Thomas Jefferson, letter to Henry Lee, 1825)

28. Jefferson’s Dying Thoughts about the Declaration • “May it be to the world, what I believe it will be -- to some parts sooner, to others later, but finally to all -- the signal of arousing men to burst the chains under which monkish ignorance and superstition had persuaded them to bind themselves, and to assume the blessings and security of self-government. That form (of government) which we have substituted, restores the free right to the unbounded exercise of reason and freedom of opinion. All eyes are opened, or opening, to the rights of man. The general spread of the light of science has already laid open to every view the palpable truth, that the mass of mankind has not been born with saddles on their backs, nor a favored few booted and spurred, ready to ride them legitimately, by the grace of God. These are grounds of hope for others. For ourselves, let the annual return of this day forever refresh our recollections of these rights, and an undiminished devotion to them.” (Jefferson to Roger Weightman, June 24, 1826)

29. The Story of Jefferson and Adams • Both died on July 4th, 1826 on the anniversary of the Declaration of Independence. The 19th century looked upon this event as a result of divine intervention, suggesting that we were a chosen people.

30. Equality and Slavery • How could the man who wrote that “All Men are Created Equal” have owned slaves? • Jefferson believed that slavery was morally indefensible • But he did not move from this belief to the contention that slavery should be immediately eradicated. Why not? 1) race war 2) miscegenation 3) risk to the free institutions that Americans had established

31. Judging Jefferson • Jefferson as a founding father of scientific racism • But Jefferson’s ideas become important in discrediting slavery and racism • There are many dimensions to Jefferson. He was an architect and apostle of democracy, a man of letters, and a scientific racist.

32. Counters to the Declaration of Independence (Bentham and John Lind) • Early in his career, Jerry Bentham, the great utilitarian political philosopher, opposed the American revolution and wrote against the Declaration of Independence. Bentham, as you might have guessed, opposed the idea of inalienable rights. In an essay entitled Fragment on Government, Bentham and Lind, argued that there are no legal rights antecedent to law that limit what law may do. Bentham is famous of course for arguing that rights are “non-sense on stilts.” He also decried the concept of rights against governmental authority as “perfectly unintelligible,” called natural rights claims products of imagination as opposed to reason, and argued that claims to natural rights arguments were the equivalent to “bawling upon paper.” Bentham’s point was that rights claims are assertions made by people who sought to get what they wanted without making a real argument for it. They were not real arguments but claims parading in the air, as if on stilts.” These claims were also part of a larger case that Bentham gave against limited government and constitutionalism. He wrote that “all law is the expression, direct and indirect, of the will of the sovereign legislator whose powers are not conferred by the law.” Bentham’s more substantive point, however, law creates whatever rights that we have. To speak of natural rights, Bentham argued, was a kind of “cold heat” or “dry moisture.” Thus, Bentham’s opposition was to the idea that rights precede government and to natural rights claims as argument stopping devices, not to the existence of any rights. The recognition of rights was essential to happiness. But the real questions are, ”what rights should be legally recognized?” and “how far should they extend?” And these questions cannot be made based upon the assertion of rights. It has to be made on the basis of deciding whether or not the recognition of such a right will be good for the happiness of all.

33. Counters to the Declaration of Independence (Bentham and John Lind) • When he turned to the Declaration of Independence, Bentham thought that it was a based upon a glaring begged question. Whether or not colonists should be subjected to regulations and taxes was precisely the question. That possibility could not be rule out by the assertion of rights that regulations and taxes were wrong. To make such an assertion was to claim what needed to be proven. Bentham also never doubted that Parliamentary sovereignty was complete. “There is no right,” he said, “which when the abolition of it is advantageous, should not be abolished.” Late in his life, Bentham somewhat regretted his opposition to the American Revolution, but explained that it was rooted in the frivolity of claims being made not the cause itself. Americans should have made their case by pointing to “the impossibility of good government at such a distance, and the advantage of separation to the interest and happiness of both parties.” • As the famous scholar of Jurisprudence, H.L.A. Hart has said, Bentham also argued that “there is an unexplained and indefensible inconsistency in both asserting that men have inalienable rights to enjoy life and liberty and to pursue happiness and also accepting the necessity of government, since the exercise of the powers which every government must have and use will at times involve the taking of life, the limitation of liberty, and the interference with the ways in which men choose to pursue their happiness.” Quoting Bentham, Hart asks, “If the right of pursuit of happiness is a right inalienable why (how) are theives restrained from pursuing it by theft, murderers by murder, and rebels by rebellion?” • For Bentham and Lind’s case against the Declaration see H.L.A. Hart, “Bentham and the United States,” Journal of Law and Economics, 19 No. 3, 1776: The Revolution in Social Thought (October, 1976), 547-567; Bentham, “Short Review of the Declaration” in David Armitage, The Declaration of Independence : A Global History (Cambridge, MA.: Harvard University Press, 1992), 173-186.

34. John Calhoun’s Critique of the Declaration of Independence (“The most dangerous of all political errors”) • The Southern theorist of nullification wrote and spoke numerous times against the Declaration of Independence, especially the “hypothetical truism” that all men are created equal. All men are not created, Calhoun asserted. Only two, a man and a woman, were created. Everyone thereafter was born and was born neither free nor equal. This proposition, according to Calhoun, was “no necessary part of our justification in separating from the parent country.” The Revolution resulted from the “breach of our chartered privileges” and the “lawless encroachment on our acknowledged and well-established rights by the parent country.” It also played no role in the creation of institutions immediately following Independence. • The proposition that “all men are created equal” is, according to Calhoun, “a hypothetical truism” because men cannot exist in a state of individuality (which is the only state in which he would truly be free and equal. In society and under government, man is neither free nor equal. Man is thus not equal in the state of nature. The true state of nature of man is in society and under government. This is the state “which his Creator formed him, into which he is impelled irresistibly, and in which only his race can exist and all its faculties be fully developed.” Society and government are thus necessary to man and the power of government is thus paramount to the individual because the individual and indeed the race depends upon the existence of government. Government, however, has no right to exercise power to control individual liberty beyond what is necessary to the safety and well-being of society. • It follows from understanding that government must exercise power to control individual liberty in order to insure the safety and well –being of society that government must be stronger or weaker and individual liberty greater or less depending upon the mental and moral development of the people. Liberty is the noble and highest reward bestowed upon those most able to exercise it. It requires effort to attain it and not all men and classes are equally entitled to it. If implemented the proposition that all men are created equal would lead to anarchy and then military despotism. • See Calhoun’s Oregon Bill Speech, 1848@ http://teachingamericanhistory.org/library/index.asp?document=944

35. The Declaration as “American Scripture” or a Secular Statement of the American “Civil Religion” • The Declaration as American Creed • Americans have no shared ethnicity and not necessarily a shared history. What it means to be an American is to accept certain beliefs. The scholar Ralph Barton Perry has written: • “The Declaration of Independence contains the essential ideas of American democracy, and has remained its creed and standard throughout the years of its subsequent development…. These principles have invariably been invoked in times of crisis or of patriotic fervor as constituting the mutual bond of American nationality.” (Ralph Barton Perry, “The Philosophy of the Declaration” in A Casebook on the Declaration of Independence, ed. Robert Ginsberg (New York, 1966), 173. • Similarly, the historian Phillip Gleason has written: [To be an American], “a person did not have to be of any particular national, linguistic, religious, or ethnic background. All he had to do was to commit himself to the political ideology centered on the abstract ideals of liberty, equality, and republicanism. Thus, the universalistic ideological character of American nationality meant that it was open to anyone who willed to become an American.” [1] • [1] Phillip Gleason, “American Identity and Americanization” in Concepts of Ethnicity. W Peterson, M Novak and P. Gleason ed (Cambridge: Harvard University Press, 1982).

36. The Declaration as a Statement of American “Civil Religion” • Lincoln’s “Apple of Gold in a Frame of Silver.” – Lincoln’s emphasis on equality to combat slavery. • The Declaration as a Clarion of Freedom within the United States: Fredrick Douglass, Elizabeth Cady Stanton, Martin Luther King Jr., Abraham Lincoln.

37. The Declaration of Independence as a Model (The Subsequent History of the Declaration of Independence). • Beginning of a Genre - There have been 115 declarations of Independence across the world inspired by the Declaration of Independence. It has served as a force for anti-colonial rebellions. The Declaration of Independence really has served as the “shot heard round the world.” Countries with declarations modeled on the American Declaration include: Haiti, Vietnam, Venezuela, Hungary, Greece, and Liberia.