The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
On this day in 1743, Thomas Jefferson was born in Shadwell, VA. Here is an excerpt from Our Republican Constitution: Securing the Liberty and Sovereignty of the People describing his writing of the Declaration of Independence:
On June 11, 1776, the Continental Congress appointed a committee to draft a declaration to effectuate Richard Henry Lee's motion "[t]hat these United Colonies are, and of right ought to be, free and independent states; that they are absolved from all allegiance to the British Crown: and that all political connexion between them and the state of Great Britain is, and ought to be, totally dissolved." As John Hancock later put it, such a declaration would provide "the Ground & Foundation of a future Government."
The Committee of Five consisted of the senior Pennsylvanian Benjamin Franklin, Roger Sherman of Connecticut, New York's Robert Livingston, the Massachusetts stalwart champion of independence John Adams, and a rather quiet thirty-three-year-old Virginian named Thomas Jefferson. After a series of meetings to decide on the outline of the Declaration, the committee assigned Jefferson to write the first draft.
Jefferson did not have much time. With no executive, the war was run entirely by congressional committees, and the business of waging war pressed heavily on its members. Over a six-month period, Jefferson served on some thirty-four different committees, which kept him very busy. On June 17, for example, the committee overseeing the Canadian campaign submitted two reports to Congress, both in Jefferson's own hand. Two members of the Virginia delegation had left Philadelphia, increasing the pressure on Jefferson to attend the sessions of Congress.
So with the press of other matters, Jefferson did not have three leisurely weeks to write. He had merely a few days. Needing to work fast, Jefferson had to borrow, and he had two sources in front of him from which to crib. The first was a list of grievances in his draft preamble for the Virginia constitution-a list that was strikingly similar to the first group of charges against the king that ended up in the Declaration. The second was a preliminary version of the Virginia Declaration of Rights that had been drafted by George Mason in his room at the Raleigh Tavern in Williamsburg, where the provincial convention was being held.
Unlike today, when such cribbing might detract from Jefferson's accomplishment, achievement in the eighteenth century "lay instead in the creative adoption of preexisting models to different circumstances, and the highest praise of all went to imitations whose excellence exceeded that of the examples that inspired them." For this reason, younger men "were taught to copy and often memorize compelling passages from their readings for future use since you could never tell when, say, a citation from Cicero might come in handy." [quoting Pauline Maier's American Scripture.]
Mason's May 27 draft proved handy indeed in composing the Declaration's famous preamble. Its first two articles present two fundamental ideas that lie at the core of a Republican Constitution.
The first idea is that first come rights and then comes government. Here is how Mason expressed it:
THAT all men are born equally free and independent, and have certain inherent natural rights, of which they cannot, by any compact, deprive or divest their posterity; among which are, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.
So, in Mason's draft, not only do all persons have "certain . . .natural rights" of life, liberty, and property, but these rights cannot be taken away "by any compact." These inherent individual natural rights, of which the people cannot divest their posterity, are therefore retained by them. Mason's words would become even more canonical than Jefferson's more succinct version in the Declaration of Independence, as variations were incorporated into several state constitutions, and they would be echoed in the Ninth Amendment, and much later in the Privileges or Immunities Clause of the Fourteenth Amendment.
Article 2 of Mason's draft then identified the persons who make up a government as the servants of the sovereign people, rather than their master: "That all power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants, and at all times amenable to them."6 As trustees and servants, those people who serve as governing magistrates are to respect the inherent natural rights retained by the people.
All this was compressed by Jefferson into fifty-five compelling words:
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.
John Adams later recalled that Jefferson took only a day or two to write the first draft, which was then turned over to the committee for its feedback before it was submitted to Congress. Although this draft was then heavily edited and shortened by Congress sitting as a Committee of the Whole, its Preamble was left pretty much as Jefferson had submitted it.
I turn now to that Preamble, for these two paragraphs identify the theory of what I am calling our Republican Constitution….