The Volokh Conspiracy
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[The thesis of Our Republican Constitution: Securing the Liberty and Sovereignty of the We the People is based on the political theory articulated in the Declaration of Independence As we celebrate Independence Day, as I did last year, I thought I would post a couple excerpts from Chapter 2, in which I discuss the Declaration. This one describe the process of its drafting. It appears in the book before my previously posted excerpt (and should be read first). My account relies heavily on the late Pauline Meier's excellent book, American Scripture: Making the Declaration of Independence.]
Our country-indeed our people-has a discrete starting point, a singular moment in time when its founding was expressly defended in abstract and theoretical terms. That moment was July 4, 1776, when the Continental Congress formally adopted the Declaration of Independence. To appreciate the republican nature of our Constitution, we must begin at the beginning, some thirteen years before the Constitution was enacted in 1789, when the principles upon which the new nation was formed were authoritatively declared.
On June 11th, 1776, the Continental Congress appointed a committee to draft a declaration to effectuate Richard Henry Lee's motion
"That 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." Such a declaration "would, as John Hancock later put it, 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 17th, 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 his draft preamble for the Virginia constitution that contained a list of grievances, which was strikingly similar to the first group of charges against the King that ended up on 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."
Mason's May 27th 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." As we shall see, Mason's words became even more canonical than Jefferson's more succinct version in the Declaration of Independence, as variations were incorporated into several state constitutions.
Article 2 of Mason's draft then identified the persons who comprise 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." 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.
[To read that portion of the book, click here for my previous post]