Monday, July 4, 2011

The Declaration of Independence

We all know the opening salvo (after a brief preface, “When in the Course of human events”), of the document we celebrate on the Fourth of July:

“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.” Etc.

Although Jefferson’s words have something of inspiration about them, the subsequent two centuries and more of the Republic – and of much of world history – have largely been a debate about what these things mean. What are Rights? What do Liberty and the Pursuit of Happiness mean? How does Government “secure” rights? What does “Government” even mean?

One example, that I happened upon this morning. James Madison, surely one of the more important

founding thinkers, wrote in that seminal Federalist no. 51, “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place, oblige it to control itself.”

Now, coming from a Thomistic perspective, I find myself constrained, in order to give a philosophically coherent account of this business about “angels,” to make some points that may more properly belong to theology. And I preface this by saying that, as a means of interpreting what James Madison meant, I think the following resort to Thomistic angelology is highly dubious. But perhaps his insight was better than his explicit understanding.

“If men were angels” is typically taken, I think, to mean “if men were saints,” or at least “if men weren’t sinners.” I was recently in a debate with someone (an American Orthodox libertarian with a Harvard Ph.D. in political science: i.e., someone who knows Madison but whose thinking on nature and grace may be a little cavalier). Paraphrasing this line from Madison, I think, he claimed that government would be unnecessary if not for the Fall.

But that, says Thomas, following Aristotle, is not true. Government is necessary if we live in community. Government needs to use force only if people wickedly resist it – and my interlocutor tells me that since Max Weber, it has become typical to define Government as force. But common life demands decisions: what side of the road will we drive on? When shall we celebrate our festivals? How shall we raise money for the common fund? Where should we build roads, and public buildings, and how shall we adjudicate legitimate disputes among private citizens? What causes shall we pursue, and when? As the great Thomist Aristotelian Yves Simon argues, in A General Theory of Authority, the common life demands authority, whether it be the authority of a king or that of a congress or even that of a majority.

The key point, then, in saving Madison’s claim that “if men were angels, no government would be necessary,” is that angels differ essentially from men not in being good, but in being immaterial (and, Thomas takes it to a deeper metaphysical level, each of a separate species). Good men would need government, even though the government would never have to force compliance with its decisions. “Men” without bodies –angels – would not need government, because they would not live in a common world.

But government must have limits – unless the governors themselves were angels: “If angels were to govern men, neither external nor internal controls on government would be necessary.” Well, if “controls” means threats of violence against the governors, then I suppose saints would not need controls. But if it means, in the classic American sense, just a clear sense of limits, then the essential difference is again one of materiality.

Government must be limited, it is true, because governors are always in a certain sense corrupt. But as the founding fathers never tired of saying, there is no way to control a society of vicious people— as Madison put it, at the Virginia ratifying convention, “Is there no virtue among us? If there be not, we are in a wretched situation. No theoretical checks – no form of government can render us secure.”

The genius of the American scheme of limited government, however, is to realize that even virtuous men have limits on their competence. Why? Because no man knows all. No distant bureaucrat, no matter how good or ingenious, can know enough to decide how best to educate my particular children, to manage my health, to bring my neighborhood to life. For us mortals, knowledge begins in the senses: there can be no knowledge, and thus no practical wisdom, without feet on the ground in the relevant place.

So the goal is not to find “angels” of men – that is, saints – who can govern us without limits. We do need good men, but that is not enough. We also need to define the limits of what government at different levels can do. That is the genius of Article One, Section Nine of the American Constitution. On a deeper level, it is the genius of the division of powers, Articles One-Three, and so the bulk of the American idea.

(And so, in one of the more brilliant lines of American jurisprudence, now-Chief Justice John Roberts, in a decision overturning the intrusions of the EPA, wrote, “a hapless toad, for reasons of its own, lives its entire life in California” – and is thus not subject to the federal government’s oversight of interstate commerce.)

The point of this little diversion on James Madison’s quote about angels is just to say that the ideas of our founding fathers, though containing truly extraordinary wisdom, remain to be understood. It takes some philosophical acumen to know the difference between men and angels. Sometimes the founders themselves may have hit on insights that they wouldn’t have been able to fully articulate.

Let us return to Jefferson’s lines in the Declaration of Independence. Having established that there is much to be, not replaced, but interpreted – especially phrases such as “certain inalienable rights, among which are life, liberty, and the pursuit of happiness . . . to secure these rights, governments are instituted” – let us move on to a point of textual history.

On June 11, 1776, Congress created a Committee of Five (Jefferson, Franklin, Adams, Roger Sherman of Connecticut, and Robert Livingston of New York). The Committee quickly selected Jefferson to write a first draft; within seventeen busy days he had written and they had reviewed a text mostly identical to the one we now know. Those were busy days, by the way: there was considerable debate as to whether a Declaration should be made before Articles of Confederation (the first Constitution) were agreed upon; which is to say, Jefferson and his committee wrote this immortal document in two and a half weeks in which they were also debating the constitution of the new nation. My take away: it was a hurried document.

Moreover, the Congress was anything but unanimous in its way of thinking. We know, of course, that Jefferson was vastly farther from Christianity than all but maybe Franklin. And we know that there was a world of difference between Massachusetts and South Carolina – indeed, Georgia, South Carolina, North Carolina, and Virginia were very different from one another, the Quakers of Pennsylvania had almost nothing in common with the hard-headed New Englanders, Rhode Island and Connecticut were founded (just a couple lifetimes previous) as protests against Massachusetts, New Jersey as a protest against New York, etc.

The differences come out in the debate. The drafting Committee was asked to work during a period of three weeks in which discussion of independence was tabled due to lack of agreement. In the end, New York didn’t vote for independence until a week after the famous Fourth of July.

When Congress set out to debate the text of the document, they made only two changes – but they are significant. One paragraph, apparently dear to the ever contradictory and tortured Jefferson, condemned Britain for its approval of slavery. Here it is, so you can see how strong it was – and how it differed from the final draft not only of the Declaration, but of the Articles of Confederation and the eventual Constitution, which treat slavery as more or less compatible with the American ideal:

“He [that is, the King of England] has waged cruel war against human nature itself, violating its most sacred rights of life and liberty in the persons of a distant people who never offended him, captivating and carrying them into slavery in another hemisphere, or to incure [sic] miserable death in their transportation hither. 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 and sold, he has prostituted his negative [sic] 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 had deprived them, by 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.”

(Yes, Jefferson seems, at the end, to try to get Southern support by blaming the King for encouraging slave uprisings as well as slavery.)

In short, the draft, with its sometimes convoluted language, shows Jefferson and his drafting committee to hold very strong ideas out of step with the Congress that would approve and publish the actual Declaration.

The other passage eliminated by the united Congress went on, at length, to condemn the British people themselves, saying, inter alia, that they “have been deaf to the voice of justice and of consanguinity, and when occasions have been given them, by the regular course of their laws, of removing from their councils the disturbers of our harmony, they have by their free election re-established them in power.”

My point here is that the Declaration is a document published, not by Thomas Jefferson, but by the representatives of thirteen very different colonies, with very different ideas about crucial issues in political philosophy – issues like slavery, how we relate to our cousins in other lands, and how much a people is to blame for the choices of its governors, as well as questions of political expediency.

I think, then, that the key to understanding the Declaration is to realize that it is a committee document, a consensus document. When we read “we hold these truths to be self-evident,” we must not, I think, read in Jefferson’s philosophy, but recognize that this is language, perhaps intentionally vague, meant to appeal to a very diverse audience.

Indeed (and this is my final point), the Declaration should be read to have two obvious parts. The first is a somewhat breezy and vague prologue. It contains an opening paragraph (“When in the Course of human events”) which simply states that it will give the reasons for breaking with England, and a second paragraph (“We hold these truths”) meant, not to give the definitive treatment of political philosophy – the Constitution is surely far better considered, though it too opens with a rather breezy, vague passage about “the general welfare,” etc. – but to say, more broadly, that we are acting on principle, even if we’re not yet ready to define it.

This, I think, is the context in which to read John Adams’s famous lines to Abigail in which he predicts that July 2, not July 4, would be the celebrated day. He, perhaps second after Jefferson in responsibility for the text, thought that the vote for independence in general was of far greater significance than the hurried, consensus document that would publish that vote. He undervalued the importance of physical symbols – it’s nice to have a piece of paper, and actual words, that symbolize independence – but his opinion seems reasonable. The point was independence, not the world’s final statement on political philosophy. On Independence Day (not Declaration Day), we honor an act, not a book.

The second, and much larger part of the Declaration, gives the concrete reasons for breaking with England. The point, I think, is that we didn’t break over theory but over the way it plays out in particular issues: “He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their Public Records, for the sole purpose of fatiguing them into compliance with his measures;” “He has made Judges dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries.” Etc.

Now, a couple points seem significant to me. First, the general Congress was perfectly willing to strike down accusations that were not universally agreed upon – so these accusations are generally agreed upon. And these things are much more concrete, and thus give much more substance to the vagaries of the “self-evident truths.” As a reflection of the thinking of the Founders as a whole, I don’t think we should disregard the preamble, hurried and vague though it may be – but we should interpret it through the concrete things that the consensus of the Founders considered to contradict what “liberty and the pursuit of happiness” mean.

And the most interesting thing is that, over and over again, what the Founders demand is good laws. The very first accusation, which more or less contains them all, states, “He has refused his Assent to Laws, the most wholesome and necessary for the public good. The second begins, “He has forbidden his Governors to pass Laws of immediate and pressing importance.”

Now, they obviously were annoyed by too much government, as well. “He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance. “For imposing Taxes without our Consent.”

But it seems to me that the real thing to take away from this great document is that for the Founders, America was established not as a license for lawlessness, for “individual liberties,” but as a way to seek “liberty and the pursuit of happiness” precisely through good laws. They found happiness not in unbridled individualism, but in good government.

“Confirm thy soul in self-control, thy liberty in law.”