Is the Declaration’s Preamble Irrelevant?

[cross-posted at Liberty & Power]

The document whose anniversary we celebrate today declares:

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 to 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. …

[W]hen 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.

For most libertarians these words are what Independence Day is all about. But in an LRC editorial Kevin Gutzman takes on a number of what he regards as “myths” about the Fourth of July, and one of these “myths” is that the “chief legacy of the 4th of July is the political philosophy set out in the Declaration of Independence.”

Declaration of Independence Part of the reason for Gutzman’s animus against this view is that “political radicals have argued for understanding the Declaration as a general warrant for government to do anything it likes to forward the idea that ‘all men are created equal.’” I note in passing that this is not a good reason to downplay the Declaration’s political philosophy – because that political philosophy does not authorise governments to do “anything they like” to forward anything. On the contrary, it denies governments any right to act in ways that deviate from the consent of the governed or violate their rights to life, liberty, and the pursuit of happiness, and lays it down as a duty to overthrow and destroy any government that does so. The fact that statists have misinterpreted or distorted the Declaration’s words is no objection to those words themselves. (As for the true meaning of “equality” in the Declaration’s sense, see here and here.)

But what, in any case, is Gutzman’s argument against the importance of the Declaration’s political philosophy? Here it is:

The Declaration of Independence was the work of a congress of representatives of state governments. Congressmen were not elected by voters at large, but by state legislatures, and their role (as John Adams, one of them, put it) was more akin to that of ambassadors than to legislators. They had not been empowered to dedicate society to any particular political philosophy, but to declare – as the Virginia legislature had told its congressmen to declare – that the colonies were, “and of right ought to be, free and independent states.” In other words, the Declaration was about states’ rights, not individual rights, and the Congress that adopted it had no power to make it anything else. All the rest of the Declaration was mere rhetorical predicate.

In short, Gutzman’s position is that the Declaration of Independence derived its delegated authority from the state legislatures, and that the statement of principles in its preamble, insofar as it goes beyond that delegation, has no legal standing.

It seems to me that this gets things completely reversed. Under positive law, the state legislatures had no authority to declare independence, because they were established by colonial charters, charters that of course made no provision for independence; and the state legislatures could hardly delegate to the Continental Congress an authority they never possessed. Under natural law, the state legislatures had no authority to do anything, because states, as claimants of territorial monopoly, are inherently illegitimate; and once again, they could not delegate what they did not have. Thus the Declaration’s only source of authority, the only aspect of it that has any legal standing, is its political philosophy. The Declaration did not – because it could not – derive its authority from the state legislatures; they had none to give. The source of authority it does name is the only legitimate political authority it could possibly claim: the Natural Law under which all rational beings are free and equal. (Against my claim that the positive law provided no basis for independence, it might be objected that references to the authority of natural law were often incorporated into positive law itself, as per Blackstone’s famous declaration that under English law anything contrary to natural law is illegal positively as well. But this argument could hardly be used to downplay the importance of the Declaration’s preamble.)

Spooner, as usual, says it best:

Lysander Spooner The governments, then existing in the Colonies, had no constitutional power, as governments, to declare the separation between England and America. On the contrary, those governments, as governments, were organized under charters from, and acknowledged allegiance to, the British Crown. Of course the British king never made it one of the chartered or constitutional powers of those governments, as governments, to absolve the people from their allegiance to himself. So far, therefore, as the Colonial Legislatures acted as revolutionists, they acted only as so many individual revolutionists, and not as constitutional legislatures. … It was, therefore, as individuals, and only as individuals, each acting for himself alone, that they declared that their consent – that is, their individual consent, for each one could consent only for himself – was necessary to the creation or perpetuity of any government that they could rightfully be called on to support. … Thus the whole Revolution turned upon, asserted, and, in theory, established, the right of each and every man, at his discretion, to release himself from the support of the government under which he had lived.

What, then, is the real meaning of the Fourth of July? It is that you – not as a citizen, whether state or federal, but as an individual – are entitled under natural law to life, liberty, and the pursuit of happiness; that you need be subject to no authority to which you have not consented; and that it is your right, indeed your duty, to throw off any putative authority – whether you have consented to it or not – if it proves systematically oppressive.

And this idea that all authority rests on the consent of the governed achieves its fullest revolutionary potential when coupled with La Boétie’s insight that all power rests on the consent of the governed also. The revolution will come when enough of us realise our right, duty, and ability to ignore the state.

Declare your independence! Withdraw your consent! Free your mind, and the rest will follow ….

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4 Responses to Is the Declaration’s Preamble Irrelevant?

  1. Kevin R. C. Gutzman July 5, 2007 at 11:49 am #

    Mr. Long ignores the significance of the point I made in my column (and which was likely unknown to Spooner): that Virginians had already left the state of nature by creating their colonial society, and that they had broken with the Crown through their Convention’s resolutions of May 15, 1776. For the former point, see Jefferson’s “A Summary View of the Rights of British America” (whose debt to Richard Bland I explained in a 2000 article in _The Journal of the Historical Society_); for the latter, see Edmund Randolph’s history of Virginia, James Madison’s correspondence for May 15, 1776, and my forthcoming _Virginia’s American Revolution…_ (Lexington Books, 2007). Spooner’s claim that Virginia was still governed under a royal charter on July 4, 1776 is wrong even if Jefferson’s “A Summary View” is wrong (which, of course, it isn’t).

    When Virginia’s Congressman Richard Henry Lee stood up in Congress and moved that the Congress declare that the colonies “are, and of right ought to be, free and independent states,” he was using the language he had been told to use by his master, the sovereign people of Virginia, as embodied in the Virginia Convention of May 1776. That is why Virginia’s Congressman Thomas Jefferson used that same language of their common master in the Declaration. Republican Virginia had not empowered its agents Lee and Jefferson to do anything more — whatever Lysander Spooner said.

    Thus, if Mr. Long really believes that the consent of the governed is the fundament of any legitimate government, as he seems to concede at the end of his comment, he must concur that Virginians, at least, were not bound by any rhetorical surplusage their agents added to the declaration those agents were under peremptory orders to secure.

  2. Administrator July 5, 2007 at 12:55 pm #

    I think Prof. Gutzman for his response, but I am mightily puzzled by it.

    Mr. Long ignores the significance of the point I made in my column (and which was likely unknown to Spooner): that Virginians had already left the state of nature by creating their colonial society,

    As a matter of positive law: when was Virginia in a state of nature? It was supposed to be under the English Crown.

    As a matter of natural law: if we understand “state of nature” in Locke’s sense, as the absence of legitimate common authority, then Spooner’s point is that a) it is impossible to leave the state of nature (since the right to liberty is inalienable) and b) even if were possible, one cannot say that “Virginians” as some sort of collective had done so, since only a tiny minority of Virginians had expressed the needed consent.

    and that they had broken with the Crown through their Convention’s resolutions of May 15, 1776.

    As a matter of positive law: what in the royal charter authorised Virginia to do this (whether they did it in May or July)?

    As a matter of natural law: what authorised the May 15 convention to speak for the people of Virginia one way or the other?

    Spooner’s claim that Virginia was still governed under a royal charter on July 4, 1776

    Again, I can’t see what the dates have to do with it. In the eyes of the Crown, Virginia was as much under the royal charter in July as in May. Thus to the question “on the basis of what authority did Virginia declare independence in July?” it’s no answer to say “on the basis of their having previously done so in May.” If the authority comes from positive law, then the royal charter no more authorised secession in May than it did in July. If the authority instead comes from natural law, then the Declaration’s preamble is correctly identifying its source of authority.

    When Virginia’s Congressman Richard Henry Lee stood up in Congress and moved that the Congress declare that the colonies “are, and of right ought to be, free and independent states,” he was using the language he had been told to use by his master, the sovereign people of Virginia, as embodied in the Virginia Convention of May 1776.

    But what entitled the Virginia Convention of May 1776 to speak for the “sovereign people of Virginia,” most of whom had never consented to its doing so? (And even if they had done so, what — other than natural law — authorised them to break from their previous allegiance to the Crown?)

    Republican Virginia had not empowered its agents Lee and Jefferson to do anything more — whatever Lysander Spooner said.

    I don’t understand this last sentence, since it seems to imply that Spooner was saying that Virginia *had* empowered its agents to do more. But Spooner never claimed such a thing. His claim was that any authority for what Virginia’s agents said must have come from natural law and not from the government of Virginia.

    Thus, if Mr. Long really believes that the consent of the governed is the fundament of any legitimate government, as he seems to concede at the end of his comment, he must concur that Virginians, at least, were not bound by any rhetorical surplusage their agents added to the declaration those agents were under peremptory orders to secure.

    The binding force of the Declaration’s preamble doesn’t come from anyone’s having consented to it, it comes from natural law, which consent can neither make nor unmake. Since the government of Virginia had no authority to do anything, nothing in the Declaration of Independence — either the preamble or the “are, and of right ought to be” language — gets its authority from the instructions of the government of Virginia.

    The government of Virginia can’t have it both ways. Either it accepts the natural law philosophy or it doesn’t. If it accepts it, then it ipso facto accepts the Declaration’s preamble. If it doesn’t accept it, then it can claim no authority to declare independence, whether in May or in July.

    In any case, at the time of the Declaration of Independence, the government of Virginia had already committed itself a month earlier to the principles embedded in the Declaration of Indeendence when it endorsed those same principles in the Virginia Declaration of Rights on June 12th. So it can hradly reject as “rhetorical surplusage” in July what it solemnly committed itself to in June.

  3. Kevin R. C. Gutzman July 5, 2007 at 1:14 pm #

    Mr. Long considers the history of Virginia from the point of view of the English Crown, while I consider it from the point of view of Virginians, as reflected in the writings of Thomson Mason, Landon Carter, Richard Bland, and Thomas Jefferson. Every conservative and libertarian should be familiar with the Virginia pamphlets, such as Bland’s “Inquiry” and Jefferson’s “Summary View,” that underlie the Declaration. The Declaration cannot be understood without them.

    The preamble to the Declaration was similar in content to the philosophical sections of the Virginia Declaration of Rights, yes, but while the Virginia Declaration of Rights was binding on Virginians — since they had consented to it — the Declaration’s philosophical section was not. The “binding force” of the Declaration’s philosophical predicate is nonexistent — or exists only in the purchase it may have on the imaginations of its readers. As a matter of republican theory, it is not binding, as it never obtained popular consent in any formal sense.

    Spooner was wrong to say that Virginia’s government of June 29, 1776 didn’t have binding authority — since, as Patrick Henry, Thomas Jefferson, and others noted, it owed its genesis to a perfect Lockean social compact. Unlike the Declaration of Independence.

  4. scineram July 9, 2007 at 6:55 pm #

    Roderick, I think you should post a thorough article about this on LRC. That would be a hell of a good read.

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