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.”

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:

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 ….