The first two paragraphs are the best known part of the Declaration of Independence. The first three sentences of the second paragraph, proclaiming five self-evident truths, have been fundamental in forming the American identity or, as some might say, the American mythos. They also have provided a conceptual framework within which crises as well as lesser controversies have been debated, politically contested, and fought, at times violently.
Jefferson wrote 110 words of enduring consequence: “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 of 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.”
That passage embraced five themes recurrent in Western political philosophy in the 17th and 18th centuries: Universal equality of mankind, natural law and rights, popular sovereignty exercised through the consent of the governed, the compact basis of the legitimate state, and the right of revolution, exercised peacefully, if possible.
The Pre:Modern View: Universal Moral Law as a Source of Obligations and Rights within a Social and Political Order Ordained by God
The idea of a universal moral law, obligatory on earthly rulers and to which human law must conform, goes back at least to the Stoics nearly two millennia prior, and indirectly even to Aristotle’s conception of natural justice. Cicero, among Roman writers, and the Christian Aristotelian Thomas Aquinas, among medieval Scholastics, postulated the existence of a natural order directed by universal laws. All of creation exists within this physical universe governed by physical laws created by God.
More important for these writers was the divinely-ordained universal moral law, in which humans participate through their reason and their ability to express complex abstract concepts. By virtue of its logos, that is, its universal expression and its moral essence connected to the Creator, this natural law imposes moral obligations on all, ruler and ruled alike, everywhere and always. As Cicero wrote in Book III of De Re Publica, “It is not one thing at Rome and another at Athens; one thing to–day and another to–morrow; but in all times and nations this universal law must for ever reign, eternal and imperishable. It is the sovereign master and emperor of all beings. God himself is its author,—its promulgator,—its enforcer.”
All are created equal, and all are equal before God and God’s law. Viewed from a metaphysical and practical perspective, these obligations provide the best path to individual flourishing within a harmonious social order in a manner that reflects both the inherent dignity of each person and man’s nature as a social creature. These universal obligations of the natural moral law necessarily also give rise to certain universal rights that all humans have by nature to be capable of meeting those obligations.
The Modern World of the Past 500 Years: Individual Will and the Emergence of the Ethical State Based on Voluntary Consent through the Social Compact
However, the shattering of universal Christendom in the West through, first, the schism between Orthodox and Roman Catholicism and, thereafter, the Protestant Reformation, and the concomitant demise of the idea of a universal Christian moral law and of a political order based thereon, changed the conception of natural law, natural rights and the ethical state. No longer was it that man must direct his thoughts, his actions and the actions of his institutions, including government and law, to realize the objective (telos) of a divinely-ordained and created universal Christian order. Rather, in the emerging modernity and its nascent secularism, there was a “turn to the subject,” the individual himself. In the words of the ancient Greek pre-Socratic philosopher Protagoras, “man [became] the measure of all things.”
Political legitimacy and, thereby, the basis for political and legal obligation came to rest on individual acts of will. “Voluntas” is the Latin for will. The most prominent foundation for this structure was the construct of the voluntary “social compact” or “social contract.” In that setting, “natural law” became deracinated of its previous moral content. The concept was reduced to describing functional rules, “laws of nature,” which applied in a fictional state of nature in which humans lived prior to the secular creation of a political commonwealth, in contrast to the civil law that arose after that creation.
Although voluntary consent became the ethical basis for the state, reason remained important as a guide for human conduct. Indeed, in the 17th and 18th centuries, dubbed the “Age of Reason” and the “Age of Enlightenment,” respectively, “reason” was harnessed and molded into odd designs, as many a would-be philosopher dreamt up his best of all possible worlds governed by rational beings using rational principles derived from (to them) self-evident truths. Voltaire took aim at this apotheosis and idolatry of “reason” in his book Candide by satirizing the philosophical optimism of the character Dr. Pangloss.
Other writers of political philosophy of that era, such as Bernard de Mandeville, were more down to earth. Man was selfish and acted from self-interest. But it was self-interest that was rational, and man’s reason kept it so. Man’s reason would discover those principles and engage in actions which would best promote his own (material) well-being. Because the chosen actions were guided by reason, they would also incidentally benefit society. It was “enlightened self-interest.” After all, individual well-being flourished in an environment where all would have incentives to be productive and where rules existed to prevent crime and fraud and to promote stability of property and a general culture of trust. This has been described, not without merit, as a “philosophy of egoism.” Social contract theorists used rational self-interest as the impetus for leaving the fictional state of nature to form a political commonwealth.
Human Dignity and the Protection of God-Given Natural Rights
Instead of natural law, the concept of natural rights now set the limits for proper government action. Natural rights, such as private ownership of property and freedom of conscience and expression, were those that every sovereign individual had inherently and universally, in contrast to civil rights, such as voting, which existed only within a political society. Natural rights derive from the inherent dignity bestowed on man as created in God’s image. In philosophical speculation, control over human arbitrariness no longer was centered on higher law (divine law and natural law) within an ordered system, but on protection of the essence of human dignity (natural rights). As a corollary, rights no longer were merely the derivative of obligations; they were the starting point of political philosophy.
John Locke’s State of Nature in His Two Treatises of Government
Although modern expositors of the social contract theory appeared from the 16th to the 18th centuries, and came from several European cultures, the most influential for the American founding were various English and colonial philosophers and clergymen. Most prominent among them was John Locke.
Locke’s version of the state of nature in his Second Treatise of Government was not as bleak and hostile for humans as was that of his predecessor Thomas Hobbes. Nor, however, was it a romanticized secular Garden of Eden as posited by Jean-Jacques Rousseau, writing a century later. For Hobbes, the suspected atheist, the hypothesized state of nature was a condition of unrelenting psychological terror. When humans consented to the establishment of government, they acted out of plain, unvarnished fear to escape an existence that would be “solitary, poor, nasty, brutish, and short,” which, as an aside, sounds like what Charles Dickens might use as a name for a law firm. Hobbes’s founders of political society sought peace and security at any cost and were willing to subject themselves to an all-powerful governmental Leviathan, the name of his book on the subject. Hobbes has often been viewed, mostly correctly, as a defender of absolutist government.
Locke’s more pastoral state of nature allowed for basic social arrangements to develop, such as the family, economic relationships, and religious congregations. Still, existence in that state of nature created uncertainties and inefficiencies in the preservation of one’s natural rights to life, liberty, and property. Accordingly, sovereign individuals enter into a compact with each other to leave the state of nature and to surrender some aspects of their natural rights in order to make themselves and their estates more secure. They agree to arbitrate their disputes by recourse to an impartial judge rather than resort to self-help, and to be governed by civil law made by a legislator and enforced by an executive, rather than make up their own rules with an absolute power to enforce them. Under a second contract, those sovereign individuals collectively then convey those powers of government to specified others in trust to be exercised for the benefit of the people.
Thus, the political commonwealth is a purely human creation and derives its legitimacy through the consent of those it governs. This act of human free will technically is unmoored from some external order or the direct command of God. Yet, Locke allows for much greater involvement by God than some other social contract theorists, in that God gave man a nature that “put him under strong Obligations of Necessity, Convenience, and Inclination to drive him into Society, ….” As well, despite Locke’s general skepticism about the Aristotelian epistemology then still dominant at the English universities, he agreed with the ancient sage that human flourishing best proceeds within a political commonwealth. His description of human nature and inclination reads remarkably Aristotelian.
The Proper Objects of Government
Locke’s social compact is a much more deliberate and circumscribed bargain than Hobbes’s adhesion contract. With Hobbes, the individual only retained his inviolate natural right to life. With Locke, the individual retains his natural rights to liberty and property, as well as his right to life, all subject to only those restrictions that preserve the possession of those same rights by all. The objective for which governments are established is to make the exercise of those retained natural rights in life, liberty, and property more secure than would be the case in the state of nature. The government’s powers are limited to achieving the purposes for which it was established, and nothing more. A law that is inimical to those objectives and tramples on those retained rights is not true law and breaches the compact between the government and the people.
Remedies for Violations of the Social Compact by the Government
There remained the ticklish question of what to do if the government breaches its trust by passing laws or otherwise acting in a manner that makes people less secure in their persons or estates. Among private individuals, such a breach of fiduciary duty by a trustee would result in a court invalidating the breach, ordering fitting compensation, and, perhaps, removing the trustee. If the government breached such a duty, recourse to the English courts was unavailable, since, at least as to such constitutional matters, the courts had no remedial powers against the King or Parliament.
Petitions to redress grievances were tried-and-true tools in English constitutional theory and history. But what if those petitions repeatedly fell on deaf ears? One might elect other members of the government. But what if one could not vote for such members and, consequently, was not represented therein? What if, further, the executive authority was not subject to election? A private party may repudiate a contract if the other side fails to perform the material part of the bargain. Is there a similar remedy to void the social contract with the government and place oneself again in a state of nature? Or is it really the government which, by its oppressive acts, has reduced social conditions to a state of nature? More pointedly, do the people collectively retain a right of revolution to replace a usurping government?
The Unsettling Right of Revolution
This was the very situation in which many Americans and their leaders imagined themselves to be in 1776. Previous writers had been very circumscribed about recognizing a right of revolution. Various rationales were urged against such a right. Thomas Aquinas might cite religious reasons, but there was also the very practical medieval concern about stability in a rough political environment where societal security and survival were not to be assumed lightly. Thomas Hobbes could not countenance such a right, as it would return all to the horrid state of nature, where life once again would be “solitary, poor, nasty, brutish, and short.” To him, as someone who had experienced the English Civil War and the regicide of Charles I, albeit from his sanctuary in France, and who was fully aware of the bloodletting during the contemporaneous Thirty Years’ War, revolution was to be avoided at all cost.
Locke was more receptive than Hobbes to some vague right of revolution, one not to be exercised in response to trivial or temporary infractions, however. Jefferson emphasized that point in the next part of the Declaration:
“Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed.
But when 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.—Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government.”
Locke left unclear who exactly were the people to exercise such a right, and how many of them were needed to legitimize the undertaking. Locke wrote at the time of the Glorious Revolution of 1688 in Britain. His main relevant work, the Second Treatise on Civil Government, was published in 1689, though some scholars believe that it was written earlier. The Catholic king, James II, had been in a political and religious struggle with Parliament and the Church of England. When Parliament invited William, the stadholder (the chief executive) of the United Netherlands to bring an army to England to settle matters in favor of itself, James eventually fled to France.
Parliament declared the throne vacant, issued a Declaration of Rights and offered the throne to William and his wife, Mary, James’s daughter. In essence, by James’s flight, the people of England as an undefined whole, rather than an association of individuals, had returned to an extra-political state of nature where they, through the Parliament, could form a new social contract.
Return to a State of Nature and the Right of the People to Institute New Government
The American Revolution and Jefferson’s writings in the Declaration of Independence follow a similar progression. When King George III on August 23, 1775, declared the colonies to be in rebellion, and Parliament passed the Prohibitory Act in December of that year, they had effectively placed the colonies outside the protection of the law and into a state of nature. At least that was the perception of the colonists. Whatever political bands once had existed were no more. Finding themselves in that position, the Americans were free to reconstitute political societies based on a social contract of their own choosing.
That project occurred organically at the state level. Massachusetts had been operating as an independent entity since the royal governor, General Thomas Gage, had dissolved the General Court of the colony in June 1774. That action led to the extra-constitutional election in October of a provincial congress by disaffected residents of the colony. Thereafter, it was this assemblage that effectively governed Massachusetts. The other colonies followed suit in short order.
In Virginia, a similar process occurred in the summer of 1774. It culminated two years later in the “Declaration of Rights and the Constitution or Form of Government,” begun by a convention of delegates on May 6, 1776, and formally approved in two stages the following month. The initial document was a motley combination of a plan of government, a declaration of independence, and a recitation of enumerated rights and high-sounding political propositions. In the part regarding independence, the accusations against King George are remarkably similar, often verbatim, precursors to Jefferson’s language in the Declaration of Independence of the “united States” two months later. George Mason, whom Jefferson praised as the “wisest man of his generation,” was the principal author. Still, it may have been Jefferson himself who proposed this language through the drafts he submitted to the Virginia convention.
Both documents, the Virginia declaration and the Declaration of Independence, cite as a reason for “dissolv[ing] the Political Bands” that the king had abandoned the government by declaring the Americans out of his protection. George III, like James II a century before, had breached the social contract and forced a return to an extra-political state of nature. The Declaration of Independence merely formalized what had already occurred on the ground. With those bands broken, the next step, that of forming a new government, already taken by Virginia and other states, now lay before the “united States” gathered in the Second Continental Congress that June and July of 1776.
All Men Are Created Equal: The Protean Concept of Equality in the Declaration
Since the early days of the Republic, advocates of various causes, such as the abolition of slavery, have held up the Declaration’s principles of liberty and equality as infusing the “spirit” of the Constitution. They have urged that the specific language of the Constitution be interpreted creatively, with those principles as the ultimate end of a “more perfect union” for which the Constitution was established. Especially as to the idea of equality, this has always been more a projection by those advocates of their own fervent wishes than a measure of what most Americans in 1776 actually believed.
Being “created equal” was a political postulate, meaning that there would be no hereditary monarchy or aristocracy in a republic based on consent. It was also a religious tenet, fundamental in a country in which the overwhelming majority of residents was Christian, that all were equal before God. It did not mean, however, that people were equal “in their possessions, their opinions, and their passions,” as James Madison would write mockingly in The Federalist No. 10. He and Jefferson, along with most others, were convinced that, if people were left to their own devices, the natural inequality among mankind would properly sort things out socially, politically, and economically. Even less did such formal equality call for affirmative action by government to cure inequality of condition. It was, after all, as Madison explained in that same essay, “a rage for paper money, for an abolition of debts, for an equal division of property” that were the “improper and wicked project[s]” against which the councils of government must be secured, if one wanted a stable and harmonious republic.
In the specific context of slavery, the Declaration trod carefully. Jefferson’s criticism of the British veto of colonial anti-slave trade laws, which he included in his original draft of the Declaration, was quickly excised by cooler heads on his committee who did not want to stir that pot, especially as almost all states permitted slavery. Jefferson’s later lamentation regarding slavery, that “I tremble for my country when I reflect that God is just” was a distinct minority view. Many Americans had escaped grinding poverty in Europe, had served years of indentured servitude, or lived under dangerous and hardscrabble frontier conditions. As a result, as the historian Forrest McDonald observed, few of them trembled with Jefferson. It remained for later generations and the crucible of the Civil War and Reconstruction to realize the promise of equality that the Declaration held for the opponents of slavery and, of course, especially for the slaves themselves.
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