I The Primacy of the Declaration of Independence
On July fourth1776 the Declaration of Independence was approved and published. Thirteen years later the Constitution of the United States was passed.
Keep in mind that there are two parts to any contract, the contract itself and the agreement prior which sets the purpose the contract has been entered into to bring about. Of these two documents the Declaration is the original agreement between the parties as to what the cause and the goals of the Revolutionary War were to be. The Constitution is the organizational nuts and legal bolts document designed to create the apparatus necessary to achieve the goals set forward in the Declaration of Independence.
Of course, were told the Declaration doesn't carry the force of law because it is too inexplicit and aspirational and because the participants were rebels operating outside of the established (British) law of the land. But that's an odd disqualification, one the founders of the country themselves obviously no longer recognized. In fact, there is very little difference structurally in how the two documents were approved. Both were ratified by the thirteen colonies. The Continental Congress approved the Declaration with fifty-seven signatories from eleven different colonies. True the Declaration was not officially passed into law under the auspices of the United States of America but neither was the Constitution.
As the Constitution founded the United States of America the United States of America did not ratify the Constitution, the independent colonies did. The Constitution in no way amended, repeated, replaced or refuted the Declaration which preceded it, only elaborated on it.
Therefore the Declaration of Independence is the very heart and essence of a binding contract. And given the exigencies of the times it was certainly as legal as they could make it. It was passed with the full weight and approval of the Continental Congress of which the United States Government is descendant.
Therefore there is a seamlessness that flows from the Declaration to the Constitution that must be acknowledged and respected. The Declaration is clearly the purpose that the Constitution was designed to fulfill. It must be consulted as the seminal documentary source, as the lodestone and foundation, to ensure that any interpretation of the Constitution is not veering off track from its initial purpose. The Constitution is certainly the letter of the law but the Declaration is just as certainly its spirit and to regard the former without reference to the latter is to begin any legal journey already seriously far astray.
The Declaration of Independence is what the founders intended the country they were fighting and dying to bring into being to be. It is the true unadulterated original intent of the Constitution. No more no less. As the child is father to the man the Declaration is father to the Constitution and they cannot be considered separately.
But can this really true? Is the Declaration of Independence really that important? Today it is often thought of as an afterthought or an idealist's dream when rulings of the Supreme Court, which often have the solidity of lead, are handed down. They are solid and it is airy. The Declaration today is often not treated as the transcendent concept it was and still is but as the crazy old aunt who lives in the attic or an embarrassed weak sister to the all powerful Constitution. And as it hasn't direct force of law, it is often only referred to in legal proceedings as a reference point outside of our jurisprudence, as a point of argument, a courtesy or even a vague curiosity or anachronism rather than as the primal motive ideal on which the revolutionary war was fought, blood was shed and freedom established.
It is rare if not unknown for such a seminal public document of intent to exist prior to a conflict. It is these few eloquently expressed principles and grievances which harnessed and then drove the warhorse of passion which aided the colonists (with a bit of help from France) to win against a far more formidable adversary. It was the principles put forward in this document that the founders of this country, many of whom also helped write, sell and approve the Constitution, to which these men pledged their lives, pinned their hopes and pledged their sacred honor. It was surely not a document whose words and intents were lightly taken.
It was not for nothing that Franklin said, “either we hang together or we hang separately.”
The Declaration may in fact be more important than law because it is the basis of all law in this country, more than the rough outline of the ideal the rebels sought to achieve, the agreement that led to the trouble – the difference between what was and what they wanted it to be - but the heart and soul of it. The Declaration is the only reason the United States was founded and the Constitution was brought to life. The Declaration is the deeper purpose of the Constitution without which the Constitution is just a dry and vapid shell of legalisms and structures.
This is a common enough occurrence. If you were to look at building contracts and construction codes and permits and timetables for building Disneyland or NASA or a sewage treatment plant they would each employ the same basic materials and conform to the same general legal principles and outlines. In these legal documents there would be no mention of Tinker Bell or Pirates or Magical Kingdoms nor of the wonders and beauty of space exploration nor even of how sweet the water will taste after the sludge has been removed.
All legal documents are notoriously devoid of romance and ideals and ethics and are even generally absent of what the purpose of the contract is meant to bring about. Therefore the Constitution does mention “we the people of the United States, to form a more perfect union do...” But to form a more perfect union is not an end in itself, it is a superstructure erected to effect what? It doesn't say. To consider the Constitution as a stand alone document as is usually done today outside of the context of what it was trying to achieve renders it gibberish and the nation rudderless.
On the other hand the Declaration of Independence says what the Constitution was designed to do with admirable concision. It holds as a given that “all men are created equal.” Governments are instituted among men, so avers the Declaration of Independence, "to ensure Life, Liberty and the Pursuit of Happiness." These are among the "unalienable rights" with which we are "endowed by our Creator." And it says that it is to ensure these things that governments derive "their just powers from the consent of the governed.”
Oh, there it is. This is what the founders assumed, what they knew so well that they didn't bother having to re-encapsulate in the Constitution. The Constitution shorn of this conceptual context is meaningless except as a particularly deft and lucid discourse in governmental structure. If it is not grasped to be a means and method of fulfilling the goals of the revolution which were so embodied eloquently in the Declaration it will not so much lead to a NASA or Disneyland as a shopping mall or waste treatment facility.
The Constitution is an interpretive document built on precedence. It is conservative in upholding the status quo. But the Declaration remains a revolutionary document which demands constant reassessment. And primarily because what it says is correct, though we have often tried our best to do exactly that, its principles cannot be ignored.
Slowly as we have increased in population, it being easier to govern a smaller number of citizens rather than a larger, the complexity of our government's interpretation of the Constitution has grown more difficult and indirect and convoluted. We have evolved from a point of relative passivity in allowing equality to naturally assert and maintain itself in our society to a realization that sometimes a more activist government is necessary to ensure this equality against the forces that have ingenuously arisen to threaten it.
In some instances this has taken the form of dismantling laws and systems and prejudices and traditions which have grown up like weeds in a flower garden against the full exercise of representative democracy. The ending of slavery, for instance, or the granting of womens' suffrage and the ending of segregation and the extension of rights in the workplace and in social welfare, etc., have each broadened our democracy and strengthened the country.
In each of these examples and many more just like them the nation was not weakened by but strengthened from these extensions of freedom to those who have been shut out and shunted aside from full participation in our society. And yet each has been opposed with an astoundingly irascible ferocity by the ineluctable forces of division and disunion and narrow vision among us.
The reason for this shift to activism has been both aesthetic and practical. For
1) Can a system of government based on the self evident truth that all men are created equal really exist and prosper and reach its ultimate social and spiritual advancement in a society where endemic prejudices and inequalities are not only tolerated but ensured?
At key points in our nation's history our society has said no.
2) Can the ideals of the nation really be achieved if the unalienable rights of life, liberty and the pursuit of happiness are not equally accessible to all? Again no. Slavery is an extreme example, of course, where these rights were alienated with a bloody vengeance. But can it be said that a child born into abject poverty in this society today, ill-housed, ill-clothed, ill-fed, without educational possibilities equal to others or with access to timely and affordable health care really be thought to be better off than a slave under an indifferent master.
Because at some point inequality itself is a denial of basic rights of freedom, the Declaration goes on to say that achieving things dependent on an enduring equality (Life, liberty and pursuit of happiness are among but it is not limited to these) is the very reason government is instituted among men. And if this equality is lacking then that government is not fit to exist. This is the genesis of the entire government, “laying its foundations on such principles and organizing its powers in such form, as to them (it) as shall seem most likely to effect their (the citizens') safety and happiness.” To ignore or deny this is to deny ourselves.
There are in fact different degrees and gradations of freedom. Not all freedoms are created equal. Freedom of a type which allows one group of people absolute freedom to do as they will at the expense of the freedom of others is no freedom at all but merely another form of oppression. Similarly some might be confused with situations where individual liberties come in conflict with broader Constitutional issues of equality for all.
An illustration of this was recently put forward nicely, if unintentionally, recently when a candidate for public office called into question the basis for Civil Rights legislation. He strongly implied that (what?) a temporary inconvenience(?), wedded to the massive prejudice of a businessman who refused to serve people of different races in his establishment should carry more constitutional weight than the right of these potential patrons to be treated like human beings and afforded equal rights under our laws.
But freedom is a reciprocity, it must work for every citizen or it is not freedom for all at all. Therefore your freedom must be balanced against others and thought of as no greater or less than the rights of everyone else. If the freedom of an individual or corporation reaches its full self-worshipful expanse it must necessarily reduce and suck up the freedom of all those around them.
Therefore, trying to equate money with speech and recreate corporations as divine reflections of God's image and endow them with the full rights of citizens is nonsensical. Democracy is only of, by and for the people, not about the things they own. Otherwise you may as well say cadillacs are people too with far more rights than bicycles or pedestrians. We cannot let a thing, or any random accumulation of capital, have more basic rights than the sum of its individual parts, i.e. each of the owners and workers who comprise the organization.
That leaves democracy as it has been founded in America to be not only about individual liberty but collective equality. This means that our ability to achieve our greatest success and potentiality as a people can not be thought separate from our ability to help all Americans attain and maintain the same equal rights as the rest of us and enjoy the same opportunities detailed in the Declaration. E Pluribus Unum - from many we are one.
We only have rights in this country to do as we want when they are commensurate to and compatible with the basic freedoms of everyone else. We have the liberty to do what we want but only when this liberty is placed squarely and securely in the context of a collective tradition that strives to achieve and maintain the greatest good for all.
Therefore all concepts of individual liberty must be tempered with the public good. Our idea of personal freedom, at least as far as our democratic government can be thought to be working properly, must be balanced with our collective freedom. The one can not exist without the other.
So let's not hear any more of the original intent of the founders as if they were mysterious to track down and comprehend, they are not a secret to be lured forth with subtle occult reasonings. They are right there in front of us. They made it as clear as it possibly could be made. What they said and signed was what they meant.
II The Twin Pillars of American democracy
Out of this democracy two clear and distinct paths have emerged which define us a people. These twin pillars of the American system of government are: Democracy and a Free Market system of economics. Like a set of twins they go hand in hand, male and female, with their proud parents walking behind. Many consider them interchangeable and even indistinguishable and for one to exist without the other is, to many minds, even if desirable, not even thinkable.
Superficially this seem true yet when you look each of these systems objectively and break them down to their base components you will find that they are fundamentally at odds with each other in their operations. They work in opposition. Like two oars on a boat, if one is exercised more vigorously than the other for an extended period of time, rather than advancement, circularity results which then eventually spins into regression against the ongoing tide of time.
We have already detailed the basis of democracy as put forward in the Declaration of Independence.
But now let us consider the second great pillar of American society - free market capitalism. Generically, this is an economic system which at its simplest brings goods efficiently to market. There are other methods, highly organized and controlled which may do the same thing. But these require several tiers of additional management which capitalism may dispense with. A free market needs no system of external control to make it work, only an internal one of supply and demand with a sliding price scale attached.
When a commodity is scarce the price goes up and when in abundance it declines. Where demand is, a supply should always theoretically arise to fill it and where a supply occurs a demand will be engendered to consume it. Precisely because of its simplicity this is the most efficient economic system with the least amount of waste, want and needless surplus. Except for instances of hoarding, price gouging and market manipulation this is a self regulating system.
There is one additional problem. Money is the generic medium of exchange which was invented to facilitate the buying and selling of goods as an evolution from the simple barter, pawn and trade system it replaced. Money however has itself evolved to become the most desirable commodity of all to which all others are subservient. Money has taken on a life of its own and become an end in itself. It is, to quote a phrase, “the way we keep score.”
Capitalism therefore also creates as a by-product economic hierarchical differentiation. It inevitably spawns, the same way coal mines make slag heaps, winners and losers, rich and poor. On the high side the same economic system which provides goods in abundance to those that may afford them, on the back side cruelly denies goods and services to those who most need them, even those staple items such as food and housing and education and medicines which may be vital to life. The same benevolent invisible hand of Adam Smith which leads to prosperity and creates privilege has another cursed invisible backhand which leads inevitably to penury and privation.
Therefore we have two competing systems, both dual and dueling, joined together. There is an inherent tension between free markets and a free democracy which it would be naive to downplay. Democracy as a function of its being through its instrument of constitutional government to work properly must ensure equality of opportunity as well as protect the unalienable rights of the people from whose consent it derives its just powers.
On the contrary, free markets, when left to their own devices author the inexorable devolution of inequality, of poverty, privilege, and varying degrees of class prejudice entirely foreign to a free people and alien to the original Declaration of Independence's intent.
This is the fault line, the money river, with all its droughts and floods, which runs between these two primal forces of our society and which shifts and angles and eddys in different configurations over time. And it is always difficult to balance these competing forces properly. Current debate over health care was floating directly down the center of the money river until the preponderance by a small margin decided that coverage should be as universal as we could make it as a necessary fulfillment of the mandate of a democracy to protect life, liberty and happiness. Access to good health care touches in varying degrees on each of these three protected, fundamental rights. Unless you have never been or ever expect to ever be ill it is hard to argue with this assessment.
You may disagree with the particular layout of this particular legislation but to suggest that establishing a new health care law is itself somehow a matter of constitutional overreach as some have done is absurd. Extending equal rights to someone is never unconstitutional. Granting or maintaining special rights for some and denying them to others usually is. The latter is judicial activism the former never can be.
Obviously the solution to the Declaration's demands can't be to try to insure absolute fratricidal equality to everyone all at the same time. The idea is not necessarily for government to enforce actual debilitating uniformity but to ensure the equal access to equality, and ensure that the potentiality of economic and social equality is open to all. Not to dictate upward mobility but ensure that upward mobility frequently may take place.
Anyone may say that a person born into excruciating poverty may perhaps succeed. A scant few do. But the vast majority do not because the path is narrow and steep is the way and the odds are so thoroughly stacked against them as to effectively deny them a free pathway to equality.
Therefore government must mitigate against egregious disparities in opportunity and where the free market doesn't work, fill in the gaps and cut back the excesses to ensure that it works better. Where one group or section or subset of the nation's population is endemically underachieving it not only diminishes the collective future of us all but undercuts the entire concept of a more perfect union the Constitution is committed to bringing about. It is the direct responsibility of our government (or any government) to moderate and ameliorate these differences, although today it seems most of our politicians spend the bulk of their time working to exacerbate them.
Such government can be not the abrogation of freedom or free markets but the prime necessary component to ensure that they succeed and the only grounds on which freedom and equality may be expected to flourish. If more and more do well then we all do better and better but if fewer and fewer of us do extravagantly well and the vast majority far less well and growing numbers are kept mired in abject poverty (which is fact what is happening today) then something is seriously wrong. Something is unconstitutionally wrong.
So clearly it's well within the responsibility of government to ensure that the basics of housing, clothing, nourishment, health and education are available to all. If any one of these may be considered to not be an unalienable right endowed by our Creator then they would certainly have to be necessary to the attainment of an elemental equality. Either way lack of any of these primary necessities would be a key component to an indentured inequality which the Declaration explicitly forbids.
This is precisely what the Declaration suggests good governments are instituted among men to allay – "to lay its foundations on such principles and organize its power in such form as to them shall seem most likely to effect their safety and happiness." Both literally and figuratively, to take this one example, if health care reform succeeds a healthier a happier population will unavoidably result.
In fact to have tens of millions of Americans denied adequate health care is entirely unconstitutional. Clearly health falls into the category of an unalienable right as its denial is the present result and future cause of an enduring inequality. If governments are instituted among men to secure the rights enumerated in the Declaration as it suggests then to not secure them for the entire population puts a government in default of its own responsibilities. Or, in the words of the Declaration, "whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or abolish it, and institute new government." This is quite clear.
And as the nation grows larger and richer with the vast resources of multinational corporations operating within and without our borders today, the government reaction must grow proportionately to meet the ever expanding challenge that these represent. Those who think the answer to an increasingly complex world is ever smaller government are misguided.
No one suggests here there is not a difference between corrupt or inefficient or misguided government and good government. Nobody disputes we need ongoing government reform and the best government we can have but to gut the government we have before having an alternative government to erect in its place is merely suicidal, myopic and defeatist. Legislating the appropriate regulations with the supervisory clout and financial resources to contain these ever growing threats and challenges against us as they continue to mount is actually the rebirth of good government after along hiatus.
This is not really as difficult a concept to understand as some would pretend.
Through all our tumultuous history it has been the Declaration of Independence, not the Constitution, which has served and still serves as this basic prod of our conscience, the rudder of the ship of state, the mystic calling forth of the finer angels of our being. The Constitution may be the means but the Declaration is the way. The Declaration has always prodded us to live up to its standards rather than down to our own. Strict constructionists of the law sometimes lose their way and become legal contortionists because they have forgotten the spirit and lineage of the law they are interpreting.
Why does the Declaration written eleven score and fourteen years ago still lead us ahead toward a shore we have yet to see much less reach? No other nation on earth has such a clear guideline and canon of ideals to call on as its guide through troubled times.
Because its words were better than those who wrote them, it's vision reached farther than the times they lived in and their own eyes could see. It calls us to actions that the authors sometimes could not institute themselves. Its ideals are better by far than we have been at certain times in our history.
And because it is both clear visioned and open ended and unequivocal and irrefutable it is something which always must be worked to be measured up to or grown into. Even when for a time you think you might have achieved a democratic balance of freedoms, it slips away from us again with the changing times. And so each generation must be re- energized to be regained and our understanding must grow more refined to reinvent and realign our current society to our own past and renew our democracy all over again.
