Getting the Constitution Wrong

David Kenneth Schneider

Liberals, and some conservatives as well, like to claim that America is founded not on the Declaration of Independence and the Constitution, but on the Constitution alone. Liberals want to decouple the two because the Declaration refers to God – they want the Constitution to be “Godless.” Certain conservatives think the Declaration contains enlightenment abstractions, against which the Constitution must be defended.

Both claims are nothing but historical hokum. The Declaration is the ground on which stand the original state constitutions, the Articles of Confederation, and the Federal Constitution. And all of these documents share an American political philosophy that combines reason with revelation.

The American Project of Self-Government

The Constitution, with the Bill of Rights, is the final achievement of the American project of self-government that began in 1776, and comprises as well the original state constitutions, and the Articles of Confederation.

The Constitution makes no sense without the Declaration and the Articles of Confederation. The same body of men – “The Representatives of the United States of America in General Congress Assembled” – declared independence from Great Britain in 1776, approved the Articles in 1778, and, in 1787, convened a convention in Philadelphia to work up proposals to amend and improve the Articles. That convention produced the Constitution and initiated the drafting of the Bill of Rights, the first ten amendments to the Constitution, all passed in 1791, by that same Congress.

There was remarkable continuity of membership in Congress over time. Sixteen of the signers of the Articles of Confederation also pledged their lives, fortunes and sacred honor as signers of the Declaration of Independence. Five of the signers of the Articles were present at the Philadelphia Convention and signed the Constitution. And six signers of the Constitution also signed the Deceleration.

The Congress also dated both the Articles and the Constitution first from the birth of Christ, and second from the Declaration of Independence – the former in the “Third Year of the independence of America,” and the latter in the year “of the Independence of the United States of America the twelfth.”

The state constitutions, the Articles of Confederation, and the Federal Constitution all represent attempts to solve the problems caused by the breakdown of British imperial government in the colonies. This is the point of the Declaration’s now much neglected “History of repeated Injuries and Usurpations, all having in direct Object the Establishment of an Absolute Tyranny over these States.”

The crisis of the British imperial system left Americans without effective civil government, and without protection from domestic insurrection and foreign invasion. George III and Parliament had “dissolved Representative Houses repeatedly,” and taken “away our Charters, abolishing our most valuable Laws...”

The Declaration itself provides the best summary of the problem:

“He has refused for a long Time, after such Dissolutions, to cause others to be elected; whereby the Legislative Powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the meantime exposed to all the Dangers of Invasion from without, and Convulsions within.”

The Virginia Constitution of 1776 reproduces virtually the same litany of royal offences that led to the breakdown of civil government as justification for its establishment:
“By which several acts of misrule, the government of this country, as formerly exercised under the crown of Great Britain, is TOTALLY DISSOLVED.
“We therefore, the delegates and representatives of the good people of Virginia, having maturely considered the premises, and viewing with great concern the deplorable conditions to which this once happy country must be reduced, unless some regular, adequate mode of civil polity is speedily adopted, and in compliance with a recommendation of the General Congress, do ordain and declare the future form of government of Virginia to be as followeth....”

Of the twenty-seven grievances against George III, sixteen concern the abuse of legislative, executive and judicial functions of government. The state constitutions, the Articles, and the Federal Constitution all establish these very authorities as new forms of self-government in the absence of imperial authority.

Grievances having to do with international trade, foreign invasion, navigation on the high seas, and domestic security – seven specific complaints altogether – could only be addressed in some form of confederation of the states. This is the reason for the Articles, and for the Federal Constitution, an attempt to make the perpetual union established under the Articles “more perfect.”

All of the first eight amendments to the Constitution – eight out of ten of the Bill of Rights – are directly traceable to that same “long Train of Abuses and Usurpations” set forth in the Declaration.

The second and third amendments are incomprehensible without reference to the Declaration’s “He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures;” “He has affected to render the Military independent of and superior to the Civil power;” “For Quartering large bodies of armed troops among us.”

Similarly, the civil rights guaranteed by the fourth through the seventh amendments are directly rooted in suspensions and usurpations of judicial authority enumerated in the Declaration: “For depriving us in many cases, of the benefits of Trial by Jury: For transporting us beyond Seas to be tried for pretended offences...”

God, Natural Rights, and Constitutions

The Constitution is not only historically inseparable form the Declaration. The two also represent expressions of a distinctively American political philosophy that combines reason with revelation.

The men who created our institutions of self-government shared a philosophy of politics and statesmanship, whose expression reached its highest point of eloquence in the Declaration.

But these notions were not the ideas of one man. Jefferson himself wrote of the Declaration in a letter to Henry Lee in 1825: “Neither aiming at originality of principle or sentiment, nor yet copied from any particular and previous writing, it was intended to be an expression of the American mind, and to give to that expression the proper tone and spirit called for by the occasion.”

That mind accepted as self evident two great truths: 1) that God created all men equal and endowed them with “certain unalienable Rights;” and 2) that the purpose of government is to secure those rights. The flip side of the second truth is that a government that destroys these rights must be overthrown and replaced by one that will secure them.

In short, government must respond to the nature of a God-created mankind.

Once the political bands with Great Britain were severed, and the states began to establish new governments, all of the constitutions they adopted were founded on these very principles.

In his “A Defense of the American Constitutions,” John Adams makes an explicit connection between Divine Providence, securing rights, and constitution making:

“The people in America have now the best opportunity and the greatest trust in their hands that Providence ever committed to so small a number since the transgression of the first pair; if they betray their trust, their guilt will merit even greater punishment than other nations have suffered and the indignation of Heaven. If there is one certain truth to be collected from the history of all ages, it is this: that the people’s rights and liberties and the democratical mixture in a constitution can never be preserved without a strong executive, or, in other words, without separating the executive from the legislative power.”

In the preamble of his draft constitution for the state of Massachusetts Adams acknowledges with gratitude “the goodness of the great Legislator of the universe in affording to this people in the course of His providence an opportunity of entering into an original, explicit, and solemn compact with each other...,” a compact founded upon the same natural rights principles as the Declaration.

Adams’ constitution was the model for most of the other state constitutions adopted just after independence was declared. All of them explicitly declare the connection between God, the rights of man, and their constitutions. The Georgia Constitution is as good example:

“To perpetuate the principles of free government, insure justice to all, preserve peace, promote the interest and happiness of the citizen and of the family, and transmit to posterity the enjoyment of liberty, we the people of Georgia, relying upon the protection and guidance of Almighty God, do ordain and establish this Constitution.”
The connection between God’s guidance, the rights of free citizens, and the establishment of a constitution permeates American political thought.

Even the Virginia Constitution, perhaps the most reticent of the early state constitutions on this connection, acknowledges, in declaring the natural right to freedom of conscience,“the duty which we owe to our Creator,” and the “mutual duty of all to practice Christian forbearance, love, and charity towards each other.”

These very states sent delegates to the Congress to agree upon a confederation between them based on the same principles. The several states entered into a “firm league of friendship” for “their common defense, the security of their liberties, and their mutual and general welfare,” embodied in the Articles of Confederation.

The delegates claimed to have been guided to this union by God, as they said in the text of the Articles they signed:

“And Whereas it hath pleased the Great Governor of the World to incline the hearts of the legislatures we respectively represent in congress, to approve of, and to authorize us to ratify the said articles of confederation and perpetual union.”

This is a God who acts in history by guiding human hearts, hardly the picture of a deistic God that never intervenes in the operation of his “clockwork” creation.

In 1787, the Congress convened the Philadelphia Convention to revise the defects in the Articles that had become apparent since their adoption in 1778. All of the delegates were from states whose constitutions explicitly proclaimed the connection between God, natural rights, and their constitutions. And the Federal Constitution is a self-proclaimed improvement on a “perpetual union” – “We the people of the United States, in order to form a more perfect union...” – already founded upon the use of human reason guided by Divine Providence.

The Constitution is predicated on the same distinctively American political philosophy as the Declaration, all of the state constitutions, and the Articles of Confederation – it would, indeed, have been impossible without them.

To try to rip the Constitution out of its place as the final accomplishment of the founding generation’s project of self-government is to do great violence to the American mind, and to the political philosophy that makes American what it is. That progressive liberals would want to do this is entirely understandable. But it seems most dangerous for conservatives of any stripe. For it is the dynamic tension between the ideals of the Declaration and the political process of constitution making and amending that has given America its exceptional system of ordered liberty, that, save for the massive breakdown of the Civil War, has lasted well over two hundred years, making the United States the world’s oldest democracy.

Those who want to see a Godless constitution that emerges from enlightenment principles of scientific rationalism need to look toward the French Revolution, when God was replaced with the cult of reason, with consequences that could not be more different from those that obtained here in America.

David Kenneth Schneider is a Doctoral Candidate at University of California, Berkeley