The Creative Ambiguity of the Declaration of Independence

Anonymous

Apart from its immediate historical effect of declaring independence, the Declaration has also been crucial in portraying through time what evils American government is designed to prevent. As readers of my work know, I have long been an advocate of the view that constitutional history is shaped at least as much by negative models that a country wants to avoid (“aversive constitutionalism”) as it is by positive models that a country might aspire to (“aspirational constitutionalism”). In order to understand any country’s constitutional conceptions, it is important to understand what constitutionally crucial actors have thought were the evils that they were supposed to avoid in the construction of a new government.

But even the meaning of negative models changes over time – and this is what happened to the Declaration of Independence. While it was understood at first to be an indictment against the British form of government in general when state constitutions were drafted in its wake, the meaning of the Declaration changed by the time of the Philadelphia Convention so that it was understood to be an indictment against a particular king and not against the British constitutional system. Hence the creative ambiguity of the Declaration’s critique.

As I wrote in an article a few years back:

America’s first stage of aversive constitutionalism in the founding period is more evident in the text of the Declaration of Independence than in the text of the Constitution, and it is precisely the carefully sharpened aversion expressed by the Declaration that carved out both the political and intellectual space that allowed the Philadelphia framers to borrow as heavily as they did from the English model later on. While most contemporary Americans typically know only the short positive part of the Declaration (e.g. “We hold these truths to be self-evident . . .”), most of the Declaration “declare[s] the causes which impel [us] to the Separation.” The first main paragraph of the Declaration declares 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” and goes on to create a positive image of what government should be (“Governments . . . deriv[e] their just powers from the Consent of the Governed”). But the bulk of the document is a bill of particulars against the King of England.

“The History of the present King of Great Britain,” declares the Declaration, “is a History of Repeated Injuries and Usurpations, all having in direct Object, the Establishment of an absolute Tyranny over these States.” And the list is specific. The King refused assent to the laws necessary for the public good. The King obstructed the administration of justice by making judges dependent on his will alone. The King quartered large bodies of armed troops in private homes, cut off trade between the American colonies and the rest of the world, imposed taxes without consent, deprived colonists of the right to trial by jury, and excited domestic insurrections among the colonists. Etc. Etc. This not only justified the rebellion, but it also provided a clear negative model against which to define the fragile new state(s).

The American state constitutions and the Articles of Confederation, written early in the processes of separation from Britain, drew a strong and negative constitutional lesson from the abuses of Britain, not surprising given the sentiments when they were written. This strong lesson was that the British constitution itself was fundamentally unworkable because it placed too much power in an unaccountable executive. During and immediately after the Revolutionary War, the view was not that there was a specific, abusive king against whom the Declaration was directed, but instead that kings in general were a problem – and so were any constitutional executives modeled after them. The Articles, therefore, created a national government with no executive and no judiciary; it simply set up a Congress in which the representatives of states could fix the burdens of taxation and create policies for the common good.

The government under the Articles failed for a variety of reasons, not least of which was the inability of the Continental Congress to execute or enforce its decisions. Perhaps the drafters of the Articles overreacted against the king by failing to have any executive at all (or at least so many thought when the constitutional convention of 1787 was called to rewrite the Articles). If so, this was a problem shared by many of the state constitutions which were also written in the period between the Declaration and the Constitution. Most states had weak governors; Pennsylvania had a plural executive designed to limit the ability of any one of the collective executive to act alone. Only New York had a strong governor, and it was the relative success of New York that was one strong positive model for the framers in Philadelphia.

But by the time of the Philadelphia convention, Britain was no longer the enemy anymore, constitutionally speaking. By 1787, the state constitutions and the Articles themselves were the leading negative models. Strong, unchecked legislatures in a number of the states had lead to a sort of undesirable populism, at least in the view of the propertied classes who wanted a safe buffer from populist excess. Democracy could go too far; parliaments could be too responsive to the masses and a national constitution needed mechanisms to ensure that change would not be excessive. Many of those who came to Philadelphia to write a new constitution did so in part because they were convinced that not only had the Articles failed, but so had many state constitutions. . . .

So – where to look for a positive model? After the military victory over Britain was secure and this first experience with rejecting British government failed, the constitutional structure of Britain was reconsidered by the writers of the constitution who met in the summer of 1787 in Independence Hall in Philadelphia. Though it had originally served as the leading negative model in drafting state constitutions and the Articles, the British Constitution served as a positive model for many at the Philadelphia convention. Though a number of the delegates in Philadelphia had signed the Declaration that had attacked the King and by extension the British government, by 1787, quite a few in the convention held the view that the fight had been against a particular king and not against the whole British constitutional structure. The Declaration, of course, on its face limited its criticism to the king. The great ambiguity of the Declaration was that the text could mean the king as a constitutional entity, or it could mean the specific King, George III. (Blackstone was good on the difference, and also on how they could be confused.) If one could read the criticisms laid out by the Declaration as being limited to the specific king and not to a strong executive in general, British constitutional history in general was ripe for the picking in 1787 precisely because the attack in 1776 had been ambiguous.

Only a few of the delegates to the Philadelphia Convention had much bad to say about the government of Great Britain, and then the criticisms were mostly limited to saying that the British Constitution was fine for Britain but it would not work in a different social context like America. Instead, a number of the delegates piled on praise for the English constitution, even though they had somewhat different versions of it in their minds. John Dickenson of Delaware, the primary architect of the Articles of Confederation, had nothing but compliments for the form of the British government by the time the constitution was drafted. Alexander Hamilton . . . thought that “the British Government was the best in the world and he doubted much whether any thing short of it would do in America.” Even Charles Pinckney of South Carolina said, “I will confess that I believe [the constitution of Great Britain] to be the best in existence” though he was pessimistic about transferring it to the very different social context of America. And James Madison, while skeptical about some aspects of British government, tended to attribute its faults to particular mistakes of particular kings rather than to general design.

In the American context, then, the primary negative model at the time of the Declaration turned into a positive model by the time of the convention. In the interim, the state constitutions and the structure of the national government under the Articles of Confederation, all of which had concluded from the demonization of the British model that a strong executive was a mistake, had shown that weak executives could be worse. Those who would construct a new government to govern the new world by 1787 had largely come around to believing the British constitutional design was basically solid, but safeguards had to be built against potentially abusive executives becoming too strong. The American solution for curbing executive abuse in the end shares much with the British solution, forcing the executive to govern with a parliament in tandem. But this move from the revolutionary
attack on Britain to using Britain as a model for the American constitution is hard to understand without seeing the revolutionary and founding period as two separate steps with two different and prominent negative models. The positive goal remained the same throughout – to construct a new nation based on a fundamental commitment to liberty. Only the negative examples explain the huge difference in structure between the early state constitutions and the Articles of Confederation on the one hand and the 1787 federal Constitution on the other.