The Declaration, the Constitution, and Equality

“With respect to equality one should not understand the word to mean that the degrees of power and wealth are absolutely identical . . . but that no citizen should be rich enough to buy another and none so poor as to be obliged to sell himself.” J.J. Rousseau

 As Paul Krugman recently put it, the essence of our current political conflict is a struggle between democracy and plutocracy. That is what the discussion of inequality is all about. What is notably lacking in these discussions is the role of equality in our basic political philosophy. Equality is fundamental to the political philosophy outlined in the Declaration of Independence, the document which created the United States of America—the nation, not the government.

The Declaration’s opening statement declares that the document’s purpose is to “declare the causes which impel [the colonies] to the Separation” from Great Britain. The second paragraph of the Declaration launches into a series of “self-evident truths,” beginning with “All men are created equal” and ending with a long assertion of the right to revolution. Taken together those “truths” provide a brilliant condensation of a coherent political philosophy. That philosophy was unquestioned in 1776 and was in fact the only useable philosophy available in 1787 when the Constitution was drafted, creating our government. While the ideas were conventional, Jefferson’s formulation is subtle and complex, with equality as the fundamental value underlying each step in his series of self-evident truths.

As a factual statement, the meaning of the first self-evident truth—“that all men are created equal”—is narrowly limited. We can’t know what range of meanings Jefferson or any other participant at the Continental Congress gave to “equality.”  We can be reasonably certain, however, that they all understood it to mean at least “political equality.” At birth, all individuals are politically equal. There is no hereditary right to rule. There is no natural social or political hierarchy. The meaning of “political equality” was beautifully expressed by one Col. Richard Rumbold, a Cromwellian soldier executed for treason in 1685. Speaking from the scaffold, he asserted that “there was no Man born marked of God above another; for none comes into the World with a Saddle on his Back, neither any Booted and Spurr’d to Ride him.”

By itself, the proposition that all are created equal is more a problem than a solution. The assertion of equality is negative—it tells us what IS NOT (ruling power as a birth right) but does not determine what SHOULD BE (an effective government). From the moment of birth, the central fact of human experience is the myriad inequalities among people—physical, intellectual, psychological, moral, political, economic—starting with the inequality between parent and child. Political equality in itself posits no institutional form, no guidelines for legitimate sovereignty, no foundation for government. It is value-free. As a general proposition, political equality raises the specter articulated by Thomas Hobbes: a war of all against all, in which the strong tyrannize the weak.

“Equality” is not a fact of human experience. It is a convention, an idea developed to fill the vacuum created when the convention of hereditary rule—of inherited “authority”—collapsed in England in the 17th century. By itself the idea of political equality leaves us free to construct whatever political philosophy we want. At one extreme, lovers of peace hold up anarchy— not the bomb-throwing type but utopian anarchy, the belief that equal people can cooperate in a classless society and make governmental structures unnecessary. Marx’s notion that the state would ultimately wither under Communism is a prominent example, as is the Occupy movement of recent memory. At the other extreme, are those who think that might makes right—the claim of William the Conqueror to all of England, or the claims of European nations to vast portions of the non-European world, the claims made by Americans in the 1840s to as much of North America as they could grab, the actions of Putinesque strongmen.

Equality of birth is the foundational value, but it cannot provide direction to efforts to create a just government. Such direction can come only from a commitment to further ideas. Jefferson’s second self-evident truth is a leap to the unprovable assertion that “they [all those equal people in truth number one] are endowed by their creator with certain unalienable rights.” These rights—which today we call “human rights”—are, like equality, present at birth. They are equally possessed by each individual. They precede government, so they are not created by government and therefore can be asserted by individuals against government.

Jefferson then gives substance to those equal human rights with his third self-evident truth, “that among these [rights] are Life, Liberty, and the Pursuit of Happiness.” Only three rights are named, but the phrase “among these” implies the existence of an indefinite number of additional rights. The Ninth Amendment to the Constitution of 1787 explicitly reaffirms the existence of an undefined number of “rights retained by the people.”

Jefferson did not invent the short list, which was a conventional Enlightenment list of rights. He nevertheless did make a substantive choice by using the phrase “the pursuit of happiness” rather than the more common Lockean term “property.” Unlike a right to property, a right to “the pursuit of happiness” is egalitarian; it can be actively enjoyed by everyone, including those who manifestly fail to achieve happiness. The pursuit of happiness, like “life” and “liberty,” is an activity, a life course, a process completed only by death. Modern American English has trivialized “happiness,” but for Jefferson its pursuit was probably close to what we would call “living a life of dignity” or “having the opportunity to realize one’s natural abilities to their fullest.” It asserts a right for each to live a fulfilling life.

The fourth of the Declaration’s self-evident truths moves from the assertion of human rights equally possessed by all to a sweeping assertion about human history: “that to secure these Rights, Governments are instituted among Men.” This is less a statement of historical truth than of revolutionary intention. It is the simplest and clearest statement we have of the American philosophy regarding the function of government: to secure equally to all their rights as human beings.

Jefferson then inserted a crucial requirement: governments derive “their just Powers from the Consent of the Governed.” This clause circles back to the initial idea of political equality. Legitimate political sovereignty is initially dispersed among all of the people as their equal heritage at birth. Sovereignty—the right to exercise political power on behalf of one’s fellows—flows up from the equal people as they grant their consent to be governed.

After political power has been granted, the government so created must use that power to secure the equal rights of all. If it fails to do so, Jefferson’s fifth self-evident truth asserts, “it is the Right of the People to alter or to abolish it, and to institute new Government.” In traditional hereditary hierarchical systems, there could be no right to revolution because the right to rule had been established at (or before) birth. The ultimate consequence of the assertion of human political equality is the right to revolution.

 *  *  *  *  *

 “Equal” does not appear in the Constitution of 1787 in any form. Has the lofty philosophy of the Declaration of Independence any lasting relevance to American politics?

The short answer is a resounding YES. The ideas set forth in the Declaration—not because they were set forth in the Declaration but because they were almost universally held—shaped American government.

The Continental Congress that adopted the Declaration of Independence went on to form a new government for the nation it had created. Cobbled together during the course of the Revolutionary War, the Articles of Confederation was not formally ratified until 1781. Slow in coming, it reflected widespread fear of a strong central government. It created almost no institutional structure of governance, and it provided no reliable source of revenue to fund the activities of government—not enough even to properly service the debt incurred fighting the war. After the war ended officially in 1783, the new states squabbled among themselves, and the economy was a shambles. The nation was short on gold and, because it lacked a meaningful central government, it was difficult to obtain credit, fair trade privileges, or even minimal respect from other nations.

By 1786 the government created by the Articles had manifestly failed. It had become destructive of the basic ends of government. It did not and could not secure the rights of Americans. And so, as the Declaration said they could, men began to discuss altering the government and went on to abolish it and institute a new government under the Constitution of 1787.

The Articles of Confederation had created a confederation of states, one that derived its powers from the various state legislatures rather than from the sovereign people. The Constitutional Convention of 1787 took a different course. The Preamble declares that “We the People of the United States . . . do ordain and establish this Constitution for the United States of America.” And the Constitution required that it be established through a process of ratification by conventions in each of the states called for the sole purpose of ratifying it. The governed gave their consent.

To what did they give their consent? The Constitution creates an institutional framework of government, so it is short on idealistic rhetoric. Nevertheless the political equality asserted in the Declaration lies at the very core of the new government in the form of the elected legislative and executive officers. No American would be born with any right to rule over other Americans.

On two, four, and six year cycles those who exercised political sovereignty had to be elected by their peers. Renewed consent by the governed was an ongoing, inescapable requirement for the exercise of political power.

Even more indicative of the political equality at the base of the new government were the requirements for those who could be elected to those offices. There were only 2 requirements: different ages for the various offices, and residency. There were no stipulations about family of birth, about education, about wealth, about experience. There also were no stipulations regarding gender, race, or condition of servitude. As far as the Constitution was concerned, an illiterate American-born female slave of African origin could be elected to office. Voting rules in the individual states made such an outcome purely theoretical, but the fantasy makes clear that the Constitution embodies political equality of a very high order.

The possibility of continued re-creation of the form of government was embedded in the new Constitution’s Article V, which provided for amendments, and it was used almost immediately. The Constitution as presented to the ratifying conventions made no mention of the rights of people. Its chief author, James Madison, omitted any mention on two grounds. First, he believed that the democratic structure that he had designed was itself proof against any violation of citizen’s rights. Second, he was concerned that any listing of rights would inevitably leave out some rights. Popular demands made the addition of a Bill of Rights a requirement for ratification, so the initial ten amendments were added and ratified by 1791. The Ninth Amendment spoke to Madison’s concern about omitting an important right by stating that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Because of such language, new rights can be and have been defined by legislation and by decision of the Supreme Court of the United States. Jefferson’s “among these [rights]” lives on among us.

Finally, there is the record of Constitutional Amendments subsequent to the Bill of Rights. Since then, seventeen amendments have been added. Of those, five are housekeeping amendments, dealing with such matters as presidential disability. Two deal with the aberration of the prohibition against alcohol. The remaining ten amendments all provide for greater equality under our government: abolition of slavery, direct election of senators, woman’s right to vote, the ballot for 18 year olds, and so on.

 * * * * *

It is clear that the political philosophy presented in Declaration of Independence shaped the government crafted by the Constitution of 1787. Human equality is the great shaping idea of our governmental structure. That the function of government is to secure human rights equally to all of the people is an idea whose meaning has been steadily explored and expanded.

The question we are confronting today is whether we wish to continue under that philosophy. The issue has not been framed in such sweeping terms, and the varied special interests engaged in our culture wars obscure the profundity of the underlying issue: Do we wish to abandon the political philosophy that has shaped national life for nearly 250 years? Do we no longer want the function of government to be the securing to all Americans their equal rights as human beings? Should sovereign power continue to represent equally the rights of all Americans, or should we accept the proposition that the views of those with great wealth should be followed at the expense of the less prosperous?

Arguing whether government should be larger or smaller is fiddling while Rome burns. The question is what should it do and how should it do it. If the Declaration’s assertion that the function is to secure the rights of all is not the goal we wish to pursue, what other definition of the function of government should be used as our guide? If we still see securing our rights as our goal for government, how should that goal be pursued?

The Declaration’s language can provide a useful touchstone. If government is to secure my right to life, how does that bear on the problem of obtaining health care? If government is to secure my liberty, how does that bear on available education resources? If I am to pursue happiness, how can and should the government facilitate the process?

While few if any want a leveling equality, it is clear that there is a limit to inequality beyond which democracy cannot and will not survive. We can’t define that boundary with precision, but we have immense evidence that if we continue increasing inequality, we will not only lose our democracy but also will probably decay to the status of a third world nation.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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This entry was posted in Declaration of Independence, Equality, Human Rights, Inequality, U.S. Constitution and tagged , , , , . Bookmark the permalink.

One Response to The Declaration, the Constitution, and Equality

  1. Robert Fuller says:

    Dick —

    I read your latest post in London. So well argued, I imagined asking Scalia to try to refute it. –Bob

    Sent from my iPhone

    >

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