There are established positions on both sides here. The division is close to exactly how he frames it. Positive law lawyers and jurists prefer that it not be, and that the Constitution stand on its own. Those who believe (as the author) that natural law is necessary as a founding stone to give left-and-right limits to what positive law can morally and acceptably do prefer to read the documents together.
Readers probably know that I am of the school that makes the Declaration, and not the Constitution, the central document. The Constitution is not the first incarnation of the American project; it replaced the earlier Articles of Confederation. Even they were not the first incarnation, but the revolutionary governments which rejected British royal authority under the terms of the Declaration. The positive law formulations of any particular government are temporary and may be set aside when they cease to work; the principles of the Declaration are eternal, and explain how and when positive law governments may be set aside.
This is the principle the founders mentioned in the Federalist, which our author duly quotes:
“The first question is answered at once by recurring to the absolute necessity of the case; to the great principle of self-preservation; to the transcendent law of nature and of nature’s God, which declares that the safety and happiness of society are the objects at which all political institutions aim and to which all such institutions must be sacrificed.”
As he goes on to point out, the Articles were 'the institutions [which] must be sacrificed' on that occasion, and the reason that they had to be sacrificed rather than amended was that they were inadequate to the only real purpose of government according to the Declaration: defending the natural rights of the people.
In any case, it's some good preliminary reading for the bigger discussion to come.
26 comments:
The principles of the Declaration are eternal in theory, but not necessarily in practice. Take for instance The Declaration's statement that governments derive their just powers from the consent of the governed. 1861 established that, at least half the country, no longer believed in that principle. Consent achieved at the point of a bayonet isn't consent, it's coercion. Lincoln himself said, when he was a congressman, "Any people anywhere being inclined and having the power have the right to rise up and shake off the existing government and form a new one that suits them better. This is a most valuable, a most sacred right-a right which we hope and believe is to liberate the world. Nor is this right confined to cases in which the whole people of an existing government may choose to exercise it. Any portion of such people that can may revolutionize and make their own so much of the territory as they inhabit."
Obviously, Lincoln abandoned this principle when he became president, but it was a common belief prior to the late unpleasantness. Certainly it was consistent with the belief that government is legitimate only insofar as it possesses the consent of the governed. Now no one takes this principle seriously, or even believes it is necessary under the Constitution. If the behavior of our governing elite is any indication, they certainly don't believe they need our consent.
Yeah, but it was and still is difficult to argue, with a straight face, that adults held in slavery by one local law and returned to slavery AGAINST another local law (Dred Scott) have meaningfully consented to the national laws, interpretations, and compromises that produced such confusion.
Now, were we dealing with President Jackson, the national tariff, and state and federal wrangling over "Nullification", then, yeah for sure, the issue focuses on who (state legislatures or individual voters in each state, and etc) is or isn't part of the social compact. But let it be noticed that Jackson like Lincoln thought the federal Union contract established by his forbearers represented " the only good government on the Globe "
J Melcher, even Lincoln did not believe Blacks, free or otherwise, were part of the social contract. I would refer you to his statements on that issue in the Lincoln-Douglas debates. Furthermore, Lincoln even admitted that he did not inaugurate the conflict to end slavery. In Lincoln's 1862 letter to Horace Greely, editor of the New York Tribune, Lincoln stated "If I could save the Union without freeing any slave I would do it, and if I could save it by freeing all the slaves I would do it; and if I could save it by freeing some and leaving others alone I would also do that. What I do about slavery, and the colored race, I do because I believe it helps to save the Union; and what I forbear, I forbear because I do not believe it would help to save the Union." Lincoln was rather clear that preservation of the Union was his primary concern.
Preservation of the Union is certainly in line with the stated purpose of the Constitution, which is to form a more perfect union, whether or not the means used to do so are constitutional or not. But forming a more perfect union is not the purpose of the Declaration. It purports to communicate self-evident truths, one of which is that consent of the governed is necessary for a government to be legitimate. However, when that self-evident truth came into conflict with preservation of the Union in 1861 it was quickly jettisoned.
Consequently, history has determined that it is the Constitution (or at least it's purported purpose) which is now the central document, and not the Declaration. This is hardly surprising since the defeat of secession would have the effect of marginalizing a secessionist statement such as the Declaration.
I am not arguing that this is the way things should be, simply that this is the way things are. It should surprise no one that the cost of preserving the Union came at more than just the terrible cost in lives and treasure. Sacrificed on that alter was also the belief in the necessity of consent of the governed.
The articles of confederation state that it is a perpetual union. That was all understood when the constitution was written.
Don't simp for rich slave owners. As the cat-call went "Rich man's war, poor man's fight".
That is true, the Articles use that phrase at least four times. It is used exactly zero times in the Constitution. It's exclusion from the Constitution isn't because the Founder's were unfamiliar with the phrase. It's exclusion was purposeful. This is clear when one recognizes that the ratification conventions of states like Virginia, and even New York recognized they reserved the right to leave the Union if the government became destructive of the ends for which it was established.
Don't be a simp for centralizer's. Consent isn't a onetime thing. It must be maintained.
It is an interesting argument, that Lincoln's response to secession represents a kind of basic violation. I have often heard the other argument -- that slavery represented a kind of basic violation of the terms, even a 'contradiction' in the Marxist sense with the American project's basic ideals. The counterargument that consent can't be maintained with bayonets is also plausible.
The principles of the Declaration are nevertheless eternal, even if they are occasionally violated by tyrants of one sort, the other sort, or both sorts in succession. When we finally do decide to do away with this corrupted, once-noble system in favor of another, it will be the Declaration's ends that tell us what new forms might be legitimate; and it will be the Declaration's terms that make the revolution itself legitimate.
The Constitution's preamble states it's being to create a more perfect union. There's already a union. The constitution is an effort to make it better.
And neither the constitution or the articles mention secession at all.
Grant makes the point in his memoirs which is worth reading, that while the original 13 colonies may have gone their separate ways, once there was a constitution, and once new states were added, it wasn't really the case anymore. Florida was purchased by the country. Texas was annexed and fought for, by the country. You don't just get to leave after that.
The discussion of consent in this context brings to mind the British Captain Francis Rawdon's cutting remark at the beginning of the American Revolution: "Who are these drivers of negroes bleating about liberty?"
But that's really not what the issue is here and now. Nothing is going to be solved by fantasy of seceding from the Union. The union has to be fixed from within, state by state. Even the counties in Oregon that want to secede, don't want to become their own nation, they want to join Idaho.
"...Florida was purchased by the country. Texas was annexed and fought for, by the country. You don't just get to leave after that."
I imagine, though, that British loyalists had plenty of "you don't just get to leave after that" arguments at the time of the Revolutionary War. 'We fought to secure you against raids from French-backed Indians,' or 'We fought and died at the Battle of Bloody Marsh to keep the Spanish out of the colony,' or, 'Even after you betrayed King and Country to join the Jacobites, we gave you a second chance after transportation to the New World and resettlement in a frontier colony, where you could defend the other colonies as a penance for your violent natures.'
Ultimately none of those stories about 'why you can't leave' turned out to matter. They don't matter now, either. What matters (as Jack Sparrow said) is 'what a man can do, and what a man can't do.' They were able to make it happen; and when we can again, then we can leave, and not just Oregon for Idaho.
The difference between mere might makes right and legitimacy, though, is the standard of the Declaration. It's right to do it if and only if the existing government "has become destructive to these ends," those ends being the securing of the natural rights of man; and only for the purpose of setting better guards for those ends, and not to institute some new form of oppression (a new slave system, say; that would not be a moral decision, and even if one had the power to institute it one should never).
That is what I take to be the central point. When it comes up, which sadly isn't as often as it might be, old and corrupted forms can be set aside. They can morally be set aside if they are destructive of natural rights; and the only new forms that can morally be introduced are the ones that secure those rights effectively. That's it; that is the eternal standard of what right looks like.
What Grant conveniently failed to address in his memoirs is that the ratification process for the Constitution itself envisioned the possibility of states leaving the Union. The Constitution only had to be ratified by nine of the original 13 states to go into effect in the ratifying states. Four states could have remained separate. So much for "perpetual union."
Furthermore, your observation that "neither the constitution or the articles mention secession at all" is an excellent point, for my argument. In a constitution of enumerated powers government only has those powers specifically granted to it. If the document is silent on the topic then whatever action or authority associated with that topic is retained by the citizens or even the states. This is explicitly recognized in the Ninth and Tenth Amendments. If the Constitution doesn't mention secession then, according to the Tenth Amendment, the states retain that right.
The Union, or any form of government for that matter, is not an end in and of itself, but a means to an end. That end is, as the Declaration states, the securing of certain rights through consensual government. This continues to be relevant because it goes to the very heart of legitimate government action and the relationship between the governed and the government.
This is explicitly recognized in the Ninth and Tenth Amendments.
Which were obviated, for practical purposes, by the 17th Amendment instituting direct election of Senators.
I'm pretty old, and cannot remember a time when the 9th or 10th was actively invoked or obviously in practice. Rumor has it that Gorsuch is a States' Rights guy; we'll see.
Dad29,
I'm afraid I don't see the connection between the 17th Amendment's direct election of Senators and the 10th Amendment's provision that "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."
Unless the 9th and 10th Amendments were repealed like the the 18th (Thank God!) they're still as much a part of the Constitution as any other article or amendment.
It would help me to understand what exactly “consent of the governed” means in the Declaration. I should probably go read Locke more seriously (I have skimmed through the second of his Two Treatises on Government, but not really studied them).
I know there is no right to vote in the Declaration or Constitution, but voting seems bound up with the consent of adult citizens. It’s hard to see how women could have consented to be governed by a government they had no say in, or propertyless men, or black freedmen. Of course, immigrants consent by voluntarily moving here. I’m not arguing voting is the only way to give consent.
Then, is a government that forces some of its people to live in a state of slavery legitimate? How can it have the consent of the governed? If those enslaved were given their proper rights and allowed to vote, surely the composition of the government would be different. Also, since the only proper end of government is securing the rights of the people, such an egregious failure to do so would itself seem to delegitimize the government.
And then what about the Native American nations? In 1827, the Cherokee Nation attempted to form its own sovereign nation within the state of Georgia, but the government of Georgia refused to recognize them. Just considering the Declaration’s principles, it seems like Georgia was wrong. What about Indian Removal? That seems to violate several principles in the Declaration.
And what stops a state (or any political unit) from disintegrating? Or is it OK if a state disintegrates? Should counties be allowed the freedom to break away from states whenever they want? Should towns, or families, be allowed to break away from counties? What about an old hermit? Can he form a nation of one?
Just to reiterate, I’m not asking any of these as Constitutional or legal questions, but as issues of principles in the Declaration. I’m interested in what “consent of the governed” really means as a living principle in practice.
Consent of the governed, as used in the Declaration, is a concept that developed over the long, and often bloody, history of English constitutional development. It has its origins in The Charter of Liberties (1100) and Magna Carta (1215). It is a contrast to the concept of the divine right of kings that maintained the monarch could do whatever he wanted and his subjects simply had to accept it. It means the consent of citizens to the acts and form of government as manifested through their representatives.
At the time of the Declaration, the concept of citizen did not extend to black slaves, which were present in every colony, white indentured servants, American Indians, women, propertyless men, etc. Obviously, the franchise has expanded (thankfully) but the principle is still applicable.
What does it mean in practice? That governmental power is only justified when consented to by the citizens over which that political power is exercised. Furthermore, it is the responsibility of those who wield that power to do so in a way that maintains that consent. Consent is not a one-time thing that can never be revoked. I think Congressman Lincoln said it best when he stated "Any people anywhere being inclined and having the power have the right to rise up and shake off the existing government and form a new one that suits them better.”
Should counties be allowed the freedom to break away from states whenever they want? Yes, as long as that is what the citizens want as manifested through their popular vote or that of their representatives.
Should towns, or families, be allowed to break away from counties? Towns throughout the country often incorporate into different counties or unincorporate from existing counties. This already happens, so yes. Does this apply to families and hermits? No, the governed refers to the people of a political entity not individuals or single families, both of which can separate from a society by simply moving away.
Trying to make the South the aggrieved party and arguing that the Rebellion of the Southern States should not have been opposed by military force because Constitution and Declaration carries with it the bad odor of not just accepting that slavery existed at the Founding and resulted in certain compromises but of being at best indifferent to its continuation.
A serious threat to the continued existence of slavery as represented by election of a President from an avowedly anti-slavery party as well as the virtual certainty that free states would overwhelm slave states in the Senate was the only reason slave-friendly states would attempt to form their own country. A serious threat to create a potentially, maybe even likely, hostile power within the same continental space, seeing that the history of the country to that point had been one of almost continuous warfare against European colonial and Native Indian powers stretching back to before the Revolution, was the only thing that would provoke the remaining states to oppose that effort with military force. (Whatever hyperbole about F15s and nuclear weapons is invoked by various politicians, I would expect the same response to a serious rebellion in the present day.)
Jefferson et al knew what they were doing when they wrote the Declaration. While it would have been nice to imagine either a reconciliation or a peaceable dissolution, they were declaring the British Crown to be a power hostile to the interests of Americans and fully expected to secure those interests with shot and steel. Even if you accept some right of succession to exist, once those ties are broken, securing the existence of the Confederate States was on the same footing as securing the existence of the American nation, or indeed any nation. The Constitution and Declaration have nothing to say about that situation. One marvels that the same people who claim the South had the right to discard the Declaration and Constitution as written also argue that the North should have been constrained in its response by the same Constitution and Declaration, especially after declaring themselves not bound by it.
The South simply had the bad luck to come up on the losing end of the resulting War. As an ex-Iowa farm boy and current resident of Kentucky I try to be sympathetic when the South and Southerners are unfairly maligned, as Grim posted on that NYT opinion piece, having been on the receiving end of a fair amount of derision of fly-over country, but in this case my attitude is 'get over it already.' The ruling on the case was made at, appropriately, Appomattox Court House. The Union contemplated by the Constitution is going to endure as long as a sufficient mass of the polity living under the government so constituted desires it to exist.
The Constitution clearly contemplates changes in the form and functions of the national and subordinate governments by its own operation, and those changes have in fact occurred, provided those changes are supported (one might even say consented to) by a sufficient mass of the population. I certainly sympathize with being an aggrieved minority, and personally oppose many of the policies that seem to be popular with a majority of the citizenry today, but the Constitution as currently understood does not allow for its own destruction.
I guess I was right that this would engender a useful initial discussion.
Christopher B, I notice that you've shifted the ground from the question of whether the Declaration's principles underlie/constrain the Constitution to another question of state power. I think you are partly wrong about the Constitution having 'nothing to say' about existential situations. It says several things that are directly relevant -- that the Congress shall be the part of the government to declare war but that the President may quell insurrections, and that the Congress shall order the army's structure and discipline, that an army won't be allowed to stand beyond two years, that the writ of habeas corpus shall not be suspended, etc.
It does not anywhere state that emergencies of any sort whatsoever allow the suspension of rights or Constitutional practices, although even in lesser emergencies they are suspended. Lincoln famously suspended habeas, but even during the COVID emergency several constitutional rights were suspended or limited extra-constitutionally. (And the standing army bit is just outright ignored even in the most peaceful times.)
I don't think it's true, either, that the South intended to violate the Declaration of Independence. I think they thought themselves to be another iteration of it. It's been decades since I read it, but if you're interested in the question of how faithfully they thought they were following those principles I recommend William C. Davis' history:
https://books.google.com/books/about/A_Government_of_Our_Own.html?id=IX5flAEACAAJ
Now you may be right that the Constitution does not contemplate its own destruction; but as Eric said, the Articles of Confederation also contemplated a "perpetual" union. Ultimately, I contend, the failure to successfully defend the natural rights of the people justifies dissolving any form of government -- this one as any prior one, and any future one as well.
That seems to me to be the relevant point. It doesn't matter whether the government or the lawyers think the people have a legal right to dissolve the government if the government has become hostile to their rights. The Declaration's principles say they do, and I agree.
For the purpose of clarity and historical accuracy, when discussing Southern secession in the 1860’s it is important to keep in mind that it involved more than the single issue of slavery. Slavery was an issue in leaving the Union, to varying degrees, for the first seven states of the deep south. For instance, it was the primary issue for South Carolina while for Texas it was only one in a long list.
Slavery was not the issue over which the four states of the upper South left the union. Those states only separated after Lincoln called for 75,000 volunteers for an invasion of the seven deep South states. Virginia actually voted down the initiative to leave the Union over slavery.
I would agree that leaving the Union over the issue of slavery, to any degree was wrong, irrespective of the legal right to do so. However, I cannot argue against the reasoning of those states that left the Union because they believed a union that could only be maintained through force had ceased to be a union in reality.
One more observation. While the Constitution does not contemplate its own destruction, neither does it envision compulsory membership. Remember, the ratification process didn’t even require all states to accept it. Furthermore, its silence on the issue of secession, in conjunction with the 10th Amendment, certainly leaves that door open.
That's the second time you've raised the 10th Amendment point, Joel, and it's a reasonable one. The 10th Amendment specifies that all powers that are neither explicitly assigned to the Federal government nor forbidden to the states are reserved to the states, or to the people. Now the power to secede or dissolve the union is a power that exists: it is a thing that could, practically, be done. It is neither assigned nor forbidden. Therefore, logically, the Constitution's explicit terms seem to reserve it to the states or the people.
The only SCOTUS ruling on this is Texas v. White in 1869. The relevant paragraphs are 100-101. It seems to take both sides of this debate, using the terms "indestructible" and "indissoluble," and asserting that the compact was permanent and final. Yet it also closes by saying that the union could be dissolved by either the people or the states: "...except through revolution, or through consent of the States." That 'except' following such touch language seems coherent with the 10th amendment resolution that you are proposing.
https://www.law.cornell.edu/supremecourt/text/74/700
As I've said before, the American civil war is just another example of Democrats not accepting the outcome of an election. Stop pushing this consent of the governed, because just like recent events, the Democrats only consent to the outcome of the election if they win it.
The constitution could absolutely be amended to its end by passing an amendment stating that the constitution ends after 30 days after the passing of the amendment, or something like that.
And you'd only need 2/3 of the state to agree.
3/4ths to ratify, 2/3rds to propose for ratification, but yes.
Joel, thank you very much for your explanation.
Another question I have on the topic of "consent of the governed" is, are we happy with its state in the US today? Have the answers we’ve ended up with applied the principle in the best way? Since this touches on the legitimacy of government, I don’t think it’s a superfluous question.
In part, what has made me think about this are recent suggestions mainly on the Left but also on the Right to change who gets to vote by lowering the voting age, etc. In some way that neither the Declaration nor Constitution address, consent, representation, and voting are all tied together but not quite the same thing.
Another thing that brings this up is the broken state of federalism. When the states agreed to the Constitution, they were agreeing to cede some powers to the federal government and retain others for themselves. It's clear that various USSC rulings, I think especially in the early 20th century, have greatly changed that balance. I don't see, except by not seceding, how the states agreed to these changes. Do the states, and the citizens of those states, still consent to this Constitution?
Of course, the Left widely decries parts of the first amendment and all of the second, so maybe blue states no longer consent, either, but I see that as a different case. They did consent at the time, and the proper way to revoke previous consent is through the amendment process. But no state consented to the drastic change in the Commerce Clause wrought by the USSC.
Tom,
You have asked some very good, and serious, questions. I wish I had good answers for you. I think it's clear most people are not happy with where we are at as a country and want things to change. I certainly do.
I would prefer we stay together as one country. However, given the deep, and deepening, divisions in our society, I often wonder if that's possible in the long term. I believe our only hope lies in a reinvigorated commitment to federalism. Unless we as a country (left, right, and center) agree that a one-size-fits-all approach to governance is incompatible with union, then I don't see how these divisions get resolved peacefully, for which I most ardently hope.
I completely agree with you there, Joel.
What do you think about the Convention of States project?
I like the idea of new amendments to re-establish a strong federalism, but I also think the change we need has to get into citizen's heads as well. The best constitution and legal code will not be much good if the mass of citizens do not believe in them.
Tom,
On one level, I like the idea. On the other hand, the vast majority of citizens these days simply don't think in constitutional terms, or give much attention to the philosophical issues that underlie those terms. Consequently, I'm not very hopeful about what would result from such a convention.
Agreed, alas.
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