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The Declaration of Independence - James McClellan, Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government 
Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government (3rd ed.) (Indianapolis: Liberty Fund, 2000).
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The Declaration of Independence
Prodded by Thomas Paine’s widely circulated pamphlet Common Sense, which passionately stated the case for permanent separation and convinced Americans at last that British officials were determined to subdue the colonies at any cost, the American people advanced step by step toward a final break. On July 4, 1776, they announced their decision to leave the empire. Although John Adams and Benjamin Franklin served on the committee that was charged with the responsibility of drafting a statement, the principal author of the Declaration of Independence was Thomas Jefferson.
The document is divided into two parts. The first offered a philosophical justification for secession, based on the theory that all men are entitled to certain basic rights, that the purpose of government is to protect those rights, and that the people have the right to abolish that government if it fails to fulfill its obligations. “We hold these truths to be self-evident,” wrote Jefferson,
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. That to serve these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. That whenever any Form of Government becomes destructive of these ends, it is the right of the people to alter or abolish it.
In the second part of the document, Jefferson presented a long list of grievances against the King and Parliament, including those contained in the 1774 Declaration, to demonstrate the many ways in which the government had endeavored to establish “an absolute Tyranny over those States.” The document ended with an appeal to God “for the rectitude of our intentions” and a solemn declaration that the thirteen colonies were now “Free and Independent States … absolved from all allegiance to the Crown.” Fifty-six delegates signed the document, asserting that “we mutually pledge to each other our Lives, our Fortunes and our sacred Honor” to defend the country at any cost.
The Declaration of Independence is one of the most famous documents in the history of the world and from its inception has exerted a powerful influence on mankind. It has inspired revolutionary leaders abroad and has become such a basic ingredient of the American political tradition as to be regarded by some as almost part of the Constitution itself. Yet it has also been a source of profound disagreement, an object of continuing interest and debate, and in some respects an enigma. This may be attributed in large measure to the fact that the first part of the Declaration, the preamble, which has been the cause of these disputes, is obscured by vague and ambiguous language that is susceptible to different interpretations. As a result, there has always been some uncertainty about the exact origin and nature of the rights proclaimed. It is no small irony that Jefferson Davis, the President of the Confederacy, and Abraham Lincoln, President of the United States, both found support for their positions in the Declaration of Independence, Davis claiming that the Confederate States had a right to secede and declare their independence, and Lincoln asserting that slavery was incompatible with the principles of the Declaration.
As we noted in our examination of the Declaration and Resolves of 1774, the colonists experienced difficulty and disagreement in deciding whether to base their rights on the laws of nature, the common law and the English constitution, or their colonial charters. In the end, they opted to muddle their way through the problem by claiming that Parliament had abridged their natural rights, their common law rights, and their chartered or prescriptive rights. This confusion or inability to agree among themselves was carried over to the Declaration of Independence two years later. Thus in the preamble of the document Jefferson presented an argument for the right of revolution and secession based on the philosophy of natural rights; but when he turned to an enumeration of rights that had been abridged, he mentioned only constitutional, common law, and charter rights.
One right prominently mentioned, for example, is the right of trial by jury. This is a common law right, of course, that has never been regarded as universal in nature and is not even recognized under the Civil Law. Is the reference in the document to the “laws of nature” anything more than political rhetoric? What did the colonists mean when they asserted that “all men are created equal” and that they are endowed by their Creator with “certain” unalienable rights?
Puzzled by these anomalies, later generations called upon Jefferson after he had retired to Monticello to clarify the meaning of the document. Disclaiming any originality of thought, and seeing no inconsistencies, Jefferson told one correspondent in 1825 that the purpose of the Declaration was “not to find out new principles, or new arguments never before thought of … but to place before mankind the common sense of the subject.” Jefferson was, in fact, accused of plagiarizing the views of others. The preamble of the Declaration of Independence bears a striking resemblance, for example, to the first part of the Virginia Bill of Rights, which George Mason wrote almost a month before the Declaration appeared. John Adams, who wrote the Declaration and Resolves of 1774, and the Resolution for Independence of May 1776, thought that the Declaration of Independence was founded on these two documents. On the other hand, Richard Henry Lee accused Jefferson of copying from Locke’s Second Treatise, and another charged that he had simply lifted the wording from one of James Otis’s pamphlets. Jefferson denied that he had relied on any single book or pamphlet, however, and insisted that the thoughts contained in the Declaration were derived from his general reading and knowledge of government and political philosophy. The Declaration of Independence, he said, “was intended to be an expression of the American mind. … All its authority rests then on the harmonizing sentiments of the day, whether expressed in conversations, in letters, printed essays or in the elementary books of public rights, as Aristotle, Cicero, Locke, Sidney &c.”
But this explanation serves only to increase the confusion. Modern natural rights philosophy, as represented in the writings of Locke, is a rejection of classical political thought and the traditional natural law philosophy. Neither Aristotle nor Cicero subscribed to a natural rights theory, and Aristotle’s teaching on the origin of government is contrary to Locke’s Second Treatise.
To understand the natural rights philosophy of the Declaration of Independence, it is essential that we pause to compare and contrast it with the natural law philosophy. We begin with Aristotle. According to Aristotle, man is by nature a political animal. It is his nature to live with others and to establish the family unit. This gives rise to groups of families and household communities, which unite for mutual protection and to satisfy human wants and needs. These in turn join together to create the city-state. This is the origin of civil society. Government, then, is natural to man. The study of history and anthropology, we should note, confirms Aristotle’s view. There is no evidence that mankind has ever lived in complete isolation. “A man alone,” it is said, “is either a saint or a devil,” and not of this world.
Aristotle was part of what is called the natural law tradition in Western thought, which began with the ancient Greeks. The idea of natural law stems from the belief that there is a higher law governing political rulers and the affairs of mankind which emanates from God. This higher law, said Aristotle, is knowable through reason. St. Thomas Aquinas, the thirteenth-century theologian who adapted Aristotle’s teachings to Christian beliefs, wrote that revelation, that is, God’s word as revealed through scripture, supplemented reason as a source of understanding the natural law.
What, in substance, is the natural law? By natural law we mean those principles which are inherent in man’s nature as a rational, moral, and social being, and which cannot be casually ignored. The term is confusing at first because it suggests the laws of physical nature, such as the laws of chemistry or physics. Natural law refers, however, not to physical but to human nature. We mean by this term not law which has been enacted, but the law which has been, or may be, discovered by man’s reason and experience. In essence, it is a system of ethics for governing the political and legal affairs of man. It insists that there are universal truths, such as justice, and that such truths are knowable through reason and revelation; and that to violate them is to contravene the natural law. In a famous passage in De Republica, Cicero described the natural law as “true law”:
True law is right reason in agreement with Nature; it is of universal application, unchanging and everlasting; it summons to duty by its commands, and averts from wrongdoing by its prohibitions. And it does not lay its commands or prohibitions upon good men in vain, though neither have any effect on the wicked. It is a sin to try to alter this law, nor is it allowable to attempt to repeal any part of it, and it is impossible to abolish it entirely. We cannot be freed from its obligations by the Senate or people, and we need not look outside ourselves for an expounder or interpreter of it. And there will not be different laws at Rome and at Athens, or different laws now and in the future, but one external and unchangeable law will be valid for all nations and for all times, and there will be one master and one ruler, that is, God, over us all, for He is the author of this law, its promulgator, and its enforcing judge.
Constitutionalism, it should be observed, is a product of this natural law idea that there are certain unalterable truths, and that kings, parliaments, and judges as well as the citizens are and should be governed by them.
But if there is such a thing as a natural law of justice, what explains the fact that the meaning of justice is not exactly the same in all societies? Since the idea of liberty varies, in one degree or another, from one civilization to the next, how can there be only one objective standard of liberty? When the institution of slavery was debated in the United States in the early nineteenth century, some Americans argued that slavery was just and others insisted that it was unjust. Which view is correct? Philosophers have pondered these cultural diversities and differences of opinion for many years. Some have contended that such concepts as liberty and justice are illusory and mean whatever each society chooses to call them. A school of thought known as positivism, founded in the nineteenth century by a French philosopher named Auguste Comte, contended, for example, that the only truths were scientific truths, as determined by the scientific or empirical method. Since we cannot prove in a laboratory what liberty or justice means, suggested Comte, they have no meaning. Applying such assumptions to laws, the legal positivists asserted that the whole idea of natural law was a myth. A law is a law if it has passed the legislature, they said, because we can prove that it did or did not pass. But we cannot scientifically prove that the law protects liberty or justice because we don’t have any way of knowing what these terms mean. Judges, therefore, should treat all laws the same, the only test of legitimacy being whether the law was formally enacted by the rules prescribed. “Who is to say,” said the positivist, “whether a law is good or bad? Who is to say what is right or wrong? One man’s opinion is as good as the next man’s.”
The natural law philosophers rejected this theory of knowledge. It is true, they conceded, that ideas about liberty and justice may vary. But the opinion of one, of many, or even the opinion of all, is not the test. A majority may even declare that a particular ruler, or law, or individual act, is just. But that does not make it so. Whole societies have committed murder and atrocity in the name of justice. What is legally just may not be what is naturally just. The test of truth, said the natural law thinkers, is not what people perceive it to be, or what they call it. There is, they insisted, a higher, more objective standard. Such qualities (or values) as honesty, integrity, courage, beauty, and of course liberty and justice, cannot be scientifically demonstrated; but this is not to say we are wholly incapable of understanding them and are totally ignorant of their meaning. Thus through reason and revelation, contended the natural law philosophers, it is possible for the human intellect to understand the natural law—if not in its entirety, then at least in part. At bottom, the doctrine of natural law is basically an assertion that the law is a part of ethics.
The idea that individuals uniformly possess certain “rights” against the state did not form a part of the natural law philosophy. There are certain aspects of human nature that are common to all; but no two individuals are exactly the same, and the differences among them are often considerable. It was Aristotle’s view, for example, that entitlements differ from one individual to the next, according to each person’s nature. Aristotle even maintained that slavery for some individuals is natural because some people are, by nature, incapable of being educated to virtue and are not suited to be masters. The notion that all men have “natural” or equal rights to life, liberty, and property (or to the pursuit of happiness) is foreign to Aristotle’s teachings. The whole emphasis of traditional natural law, in fact, is not on rights, but on man’s natural duties and obligations—to God and to his family, community, and country.
In the writings of John Locke and other natural rights thinkers, we encounter a different view of the origin and purpose of government. The true natural state of man, argued Locke in his Second Treatise, is not civil society, as Aristotle said, but the state of nature. There was a time, he suggested, when all men lived not in family units or villages but in a state of nature. Roaming the plains and forests at will, each man was free to come and go as he pleased, without restraint, and to enjoy “life, liberty and estate (property).” These were the rights, said Locke, that each man exercised in the state of nature, and these rights were therefore the “natural rights” of man.
But life in the state of nature was not idyllic. Thomas Hobbes, a seventeenth-century natural rights philosopher, in his work Leviathan (1651), reasoned that life in the state of nature must have been “nasty, brutish, and short.” For Locke, it was more of an inconvenience than a state of misery. Whatever the condition of man in this state of nature, his natural rights were not secure, and he found it necessary, therefore, to leave this existence in order to protect these rights. According to both Hobbes and Locke (and later Rousseau), this was accomplished by means of a social contract—that is, man contracted out of the state of nature to create society. How this was accomplished, and how there could be an act of government before government was actually created, Locke did not say. Having now formed society by a social contract, the members then entered into a political contract with their rulers to establish a government. By the terms of this second contract, the subjects agreed to obey the government and the government in turn agreed to protect the natural rights of each individual. Should the government fail to provide this protection, the members of society had the right to replace the old government with a new one, thereby exercising their “right” of revolution. Locke’s theory of natural law, in other words, was not a theory of natural law at all, but a theory of natural rights.
All of this “state of nature” business is pure fiction, of course, but there were some who talked glibly about “natural rights” in the founding period and believed they possessed them. Like most Americans of his day, Jefferson failed to grasp the inherent contradictions between natural law and natural rights doctrines, and he therefore saw no inconsistency between Aristotle and Locke. It would be the task of later generations to sort out the confusing and sometimes conflicting precedents that had laid the foundation of rights in America. There can be no doubt, however, that some Americans thought they had been endowed by their Creator with so-called natural rights and acted upon that assumption.
But how do we distinguish desires from rights? If there is any basis to the natural rights claim—and some contemporary scholars say there is—it is in spite of Locke’s Second Treatise, not because of it. The argument has been made, for example, that individuals in all societies (but not all individuals in all societies) by nature and instinct desire at least some personal freedom. From this observation it might be concluded that freedom is a “natural right.” But it would be “natural” because it conformed to the nature of man in organized society, not because it sprang from an anarchical and mythical state of nature.
The provision of the Declaration of Independence that has aroused the greatest controversy is Jefferson’s statement “that all men are created equal.” This was a poor choice of words, for it is obvious that the phrase does not mean what it says. Neither Jefferson nor any other member of the Continental Congress seriously believed that all people are equal. “In what are they created equal?” inquired a critical Englishman who read the Declaration. “Is it in size, strength, understanding, figure, moral or civil accomplishments, or situation of life?” The Americans, he asserted, “have introduced their self-evident truth, either through ignorance, or by design, with a self-evident falsehood, since I will defy any American rebel, or any of their patriotic retainers here in England, to point out to me any two men throughout the whole world of whom it may with truth be said, that they are equal.”
Nor could Jefferson have possibly had in mind the type of “egalité” proclaimed by the French revolutionaries a decade later—that is, a radical leveling of society to a common stratum through government imposition of political, social, and economic equality. By the word “equal,” the gentlemen freeholders who signed the Declaration of Independence did not mean a massive redistribution of the wealth, the eradication of all social distinctions, or universal suffrage. Moreover, the Americans could hardly boast that they had extended equal treatment to their fellow American Loyalists. “If the right of pursuing happiness be unalienable (not transferable),” argued John Lind, a London barrister, “how is it that so many others of their fellow-citizens are by the same injustice and violence made miserable, their fortunes ruined, their persons banished and driven from their friends and families?”
A more plausible interpretation of what the members of the Continental Congress intended by the assertion that “all men are created equal” would be to suggest that they meant the American people, as a nation, were entitled to the same rights as Englishmen. This is certainly what they believed, but the words do not very adequately convey this understanding either. If that is what they thought, why did they not declare simply that “all men are entitled to equal rights” or that “all English citizens are created equal”? We are left with the cryptic remark of Rufus Choate of Massachusetts, one of America’s most eminent lawyers in the early nineteenth century, who dismissed the famous proclamation as a hodgepodge of “glittering and high-sounding generalities of natural right.”
The Preamble of the Declaration of Independence, it would seem, embodies a theory of government that does not withstand the test of modern analysis. There is no denying that it contains sweeping propositions of doubtful validity. It must ever be remembered, however, that in politics what may seem true in theory is false in fact, and that the reverse is equally valid: political doctrines, though philosophically suspect, sometimes have a life of their own. A more generous reading of the Declaration of Independence would be to look upon it for what it was, what it became, and what its authors may or may not have intended: as a political manifesto, an impassional plea, or an overstatement, we might say, in defense of certain ideals. Had the colonists rested their case on the English Constitution, the common law, and their colonial charters alone, they would have made essentially the same claims in the preamble that they made in the body of the document. The weakness of their philosophical argument, in other words, should not be allowed to obscure or detract from the strength of their political and legal case against the British. They did not need to prove the validity of the natural rights theory in order to validate their claim that they were entitled to certain prescriptive rights they had inherited from their ancestors.
The rhetoric of the Declaration served to inspire Europeans battling privilege and autocratic government, and in due course the ideal of equal rights inherent in the Declaration made slavery increasingly objectionable in the United States. In the famous Lincoln-Douglas debates of 1858, Stephen Douglas stated his belief “that the Declaration of Independence, in the words ‘all men are created equal,’ was intended to allude only to the people of the United States, to men of European birth or descent, being white men, that they were created equal, and hence that Great Britain had no right to deprive them of their political and religious privileges; but the signers of that paper did not intend to include the Indian or the Negro in that declaration, for if they had would they not have been bound to abolish slavery in every State and colony from that day? Remember too that at the time the Declaration was put forth every one of the thirteen colonies were slaveholding colonies; every man who signed that Declaration represented slaveholding constituents.”
Lincoln did not deny these facts. But he insisted nevertheless that all of the slaveholding communities “greatly deplored the evil.” This is why “they placed a provision in the Constitution which they supposed would gradually remove the disease by cutting off its source. This was the abolition of the slave trade.” Thus, said Lincoln, it may be asked: “if slavery had been a good thing, would the Fathers of the Republic have taken a step calculated to diminish its beneficent influences among themselves?” The Declaration, he contended, stands for the principle of equal justice, and if exceptions are made, “where will it stop?” It was meant by the Founders to serve as “a beacon to guide their children and their children’s children” in the interminable struggle against special interests and privilege, in the hope that “their posterity might look up again to the Declaration of Independence and take courage to renew the battle which their fathers began—so that truth, and justice, and mercy, and all the humane and Christian virtues might not be extinguished from the land.” In large measure, the commitment to equality that Lincoln found in the Declaration of Independence was essentially a moral equality, or the Christian doctrine that everyone is equal in the eyes of God. Lincoln’s interpretation prevailed, and it was the preamble of the Declaration of Independence which elected him to the presidency and produced the Thirteenth Amendment.
In 1776, the slave trade was universally accepted by civilized as well as barbarous nations. Looking back, we see that the Americans, like their European counterparts, only gradually came to appreciate the evils of slavery. Despite the great outpouring of philosophical tracts in defense of liberty, few Enlightenment thinkers called for an immediate end to slavery, and some ignored it altogether. The name of John Locke and the doctrine of natural rights are commonly associated with the Declaration of Independence, as we have seen, and some have argued that his imprint is evident in the preamble of that great document. Yet it is a melancholy fact that Locke was an investor in the Royal African Company and clearly regarded Negro slavery as a justifiable institution. In his Second Treatise, he spoke of slavery as “vile and miserable,” but as the author of the Fundamental Constitutions of Carolina, which were promulgated in 1669 for the governance of the Carolina colonies, Locke stipulated that “every freeman of Carolina shall have absolute power and authority over his negro slaves.” Montesquieu attacked the traditional justifications for slavery, however, and Burke drafted an elaborate code to make both the African trade and colonial slavery more humane. The Quakers, followed by other Christian sects, came to the view that slaveholding was a sin against God, no matter how benevolent or charitable. Many leaders of both the American Revolution and the Abolitionist Movement, it is worthy of remarking, were members of the clergy.
The American Revolution probably served as a catalyst for anti-slavery sentiment by awakening a deeper appreciation of individual liberty. The debate with England produced a great body of literature on the meaning of freedom and the rights of Englishmen; and it stimulated interest in older works on political thought, history, and law that helped to justify the American cause. Above all, the case against the British rested on the thesis that Americans were entitled to the same rights as Englishmen at home. This demand for equal rights was the main thrust of the Declaration of Independence, which laid the foundation for the argument against slavery. Indeed, it was the Declaration of Independence, not the Constitution or the Bill of Rights, around which many opponents of slavery rallied for support in the nineteenth century. Beginning in the 1830s, some Abolitionist leaders condemned the Constitution as a “covenant with death” because, they said, it protected and perpetuated the slavery system. The Constitution, they charged, had subverted the ideals of the Declaration of Independence. At an anti-slavery rally in Massachusetts in 1854, the Abolitionist leader, William Lloyd Garrison, burned a copy of the Constitution before an angry crowd that had gathered to protest the capture of a fugitive slave. “An agreement with hell,” he called it. “So perish all compromise with tyranny,” he cried out as the document went up in flames. Other anti-slavery leaders contended that the alleged contradiction between the Declaration of Independence and the Constitution as depicted by some Abolitionists was actually a misreading of the documents. Slavery had already been abolished by the Declaration of Independence, they reasoned, and the Constitution was being manipulated by politicians to keep slavery in place.
If in their relations with Great Britain the Americans had a right to equal rights, it seemed to follow, said later generations, that in their relations with each other, all of the American people had a right to equal rights. Such, in fact, was the very basis of the principle of equality before the law—although in 1776 our understanding of this aspect of rule of law was rather muddled and confused. Even as the colonial patriots paraded through the streets of Boston, Philadelphia, and Charleston, however, and raised on high their proclamations of liberty, there was an inherent contradiction that suggested hypocrisy in the minds of some Tories. Here was a Declaration of Independence written by Thomas Jefferson, a slave owner. Here were thirteen colonies, all of them legally recognizing slavery, declaring their love of freedom. “How is it,” quipped the great English writer Samuel Johnson, “that we hear the loudest yelps for liberty among the drivers of negroes?” That slaveholders should be fighting for their freedom in the name of the rights of man was indeed a paradox, and with each passing generation public awareness of the inconsistency between the American ideal of equal rights and the American practice of slavery became ever more pronounced. Yet the English were hardly any more intolerant of slavery than the Americans. Before the American Revolution, approximately one-third of the British merchant fleet was engaged in transporting fifty thousand Negroes a year to the New World. Parliament did not abolish slavery in the English colonies until 1833. It would be erroneous to conclude from this, however, that the English and the Americans, particularly those who participated in the writing and adoption of the Declaration of Independence, were insincere or hypocritical about their declarations of liberty. The growth of freedom in Anglo-America, it must be remembered, came about gradually. It began with the struggle between the King and the English nobility and trickled down to other classes, each claiming rights and privileges that were previously enjoyed only by the few. In 1776, this evolutionary process was still in its infancy, and the notion that all persons were entitled to the same rights was simply inconceivable to the average freeholder. The freemen saw their task as protecting their hard-fought rights, not creating new rights for others. Granting full rights of citizenship to women, to one’s slaves and bonded servants, to Indians, to new immigrants speaking a foreign tongue, or to those without property was regarded as dangerous and contrary to the best interests of society. The democracy they practiced was limited to the ruling class, which included most white males, but it would be another century or more before all adults were part of that class and were participating freely in the democratic process.
It is interesting to note that the original Constitution of 1787 contained no provision guaranteeing equal rights. Nor did the Bill of Rights. To a degree, it is implicit in the Thirteenth Amendment abolishing slavery; but it appeared explicitly for the first time in the Equal Protection Clause of the Fourteenth Amendment. In a way, then, the Constitution has been amended by the Preamble of the Declaration of Independence.
There are different kinds of equality, as we have observed, however, and it is important to understand the distinctions among them from a constitutional standpoint. Some forms of equality are clearly compatible with individual liberty, equality before the law or equal rights being the most obvious. In this category we would also want to include equality of opportunity and the Judeo-Christian concept of moral equality based on the doctrine of original sin. These forms of equality are generally consistent with the ideal of individual liberty because they may be attained without coercion. No one is forced to act against his will, and no one is deprived of his earthly possessions, his earnings, his job and occupation, or his status in society, if the law is applied equally to all, and if all are given an opportunity to make their own way and carry out their own plans. Nor do these forms of equality conflict with any of the basic principles of the Constitution.
If an individual is free to participate in the political process by voting in an election or running for office, he possesses political liberty. If this freedom is exercised by all or most of the adult population, there is also political equality. This form of equality does not entail the use of government coercion. No one is forced to vote and the act of voting does not force others to act against their will. Political equality is therefore another form of equality that is compatible with individual liberty. Political liberty, to put it another way, is an important means to individual liberty, and the broader the franchise the greater the degree of political equality. There does not seem to be much support for political equality in the Declaration of Independence, however, in view of the widespread acceptance of a limited suffrage in 1776. Certainly less than half of the adult population enjoyed political liberty when the Declaration of Independence was written, and it would be inaccurate to interpret the document as a call for an expanded suffrage. The Americans demanded the same rights as Englishmen, not the right to vote. Between 1800 and 1860, virtually every State constitution adopted in 1776 was amended or revised to allow for an expanded electorate. The only exception to this general trend toward democratization was the abolition of voting privileges for free Negroes in Maryland, North Carolina, and Virginia as a result of increasing unrest over the slavery issue. This push for more democracy in the American political process, however, was largely independent of the anti-slavery movement that sprang from the Declaration of Independence. To the extent the Declaration affirmed the principle of political equality, it was a demand by the American people that they be given the same political rights collectively as other British citizens, not that each American be granted political liberty individually.
Social and economic equality, on the other hand, finds no support in the Constitution or in the political tradition that grew out of the Declaration of Independence. In 1776, as is true today, American society was very much diversified, and inequalities respecting wealth, property ownership, education, social status, and the like were part of the natural order. To reduce the entire American population to a single class of people, devoid of all social and economic distinctions, would have required massive and interminable coercion, resulting in a loss of individual liberty. Such drastic measures were never contemplated by those who wrote and approved the founding documents, and succeeding generations of Americans have traditionally rejected egalitarianism of this sort as basically inconsistent with personal freedom. By asserting that “all men are created equal,” the Americans did not have in mind the French idea of making them equal by restructuring society, and the many differences and distinctions that existed in colonial society were essentially left intact after independence was achieved.
What, then, was the legacy of the Declaration of Independence, and in what ways did it contribute to the development of liberty, order, and justice under the Constitution? At the risk of oversimplification, we may conclude that the Declaration of Independence achieved two immediate goals. The first, as represented by the preamble, was a philosophical appeal resting on the claim of equal rights and the republican principle of government by consent. The second, as seen in the text of the Declaration, was a constitutional argument that Americans were entitled to the rights of Englishmen, and that those enumerated had been abridged by the King-in-Parliament. These included the right of trial by jury, the right of self-government, the right of taxation by consent, and the right against quartering troops in private households. These and other legally recognized rights asserted in the Declaration found expression in the first State constitutions and bills of rights and in the Federal Constitution and Bill of Rights.
As reinterpreted by the descendants of the Founding Fathers, the preamble of the Declaration became a two-edged sword. In the North it came to embody the ideal of equality before the law or equal rights for all Americans, whatever their race or color, and thus served as a springboard for the anti-slavery movement. In the South, however, the preamble was invoked to support secession, the theory being that the States in 1861, as in 1776, had a fundamental or natural right “to change their form of government and institute a new government, whenever necessary for their safety and happiness.” With the military defeat of the confederacy, this ceased to play an important role in constitutional development. Beginning with the Thirteenth Amendment, the rhetoric of the preamble, seeming to affirm the principle of equal rights, became the dominant force, and over the years the Declaration of Independence has come to symbolize opposition to both slavery and racial discrimination. Beyond this, however, the influence of the Declaration from a constitutional standpoint is more difficult to ascertain. The Declaration offers little guidance on how or in what ways governments ought to be built and provides little insight into the workings of the American constitutional system. The Declaration, after all, was a proclamation calling for independence, stating the grounds for separation, not a manual or design for a new political system.