It’s sweltering hot in Philadelphia in late June 1776. That’s why he rented a second-floor apartment with five windows, giving him cross ventilation.
He wanted the breeze to keep him cool; he had a lot of writing to do. There was no air conditioning.
He wrote at night, after long hours spent with the special committee of five whose membership included such notables as Benjamin Franklin and John Adams.
His committee asked him to write the first draft of what was to become one of America’s – and humankind’s – most essential documents, our Declaration of Independence. They knew him, Thomas Jefferson, to be a sound thinker, a scholar who carefully researched and reflected deeply on his subjects.
“We hold these truths to be self-evident, 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…”
We Americans have been uncommonly lucky. Jefferson and the other Founding Fathers who shaped our country were not simply gun-slinging revolutionaries; they were men anchored in worldly philosophies. The Age of Enlightenment was their “Weltanschauung” – their worldview, their political “ground of being.”
Their thoughts were not short-term, concerned only about the now – the “what’s in it for me today?” The Founders understood the awesome responsibility for future generations they had assumed. Their sense of history and purpose underlies their heroic conduct.
John Locke’s writings in his Second Treatise on Government were the most influential works for Jefferson. Jefferson considered Locke, along with Bacon and Newton, as the three most influential men in history. It was Locke who wrote in 1690 that all men have natural rights to life and liberty; that in the state of nature, men’s rationality led them to behave socially; that the self-interest of some men leads them to violate the natural rights of others; and that is why men consent to government.
After his Presidency, in a letter to James Madison, Jefferson proposed that Locke’s work, along with the Federalist Papers, be mandatory readings in Virginia’s law school.
But times change. Our study of the past and its meaning for today has become shallow or nonexistent. Not only in our law schools but also in all of our schools.
Sixty years ago, sociologist David Riesman wrote in his Lonely Crowd that from those days of the Age of Enlightenment, our American society gradually changed from a people who were “inner-directed” to a people who become “other-directed.” Relationships in an other-directed society tend to be shallow, mass media driven. What we think and have, what advertisers say we should be, wear, and do from childhood onward becomes the source of judgment and measure of value.
Thus, when challenges come, there is no ground of being deeply imbedded – there is no internal guidance system providing a source of judgment to measure proper actions or reactions. Short-term behavior – selfish and fickle – become the norm. Without internal grounding, people become narcissistic, shifting blame to others, grabbing what they can at the expense of anyone in their way.
Ironically, a decade after Jefferson wrote our Declaration, as James Madison architected our Constitution, he considered those issues in his Federalist paper #10. Madison’s concern was about “factions” – citizens actuated by passion or interest adverse to the rights of others or of the community. He concludes that the democracy in itself cannot control factions, for the “overbearing” (tyranny) of the majority prevails. Although he could not foresee the concentration of today’s wealth and its distorting political influence, he recognized that the unequal distribution of property was the cause of the greatest factions.
Madison felt that factions could not be eliminated without destroying liberty. Factions are within the nature of man; thus, neither moral nor religious motives control – and “enlightened” statesmen will not always be at the helm.
Since the causes of factions can’t be removed, the effects of factions must be controlled by the structure of government and by representative government. Elected representatives provide a “public voice.” But Madison recognized that representatives can “betray” or corrupt their public trust; that factions in control can be tyrannical, even when they represent the majority. Thus, the “structure” of Republican government – architected in our Constitution by Madison – with three independent but overlapping branches provided balance. Factions within a state may “kindle a flame,” he wrote, but balance comes from factions in other states and by the independence of the overlapping branches.
As we celebrate this Fourth of July, let us reflect on Madison’s work, our Constitution, in the context of Jefferson’s work, our Declaration of Independence. And let’s get a “Locke” on these documents. We start with questions:
• Is the Declaration of Independence nothing more than Jefferson’s philosophizing about the “oughts” of human existence? If so, was the late Justice Antonin Scalia, a right-leaning Supreme Court judge and champion of literal originalism, correct when he said that “there is no philosophizing in the Constitution?”
• Or is the Declaration essential “context” for our understanding our Constitution?
• Was Justice Scalia correct when he wrote “The whole theory of democracy…is that the majority rules; that is the whole theory of it. You protect minorities only because the majority determines that there are certain minority positions that deserve protection”? Or when he wrote that the purpose of the Constitution is to “prevent change”?
• Or was Jefferson correct that fundamental human rights are not grants from a generous governing majority, but that governments are formed to secure our preexisting, unalienable rights? Jefferson wrote in the Declaration of Independence:
“We hold these truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among those are Life, Liberty, and the Pursuit of Happiness – That to secure those Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed.”
• Was I correct when I wrote in 1991 in Crash Landing:
“[T]he Constitution of the United States … serves today’s needs not because it is rigidly bound to its ‘original meaning,’ as some legal scholars suggest, but because it is a living document, continually renewed by the insights of each succeeding generation. Historical roots provide the anchor, but Constitutional interpretation grows out of the experience of each new generation, a step at a time?”
• And was Justice Steven Breyer, a left-leaning Supreme Court judge, correct when he wrote in Making Our Democracy Work: “Why would people want to live under the ‘dead hand’ of an eighteenth-century constitution?” Or when he went on to quote the late Justice Robert Jackson, “Just what our forefathers did envision, or would have envisioned, had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh?”
As we think this through, consider the Eighth Amendment to the Constitution. It provides that no “cruel and unusual punishments be inflicted.”
George Will, in his provocative work, The Conservative Sensibility, points out “‘pillorying, whipping, and mutilating of criminals’ bodies had been standard punishments in the colonies,’ and these lurid displays of community disapproval were performed in public for the purpose of ‘overawing and deterring the spectators.’” These forms of punishment were neither cruel nor unusual. There was no rehabilitation. That was considered too sentimental. When the idea of cruel and unusual punishment came before the Warren Court in 1958, Supreme Court Chief Justice Earl Warren wrote that the meaning of the Eighth Amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”
And consider the Ninth Amendment, which provides:
“The enumeration in the Constitution of certain rights shall not be construed to disparage others retained by the people.”
It was in the “penumbra” of our Constitution, not in its written words, that the Supreme Court decided that individuals have a Constitutional right to privacy on which our state and federal governments may not intrude, in an opinion written by Justice William O. Douglas, who wrote in The Rights of the People:
“Governments exist for man, not man for government. The aim of government is security for the individual and freedom for the development of his talents.The individual needs protection from the government itself – from the executive branch, from the legislative branch, and even from the tyranny of judges.”
Does the application of evolving standards, and the recognition of rights not stated, lead us to conclude the Constitution has no fixed meaning? Or that the rights of the minority of us are only those rights the majority of us graciously decide we minorities can have?
In his The Conservative Sensibility, George Will provides us with insight:
“The Constitution is America’s fundamental law but not its first law. The Declaration appears on page one of volume one of the US Statutes at Large, and it is the head of the United States Code under the caption ‘The Organic Laws of the United States.’ Since the 1864 admission of Nevada to statehood, every state’s admission has been conditioned on adoption of a constitution consistent with the US Constitution and the Declaration.”
Madison was resistant to including a Bill of Rights in the Constitution for, Will points out, two reasons. First, the structure of government aimed at dispersing factions would be sufficient protection; and second, because of the statement of some rights could disparage others. He relented to facilitate ratification – with the inclusion of the 9th Amendment, confirming the list of rights was not exclusive.
Will then discusses the idea that the Constitution has a fixed meaning that does not change:
“[T]he fixed meaning of the Constitution is to be found in its mission to protect natural rights and liberty in changing – unfixed – circumstances. Fidelity to the text requires fidelity to some things that were, in a sense, prior to the text – the political and social principles and goals for which the text was written.”
“There is no philosophizing in the Constitution – until we put it there by construing it as a charter of government for a nation that is, in Lincoln’s formulation, dedicated to a proposition that Scalia dismisses as ‘philosophizing,’ the proposition that all men are created equal in possession of natural rights. In the words of constitutional scholar Walter Berns, the Constitution is related to the Declaration ‘as effect is related to cause.’
“Or as Lincoln said, the Declaration of Independence is the ‘apple of gold’ that is ‘framed’ by something ‘silver’: the Constitution. Silver is valuable and frames serve and important function, but gold is more valuable and frames are of subsidiary purpose to what we frame.”
Today, we are torn by political factions every bit as divisive as James Madison imagined. Today, we are torn by a tyranny of elected representatives who act because they can, not because they should, responding to factions and their lobbyists, chasing political dollars to assure their perpetuation in office in ways that Madison and the other Founders could never have foreseen. Today, we are torn by representatives who have lost sight that they were elected to “represent” all Americans. Today, we find too many of our children and ourselves hopelessly illiterate about the philosophy and message of the Declaration of Independence, and the context and true meaning of our Constitution.
Today, 243 years after our Declaration of Independence first inspired Americans, it is time for us to get a “Locke” on what the Declaration, Constitution and Bill of Rights mean for all times.
Savor Lincoln’s Apple of Gold, our irreplaceable Declaration. Don’t wrap its frame, our Constitution, around ideas that tarnish the Gold.
The Declaration is the context in which our Constitution must be read and interpreted, and without which, its true meaning escapes us.
Make that your personal Declaration of Independence.
Then, speak out and act, clothed with confident, meaningful carefully thought-out understanding.