Original Intent of the Declaration

During this 250th anniversary of independence, Americans are presented with a familiar narrative—one grounded more in national myth than historical reality. It goes something like this: the Declaration of Independence cast aside the British origins and institutions of the colonies and created a propositional nation based on equality and individual liberty. To secure these principles, the document birthed a unitary nation-state superior in prerogatives and powers to its constituent parts. Ever dynamic, the Declaration is not limited to the historical context of the American Revolution, but is a liberal and individualistic instrument of human progress applicable to everything from social justice to sexual self-determination.

That’s a heavy burden for one document to bear. Actually, for one paragraph to support—the oft-quoted second paragraph (“We hold these truths to be self-evident”).

But what was the original intent of the Continental Congress that edited and adopted the Declaration? Where can we look for clues, given that Congress did not keep an official record of why it made changes to the original draft (crafted by Thomas Jefferson and a small committee), or an explanation of how it interpreted the language retained?

The Summary View

A logical starting point is the predominant theory of British and colonial constitutional relations at the time of the Revolution. For this we have Jefferson’s Summary View of the Rights of British America, which was originally drafted as instructions to Virginia’s delegates to the First Continental Congress but was converted into a pamphlet published on both sides of the Atlantic. It dealt with the constitutional authority of the British Parliament over the colonies and set forth a theory of imperial federalism.

The crux of Jefferson’s argument was that the colonies were the monarch’s dominions and that Parliament had no authority to legislate for them. The thirteen colonial assemblies, in Jefferson’s view, possessed the full power to enact their own laws. The king served as the chief executive of the empire—the glue holding it together—and Jefferson asked him to intercede on behalf of the colonies by prohibiting Parliament from taxing or regulating them. The king refused to accept the colonial invitation and ultimately declared them to be outside his protection. The colonies’ assertion of the right of self-government combined with Great Britain’s stand on centralized parliamentary authority form the proximate cause of the colonies’ secession from the mother country.

The Summary View was not a rejection of the colonies’ British origins or the British constitution. It appealed to the British constitution, but the constitution as it existed in the seventeenth century rather than the eighteenth century. The Glorious Revolution of 1688–89 marked the diminution of the monarch’s powers and the rise of parliamentary sovereignty. By the time of the American colonial crisis, the independence and authority of Parliament were seen as the linchpin of British liberty. Had George III accepted Jefferson’s older constitutional theory, he would have been in hot water with Parliament and likely would have fled the realm as ignominiously as James II when he threw the great seal into the Thames and sought refuge in France.

The Articles of Confederation

Another clue to the original intent of the Declaration is found in the Articles of Confederation. The first draft of the Articles of Confederation was presented to Congress on July 12, 1776—just eight days after the body adopted the Declaration. The final version of the Articles was submitted to the states for ratification in November 1777. Consequently, the state of the American mind at the adoption of the Declaration should be best exemplified in this first constitution for the union.

The Articles of Confederation describe the union as “a firm league of friendship” formed for the common defense of its members. Pursuant to the second article, “each state retains its sovereignty, freedom, independence, and every power, jurisdiction and right” not “expressly” delegated to Congress. Emer de Vattel, in his 1760 treatise The Law of Nations, observed the propriety of “several sovereign and independent states” uniting “themselves together by a perpetual confederacy, without ceasing to be, each individually, a perfect state.” Voluntary restraint (i.e., delegating powers to a general government), de Vattel averred, does not alter the member states’ status as “free and independent.” The Founders respected de Vattel, and according to the Supreme Court, he was the “international jurist most widely cited in the first 50 years after the Revolution.”

In the Articles, the member states delegated to Congress the powers of war, peace, foreign affairs, and a few other matters of continental concern. The most significant powers could not be exercised absent a supermajority of state delegations. The Articles sought to equip Congress with the authority to carry on the war against Britain while simultaneously preserving self-government in the individual states.

The frame of government says little about individual liberty or equality except for the deduction that the drafters believed these two concepts were best secured in the several states where the people could keep a close watch on their representatives. Indeed, it was in the states that we find great statements of rights, such as the Virginia Declaration of Rights of 1776 and the Massachusetts Constitution of 1780. In those documents, we find protections provided for such matters as jury trials, individual possession of firearms, freedom of the press, and freedom of religion.

The Constitution of 1787

The Constitution of 1787 replaced the Articles but retained a federal structure of government. The proponents of the Constitution asserted that it simply invigorated existing powers held by Congress and added a few additional powers (e.g., taxation and the regulation of commerce) necessary to an effective general government. The primary focus of the new government would still be foreign affairs, foreign commerce, and military defense of the union. The lack of a bill of rights was explained by the limited powers granted to the federal government. With the government’s focus on external matters and the lack of a general police power, the Federalists argued that additional security was unnecessary.

The classic statement of the Federalist position is found in James Wilson’s State House Yard Speech. Wilson asserted that bills of rights were proper in state constitutions through which the people “invested their representatives with every right and authority which they did not in explicit terms reserve.” The federal Constitution, Wilson observed, was different. Absent an express delegation of power, the federal government could not act. “It would have been superfluous and absurd to have stipulated with a federal body of our own creation,” Wilson proclaimed, “that we should enjoy those privileges of which we are not divested, either by the intention or the act that has brought the body into existence.”

Anti-Federalist resistance caused the Federalists to promise amendments after ratification. But what we know today as the Bill of Rights pales in comparison to the protections found in state constitutions. The first ten amendments were an effort to appease the Anti-Federalists without altering the structure and invigorated powers agreed to in the Philadelphia Convention.

Writing in 1801, Alexander Hamilton candidly summed up the vaunted Bill of Rights. These amendments, Hamilton said, “scarcely [met] any of the important objections which were urged” and left “the structure of the government, and the mass and distribution of its powers where they were.” These changes were “too insignificant to be with any sensible man a reason for being reconciled to the system if he thought it originally bad.”

The Constitution of 1787 (with or without the first ten amendments) was no special frame of silver for Abraham Lincoln’s apple of gold that was the Declaration. The document’s main selling point was the retention of federalist features from the Confederation, with added powers to provide efficacy in performing limited continental functions. If one seeks great statements of individual liberty and equality, the Constitution is not much different than the Articles. Consequently, Lincoln and his Republicans had to import “higher law” into the Constitution to render it subservient to party ends.

The New Hampshire Grants

A final piece of evidence of the original intent of the Declaration is found in the Continental Congress’s 1777 dismissal of a petition from the New Hampshire Grants (a disputed area bordering New York and New Hampshire) seeking statehood based on the principles of the Declaration. Congress’s response, issued approximately one year after the adoption of the Declaration, offers insights into its understanding of this foundational document. Congress began by describing itself as “composed of delegates chosen by, and representing the communities respectively inhabiting the territories of” the several states. The preexisting political communities created Congress “for the purposes of securing and defending the communities aforesaid against the usurpations, oppressions, and hostile invasions of Great Britain.”

Congress did not claim to be the supreme authority for the union or the nucleus of a unitary nation-state; instead, its purpose was to coordinate efforts in the war. Congress denied it had the power to “countenance any thing injurious to the rights of the jurisdictions of the several communities which it represents.” Therefore, it dismissed the petition rather than take an action that would nullify New York’s grants made to a separate group of claimants.

“The claims of the 1776 documents,” writes historian Barry Alan Shain about the New Hampshire Grants episode, “were limited [by the Continental Congress] to advancing particular corporate ends rather than the liberal rights-claims of individuals (or any other communities).” The Continental Congress, in the words of John Marshall, was a “congress of ambassadors” and convened as representatives of allied sovereigns to coordinate a common defense. Modern Americans incorrectly assume that the Continental Congress functioned as a supreme national legislature and thus view the Declaration as a pronouncement from a nascent American Parliament. We have forgotten that the Revolutionary War was waged for self-government in 13 state parliaments and not the creation of a centralized body akin to that sitting in the Palace of Westminster.

The Federalism of the Declaration

The constitutional theory of the Revolution, the Articles of Confederation, the Constitution, and the New Hampshire Grants episode all point to state self-government, federalism, and the right to withdraw from an oppressive political union as the principles animating the Declaration of Independence. Although the colonists cared deeply about individual rights, the source of rights, and the people’s ultimate authority, these matters were addressed at the state level in constitutions and declarations of rights. The states pioneered the use of special constitutional conventions, broad protection of individual liberties, and popular participation in government. There was no federal bill of rights until 1791, and those ten amendments were meant more to quiet the Anti-Federalists than to provide real protection for the people’s liberties. The first time the Supreme Court used a provision of the Bill of Rights to strike a congressional action was the Dred Scott case in 1857—an episode rarely praised by scholars or jurists.

The Declaration, which issued from a congress of ambassadors, is naturally more majoritarian and democratic than liberal and individualistic. The Declaration and the Articles of Confederation were the early efforts of several sovereign and independent states to promote war-time cooperation and to preserve self-government in 13 preexisting political communities. The Declaration declares “as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do.” The 13 states chose to delegate much of this power to Congress via Article IX of our first charter of union. But as independent states in the Vattelian sense, they severally enjoyed such authority before the delegation.

With George III unwilling to accept the Summary View’s argument for imperial federalism, the colonists established a federation that omitted a role for the monarch. Article III of the Confederation described it as “a firm league of friendship” among the states “for their common defense, the security of their liberties, and their mutual and general welfare.” This provision formalizes the Declaration’s description of the political communities as “these United Colonies” and results from the right “to alter or to abolish” a form of government inconducive to the people’s happiness.

The delegates to the Philadelphia Convention believed Congress needed additional powers but retained federalist principles in the Constitution of 1787. “The powers delegated by the proposed Constitution to the federal government are few and defined,” Madison explained in Federalist #45. “Those which are to remain in the States are numerous and indefinite.” The Constitution’s lower house represented the people of the several states, while the upper house represented the sovereignty of the states.

Unfortunately, official observance of the 250th anniversary of independence will likely ignore the original intent of the Declaration in exchange for convenient myths that animate modern interpretation. This shortchanges Americans on understanding the true origins and principles of their country and promotes a modern civic religion based more on wishful suppositions than the reality of history.