The Font of the Constitution’s Authority

By | 2019-04-06T21:29:47-07:00 April 6th, 2019|
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In my last response to Mark Pulliam, I challenged him to find a single statement from a prominent American Founder who denied that the Declaration of Independence provided the authoritative source of the Constitution’s authority. So far he has failed to do so, but he has forwarded to me a contemporary article that denies the relevance of the Declaration for understanding the Constitution. It seems to me, however, that the relevant authorities are the Founders themselves.

Isn’t the point of original intent jurisprudence to understand the intentions of the Founders? Pulliam claims to adhere to original intent, but he seems inordinately interested in the work of contemporary legal scholars and uninterested in the work of the actual Founders. An original intent that ignores—or subverts—the origins is difficult to take seriously.

John Hancock, president of the Continental Congress, in his official letter transmitting the Declaration of Independence to the states, remarked that since it would serve as the “Ground and Foundation” of any future government, the people should “be universally informed of it.” There can be no doubt that this expressed the views of the signers of the Declaration: it would serve as the “Foundation” for the future government of America.

The contemporary article that Pulliam had forwarded to me maintains that the authors of The Federalist placed little reliance on the Declaration, citing it only twice for the “unexceptional proposition that it is legitimate to change one’s form of government.” And these references, according to the author recommended by Pulliam, were mere rhetorical flourishes not to be taken seriously. Let us examine this claim.

The references in The Federalist to changing the form of government are references to the right of revolution, hardly the “unexceptional proposition” our author claims them to be. The Declaration asserted the natural right to revolution for the first time in history; it was a world-historical event. Divine right of kings was replaced by the sovereignty of the people as the legitimate authority for the establishment of government. The principles of the Declaration, therefore, specify that the “just powers” of government must be based on the “consent of the governed.” The Federalist fully recognizes this revolutionary change when it specifies that the Constitution itself should derive “immediately from that pure, original fountain of all legitimate authority,” “the consent of the people.” This is one of the subtle (but vitally important) references to the Declaration that the author misses—the sovereignty of the people established by the principles of the Revolution demands that the people consent to government.

The Federalist’s references to the Declaration’s right to revolution mere rhetorical flourishes? This cannot be a serious claim. The authors of The Federalist recognized the Declaration as the authoritative source of the Constitution’s authority. Which of the founders did not?

Our author is mistaken about the number of references: there are three explicit references to the Declaration in The Federalist and a host of implicit references evident to the careful reader. But we have already demonstrated that our author is not a careful reader. The central reference to the Declaration in The Federalist, occurs in the central number (some readers will recognize the importance of this placement) and is a paraphrase of the Declaration which no one in the founding generation would have failed to recognize. It was used to answer the question of why the Articles had to be replaced rather than simply reformed (thereby violating the instructions given to the convention): “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.”

The “institutions to be sacrificed” were those of the Articles. The convention was charged with revising the Articles to make them adequate to meet the “exigencies facing the Union.” Madison argued in The Federalist that the instructions to the convention were contradictory: no revision of the Articles could make them adequate precisely because the principles upon which the Articles rested were defective. As Hamilton remarked, the Articles had created “the political monster of an imperium in imperio” that “cannot be amended otherwise than by an alteration in the first principles and main pillars of the fabric.” It would be to no avail to build a new structure on a defective foundation since the new superstructure would partake of the deficiencies of the foundation itself.

Madison explained that a sound principle of legal construction required those who were faced with contradictory commands to choose the most important. Obviously, it was more important to have a constitution that was adequate to meet the exigencies facing the Union than to try and resuscitate one that was inadequate just so the participants in the convention could say that they adhered strictly to the command that the Articles be revised.

In any case, Madison concluded, since “the plan to be framed and proposed was to be submitted to the people themselves, the disapprobation of this supreme authority would destroy it forever; its approbation blot out antecedent errors and irregularities.” In submitting the proposed constitution directly to the people, the Convention also subverted its charge to submit the revisions to Congress which would, upon approval, submit them to the State legislatures. A unanimous concurrence of the State legislatures was required under the Articles for ratification. Madison argues, however, that “the establishment of a government adequate to the national happiness was the end at which [the Articles of Confederation] themselves originally aimed, and to which they ought, as insufficient means, to have been sacrificed.” In other words, Madison clearly intimates that the Constitution itself resulted from an act of revolution appealing to the supreme authority of the people! Is it credible to believe that references in The Federalist to the natural right of revolution were mere rhetorical flourishes? Hardly!

Another important reference to the Declaration in The Federalist was missed by Pulliam’s purported authority, who seems to be an inordinately careless reader. Madison announces that Federalist 39 begins “a candid survey of the plan of government reported by the convention.” “The first question that offers itself,” he asserts,

is whether the general form and aspect of the government be strictly republican. It is evident that no other form would be reconcilable with the genius of the people of America; with the fundamental principles of the Revolution; or with that honorable determination which animates every votary of freedom to rest all our political experiments on the capacity of mankind for self-government. If the plan of the convention, therefore, be found to depart from the republican character, its advocates must abandon it as no longer defensible.

The central reason that the Constitution must be “strictly republican” is to conform to the “fundamental principles of the Revolution,” i.e., the principles of the Declaration of Independence. This statement is further proof, if any were needed, that for the framers there was an indefeasible connection between the Declaration and the Constitution. The connection was a “strictly republican” form of government as a means of securing the ends posited by the Declaration—the “safety and happiness” of the people. If the Constitution did not conform to the principles of the Revolution as adumbrated in the Declaration, it was “no longer defensible.” Without the principles of the Declaration, the Constitution was indefensible!

How can it be maintained that The Federalist used the Declaration merely for “rhetorical flourishes” or that its references to the Declaration were infrequent and insubstantial? Any careful reader knows better. Anyone who is serious about original intent jurisprudence also knows better. Pulliam should know better. Again, I invite him and all readers inclined to agree with him to reread The Federalist and other documents of the Founding Era and stop relying on contemporary secondary sources. Careful readers will learn something.

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About the Author:

Edward J. Erler
Edward Erler is a senior fellow of the Claremont Institute and author of the forthcoming book, Property and the Pursuit of Happiness: John Locke, the Declaration and James Madison (Roman & Littlefield, July 2019)