Justice McReynolds delivered the unitary dissent, departing from the prepared opinion to scornfully declare that the Constitution “is gone.”
Editor’s note: This Fourth of July oration was first delivered by G. M. Curtis III on July 1, 1989 in Lone Mountain, Montana, for a conference on American citizenship.
As an American historian and as an American citizen who looks forward to the 21st. century, I place great stock in John Adams’s early 19th. century exhortation to future generations that they remember and celebrate the signing of the Declaration of Independence. Technically speaking, I suppose that we are jumping the gun by about one day, since the Continental Congress first agreed to the Declaration on the 2nd. of July 1776. Actually, the past five days in one way or another has represented a remembrance and a reconsideration of many of those values and beliefs that John Adams cherished enough to tender the ultimate sacrifice: his life and property. It is altogether fitting and proper, then, as my historical footnote for these discussions and as a remembrance of the Declaration of Independence, to return to the first principles therein contained, principles that not only retain their merit today, but more importantly, offer us hope for the years to come.
The Declaration was, after all is said and done, the first national statement of American citizenship. Historically speaking, we can, with some ease, recall earlier assertions from a variety of colonies which gave voice to many of the very same principles and ideas declared by the Continental Congress in July 1776. That observation, interestingly, is the very point that the framers of the Declaration themselves would recall many years after the honored event. The essential distinction, of course, was that the Declaration of Independence addressed questions and asserted values which the framers knew reflected the interests and the beliefs of Americans, north and south, east and west. The Declaration of Independence was precisely what the title suggested. It severed forever allegiance to the crown and vested sovereignty with thirteen independent American states. And it forged the basic constitutional value that government owes its existence to the consent of the governed. This was and continues to be the foundation of what Americans have believed to be the stewardship of citizenship.
But historical memories fade and Americans tend to forget some of the reasons why Adams, one of the three principal framers, along with Franklin and Jefferson, encouraged us to celebrate this event. A cursory look back provides amply. Adams, and Jefferson as well, knew that America was above all very new; it’s history was brief, some might even claim that it was shallow by contemporary European standards, and an articulated American sense of shared traditions was embryonic. Americans had come from all over the European world and together with those already here and those brought by force from Africa had become a heterogeneous people by any standard. American space miniaturized the landscape of European memories. And already American distances coupled with American concepts of property had allowed for the development of substantially exclusive social systems and cultural diversities which far exceeded anything Americans could remember from their European past. But Adams and Jefferson, being the fine lawyers and statesmen that they were, when they looked back at 1776, considered all of these centrifugal influences to have been of secondary importance.
Rather than pondering what they considered to have been the incidentals of American diversity, both Adams and Jefferson sought to remember that which they believed reached to the very center of what being American meant. They realized, perhaps more profoundly than we often seem willing to remember, that America was essentially an idea, and a prospective idea at that. The obverse was obvious; there was a great deal that America was not: namely, a unified state with a single constitutional head, permanently in place by virtue of historical accident.
Here we arrive at a place that late 20th. century Americans understandably, but too easily, pass by. We know how the American war for independence turned out. The framers of the declaration did not. During those terrible first months of 1776, freighted as they were with a wild assortment of mind numbing apprehensions, Adams and Jefferson and their allies stated clearly that America was different and distinctively separate from the Great Britain that had nurtured this new people. Therein lay the revolution and the heart of American citizenship that grew out of it.
No one has elucidated the intellectual foundation which rests beneath the Declaration of Independence better than the primary drafter himself. Many years after 1776, in reflecting upon his earlier work, Jefferson wrote:
The object of the Declaration of Independence was not to find out new principles, or new arguments, never before thought of, not merely to say things which had never been said before; but to place before mankind the common sense of the subject, in terms so plain and firm as to command their assent . . . Neither aiming at originality of principle or sentiment, nor yet copied from any particular and previous writing, it was intended to be an expression of the American mind. . . All its authority rests then on the harmonizing sentiments of the day. . .
Add to this remarkable passage if you will a short commentary from Jefferson’s first inaugural address which I believe both amplifies this explication and one which goes to the heart of what both Jefferson and Adams meant by the spirit of citizenship that served to render the Declaration of Independence a timeless American statement. It followed immediately upon that famous passage where the new President, seeking political peace, asserted the rough equivalent of me standing here before you and pleading that we are all Democrats, we are all Republicans. Jefferson then turned his attention to the consideration of the inherent strength of the American government. What followed remains one of the most stunning definitions of American citizenship that I know of. In entrusting constitutional meaning to the workings of enlightened self-interest he made the following claim: “I believe this the strongest government on earth. I believe it the only one where every man, at the call of the law, would fly to the standard of the law, and would meet invasion of the public order as his own personal concern.” When in 1818 John Adams wrote that “the Revolution was in the Minds and Hearts of the People.” It is clear that he shared Jefferson’s understandings.
Here then, albeit briefly, is one cornerstone of the Declaration, one basis for the framers’ concept of citizenship. What both Adams and Jefferson noticed and what each in his own manner sought to have us remember was that American citizenship began with the act of each person choosing allegiance. It was not something one was necessarily born with. Nor was there even the slightest hint of coercion on the part of the state. And, of course, it represented a major departure from the then current British practice where the state, acting through the Parliament or the Crown, commenced all actions which resulted in the grant of subjectship.
Both American framers considered the citizen as one who was competent in both an intellectual and moral sense, one fully capable of acquiring knowledge and making secular decisions based upon an 18th. century mixture of reason and value. The key, of course, for Jefferson was that the individual instituted the proceedings that culminated in citizenship. Here the state stood receptive in such a way as to receive the pledge of allegiance. Given that the Declaration established or, if you will, launched thirteen sovereign nation states, Jefferson would later remember clearly that such a creative and revolutionary act depended upon what he called the prior “assent” of individual Americans.
If the Declaration of Independence was, as Jefferson said it was, “an expression of the American mind,” then the exact timing of this expression deserves remembrance. Surely no one would dispute that the drafting of this document transpired in an urgent state of emergency. Those delegates who signed their names were committing treason in the eyes of the King of England. The women and men who actively and knowingly asserted American Independence did so in conditions fraught with immediate personal danger. It is one of my contentions that this condition itself remains a central legacy of American citizenship.
In his first inaugural Jefferson recognized clearly this juxtaposition between emergency and citizenship. He emphasized, however, that the citizens became through their own volition, the very embodiment of the law, particularly when the law was in harm’s way. Within the context of his address, I believe that it is arguable that when Jefferson referred to the law, he meant the fundamental law of the land which in his estimation certainly included the Declaration of Independence.
Thus, at the core of Adam’s and Jefferson’s sense of volitional allegiance were the beliefs that the individual controlled the initiation of the contract that in fact created citizenship; the contract itself was consensual in nature; and the contract carried with it the recognition of the citizen as an operational embodiment of the fundamental law. Therefore it became critical to assert that the citizen was competent to defend that law in times of emergency, and hence the genesis of the idea of American citizen as steward of the fundamental law of the land.
One of the consequences of the fading of historical memories that I mentioned earlier is the disappearance of remembered legacies. This really came home to me during this last academic year when I had the pleasure and the challenge of introducing a new and for these days an unusual course entitled “Citizenship in American History.” As you can imagine, it had its share of surprises. None was more riveting than this look at the Declaration of Independence as a fundamental statement of American citizenship. It is not just a question that most people do not think of the document in this light, but most do not consider it to have significance for the late 20th. century. I demur.
Permit me to cite just a few 20th. century presidential statements to illustrate how famous and presumably well-intentioned leaders respond to the question of the individual’s relation to the state: first, I suspect that everyone recalls the stirring invocation John F.Kennedy made in his inaugural address. “Ask not what your country can do for you–ask what you can do for your country.” As evocative and romantic as this sounds, it carries with it significant constitutional baggage. To clarify this, consider Franklin Roosevelt’s reaction to the great depression in his first inaugural address. Following his emotional claim that all we had to fear was fear itself, he arrived at a clearly delineated prescription for the proper treatment of this economic emergency. And here I repeat to you what he said on that raw day in March of 1933.
If I read the temper of our people correctly, we now realize as we have never realized before our interdependence on each other; that we cannot merely take but we must give as well; that if we are to go forward, we must move as a trained and loyal army willing to sacrifice for the good of a common discipline, because without such discipline no progress is made, no leadership becomes effective. We are, I know, ready and willing to submit our lives and property to such discipline, because it makes possible a leadership which aims at a larger good. This I propose to offer, pledging that the larger purposes will bind upon us all as a scared obligation with a unity of duty hitherto evoked only in time of armed strife. With this pledge taken, I assume unhesitatingly the leadership of this great army of our people dedicated to a disciplined attack upon our common problems.
Yes, there is a connection between these presidential calls, or constitutional assertions, if you will. Both twentieth century presidents spoke with the understanding that the United States was then in a state of emergency, brought on either by external events of one kind or another and then given special sanction by presidential proclamation or congressional dictate. It followed for both of them that national emergency altered constitutional balances. The powers of the chief executive were enlarged. But just as importantly, the relation of the citizen to the state changed. These presidents believed that Americans assumed different obligations to the state during moments of national emergency.
Some might reasonably argue that this is one of the central legacies of the Civil War. Be that as it may, by the 20th. century, American leaders began to operate on the assumption that their public had a different obligation of obedience than Adams and Jefferson had perceived. The very idea of the fundamental obligation to obey the will of government had undergone a metamorphosis. If anything, the 20th. century leaders seemed to be speaking in terms similar to 18th. century British leaders who had asserted that American colonials were born into a status of perpetual subjectship, now updated to be sure, with new powers and opportunities for the state. And therein lies the rub. The framers and signers of the Declaration of Independence recoiled at just this British presumption. Contrary to Roosevelt’s claim that the emergency of a depression justified extraordinary presidential legal power, they would have insisted that no constitutional crisis, including the one they experienced in 1776, ever provided such an excuse.
These 20th. century presidential offerings bespeak of a corollary now emblazoned upon perceptions of citizenship which is the acceptance of the idea that governments are constituted to dispense rather than to secure rights. From Theodore Roosevelt’s feudal assertions in his 1910 “New Nationalism” speech that government, not the law, could save innocent subjects from the evils of greedy men to such commentors in the 1960’s as Charles Reich defining a new sort of property as that which tumbles from a cornucopia of governmental largess, the twentieth century has seemed in a rush to deny the Declaration’s assertion “that to secure these rights, Governments are instituted among Men.” At the root of Franklin Roosevelt’s and Kennedy’s assertions was the assumption that the national government now somehow fashions individuals into citizens as a mass. Positive governmental action, then, serves, over time, to reinforce this initial assertion.
Within this historical context, the observations of both Robert Nisbet in The Present Age and Robert Higgs in Crisis and Leviathan are trenchant. They note that the United States has since the beginning of World War I proceeded along almost perpetually in a state of emergency of one kind or another. This, I submit, has tended not only to buttress the presumption that government always acts for the public good but also that it elevates the state’s expectations for total obedience. Thus does dissent in the 20th. century too often convey the tones of a whining and spoiled child. This, in short, has led to the imposition of a new subjectship in the 20th. century, the very antithesis of 18th. century American ideas about individual independence. There is scarce space in this brave new world for 18th. century “jealousy” of government or that properly moderate skepticism which questions all governmental actions as potentially dangerous to individual liberty.
Whither then this Jeffersonian notion of citizenship as a stewardship of American fundamental law? The late 20th. century citizen is faced with a corrosive anomaly. On the one hand there has been a trivialization of the 18th. century meaning of constitutional emergency. And on the other hand, the constant harping assertions of emergency have prompted an enormous aggrandizement of governmental power. Some like Charles Reich are left bereft of independence, quivering as it were in the dependent hope of qualifying for the latest in largess. This new citizen as supplicant, as beggar, represents the novel reincarnation of an odd and distorted sort of serfdom. Sadly, Reich is only one of many contemporary commentators who give voice to this, and too often these voices trail off in despair, in defeat, or in a rootless and rash opportunism.
Of such stuff Adams and Jefferson were not made, nor is any sense of permanent despair a part of their legacy in the Declaration of Independence. John Dos Passos once gave brilliant expression to the intent of these framers when he suggested that their chief preoccupation was to build such institutions in America which would allow each citizen enough elbow room to grow into individuality. One of Jefferson’s own countrymen, George Mason, gave as clear a voice to the optimism of his age as any. In a public address delivered just after the news had arrived in Fairfax County, Virginia of the resort to violence at Lexington and Concord, Mason declared:
We came equals into this world, and equals shall we go out of it. All men are by nature born equally free and independent. To protect the weaker from the injuries and insults of the stronger were societies first formed; when men entered into compacts to give up some of their natural rights, that by union and mutual assistance they might secure the rest; but they gave up no more than the nature of the thing required. Every society, all government, and every kind of civil compact therefore, are or ought to be, calculated for the general good and safety of the community. Every power, every authority vested in particular men is, or ought to be, ultimately directed to this sole end; and whenever any power or authority whatever extends further, or is of longer duration than is in its nature necessary for these purposes, it may be called government, but it is in fact oppression.
No equivocations, no conditional reminders of how times have changed, can alter the spirit and intent of these words. Mason anticipated a changeful future and concluded by warning his audience, and even us, about just that:
It has been lately observed by a learned and revered writer, that North America is the only great nursery of Freemen now left upon the face of the earth. Let us cherish the sacred deposit. Let us strive to merit this greatest encomium that ever was bestowed upon any country. In all our associations; in all our agreements let us never lose sight of this fundamental maxim — that all power was originally lodged in, and consequently is derived from, the people. We should wear it as a breastplate, and buckle it on as our armour.
Surely the Declaration of Independence enshrines these values. And in so doing provides a beacon light for our future. These armored maxims call for a perpetual stewardship, a stewardship which carries with it a meaning that reaches beyond any sense of mere keeper. The framers admonish their listeners to fuse the memories of this 18th. century experience with whatever happens to be the immediate present so as to give clear purpose to the future. American citizenship continues, then, to be an articulated series of ideas bequeathed by such men as Adams and Jefferson. And insofar as we are willing to make manifest the testamentary memories of the 18th. century, these framers of the Declaration, then become, to quote from Hebrews, “many witnesses in a great cloud on every side of us.” They constitute, if you will, a living American pantheon which will continue to exist as a permanent source of renewal and affirmation about the meaning and purposes of American citizenship.
And so there you have it. This becomes the measure of our remembrance. Please let us join together in a toast to the celebration of our Declaration of Independence.