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Part 4 – The Declaration of Independence
In terms of understanding the relationship between religion and the Constitution, the most instructive place to begin is, not immediately with the Constitution, but with the Declaration of Independence. This is true for two reasons. First of all, there is the very simple and obvious fact that the Declaration is much shorter and much less “dense” than the Constitution, and therefore easier to deal with. The Declaration is easier than the Constitution to “unpack”. The Declaration enables us to see religion and American constitutional principles interacting “in miniature” – and even before there was a Constitution. Virtually all of these principles carry over seamlessly from the Declaration to the Constitution, even though the latter Document, being more much detailed than the Declaration of Independence, includes other principles -- e.g., the separation of powers, the independence of the Judiciary, the "commerce clause", etc. -- that are absent from the Declaration. Secondly, and as Abraham Lincoln realized perhaps better than any of his contemporaries -- perhaps even better than many in the Revolutionary generation -- the Declaration of Independence provides a set of general principles – equality before the law, the subordination of government to human rights, etc. – that receive explicit and concrete institutional and legal embodiment in the Constitution. Many of these principles pertain to the relationship between religion and the civil government, and all of them originate in the repudiation of religiously based Augustinian pessimism about human potentialities and the embracing of Enlightenment optimism about human reason and human autonomy. Just in terms of what human beings, acting and reasoning autonomously, are capable of, the Declaration of Independence would have been almost incomprehensible to St. Augustine and all the Christian neo-Platonists of his day.
Authority of Reasoned Argument
As will become more evident in what follows, the principles of the Declaration of Independence are explicitly aligned with the fundamental principles of the European, especially British, Enlightenment. Perhaps the most obvious consequence of this alignment is easiest to miss, because it is hidden in plain sight: the authority of reasoned argument on matters social and political. Ascribing authority to reasoned argument presupposes a belief in the effectiveness – not the infallibility, but just the effectiveness – of human reason for evaluating human behavior, even the behavior of those in authority, and for evaluating systems of government and social structures. Human beings can think autonomously about these issues. (I am careful to distinguish effectiveness from infallibility, because the architects of the Enlightenment valued the rational scientific spirit above all else, and therefore realized that all human knowledge consists of approximations that are always subject to revision.) In accordance with good Enlightenment principles, human beings are fully capable of reflecting critically on, and formulating conclusions about, the merits of systems of government and social institutions. Human reason is equal to the task. An earlier age, an age under the sway of Augustinian neo-Platonism, a pre-Enlightenment age, would have willingly accepted that political and social structures were Divinely ordained by biblical or ecclesial command. But after the Enlightenment, people increasingly insisted on thinking about such issues for themselves and using their own indigenous powers of reason.
In fact, so confident were the authors of the Declaration – primarily, though not quite exclusively, Thomas Jefferson – in the competence of human reason that, read as a whole, the Declaration of Independence reads much like a mathematical proof, indeed a treatise in geometry. We usually miss the rigor of the Declaration’s logical structure because – again – it is hidden in plain sight. The very fact that we know what the Declaration of Independence says – or at least, we flatter ourselves that we do – causes us not to read it, and therefore to miss its elegance of discursive structure. Most of us are also unfamiliar with the Declaration’s precursor documents and its precedents in English history. (One of the two or three best books I have ever encountered about the Declaration's pedigree is American Scripture by the late Prof. Pauline Maier of MIT. American Scripture includes a one-page flowchart-like diagram depicting the relationships among the Declaration and its predecessor documents, all the way back to the Magna Carta.) So most of the time, we completely miss how radical a Document it (still!) is. But once you become aware of the logical structure of the Declaration, you realize that it reads like Euclid’s Elements, in that it begins with a statement of fundamental axioms, which we address one at a time below:
We hold these truths to be self-evident, that all men are created equal …
The axioms of Euclid's Elements were self-evident truths requiring no demonstration. So, also, were the foundational principles of the Declaration of Independence. One could scarcely conceive a more explicit rejection of the pre-Enlightenment, neo-Platonic, Augustinian doctrine of the Divine ordination of social classes. St. Augustine believed and taught that every individual human being is predestined to some station in life, independent of the choices she makes, of her intelligence, her talents, and her capacity for virtue. Thanks to the post-Augustinian, early-Enlightenment theories of social contracts, however, this belief was supplanted by the conviction that, in the state of nature and prior to all artificial political and social divisions and prior to the origin of all governments, human beings come into the world in state of primal equality. Furthermore, even more audacious is Mr. Jefferson's claim that the truth of this axiom of primal equality is so self-evident that it requires no corroboration from Church or Scripture and is simply true sui generis.
… that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness …
For the first time, the Declaration touches on the role of God in the creation of human beings and in their being endowed with certain rights. We will return to this topic later in this post and in the posts on the Constitution “proper” and the First Amendment, when we will have more context. For now, suffice to say, first, that many religious groups, especially conservative evangelical / fundamentalist Christian religious groups, have made much more of Mr. Jefferson’s allusion to the “Creator” than the text of the Declaration warrants, drawing maximal conclusions from minimal textual evidence, and, secondly, that the Constitution says even less about God than the Declaration. The “minimal-ness” of God in the text of the Declaration of Independence does, however, give us thinly veiled hints of the Founders’ conception of the place of religion in the affairs of the new Republic.
That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, … (boldface added)
This is another of those points at which the repudiation could hardly be more explicit of previous theories of Divine Right and of the Divine ordination of social and political differences. Far from being Divinely ordained, all political, social, and governmental institutions and arrangements are of purely human origin and the result of human consensus and consent. Also again, the Founders’ indebtedness to Hobbes, Locke, & Co. could hardly be more bare-bones obvious. Their differences otherwise notwithstanding, all the contractarian political theorists of the century or so before the American Revolution argued that all governments originate in a social contract, and that this social contract, in turn, is of purely human origin. No recourse to the Divine was necessary to account for the origin of human government and organized human society. Just as God was receding farther and farther into the distant background as an explanation of natural phenomena, so also God was receding farther and farther into the distant background as an explanation of political and social phenomena.
That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
We read the Declaration of Independence so often – usually by pretending that we read it without actually reading it! – that we completely skate over this clause. What Mr. Jefferson and the Founders declared here was nothing less than the unalienable right of revolution – and given that the American Revolution was fought with weapons instead of pamphlets and harsh language, the Declaration leaves open as a live possibility that the revolution may need to be violent. It is important to remember at this point that all the rights, up to and including this one, are parts of the enumeration of "unalienable" -- Mr. Jefferson's word, again -- rights that human beings receive from the hand of their Creator. The right of revolution is therefore not a mere human artifice, not an ad hoc or post facto rationalization, not an "add-on", not a "plug-in", least of all an innovation. The right of revolution is, insists Mr. Jefferson, intrinsic to the deepest “ontological” character of the human condition itself. The right of revolution comes into existence simultaneously with the existence of human societies themselves. Even now, even today, even in the 21st century, this is dynamite. We have seen, and are seeing, Mr. Jefferson's unalienable right of revolution as the script for the revolts against Communism in the late 1980s, the insurrection of Tienanmin Square, the overthrow of Muammar Qaddafi in Libya, the democracy movement in Myanmar, etc., etc., etc. All these events are literally the Declaration of Independence in action. (This is not to say that all such Jeffersonian revolutions turn out well. In fact, most do not. The French Revolution of 1789 degenerated into the Terror. The Syrian uprising degenerated into civil war. But the fact that most revolutions turn upon and devour themselves does not, in principle, impugn the right of revolution itself.) We think the right of revolution is not dynamite only because we have either not read the Declaration at all (my belief) or because we read it so often we only hear it as white noise. We are careful to domesticate and tame and leash-and-collar the Declaration of Independence either through ignorance or excessive familiarity. But it remains in the 21st century what it was in the late 18th: political nitroglycerine.
But Mr. Jefferson and the Founders, being good card-carrying men of the Enlightenment and therefore meticulous rationalists, believed that nitroglycerine, like all dangerous materials, must be handled with extreme care. Hence the tempering acknowledgement that follows:
Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed.
Without going into the extensive history of the pre-Declaration and pre-Revolution Continental Congress in its repeated attempts to reach an amicable accommodation with the British Crown, suffice to say that the Continental Congress, literally up until the Battle of Concord at "the rude bridge that arched the flood" in 1775, “walked the talk” of this part of the Declaration. Being reluctant to declare themselves independent of Great Britain “for light and transient causes”, and still considering themselves British subjects, the Colonies, through the Continental Congress and analogous state-level "committees of coordination", had shown themselves “more disposed to suffer … than to right themselves by abolishing the forms to which they are accustomed”. Only after exhausting all possibilities of peaceful resolution of the crisis did the Colonies exercise the Declaration’s Creator-given “unalienable Right” of armed revolution.
However, at considerable risk of getting ahead of ourselves, we must keep in mind that there is an additional issue that must be dealt with that could qualify our thought regarding a "self-evident" right of revolution. We have to remember that, at the time Mr. Jefferson wrote the Declaration of Independence, there was as yet no Constitution. In time, the Colonies -- not yet States -- would ratify the Articles of Confederation. However ... (a) the Articles exerted hardly any binding force on individual Colonies: virtually any single Colony could veto virtually any action submitted for approval by the Confederation Congress; (b) the Articles embodied, not the will of "the People," but that of a relative handful of the most affluent, educated, and illustrious citizens of the Continent; and finally, (c) even the Articles of Confederation would not be submitted to the Colonies for ratification until 1777 -- two years into the war for Independence -- and, because of the chaos occasioned by the war, would not be ratified by the Colonies until 1781 -- the same year Lord Cornwallis surrendered at Yorktown, and only two years before the Treaty of Paris was signed officially ending the Revolutionary War. So for all practical purposes, the Nation was without a fundamental, binding law for the first five years (counting from 1776) of its independence. During those "twilight years," the Colonies formed something very like a loose association similar to the United Nations, not a coherent political entity. The Colonies were driven to cooperate and coordinate with each other out of common self-interest, even survival, but were not legally required to cooperate by a common Constitution. ("We must hang together, gentlemen...else, we shall most assuredly hang separately" -- Benjamin Franklin) Given the lack of such a binding national Constitution during that time, the case for an unqualified right of revolution is quite arguable. But with the ratification of the Constitution by a super-majority of 9 of the 13 Colonies -- now become States -- in 1788, the issue of the legitimacy of a right of revolution becomes much more complicated. The United Colonies ceased to be a confederation and became a Union -- a Union that, unlike the Articles of Confederation, which was a product of the Colonial planter and mercantile elite, was affirmed and ratified by "We the People". It is far from clear -- though Mr. Jefferson might disagree -- that a "right of revolution" exists of sufficient force to validate breaking, not an ad hoc confederation, but a Union validated by an explicit vote of the People. I do not suggest an answer to this fraught question. We fought a Civil War that killed 700,000 people (including non-combatants) without settling the issue. But it is important to at least recognize that the issue is still with us.
Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government.
In terms of its quasi-Euclidean logical structure, the Declaration of Independence is actually an argument of the type reductio ad absurdum. In such an argument, one assumes the falsity of the proposition one wants to prove. One then demonstrates that the logic of assuming that falsity leads to a prima facie absurd conclusion, almost always an explicit contradiction. (E.g., the traditional mathematical proof that the square root of 2 is irrational is a reductio ad absurdum argument: one assumes that the square root of 2 is rational – i.e., not irrational -- and argues to a contradiction.) In the field of geometry, Euclid himself would have understood this kind of proof immediately. The “theorem” or conclusion being demonstrated by a reductio ad absurdum argument is that the authority of King George III over the Colonies had lost legitimacy, and that therefore, the Colonies’ revolt against the British Crown was justified.
If we postulate the previous "self-evident" principles as axioms in the demonstration, then we immediately conclude that the continuation of Royal authority over the Colonies is absurd because every item cited in the ensuing bill of particulars is in prima facie conflict with those axioms. To take just four examples from all those listed in the Declaration,
[King George III] has refused his Assent to Laws, the most wholesome and necessary for the public good.
He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.
He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.
He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public Records, for the sole purpose of fatiguing them into compliance with his measures.
All these policies are inconsistent with the axioms of the Declaration of Independence: the “truths” “we” (the Founders of the American Republic) hold to be “self-evident”. Just as postulating the rationality of the square root of 2 leads to a contradiction of the laws of mathematics, so also postulating the legitimacy of the rule of King George III leads to an analogous contradiction of what the Founders would have regarded as the no-less-fundamental laws governing the legitimacy of all social and political structures and institutions, in this case, those structures and institutions pertaining to the Crown. For the Crown was acting in a manner and attempting to enforce policies that were inimical to the well-being of the people, and therefore in conflict with the fundamental axioms of political legitimacy. This conclusion has two immediate and very radical consequences: (1) by subjugating the Colonies through actions and policies enumerated in the Declaration’s bill of particulars, the Crown is guilty of nothing less than attempting to abrogate the laws of the “Creator” (this is not a return to Augustinianism because what the "Creator" gifted human beings with was not any particular social / political arrangement, but the autonomy to choose their own); and (2) given that the Continental Congress, for several years prior to the publication of the Declaration had attempted time and again to reach a rational and amicable accommodation with the King, armed revolution was therefore justified.
Respect For All Religions, But Partiality Toward None
There remains the question of the place of religion in the Declaration of Independence. The most honest and historically accurate answer to this question is “It all depends”. One can address this question on two levels: the personal / individual and the social / collective. On an individual level, most of the Founders of the Republic, and most of those who subsequently framed the Constitution, were devout Christians of one variety or another. George Washington was an Episcopalian / Anglican. (In fact, he served on the vestry of the Episcopal church in Falls Church, VA, which is still very much alive and active.) Thomas Paine was likewise Anglican, though his Anglicanism was so tolerant, liberal, and progressive that – as he repeatedly laments in his writings – he was often accused of atheism. Thomas Jefferson is a rather more problematical case. The case has often been made that Jefferson was a fairly classical English deist, and that he believed that God, after setting the universe in motion, took no active part in human affairs. However, many public writings and statements of Jefferson often contradict this position, e.g., his insistence in Notes on Virginia in 1781 – ironically, regarding slavery – that “Indeed, I tremble for my Country when I reflect that God is just [and] that His Justice cannot sleep forever” and like utterances, which seem to indicate that God is indeed passionately concerned with human history and conduct. Mr. Jefferson, rather, seems much more Lincolnesque in his spirituality, for Mr. Lincoln, though a member of no institutional religion or denomination, nevertheless believed that God, far from being morally neutral, had brought upon the Nation a great Civil War in order to purge it of the sin of slavery. Virtually without exception, the Founders and Framers – all the signatories of the Declaration of Independence – were men who, though divided as to particular, specific theological doctrines, were nevertheless united in their belief in a God Who was anything but a neutral observer regarding issues of independence and liberty.
But given that all the Founders were men of (some type of) recognizably Christian faith, at least in a "quasi" sense, how do we account for the fact that a faith so universally shared on an individual level was so sparsely in evidence on the communal level of the finished Document? For there are only three very brief allusions to God in the text of the Declaration and even these are quite generic. (Where are those three references to God? Exercise for student: read the Declaration of Independence and find out.) Why? The short answer is: all the men who signed the Declaration of Independence were thoroughly, by both conviction and temperament, men of the European Enlightenment. As such, they were sternly committed to three principles espoused by all the architects of both the British and the Continental versions of the Enlightenment:
(1) Religion is an intimately and incorrigibly personal matter that is not, should not be -- and, in the last analysis, even cannot be -- subject to coercion by the blunt instrument of government police power. As James Madison argued in his majestic Virginia Remonstrance of 1786 -- his response to the proposal that a portion of State money be used to subsidize religion -- in favor of religious liberty in that State:
"The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right."
Thomas Jefferson expressed the same sentiment more tartly in his Notes on Virginia of 1782:
"But it does me no injury for my neighbor to say there are twenty gods or no God. It neither picks my pocket nor breaks my leg."
(2) Every time in European history that religion and state power had been joined together, it turned out to be a marriage made in Hell and resulted in bloodshed and violence on a near-apocalyptic scale. The Founders read deeply, and pondered long about, European history, especially, though not exclusively, English history. They knew that, to name just a single example, the English civil war had been precipitated by religious conflict. (The Protestant majority in Parliament believed that King Charles I was being clandestinely influenced by the Catholicism of his queen.) So the Founders were adamantly determined to avoid importing the religious violence from the Old World into the New. James Madison said
"The purpose of separation of church and state is to keep forever from these shores the ceaseless strife that has soaked the soil of Europe in blood for centuries."
That sentiment was echoed by Mr. Jefferson, also in his 1782 Notes on Virginia:
"Millions of innocent men, women and children, since the introduction of Christianity, have been burnt, tortured, fined and imprisoned; yet we have not advanced one inch towards uniformity."
The seeds that were planted in 1555 by the Peace of Augsburg and in 1648 by the Treaty of Westphalia after Europe's period of internecine religious war matured and brought forth fruit in documents like Mr. Madison's Virginia Remonstrance of 1786 and Mr. Jefferson's Notes on Virginia of 1782 -- and the earlier very sparse and conspicuously generic references to God in the Declaration of Independence of 1776. (At considerable risk of getting ahead of myself, I will say that the most sublime flower to blossom on the tree of religious liberty will turn out to be the First Amendment of 1791 to the US Constitution.) The religious right never tires of arguing that the United States is a "Christian nation". This is true enough in a purely cultural sense. But from the standpoint of the Constitution and the civil law, the intentions of the Founders were diametrically opposite. The Founders’ intent was to create a Republic which would be hospitable to all religions but beholden to none. This intent is evident at least as early as the Declaration of Independence and the Founding. The Framing would lend it "tangible" institutional expression. And the First Amendment would "seal the deal".
(3) What hedged (1) (religion as personal) and (2) (religion as separate from state power) about with persuasive force was perhaps the most important lesson to be taught to European civilization by the religious wars of the two centuries prior to the Declaration: the criticality of autonomous human reason as a moderating and supervening authority, even in matters religious. The Founders believed that religion was far too important to be left to government. Perhaps the most important, rigorous, and persuasive text in this regard is Kant's Religion Within the Limits of Reason Alone of 1793.The details are far too complicated to even synopsize here. (Suffice to say that even the university authorities of that day were so scandalized by Kant’s text that they forbade Kant ever again to speak or write or publish on any aspect of religion.) But just the title alone speaks volumes about how the signatories of the Declaration -- and the Framers -- viewed religion. We will return to this subject in the post on the Constitution "proper" and the Bill of Rights, especially the First Amendment. For now, I will only say that the moral and political imaginations of the Founders, in signing the Declaration of Independence, were indelibly impressed with the catastrophic consequences that are almost guaranteed to ensue when people and nations do not maintain the primacy of reason over religious passion. This lesson, written in the blood of two centuries, would be inscribed into the Constitution thirteen years later, and into the Bill of Rights two years after that.
We have come a long way in 1400 years …
o … from the neo-Platonic Augustinian belief in the 300s that human beings are so irreparably warped by sin that human rationality is deeply untrustworthy, and even outright incompetent in matters of faith and morals; to the belief that indigenous human reason, exercised autonomously, can discover truth about the social and political worlds no less than about the physical universe
o … from the pre-Enlightenment belief that social and political structures, in particular, the hierarchy of authority from Pope to king to lord to peasant, is Divinely ordained; to the belief that all human social and political arrangements are of purely human origin
o … from the Augustinian belief that the ultimate purpose of human life, and the test of the goodness of social and political institutions, is how well human beings and their political institutions serve the purposes of God; to the belief that all governments and social structures derive their legitimacy from how well they serve the purpose of human well-being
o … from the belief that the Divinely ordained hierarchy of society is predicated on a prior Divine ordination of the intrinsic worth of all persons; to a belief that, on the contrary, in terms of fundamental rights, human equality, not human inequality, is Divinely ordained
o … from the belief that religious authority should be the highest court of appeal, both literally and metaphorically, in all dimensions of human activity; to the belief that religious conviction and passion should – and, on pain of chaos and anarchy and warfare, must – be confined to the precincts of the individual conscience and, even there, must be governed by the discipline of reason
All these lessons were derived, at the cost of much blood, from both brilliant success and abject failure: the brilliant success of rationality in its application to science and exploration; the abject failure of the European nations to restore anything like the monolithic unanimity that prevailed during the time of St. Augustine. The tragedy and triumph of that millennium and a half could be summarized very simply: we could, and did, learn to agree to disagree. The results were the foregoing lessons and principles.
But, that said, after the American Revolution succeeded, the question remained: how do we embody those abstract lessons and principles in an actual, specific, discrete, concrete, particular form of government and society?
The answer was: the US Constitution.
James R. Cowles