Along with Noah Millman, I’ve been intrigued by Dan McCarthy’s posts on “declarationism,” that is, the claim that the Constitution was designed to be the vehicle through which to reify the ideals of the Declaration of Independence.
The eight years under which the young United States was governed by the Articles of Confederation (and Perpetual Union Between the States) would seem to throw a wrench into the declarationist thesis of original intent; it was drafted more or less concurrently with the Declaration, and it conspicuously lacked the egalitarian good-government lodestar that Brad Delong identifies in the Preamble.
I pulled Orville Vernon Burton’s magnificent history The Age of Lincoln off the shelf as a refresher. Burton’s is a pro-Lincoln text, but its portrait of baked-in statism is not uncongenial to paleoconservatism’s constrained view of the founding.
Indeed Burton sounds downright Nockian:
Those who threatened stability with rebellion on behalf of personal rights all discovered that the government’s willingness to maintain order took precedence over personal freedom. Rebellions among the enslaved were put down quickly. When slaves in New York rebelled in 1712 and in South Carolina in 1739, colonialists stiffened their laws, sure that hard punishment would end further resistance. They were wrong. Unruly whites also — the farmers who followed Daniel Shays in Massachusetts in 1786 and 1787 against the government’s unfair taxation and one-sided juries, the Whiskey Rebels of western Pennsylvania in 1794 who demanded government services and protested the whiskey tax, and much later in 1841 the propertyless Rhode Islanders who demanded the right to vote and fought federal troops in the Dorr War — discovered the limits of freedom.
Individuals spoke out in pursuit of freedom for all, but they were simply ignored and marginalized. American slavery grew and thrived in the cotton South as that crop fed an industrial revolution in the North. In both North and South slavery was sanctioned by law. The slave system created a civilization in deadly opposition to — yet wholly enmeshed with — northern capitalism.
Burton, however, argues later that Taney’s Dred Scott decision pushed even this sin-stained order beyond what the slave-owning Founders had intended:
… Taney went further than James Madison’s explanation in the Federalist Papers. Madison wrote that the slave was “restrained in his liberty” and “compelled to work” and was therefore property. But laws also punished slaves for “violence committed against others,” so he was “no less evidently regarded by the law as a member of society.” Madison admitted that the argument was “a little strained in some points,” but by that founder’s reasoning, slaves were both property and persons. Taney and the Supreme Court, however, did not admit any such strain; slaves were property, period.
Of course, Madison’s admission here seems rather slight when compared to Lincoln’s grander “new birth of freedom.” If there is continuity between the Declaration and the Constitution and Lincoln, it speaks more to the power of literary or rhetorical invention than historical reality.