I’ve been following with interest Daniel McCarthy’s discussion of “declarationism” and its perils. If I understand the debate, “declarationism” is the contention that the Constitution was an expression of the core ideological convictions expressed in the Declaration of Independence (specifically, the “self-evident” truths about liberty and equality that open the second paragraph) and should be read in that light. This is a view made popular by the Civil War, sufficiently widespread that its adherents run the gamut from Brad Delong to Justice Clarence Thomas. And Gettysburg provides the usual ground for dispute on this point: if you don’t agree that there are some grounding ideals for the Constitution, then it’s not merely a compromise with evil but an embodiment thereof, having implicitly endorsed the permanence of slavery. And if those grounding ideals are to be found anywhere, surely they are to be found in the Declaration, the document that justified the creation of the United States in the first place, the Constitution merely being the document that organized its government in its permanent form.
Except, that’s not what the Declaration did. It didn’t bring the United States into being ex-nihilo. The various states already existed, as did the Continental Congress that was the germ of a central organizing authority. What the Declaration justified was severing the connection with the crown. That’s the context of those ringing words. The Declaration begins:
When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
The necessity to be demonstrated is not that Americans may organize themselves for self-government, but that they must dissolve the political bands that connected them with Britain. What must be declared is not the principles upon which the new government is founded but the causes which impel that separation. And then we get the famous phrases about self-evident truths and the proper purposes of government. These articulated ideals are part of the indictment of Britain, a preamble intended to provide a basis for understanding Britain’s “despotism” and “usurpations.”
The proper application of the Declaration to the great question of the Civil War was not “is it right for the Union to prosecute a war to end slavery?” but “does the Declaration provide an adequate justification for secession?” And it manifestly does not.
The Declaration does not say, “when in the course of human events, it becomes advantageous or profitable or popular or convenient for one people to dissolve the political bands which have connected them with another; it speaks of necessity. And that necessity pertains, in turn, to the proper purposes of government: the protection of those inalienable rights to life, liberty and the pursuit of happiness. These ideals are a limiting principle – in their absence, the signers of the Declaration would effectively have been saying, “we declare our independence because we feel like it, and that’s all the justification we need.” Instead of doing that, they declared: “normally, what we are doing would be called treason, and so we provide this justification for our actions in terms of the most fundamental truths about the purpose of government.”
If the secessionist cause is to be justified in the Declaration’s terms, it must make one of two claims. Either there are no “political bands” of note to dissolve — the Union is a mere compact among sovereign entities, that any party may depart from at will. Or, if those bands are granted to exist, the election of Abraham Lincoln, whose party was committed to preventing the spread of slavery and to maximally restricting the entanglement of the free states and territories in the operation of that institution, was itself a sufficient threat to “life, liberty and the pursuit of happiness” in the Southern states, and the culmination of a sufficiently extensive train of “abuses” and “usurpations” as to justify the dissolution of those bands.
The first of these contentions does not withstand minimal scrutiny, and is belied by essentially the entirety of the record of the debate over the Constitution. Clearly, the Constitution did not create a unitary structure where sovereignty resided entirely with the central government. But equally clearly, it was more than a compact among the states. Moreover, as a simple historical matter, most of the states of the Confederacy date to the period after 1787; only four of eleven were among the original thirteen colonies. All but one of the others (Texas being an exceptional case as always) came into being as states only through the mechanism of the Constitution.
So what of the second? Is it plausible on its face to claim that the election of Abraham Lincoln in and of itself justified secession as necessary? Is it plausible that the spread of slavery to new territories was necessary for the preservation of “life, liberty and the pursuit of happiness” in the South? More to the point, how can a war expressly entered into for the preservation of a right to slavery (understood as a species of property), be described with a straight face as founded on the principle that “all men are created equal?”
The justification for the Union in prosecuting the war was simply that secession was illegal and treasonous. It required no deeper principle. It is the Southern states that required deep justification for their actions. And their justifications were manifestly inconsistent both with the principles of the Declaration and the historical record of the ratification of the Constitution.
Now, of course, Abraham Lincoln did make use of the Declaration to justify an expansion of the Civil War’s aims. That’s the kind of thing that happens in war, and one can unequivocally applaud the goal — the abolition of slavery — and even the means — war prosecuted to unconditional surrender — even as one can worry about how to limit a revolutionary principle once unleashed. But I can hold to that view while still arguing that the choice — in theory if not in practice — was never “Lincoln or Taney.” That is to say, it is not true that in order to reject the Dred Scott decision, you need to believe that the Constitution has to be read by the light of the Declaration of Independence.
Turning to Taney and his infamous decision in Dred Scott, what’s worth noting is that Taney’s opinion itself requires a search for “principles” behind the Constitution. He found those principles in the theoretical justification for slavery: the inherent inferiority of the black race. Words to that effect do not appear in the Constitution; what does appear is a recognition of slavery as an existing institution, and a description of how that institution is to be accommodated for the purpose of making the Constitution work. Changes in political and economic reality over time made those compromises less and less tenable from the perspective of the Slave Power. But that political problem was not the Court’s responsibility to resolve. Taney correctly discerned a threat to the institution of slavery in Dred Scott’s appeal. But it was Taney’s choice, and Taney’s choice alone, to decide that slavery was not merely assumed by the Constitution to exist, but understood to be right and proper. That extra-constitutional bridge could just have easily, and with far greater justification, been built to the Declaration, and would have resulted in an opposite conclusion. But even easier, from a theoretical perspective, would have been to build no such bridges, and to defer to Congress. Which also would have meant finding for the plaintiff.
Why did Taney come to the conclusion he did? Unquestionably, the primary reason was political. He was trying, in his way, to hold the Union together, convinced as he was that this could only be achieved on terms acceptable to the Slave Power. And he was probably right about that; the Union probably could not be held together other than by force (as it was) or by abject capitulation to the Slave Power’s demands. But in the background I discern another principle, a kind of idolatry of the Constitution that is as problematic as the idolatry of the Declaration that McCarthy warns against. Why, after all, did Taney feel the need to determine what the Constitution “thought” about the fitness of black people for citizenship? Why would anyone turn to a piece of paper to find out the answer to a question like that? The answer, it seems to me, is that otherwise it would be clear he was simply preferring his own view on this matter to the views of the Congress of the United States.
The Constitution is just a piece of paper, the result of a series of arguments and compromises between mortal men, motivated both by public spirit and more venal emotions and interests. If we venerate it, we do so primarily because that veneration serves the conservative political purpose of unifying the population across both space and time, much as does British veneration of the crown, and not because those men in Philadelphia were inspired with other-than-worldly wisdom. So, too, with the Declaration, which was also a political document with a specific rhetorical goal. There is wisdom there, and beauty, and much worth loving for its own qualities and not merely for this aforesaid conservative purpose; but that wisdom is a human wisdom, that beauty a human beauty, and we are also human beings, capable of being wise as well as foolish, beautiful as well as ugly. And when we read these documents, and interpret them, and thereby keep faith with both our ancestors and our descendants yet unborn, it behooves us to read them and interpret them with our best wisdom, our best stab at beauty, because that is the only wisdom and the only beauty at our disposal.