A recent Fund for American Studies conference asked its panelists to explain what the Founders intended when they used the phrase “consent of the governed” in the Declaration of Independence, which at first blush seemed simple for a PhD in political science and longtime lecturer on the general subject of the Founding.
But the more I thought of it, the more complex this question became.
The Declaration was certainly “intended” to justify declaring independence from the Kingdom of Great Britain. The Founders made their case by enumerating “repeated injuries and usurpations” by the King, resulting in “an absolute tyranny” that voided his moral right to rule. To secure the basic human rights to life, liberty, and the pursuit of happiness for its people, the document continued, “governments are instituted among men, deriving their just powers from the consent of the governed.” And when destructive of those ends, “it is the right of the people to alter or abolish it and institute a new government.” (RELATED: The Immediate Impact and Enduring Importance of the Declaration of Independence)
But this King had already claimed to be ruling his colonies by the ultimate right, Divine Right. What moral justification could possibly trump that godly claim? The Founders’ response was that the people were endowed by their very Creator with these “unalienable rights” as derived from “the laws of Nature and Nature’s God.” So, by “appealing to the Supreme Judge of the World,” and through the “authority of the good people of these colonies,” as represented by a congress of their independent states, they did solemnly declare independence, “with a firm reliance on the protection of divine Providence” and upon the risk of their own lives, fortunes, and sacred honor. (RELATED: Can Liberty Survive Without a Soul?)
So, in a purely procedural sense, the Founders surely intended to solve a practical political problem at a particular time and place with a convincing moral argument. But that response today is often met with complaints that such a pragmatic response undermines the broader legitimacy of the Founding document itself to provide the necessary moral justification, supported only by the legitimacy of the “consent of the governed” themselves.
The Constitution is the means of government; it is the Declaration that announces the ends of government.
In any event, the “united colonies” did persevere in governing themselves under the Declaration institutionalized by an Articles of Confederation government to enforce it. But after 11 years, this government was itself thought to be inadequate by some who called a new convention of states to make necessary changes. This convention issued a new governing document justified by its Preface under the authority of “We the people of the United States” to create “a more perfect union” by establishing a Constitution, where the people devolved limited powers to five separate legislative, executive, judicial, state, and amendment institutions.
The new national government proclaimed supremacy only in its delegated powers, with retention of other powers reserved to the state governments or to the people, presumably all still acting under “the consent of the governed.” But that was then, and so we panelists were then asked to explain how that consent of the governed was implemented and adapted over time — and whether this was a positive or negative development.
My response was that with many ups and downs, the nation grew and changed but basically persevered for fourscore and seven years under the general provisions of the original Constitution. A great civil war followed with three major Constitutional amendments that granted national rights within states for formerly enslaved peoples, that provided for due process and equal protection to all, under universal rights to due process and equal protection. These rights were not broadly enforced, so it was not until the next amendment that the government began to change radically. So, 40 years later, the 16th Amendment under President Woodrow Wilson revolutionized the national government by granting it the power to greatly increase its ability to raise funding within the states through a direct income tax, followed by laws and regulations greatly increasing the scope of national power.
Wilson had long prepared for this radical reorganization of the old, divided-powers government as far back as a Johns Hopkins University graduate student in an extraordinarily influential 1895 book, Constitutional Government. Here, he argued that the “fatal flaw” of the Constitution was that it divided power rather than centralized it. As a Princeton University president, he promoted his progressive support for experts to administer government rather than the elected politicians of the governed. As U.S. president, he instituted the Federal Reserve Bank, new regulatory agencies, and loans for agricultural businesses. His 14-point world peace theme even became the basis for the United Nations Charter. His progressive revolution was advanced further under Franklin Roosevelt’s New Deal and institutionalized under Lyndon Johnson’s Great Society — and with few later ameliorations —this centralization of power still dominates today.
Supreme Court Justice Clarence Thomas added a more personal and broader context to these changes over time in a widely reported recent speech celebrating the 250th anniversary of the Declaration. His presentation was especially powerful, coming from the perspective of his family background under slavery, his own life under segregation, and the consent of the governed under which he and his family had lived. (RELATED: Justice Thomas Stands Up for the Declaration and Constitution)
Well before laws were changed, before Abraham Lincoln or Roe v. Wade or the important role of Martin Luther King, Thomas emphasized that his family, his neighbors, his church, and later his own religious school education treasured the values of the Declaration, especially its emphasis on all people being equal and being endowed by their very Creator with that right.
The Declaration and its “laws of Nature and Nature’s God,” Thomas emphasized, is about “immutable, absolute natural rights.” But “history teaches us, alas, that numerical majorities frequently seek to control government, and use the state to violate the rights of the minority.”
Because man is fallen and the desire for power was, as James Madison described it, “sown in the nature of man,” government had to be limited. For, as Madison said, “if men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.” But men are not angels. The slaveholders used the power of government to deny the fundamental natural rights of the slaves; the segregationists used the state to oppress the freed men and women, including my ancestors.
Segregation and other denials of rights in the Declaration were ameliorated, but at the same time, the nature of the government had changed fundamentally. Indeed, he continued,
as we meet today, it is unclear whether these principles will endure. At the beginning of the 20th century, a new set of first principles of government was introduced into the American mainstream. The proponents of this new set of first principles, most prominently among them the 28th president, Woodrow Wilson, called it progressivism. Since Wilson’s presidency, progressivism has made many inroads in our system of government and our way of life. It has coexisted uneasily with the principles of the Declaration. Because it is opposed to those principles, it is not possible for the two to coexist forever.
Thomas warned that this progressivism interpreted rights as no longer “a gift from God but was to be enjoyed at the grace of government.” This Wilsonian claim that natural rights must give way to historical process and expert rule led historically to the justification by the Supreme Court itself in Plessy v. Ferguson, to uphold segregation on the basis of the “customs and traditions of the people” rather than the “Declaration’s vision of universal, inalienable natural rights.”
Declarations of rights are not enough, Thomas concluded. How they are enforced is critical.
The Constitution is the means of government; it is the Declaration that announces the ends of government. The Constitution achieves this purpose by protecting our natural rights and liberties from concentrated power and excessive democracy. Our Constitution creates a separation of powers and federalism — truly for the first time in modern history — to prevent the government from becoming so strong that it threatens our natural rights. Federalist No. 10 proposed the idea that the great threat to our rights comes from the majority faction.
As important as are the Declaration’s ends and the moral legitimacy derived from the consent of the governed, the Declaration’s own justifications rest primarily upon its higher moral powers — Nature and its God, a Supreme Judge, Providence, and Creator.
These are less definitive today, and moral ends need effective means to support them. The more practical problem is that the Constitutional Founders relied upon separation of powers and federalism, but these have now been so diluted under progressivism as to undermine whole understanding of “consent of the governed.”
There is still time. While the celebration of the Declaration will quickly be coming to a close this year, the 250th anniversary of the Constitution is still a decade away. And it is the Constitution that has been so distorted by progressive experts that it most needs repair. But it can be revived by the Constitution’s same five institutions under the leadership of the governed that reaffirms the supreme importance of its separation and federalist decentralization of powers.
And, so, on to a real celebration in 2037!
READ MORE from Donald Devine:
Can Liberty Survive Without a Soul?
Forthcoming Ideological Battle on the Right?
Has President Trump Ended or Extended the Conservative Era?
Donald Devine is a senior scholar at the Fund for American Studies in Washington, D.C. He served as President Ronald Reagan’s civil service director during his first term in office. A former professor, he is the author of a dozen books, including his most recent, Thinking About Freedom and Tradition: Understanding the Philosophers Who Make the Case for Western Civilization; The Enduring Tension: Capitalism and the Moral Order; and Ronald Reagan’s Enduring Principles; and is a frequent contributor to The American Spectator.
