The Declaration of Independence: Vindication and Defeat
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Something we ought to consider in the controversy over the Confederate (battle) flag: The United States defeated the Confederacy on the battlefield, but eventually gave in to the political principles that the Confederacy stood for.

In the years leading up to and through the Civil War, Abraham Lincoln called upon the American people to rededicate themselves to the principles of the Declaration of Independence. As Lincoln said, “I have never had a feeling politically that did not spring from the sentiments embodied in the Declaration of Independence,” particularly that freedom and democracy derived from the natural fact of human equality. Slavery violated this principle, and the Republican Party was founded to restore slavery to the place where the founders had placed it, he said, “in the course of ultimate extinction.”

Lincoln had to fight off efforts by slavery advocates to prove that the founders did not mean the Declaration to apply to blacks — or that, if they did think it applied to blacks, that they were mistaken. The first argument was most prominent in the debates with Stephen Douglas in 1858, and in Chief Justice Roger B. Taney’s opinion in the Dred Scott case. As Douglas put it,The signers of the Declaration of Independence never dreamed of the negro when they were writing that document. They referred to white men, to men of European birth and European descent, when they declared the equality of all men…. When that Declaration was put forth every one of the 13 colonies were slaveholding colonies, and every man who signed that instrument represented a slaveholding constituency.”

Douglas was echoing what Taney claimed a year earlier in Dred Scott, that it was “too clear for dispute, that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this Declaration; for if the language, as understood in that day, would embrace them, the conduct of the distinguished men who framed the Declaration of Independence would have been utterly and flagrantly inconsistent with the principles they asserted; and instead of the sympathy of mankind, to which they so confidently appealed, they would have deserved and received universal rebuke and reprobation.” In short, to claim that the founders believed that all men were created equal was to condemn them as hypocrites.

Lincoln replied that “I believe the entire records of the world, from the date of the Declaration of Independence up to within three years ago, may be searched in vain for one single affirmation, from one single man, that the negro was not included in the Declaration of Independence.”

He rejected “the staple argument of both the Chief Justice and the Senator, for doing this obvious violence to the plain unmistakable language of the Declaration. I think the authors of that notable instrument intended to include all men, but they did not intend to declare all men equal in all respects.” But they were equal in “certain inalienable rights, among which are life, liberty, and the pursuit of happiness. This they said, and this they meant. They did not mean to assert the obvious untruth, that all were then actually enjoying that equality, nor yet, that they were about to confer it immediately upon them. In fact they had no power to confer such a boon. They meant simply to declare the right, so that the enforcement of it might follow as fast as circumstances should permit. They meant to set up a standard maxim for free society, which should be familiar to all, and revered by all; constantly looked to, constantly labored for, and even though never perfectly attained, constantly approximated, and thereby constantly spreading and deepening its influence, and augmenting the happiness and value of life to all people of all colors everywhere.”

Some slavery partisans were more forthright. They agreed with Lincoln that the founders meant what they said, but concluded that they had been mistaken. When Alexander H. Stephens was inaugurated as the first (and last) vice president of the Confederate States of America, he observed that the founders all believed that slavery was “in violation of the laws of nature… wrong in principle, socially, morally and politically.” They hoped that it would “be evanescent and pass away.” Their ideas, however, were “fundamentally wrong,” he said. “They rested upon the assumption of the equality of the races. This was an error.” The Confederate Constitution was “founded upon the opposite idea; its foundations are laid, its cornerstone rests, upon the great truth that the negro is not equal to the white man; that slavery — subordination to the superior race — is his natural and normal condition.” It was, he said, the first government ever “based on this physical, philosophical and moral truth.”

In this sense, the Confederates were the “progressives” of their day. Their legal and political philosophy was ahead of its time, anticipating the legal “realism” of the next century. As one scholar has more recently noted, “Retrograde though it was in its consequences, slavery had given rise to a remarkable and little-appreciated strain of legal realism in the South: to a recognition that judges made law and did not discover it; that economic self-interest was the cement of the Union, and that the Constitution was a manipulable artifact.”

The Civil War ended slavery and seemed to vindicate the principles of the Declaration, as Lincoln so ably articulated them in the Gettysburg Address. But it was only a few decades before a new generation, the “progressives,” renewed the war on the Declaration and succeeded where the Confederates failed. The progressives aspired to give America a European-style welfare state, and they knew that the principles of natural rights found in the Declaration and the Constitution stood in their way.

Woodrow Wilson was more explicit than most progressives on this point. The progressives were all “historicists,” who believed that political and constitutional principles could not be fixed, but had to change — to evolve, in the Darwinian idiom — along with changing times and conditions. Thus Wilson argued that “we are not bound to adhere to the doctrines held by the signers of the Declaration.” If we did read the document, he said, we should focus on the list of particular grievances that were germane to 1776, but not to our times. The principles of equality, consent and natural rights he dismissed as “the rhetorical introduction of the Declaration of Independence,” adding that “If you want to understand the real Declaration, do not repeat the preface.” Wilson complained that too many Americans “have never gotten beyond the Declaration of Independence.”

The 20th century was largely the story of Americans “getting beyond the Declaration of Independence.” We no longer take seriously the idea that individuals have pre-existing rights by nature, and that we form governments to secure these rights. Rather, we have embraced the idea that government is the provider of what we call rights, but are in fact the benefits of an entitlement state.

By all means, let’s get rid of the Confederate flag. And let’s restore the American flag to the principles of the Founding.

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