Constitution v Declaration

Why History Counts

The two most important documents in American history have a chequered history. Most people know that it was Thomas Jefferson who authored the Declaration, but the framers of the Constitution are less distinct and certainly less well-known. Despite this fact it is to the Constitution that Americans give their allegiance and regard as the crowning achievement of the revolution.

Reverence to the Constitution has not always been the norm.

On balance, the Constitution was deliberately ambiguous—but operationally pro-slavery. Perhaps more so than James Madison wanted. He’s outdone original-intent jurisprudence in reducing history to a morality play of good founders, bad critics. He loses sight of what actually happened when the ambiguously worded but slavery-suffused Constitution was finally released to an anxious public.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

— Declaration of Independence, 1776

Thomas Jefferson presented the Declaration of Independence to the Continental Congress in 1776.

When the American colonies broke from England, the Continental Congress asked Thomas Jefferson to write the Declaration of Independence. In the declaration, Jefferson expressed American grievances and explained why the colonists were breaking away. His words proclaimed America’s ideals of freedom and equality, which still resonate throughout the world.

Yet at the time these words were written, more than 500,000 black Americans were slaves. Jefferson himself owned more than 100. Slaves accounted for about one-fifth of the population in the American colonies. Most of them lived in the Southern colonies, where slaves made up 40 percent of the population.

Many colonists, even slave holders, hated slavery. Jefferson called it a “hideous blot” on America. George Washington, who owned hundreds of slaves, denounced it as “repugnant.” James Mason, a Virginia slave owner, condemned it as “evil.”

But even though many of them decried it, Southern colonists relied on slavery. The Southern colonies were among the richest in America. Their cash crops of tobacco, indigo, and rice depended on slave labor. They weren’t going to give it up.

The first U.S. national government began under the Articles of Confederation, adopted in 1781.

(The Continental Congress adopted the Articles of Confederation, the first constitution of the United States, on November 15, 1777. However, ratification of the Articles of Confederation by all thirteen states did not occur until March 1, 1781. The Articles created a loose confederation of sovereign states and a weak central government, leaving most of the power with the state governments. This document said nothing about slavery. It left the power to regulate slavery, as well as most powers, to the individual states. After their experience with the British, the colonists distrusted a strong central government. The new national government consisted solely of a Congress in which each state had one vote. The need for a stronger Federal government soon became apparent and eventually led to the Constitutional Convention in 1787. The present United States Constitution replaced the Articles of Confederation on March 4, 1789.)

Looking at the balance of the emphasis of both documents it's easy to see that practically and operationally the Constitution takes precedence.

This is the norm. Jefferson’s magnum opus is revered, but it is to the Constitution that Americans give their allegiance. So, how did this come about and is it healthy?

The founding fathers (FF) always knew that the Constitution would be a compromise. Given the state of the nation after the experiment with the Articles of Confederation: it could be nothing else.

In order to get the southern states on board compromises had to be made. The chief compromise was in allowing slave states to count 3 fifths of slaves as population for the purpose of deciding the population of each state, and therefore the number of members of the house of representatives. Putting it simple: the FF no matter how revered ensured that the Constitution not only recognised slavery but also rewarded its continuation.

These compromises led many abolitionists to call the Constitution a pact with the devil.

The Declaration presented no such ambiguity. Unless you consider slaves not to be men? Jefferson's mantra that all men are created equal rings out-even though he was a slave holder himself. Life, liberty and the pursuit of happiness is a creed not present in the constitution. Instead we have in order to form a more perfect union, establish justice, ensure domestic tranquility and provide for the common defence. Admirable aspirations but lacking the humanity features of the Declaration.

The Constitution was out of date from the beginning. No sooner were the required ratifications received than the first ten amendments (known as the Bill of Rights) were added. What Americans see as their fundamental rights stem from these first 10 amendments.

Fast forward to the Covid 19 pandemic and the response of the Vice President, Mike Pence. In response to a question from the media as to why the government had not done more to discourage people from mass gatherings and protests. Mike reminded them that the Constitution guarantees the right to assembly.

(The First Amendment to the United States Constitution states "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress …)

As to whether this applies in a public health emergency is probably open to debate.

The Constitution is an evolving document. The Declaration stands as it was written. The Constitution is a working framework for government, the Declaration is aspirational. On balance I prefer the Declaration of Independence, for it speaks to the goals and qualities which all Americans ought to respect and work to achieve.