Jacob Nestle
To Secure These Rights: The Declaration and the Constitution
250 years ago this year, the Declaration of Independence made us a nation. 239 years ago today, the delegates of the Constitutional Convention signed the document that has protected that nation and put the Declaration’s principles into practice ever since. Too often we treat the two as totally separate. One is philosophy, the other law; one is revolutionary, the other governmental. But the Constitution was created on the foundation that the Declaration laid.
We all know the famous lines in the Declaration of Independence. One of the most important, though, is often less quoted. We rightly remember “All men are created equal.” We remember the rights to “Life, Liberty, and the Pursuit of Happiness.” We remember that governments derive “their just powers from the consent of the governed.” In the classroom, we use those lines as the philosophical justification for the next line: “whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it.”
Each of those lines is essential to understanding the American experiment.
But did you notice where I cut off the final sentence? It doesn’t end with alteration or abolition. It ends like this: “and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”
The Declaration of Independence was a revolutionary document. Its purpose was twofold: to make clear the fact that a revolution was happening, and why. It was not the Constitution of the United States—at the time, another committee was writing the Articles of Confederation. Yet the principles of the Declaration of Independence would go on to shape the final form of government in the United States.
After a decade of flimsy, flailing national government, the Founding generation finally agreed to a Constitutional Convention. Guided by the Declaration's principles, they created the longest-lived written national constitution in the world. The path was not always obvious.
What Happens When You Win?
Winning a revolution creates an awkward problem: You have to govern afterward. This is where most revolutions in history fail.
For most of the Revolutionary War, the immediate question was survival. Could the Americans keep an army in the field? Could they obtain French support? Could they prevent Britain from crushing the rebellion before independence became more than a declaration?
The Articles of Confederation reflected that world. Americans were deeply suspicious of concentrated authority, for obvious reasons. Each state retained its “sovereignty, freedom and independence.” Congress could make war, conduct diplomacy, borrow money, and request resources from the states, but it possessed little independent authority to make those requests effective.
The Revolution had given Americans very good reasons to ask what would happen if the government became too powerful. Necessity kept the United States together under the weak government of the Articles of Confederation. Peace forced them to ask the opposite question: What happens if the government is not powerful enough?
When the Declaration was passed in July 1776, Americans had already spent years asking what good governments should look like. By 1787, they had hands-on experience of an insufficient answer. The Americans had proven that they could throw off a government they believed violated their rights. Now they had to prove that they could create one capable of securing them.
Putting Principles Into Practice
The Declaration focuses primarily on limitations on government. Its argument begins with rights that government must respect, and its grievances indict political power used illegitimately. Yet the indictment itself rests on the principle that governments exist not merely to avoid trampling on rights. The Declaration does not say that the purpose of good government is to exercise as little power as possible. It says governments are instituted to secure rights.
A government incapable of defending the country, administering its laws, maintaining public order, enforcing legitimate obligations, or acting where collective action is necessary may be less frightening than a tyrant. It may also be incapable of accomplishing the purpose for which government exists.
Hamilton developed that argument with typical clarity in Federalist No. 23: “The MEANS ought to be proportioned to the END.” If Americans decided that national defense was a responsibility of the national government, then that government had to possess the lawful means necessary to provide national defense. Responsibility without capacity would mean nothing.
You can read more of The Federalist Papers, or take a look at the arguments of those who disagreed with them in The Anti-Federalist here on Lexandria!
That became the source of the Constitution’s great departures from the Articles. The federal government could tax. It could regulate interstate and foreign commerce. It could raise armed forces. Its laws could operate directly on individual citizens. Federal law, when constitutionally enacted, would be supreme over conflicting state law.
The Constitution created a government that could actually govern. That does not mean the framers forgot the Revolution. They had to create a Constitution to face the hard problem: giving the government enough power.
Democracy Is Not Enough
Madison had come to another uncomfortable conclusion by 1787: Popular government, what we today broadly refer to as “democracy,” does not automatically protect individual rights.
The Revolution had focused American attention on abuses committed by the King, since the British constitution placed sovereignty in the King’s hands. But in Vices of the Political System of the United States, Madison looked at the state governments and saw another possibility. A political majority, acting through a perfectly republican legislature, might itself violate the rights of a minority or an individual.
What would restrain an interested majority from committing unjust violations? That question became one of the Constitution's central problems.
Madison develops the theme further in Federalist No. 10. Factions were not dangerous only when they were minorities seeking to disrupt the government. Because a popular or “democratic” government is, by nature, susceptible to control by majority factions, Madison wanted a constitutional order that could protect popular self-government from one of its inherent weaknesses. It was not possible to ignore the problem by appealing to high-minded republican virtue: “the causes of faction cannot be removed; and that relief is only to be sought in the means of controlling its effects.”
That required something more complicated than consent. Consent establishes who has the right to govern. It does not guarantee that everything a majority wants to do is just. The answer had to be institutional.
Representation. Separate branches. Competing political interests. Different election cycles. An independent judiciary. A federal system. A large republic, where it would be harder for one permanent faction to capture every part of political life at once. Throughout the Federalist Papers he wrote, Madison defends the idea of a system that seems, to the idyll-minded revolutionary sort, to be an arcane method of stymying the will of the people.
Madison eventually summarized the goal of all this constitutional machinery very simply in Federalist No. 51: “Justice is the end of government.” If the majority acted against justice, they were no better than a king.
“We the People” Isn’t Rhetoric
An obvious difference exists between the opening of the Articles and the opening of the Constitution. The Articles announced a confederation among states, each retaining its sovereignty. The Constitution begins “We the People.”
That did not make the states irrelevant. The Constitution preserved them as governments with their own enormous responsibilities. The Senate represented states equally. States retained their own legislatures, executives, courts, laws, and constitutional structures. The new system was neither a loose confederation nor a single centralized government.
Madison described it as a combination of national and federal elements. He later assured readers that national powers would be “few and defined,” while states would retain authority over many ordinary matters involving the lives, liberties, and property of the people. Federalism did not mean that Americans had two different political sovereigns fighting over possession of the citizen.
Madison’s explanation in Federalist No. 46 reveals how the Constitution’s Framers followed the logic of the Declaration. The state and federal governments, he wrote, were “different agents and trustees of the people,” given different powers for parallel purposes. The “ultimate authority” resided in the people alone.
Think about how closely that follows the logic of 1776. Governments do not own political authority. They receive it by the consent of the governed. The people establish institutions, assign powers, divide those powers, and retain the ultimate authority from which those institutions derive their legitimacy.
The Constitution’s federalism was therefore not simply a compromise between people who liked national government and people who liked states. It was also a way of organizing the popular will.
James Wilson had signed the Declaration and became one of the most important advocates for the Constitution. During the Constitutional Convention on June 19, 1787, he appealed directly to the Declaration while debating the nature of the American Union. Madison’s record of the debate notes Wilson’s argument from the Declaration that the states had become independent “Unitedly,” rather than simply emerging as thirteen entirely disconnected political societies.
During Pennsylvania’s ratification debate, Wilson made the intellectual connection even more explicit. He read the Declaration’s argument that people possess rights, that government derives legitimate authority from consent, and that the people may alter their government when it fails them.
Then he turned to the proposed Constitution. “This is the broad basis on which our independence was placed,” he said. “On the same certain and solid foundation this system is erected.” Wilson did not think the Constitution replaced the Revolution, or that the states were being superseded. The new federal government was a natural extension of the Declaration of Independence's united nature.
Form Matters
Now back to those less-famous words in the Declaration. The people have the right to establish a government, “laying its foundation on such principles and organizing its powers in such form” as they believe will best secure their safety and happiness. That sentence has two parts: principles and form. Both are critical to a successful nation under one government.
Americans already possessed a remarkably broad agreement about some of the principles in 1776. Rights did not originate with government. Legitimate political authority came from the people. Government existed for the public good. Political authority could be altered when it stopped serving those purposes.
The form was harder. Americans experimented with unicameral and bicameral legislatures. Weak and stronger executives. Different arrangements for judges. State declarations of rights. A confederation in which states retained enormous independence. Eventually, they tried a federal system in which a stronger national government shared political space with governments in the states.
The Constitution could not resolve the tension between political power and liberty, so it institutionalized it. National power could check state power. State governments could resist national concentration. The House and Senate checked one another. The president could check Congress, while Congress could constrain the president. Courts operated independently of both. Different institutions received different constituencies, terms of office, and responsibilities.
None of them could plausibly claim to be “the people” simply because it had won an election. The people remained above the governments they had created.
Organizing Liberty
The Declaration and Constitution do different things. The Declaration explains why political power is legitimate. The Constitution distributes political power among institutions. The Declaration identifies the ends of government. The Constitution attempts to provide the means while limiting how those means can be used.
The Declaration says the people possess rights and political authority before government does. The Constitution begins by locating its own authority in “We the People,” then divides the power entrusted to government among different levels and institutions.
The path between the two was not automatic. It took over a decade. Americans had to learn from state constitutions. They had to live under the Articles. They had to discover that a government too weak to carry out its responsibilities could create its own dangers. They had to confront the possibility that majorities could threaten rights as surely as executives could. They had to decide which problems required national authority, which powers should remain closer to the people, and how one government could check another without making them all ineffective.
That is why the Constitution should not be read as the moment Americans moved on from the ideas of the Declaration. It is the answer to the same question the Declaration itself centers on:
If government exists to secure rights and receives its legitimate authority from the people, what kind of government should the people build?