Citizenship, Civic Virtue, and Constitutionalism in America’s Revolutionary Charter
The Declaration of Independence is not simply a Lockean document of individual rights, but a moderate, complex charter blending Enlightenment philosophy, common law, and civic virtue — shaped as much by Montesquieu as by Locke — reflecting a self-governing people bound together by shared duties as much as individual freedoms.
In response to recent conservative critiques of liberalism in the American founding, we should reconsider the Declaration as not so radically modern, individualist, and rationalist as some phrases — read in isolation — might suggest. More balanced assessments of the American Revolution, including by Gertrude Himmelfarb, have noted its moderate character as compared with its French sequel. The Declaration itself, along with the state constitutions launched simultaneously, clearly retains the English common law as a primary source of a just political order. Another prominent feature of the American founding is the complex character of George Washington, its central figure from 1775 to his final retirement from public life in 1796. He is neither a Cromwell nor a Napoleon elevating himself at the expense of constitutional liberty; nor a Robespierre; but neither is he a Lockean individualist. We forget that this partly classical, partly Christian, partly modern statesman would have been a signer had the Continental Congress not sent him off in June 1775 to command the American forces. It is hard to conceive that Jefferson, in his draft and then the entire Congress, were not thinking of Washington and other Americans at arms as they closed the Declaration by mutually pledging “our Lives, our Fortunes and our sacred Honor.” Recent portraits of the founding as seeding an individualist, deracinated liberalism typically, and astoundingly, avoid even mention of Washington, nor do they consider that sources beyond Locke’s philosophy might have greatly shaped the Declaration.
A full reading of the Declaration suggests Locke’s philosophy of individual natural rights and a right of revolution is important but not dominant. The document’s larger character is balance and moderation: it invokes several philosophies and sources about justice and does not take any one idea to an extreme. Danielle Allen’s recent reading of the entire text restores serious regard for the philosophical meaning and argument readily evident, including the complexity of the principles it invokes and reconciles. Among these, in her view, is a democratic principle of self-government and citizenship. As we embark on America 250 commemorations, we should follow Allen’s lead in exploring the Declaration as a revolutionary charter that contains principles of constitutionalism and citizenship. These principles resonated with the simultaneously formed state constitutions. They then informed the 1787 Constitution, produced by a Convention over which Washington presided; in turn, they illuminated the debates between Federalist and Anti-Federalist over which republican forms for an American Union would fulfill the Declaration’s principles.
The Moderate Enlightenment and the Coherence of the Founding
An under-explored yet commonsensical idea for America 250, sketched by William B. Allen, is to appreciate how the moderate philosopher Montesquieu shaped the Declaration. In this light, we perceive it as a proto-charter of government as well as a revolutionary declaration, and through this lens we can sketch a concept of citizenship in a constitutional order. This is commonsensical because we know the French jurist and philosopher was the foremost philosophical influence on the American mind during the entire founding era, 1760 –1801. Montesquieu’s complex, comprehensive political philosophy discerns human nature as blending individual rights with sociability and communal aims. He, therefore, is more accepting of the classical and medieval traditions’ political and legal forms and philosophies, including duties of citizenship, in republics. Himmelfarb makes Montesquieu, especially in his masterwork The Spirit of Laws (1748), an honorary Anglo-American as he is more moderate than his fellow philosophes, Voltaire and Diderot. She finds that the American Revolution adapted traditional law and politics, in contrast to the French Revolution’s embrace of radicalism. The standard view of our founding only considers Montesquieu’s deep influence from the 1780s in shaping the Constitution and Bill of Rights. Yet this approach tends to detach the Declaration from our founding constitutionalism. The obstacle has been the still-prevailing view that Locke — a more radical, rationalist mind than Montesquieu — dominated the American mind through 1776. Carl Becker set this Lockean view for the twentieth century, which later analysis only partly displaced. In this view, Montesquieu and his protégé, the jurist William Blackstone, became significant only after 1776, as Americans turned to writing state constitutions, the Articles of Confederation, and the Constitution.
In recent decades, several scholars have argued more accurately that the Declaration, as with our founding, is an amalgam or harmony of several philosophies and traditions of thought. Few scholars have inserted Montesquieu into our reconsideration of the Declaration, yet this is necessary given that a Lockean, rationalist liberalism of individual rights, which entails a highly modernized republicanism, is not a strong candidate to be the matrix assimilating a range of influences. Locke’s more radical modern philosophy epitomizes the analytical, binary mind. His separation of his moral and political philosophy into discrete, never-synthesized treatises affirms this single-mindedness. The vast scale and scope of The Spirit of Laws marks a different mind, one that embodies, as does the common law, assimilation of new ideas with old, in a way that reconciles seemingly opposed principles. Further, as James Stoner cogently argues, Montesquieu strongly shaped Blackstone’s harmonizing of common law and Lockean liberalism. The moderate Enlightenment’s presence in American thought suggests Montesquieu and the common law (both its traditional and Blackstonean modes) shape the Declaration as much as Locke does; indeed, these provide the harmonizing nexus that tempers Lockean liberalism. The Declaration’s complex harmony, which encompasses abstract individual rights and common-law constitutionalism along with a civic duty to uphold one’s sacred honor in defending these principles, thus provides for the further constitutional moderation and complexity of our founding. If we read the Declaration with some Bourdeaux wine of the kind Montesquieu made — the founders called it claret — we can see its Enlightenment radicalism sharpening the case for revolution, yet as one element of a larger argument propounding a proto-constitutional charter of a self-governing, civic-minded people.
Six Elements Pointing to Constitutional Moderation
To commemorate America 250, try re-reading the Declaration (claret in hand) to consider textual elements that transcend Lockean liberalism. These dimensions indicate the coherence and moderation of America’s entire founding philosophy, given the constitutionalist principles inherent in the substance and manner of an argument for separation, which concurrently forms and guides a new polity, including its spirit of citizenship. These six broader dimensions, in Jefferson’s draft and in the Second Continental Congress’s final version are:
1. Jefferson’s invocation of a divine legislator — the Laws of Nature and Nature’s God — and the three further references to a divinity that Congress added, the latter invoking an active God supporting the cause of justice in the course of human affairs;
2. Jefferson’s inclusion of “the pursuit of happiness” as a psychological, metaphysical right along with the more material rights of life and liberty, thereby transcending the predominant individualism, philosophical hedonism, and narrow utilitarianism in Locke’s Essay Concerning Human Understanding and his troika of life, liberty, and property in the Second Treatise of Government;
3. Reliance upon the common law for most of the grounds for separating from Britain which forms the bulk of the document, in contrast to Locke’s philosophy in the Second Treatise which either ignores or twists English common law, but in strong alignment with Montesquieu, a lawyer and judge who praises the common law as a root of liberty, as a cousin of the Franco-Gothic law which he wished was still prevalent in France, and as a reasonable blend of tradition with incrementally rational improvements;
4. The implicit federalism of repeated references to an American “people” comprised of the peoples of separate colonies now joined as united states, federalism being a principle absent in Locke but a signature element of Montesquieu’s recommendations in Spirit of Laws for making more moderate, sustainable forms of liberty;
5. Congress’s remarkable invocation, amid the bill of indictment listing violations of common law, of “our constitution” as violated by King and Parliament (look for the charge “He has combined with others to subject us . . .”), indicating that traditional legal principles — not only abstract Enlightenment doctrines of individual rights and revolution — are at the core of the American view of justice, a tradition-friendly view strongly endorsed by Montesquieu but alien to Locke;
6. The closing invocation of mutual duties as pledging not just lives and fortunes but “sacred Honor” in defense of justice and independence, indicating the civic duty of self-government in this proto-constitutional polity, an ennobling element of a happy life and a traditional, nobler view of citizenship which is featured in Montesquieu’s philosophy yet simply absent in Locke’s Second Treatise.
Jefferson’s often-cited 1825 letter to Henry Lee about his approach to drafting the Declaration for the Congress supports consideration of a plurality of sources, making it a complex, moderate document rather than single-minded and rationalist. Nonetheless, his retrospective seemingly poses an obstacle regarding Montesquieu. Jefferson recounts: “[W]ith respect to our rights, and the acts of the British government contravening those rights, there was but one opinion on this side of the water. All American whigs thought alike on these subjects.” Further, the “object of the Declaration” was not to offer “new principles, or new arguments” but “to place before mankind the common sense of the subject:”
Neither aiming at originality of principle or sentiment, nor yet copied from any particular and previous writing, it was intended to be an expression of the American mind, and to give to that expression the proper tone and spirit called for by the occasion. All its authority rests then on the harmonizing sentiments of the day, whether expressed in conversation, in letters, printed essays, or in the elementary books of public right, as Aristotle, Cicero, Locke, Sidney, &c.
Jefferson is not exhaustive about his harmonizing of views; the final “as” and “et cetera” suggest other sources. Montesquieu has good company among the omitted: the common law, biblical religion, indeed, the final role of the Congress itself, making crucial revisions. Further, the regrettably neglected scholarship of Paul Merrill Spurlin and Gilbert Chinard has documented Jefferson’s deep immersion in Montesquieu’s philosophy in the early 1770s. Jefferson made abstracts from The Spirit of Laws between 1774 and 1776, filling more pages in his “commonplace book” with Montesquieu than with any other author. He turned against Montesquieu after the French Revolution, and also the Blackstonean common law prevalent in America from 1770 onwards, but this airbrushing should not determine our reading of his draft, let alone the final Congressional text.
Common Law Constitutionalism, Citizenship, and Sacred Honor
Three of the Declaration’s moderate, complex elements listed above particularly indicate its conception of citizenship. Reliance on Anglo-American common law for most of the grounds for separation indicates, as Stoner argues, an American mind assimilating disparate ideas. Jefferson’s claim of “harmonizing” to embrace two classical and two modern philosophers, among others, reflects his study of the common law with George Wythe at the College of William and Mary in the 1760s and his subsequent deep study of Montesquieu. Declaration was a term at common law akin to remonstrance, asserting rights against illegal government acts; thus, the form and title of our founding document suggest the Anglo-American common law as the harmonizing matrix, buttressed by Montesquieu’s philosophy. The bulk of Jefferson’s 1776 draft, and the final text, lists “facts” not as violations of the Laws of Nature and of Nature’s God per se but of Anglo-American law understood as grounded in natural law and natural rights, and reconcilable with Lockean rights.
This complex blend of philosophies and traditions, which is also very Montesquieuan, explains the Congress’s striking invocation of “our constitution” in the middle of its bill of indictment. Gordon Wood’s recent work on constitutionalism in the American Revolution emphasizes the common-law constitutionalism in the state constitutions from late 1775 onward, noting its seamless fit with Enlightenment philosophy in the American mind: framing new constitutions was “the ideal Enlightenment project.” He cites Montesquieu’s influence on these efforts to articulate a new American common-law constitutionalism, including upon John Adams’s Thoughts on Government — published in April 1776, and circulating at the Second Continental Congress — with its endorsement of a tripartite separation of powers and bicameral legislature. Spurlin cites American writers in the 1770’s invoking the long chapter on the English constitution in Spirit of Laws as the preeminent guide to “our constitution” when arguing against violations of it by King and Parliament.
The Declaration’s closing pledge of a mutual civic duty to sacrifice for natural rights makes sense if rights are predominantly understood as established by the divine creator of nature and its laws, and embedded in the new American constitutionalism: “for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.” Jefferson’s desire to encompass sacred honor in the idea of the American mind may have prompted his decision to include Aristotle and Cicero as shapers of it. Yet as Spurlin, Chinard, and Donald Lutz demonstrate, the modern philosopher shaping Jefferson and other leading Americans to harmonize traditional and Enlightenment ideas is Montesquieu, whose reconciliation of individual rights with common law constitutionalism and civic virtue they especially valued. Spurlin cites Americans’ in the early 1770’s drawing on The Spirit of Laws, which praises nobles who the resist tyrannical acts of a king as a matter of honor, and inspiring one American to declare, “honor is truly sacred.”
Montesquieu’s philosophy and the common law together helped Americans find a balance of individual interest and civic-minded virtue that moderated claims of rights by seeing mutual support of civic duties and private benefits. This is the same American philosophy that Tocqueville in Democracy in America termed enlightened self-interest. We should strive to sustain America 250 for two decades, through commemorating and studying Washington’s 1796 Farewell Address. We should continually connect the founding’s later moments to our complex revolutionary charter of 1776, including the founding fathers’ great example of magnanimous and moderate civic service.
