Self-government, Legislative Power, and the Declaration of Independence
The Declaration is open to various forms of government, requiring only that it secure natural rights with consent — but its grievances against the King implicitly demand elected legislatures and independent courts, pointing inevitably toward republican self-government.
Many Americans think of the Declaration of Independence as a great democratic manifesto, holding that the only just government is one in which the people rule themselves through their elected representatives. Yet a close reading of the document itself, especially its philosophical core articulated in the second paragraph, reveals, perhaps surprisingly, that the Declaration seems open to a variety of other forms of government.
In a mere 110 words, the authors of the Declaration laid the philosophical foundations for their revolution:
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. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, 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 purpose of government, then, is to secure the rights equally vested by the Creator in all human beings. According to this view, fundamental human rights (often called “natural rights”) do not come from government — they precede the existence of government — but they must be secured by government. Although the American founders were not fans of the English philosopher Thomas Hobbes (1588–1679), they would have agreed with Hobbes that without government — that is, in “a state of nature” — “the life of man [is] solitary, poor, nasty, brutish, and short.” 1
Just government, though, requires something more than securing rights; it requires also that the people consent to its exercise of power. Securing rights and ruling through consent are two distinct principles. In an ideal world, they would operate in a mutually supportive way: the people would consent to a government that secured the rights of all. But in the real world, these principles can, and sometimes do, conflict: a majority of the people may consent to using government to deny rights to a minority. Certainly, at the time of the American founding, a majority in many of the new states consented to the enslavement of blacks, enforced by the power of government. Although the authors of the Declaration were certainly aware of the potential tension between securing rights and popular consent, they were silent on this matter in the document itself. Later, the problem of “majority faction” would be a central concern to the architects of the U. S. Constitution, and would be the subject of James Madison’s famous Tenth Federalist essay. There, Madison asks the question: If the majority rules, how do you keep it from violating the rights of a minority if it is in its interest to do so? 2
The Declaration’s silence on this deep and troubling issue is understandable for two reasons. First, the issue at hand in July of 1776 was not misrule by majorities but rather the tyrannical acts of King George III. Second, the Declaration does not, in fact, teach that “the consent of the governed” requires a full-fledged democracy. Indeed, when the people overthrow a tyrannical government and institute a new one, they may lay” its foundation on such principles and organiz[e] its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.” This seems remarkably open-ended. The people may choose the founding principles of their new government and structure it in whatever(?) way they believe will best secure “their Safety and Happiness.”
Of course, this government must secure rights (the very purpose of government), and it must be consented to by the people. Other language in the Declaration clearly shows that such consent need not take the form of ongoing democratic control of government. Most tellingly, the Declaration follows its lengthy and detailed indictment of the King (fully one-half of the document) with the conclusion that “A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.” It must necessarily follow, then, that a Prince who ruled wisely and secured his subjects’ rights, safety, and happiness could be fit “to be the ruler of a free people.” Here, a “free people” is a people who enjoy freedom, not necessarily a people who freely govern themselves through democratic means.
This points to a glaring absence in the Declaration. At no point does the document argue, as did some others at the time (like the pamphleteer and revolutionary Thomas Paine), that kings and aristocrats, who achieve office through heredity, are ipso facto illegitimate. The whole point of the Declaration is that the rule of George III over the American colonies may be “abolish[ed]” because of what the King has done, not because he is a king. His rule failed the two tests of just government: (a) that government secure the people’s right to life, liberty, and the pursuit of happiness and (b) that political rule come with the consent of the governed, which was formally withdrawn by the colonists in July of 1776.
It follows, then, that under the doctrine of the Declaration a people may consent to be ruled by those whom they do not elect but who achieve office through birth. In this respect, the government of Great Britain, with its democratic House of Commons, aristocratic House of Lords, and hereditary monarch was not, in itself, an unjust government. In fact, many prominent early Americans, such as John Adams and Alexander Hamilton, praised it for blending stability, effectiveness, and the security of private rights — even though it was only partly democratic.
Viewed in this way, the Declaration of Independence seems to provide little, if any, guidance as to how to construct a government that will actually provide the kind of just rule to which men and women are entitled. Yet, here we can learn much from the half of the document that is little read today because it seems of only historical interest: the indictment of the King for his “repeated injuries and usurpations.” While the specific charges are out of date, the principles they embody are not.
For example, when the authors denounce the King for “refusing his Assent to Laws for establishing Judiciary powers” and for “ma[king] Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries,” they were affirming the principle that a just government requires an independent judiciary. And when they accused the King of “render[ing] the Military independent of and superior to the Civil power,” they were saying, in effect, that military rule (outside of extraordinary circumstances) threatens the people’s rights.
In thinking about the Declaration as a teaching document, what most stands out in the indictment of the King are the many references to legislatures and the legislative power. Among other abuses of the King, he denied many colonists the “right of Representation in the Legislature” — something that only “tyrants” do. He called colonial legislatures together at “unusual” and “uncomfortable” places to “fatigu[e] them into compliance with his measures.” He “dissolved Representative Houses repeatedly” when they resisted his “invasions on the rights of the people.” He then “refused for a long time” to allow elections for a new legislature, “whereby the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise.” Finally, he “combined with others” [Parliament] to “suspend[] our own Legislatures, and declar[e] themselves invested with power to legislate for us in all cases whatsoever.”
While part of the authors’ grievance is that the King violated the charters, issued by his predecessors, that established the colonial governments, their complaint here goes deeper; for what is at stake is the right of the people to elect a representative body to legislate on their behalf and to resist unjust acts of the executive authority. This is what is often called “active consent” — the people actively consenting to laws through their chosen representatives. This kind of consent must be distinguished from “tacit consent” by which a people might, for example, without overt acts consent to be ruled by the kind of constitutional monarchy that characterized British government at the time of the American founding.
If asked, most Americans could probably identify at least one of the charges against the King: no taxation without representation. Specifically, the Declaration charges the King (and Parliament) with “imposing Taxes on us without our Consent.” “Consent” here means the active consent of the popularly elected colonial legislatures speaking on behalf of their constituents. Put most simply, a just government does not take from the people their property (taxes) without their approval — that is, without the consent of their elected representatives.
We see, then, that the specifics of the Declaration’s indictment against the King go a long way to filling some of the gaps in the formal philosophical argument of the second paragraph. The phrase “laying its foundation on such principles and organizing its powers in such form” is not quite so open-ended as it might first appear. In practice, just government requires, at a minimum, an independent judiciary, civilian control of the military, and a popularly elected legislature with power over taxation and the means to resist executive infringements on the people’s rights. Although most of the American founders believed that a government like Britain’s, with its hereditary king and lords, could be legitimate if it secured fundamental rights, they also considered it essential that there be at least one legislative body — the House of Commons — that represented, however imperfectly, the views and interests of the British people more generally.
Though the founders embraced a political philosophy that allowed for non-democratic elements in government, in practice they were thoroughly committed to establishing wholly popular governments in the new states and nation. Here is how James Madison put the point about the proposed new national government at the beginning of Federalist 39:
The first question that offers itself is, whether the general form and aspect of the government be strictly republican. It is evident that no other form would be reconcilable with the genius of the people of America; with the fundamental principles of the Revolution; or with that honorable determination which animates every votary of freedom, to rest all our political experiments on the capacity of mankind for self-government. 3
By “strictly republican” Madison meant “a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during pleasure, for a limited period, or during good behavior.”4 There were, of course, no hereditary offices in the new Constitution — nor any sentiment at the Constitutional Convention to introduce them. Every government official was to be chosen directly or indirectly by the people. Even the members of the new Supreme Court, who were the most removed from the citizenry, were to be chosen by officials (the president and senators) who were themselves indirectly chosen by the people (the president through the electoral college and senators through state legislatures).
The American people, Madison held, were thoroughly committed to, and had demonstrated a particular capacity for, self-government. Moreover, only a government “strictly republican” would be true to “the fundamental principles of the Revolution.” It seems, then, that for Madison the “principles of the Revolution” encompassed even more than the principles of the Declaration; for Americans would have no truck with the kings and nobles of the Old World but would rest the edifice of their new government on “the great body of the people,” trusting, as Madison wrote in Federalist 55, that there is “sufficient virtue among men for self-government.” To deny this is to hold “that nothing less than the chains of despotism can restrain [men] ... from destroying and devouring one another.”5
1 Thomas Hobbes, Leviathan, Part One, Chapter XIII, https://oll.libertyfund.org/titles/hobbes-the-english-works-vol-iii-leviathan.
2 Federalist 10 is available at https://avalon.law.yale.edu/18th_century/fed10.asp.
3 James Madison, The Federalist, no. 39Yale Law School Goldman Law Library, https://avalon.law.yale.edu/18th_century/fed39.asp.
4 Ibid.
5 James Madison, The Federalist, no. 55 Yale Law School Goldman Law Library, https://avalon.law.yale.edu/18th_century/fed55.asp.
