The Declaration’s Logic of National Power

The Declaration of Independence is commonly regarded as a monument to the ideal of limited government. The impression is understandable. It speaks, in ringing cadences, of “unalienable rights;” it declares that governments exist only to secure “life, liberty, and the pursuit of happiness;” and it entrusts the people with the right — indeed, the duty — to resist and destroy any government that oversteps its proper bounds. Most of the document is devoted to cataloguing the abuses committed by George III: the dissolution of colonial legislatures, the quartering of troops in private homes, the impressment of sailors, the denial of trial by jury. Together, the Declaration alleges, these offenses conjure the specter of “absolute rule.” Small wonder, then, that readers have so often taken its meaning to be that government is legitimate only insofar as it is bounded.

This broadly libertarian reading has hardened into something like conventional wisdom. Yet it bears little resemblance to how many Americans understood the Declaration in the founding era. Only a handful of writers sought to mobilize its principles in the political struggles that convulsed the new republic between 1776 and 1788. And notably, those who did so were nationalists rather than libertarians. They discerned in the Declaration a warrant for a stronger, more energetic government, grounded in democratic sovereignty and endowed with plenary powers. The two most influential exponents of this view were James Wilson of Pennsylvania and Alexander Hamilton of New York. For these lawyers and statesmen, the Declaration was less a charter for restraining power than a vehicle for its concentration and expansion. Their reasoning, carried forward, would eventually help to underwrite the Supreme Court’s landmark decision in United States v. Curtiss-Wright Export Corp. (1936). Strikingly — and perhaps paradoxically — one of the Declaration’s most enduring legacies may be the expansive modern presidency and the formidable national security state.

By the autumn of 1780, the American cause appeared to be on the brink of catastrophe. The confidence of its leaders had been badly shaken by a succession of British victories in the southern theater, culminating in the fall of Charleston that May. Those who had observed Congress at close range were appalled by its inertia, its divisions, and its inability to enforce its will upon the recalcitrant states. Among its sharpest critics was Alexander Hamilton, George Washington’s aide-de-camp, who lamented in a lengthy letter to James Duane the “want of power in Congress.” It was commonly assumed, Hamilton observed, that this weakness was congenital — that under the terms of its creation Congress “could do nothing more than recommend.” But this, he insisted, was a misconception. Congress already possessed the requisite powers; what was lacking was the will to exercise them. To demonstrate this, Hamilton pointed to the extraordinary acts of sovereignty that Congress had already undertaken in 1776:

The manner in which Congress was appointed would warrant, and the public good required, that they should have considered themselves as vested with full power to preserve the republic from harm. They have done many of the highest acts of sovereignty, which were always chearfully submitted to — the declaration of independence, the declaration of war, the levying an army, creating a navy, emitting money, making alliances with foreign powers, appointing a dictator &c. &c. — all these implications of a complete sovereignty were never disputed, and ought to have been a standard for the whole conduct of Administration. Undefined powers are discretionary powers, limited only by the object for which they were given — in the present case, the independence and freedom of America.

In this passage, Hamilton advanced two interlocking arguments, both of which drew explicitly on the Declaration to enlarge the powers of Congress. First, in issuing the Declaration on its own authority in July 1776, Congress had already exercised “the highest acts of sovereignty,” and the broad acceptance of this act, and others of the same scale, confirmed that Congress possessed every power necessary to secure the salus populi. It would be illogical, after all, to suppose that Congress could desire independence but lack the means to achieve it — above all, the power to tax and raise revenue.

Second, the Declaration was not merely a revolutionary manifesto but a constitutive act of sovereignty. It did not merely sever all ties with Britain; it also enabled the United States “to assume among the powers of the earth,” in its memorable phrasing, “the separate and equal station to which the Laws of Nature and of Nature’s God entitle them.” This new “station” entailed responsibilities, including the duty to observe the law of nations. But in Hamilton’s view, independence also implied a latent reservoir of boundless authority, since every sovereign state necessarily possesses all the power required for its survival. The logical repository of that authority, he argued, was not an archipelago of individual states, but the national assembly that had brought the United States into being.

Hamilton returned to this theme in February 1787, while serving as a delegate to the New York state legislature. Hoping to persuade his colleagues to reinforce the powers of Congress, Hamilton quoted a long extract from the Declaration, concluding with the potent phrase “they have full power to levy war, conclude peace, contract alliances, establish commerce, and do all other acts and things that independent states may of right do.” By this act, he insisted, Congress was invested with what he variously called “large discretionary powers,” “full power of sovereignty,” and “absolute and undefined authority.”

Hamilton warned, however, that the Articles of Confederation, which took effect in 1781, had blunted the primal powers inherent in the Declaration, reducing Congress to a shadow of its former self. The Confederation, he argued, had been designed not to generate national authority but to delimit and regularize the powers of the Union — an “abridgment,” in his words, of its original sovereignty. Therefore, it was imperative to revise the Articles and restore the energies first unleashed by the Declaration.

If Hamilton saw the Declaration as a font of plenary power later curtailed by the Articles, the Pennsylvania jurist James Wilson regarded the two as continuous expressions of national sovereignty. He made this argument in his 1785 pamphlet Considerations on the Bank of North America, which offered a strongly nationalist reading of American government, explicitly grounded in the Declaration. Wilson, like Hamilton, insisted that the United States possessed “general rights, general powers, and general obligations” inherent in its status as a sovereign and independent state: The act of independence was made before the articles of confederation. This act declares, that “these United Colonies,” (not enumerating them separately) “are free and independent states; and that, as free and independent states, they have full power to do all acts and things which independent states may, of right, do.”

Like Hamilton, Wilson dismissed any suggestion that these powers passed from Britain to the individual states — the words of the Declaration, he insisted, made clear that they belonged to the states in their collective capacity. And, he added, the Articles did nothing to temper or restrain this authority:

The confederation was not intended to weaken or abridge the powers and rights to which the United States were previously entitled. It was not intended to transfer any of those powers or rights to the particular states, or any of them. If, therefore, the power now in question was vested in the United States before the confederation; it continues vested in them still. The confederation clothed the United States with many, though, perhaps, not with sufficient powers: but of none did it disrobe them.

The power to charter a bank, Wilson reasoned, is so fundamental to sovereignty that a national government cannot be divested of it — except by an explicit act to the contrary.

The theory of national sovereignty articulated by Hamilton and Wilson would, within a decade, be translated into the idiom of constitutional law. The occasion was Penhallow v. Doane’s Administrators (1795), which concerned the legality of the prize adjudications carried out during the Revolutionary War by the Continental Congress’s Court of Appeals. The U.S. Attorney General William Bradford, and the Pennsylvania Attorney General, Jared Ingersoll, argued for Penhallow before the Supreme Court, maintaining that Congress possessed an inherent authority to create such courts, even without explicit textual warrant. As we might expect, their argument turned on the Declaration:

Congress had an imperfect sovereignty previous to the declaration of independence...The acts of Congress were either performed by virtue of delegated powers, or of subsequent ratifications, and the acquiescence of the state legislatures and the people. On the declaration of independence, a new body politic was created; Congress was the organ of the declaration; but it was the act of the people, not of the state legislatures...Having, therefore, a national sovereignty, extending to all the powers of war and peace, including, as a necessary incident, the right to judge of captures, the commissioners of appeals were lawfully instituted.

The Court largely accepted this reasoning. Justice James Iredell, for example, acknowledged that after 1776 Congress had exercised a series of vaguely defined powers, “arising,” as he put it, “from a kind of indefinite authority suited to the unknown exigencies that might arise.” Such authority, he reasoned, could be sustained by the principle of necessity — and by the tacit consent of the people and the states. Yet Iredell resisted the more audacious gloss on national power urged by the attorney general: “Some of the arguments at the bar, if pushed to an extreme, would tend to establish that Congress had unlimited power to act at their discretion, so far as the purposes of the war might require,” he cautioned. “My principles on this subject are totally different.” Iredell regarded plenary national power as something that the states might delegate in wartime, but was leery of turning it into a permanent constitutional doctrine. Not coincidentally, he placed no special emphasis on the Declaration.

Penhallow might have remained a footnote in the jurisprudence of the early republic had it not resurfaced at the height of the New Deal, in one of the Court’s most consequential decisions on national power and foreign affairs. At issue in United States v. Curtiss-Wright Export Corp. (1936) was whether Congress could delegate to the president the authority to determine whether a state of war existed between two nations, and, if so, to impose an arms embargo. Only a year earlier, the Court had struck down the National Industrial Recovery Act on the ground that it conferred upon the executive virtually unlimited legislative discretion. At first sight, it seemed reasonable to expect that the joint resolution challenged in Curtiss-Wright would meet the same fate. But Justice George Sutherland, writing for the majority, drew a sharp distinction between domestic and foreign affairs. The domestic powers of the federal government, he explained, are shared with the states and must therefore be narrowly circumscribed and carefully policed. By contrast, power over foreign affairs has long been understood to be vested exclusively in the national government — and this, he argued, had been true from the nation’s inception:

During the colonial period, those powers were possessed exclusively by, and were entirely under the control of, the Crown. By the Declaration of Independence, “the Representatives of the United States of America” declared the United [not the several] Colonies to be free and independent states, and, as such, to have “full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do.” As a result of the separation from Great Britain by the colonies, acting as a unit, the powers of external sovereignty passed from the Crown not to the colonies severally, but to the colonies in their collective and corporate capacity as the United States of America... When, therefore, the external sovereignty of Great Britain in respect of the colonies ceased, it immediately passed to the Union.

The Declaration, Sutherland argued, announced the advent of the United States as a sovereign nation, and transferred to the federal government the powers of “external sovereignty” formerly exercised by Britain. To support this proposition, he cited Penhallow — not the Justices’ seriatim opinions, but the “argument of counsel” framed by Bradford and Ingersoll.

Why, in a case concerning the constitutionality of a law, would Justice Sutherland expend so much energy on the Declaration? Precisely because, in his view, the foreign-affairs powers of the federal government were antecedent to, and independent of, the Constitution:

It results that the investment of the federal government with the powers of external sovereignty did not depend upon the affirmative grants of the Constitution. The powers to declare and wage war, to conclude peace, to make treaties, to maintain diplomatic relations...if they had never been mentioned in the Constitution, would have vested in the federal government as necessary concomitants of nationality...As a member of the family of nations, the right and power of the United States in that field are equal to the right and power of the other members of the international family. Otherwise, the United States is not completely sovereign.

The United States’ powers of national security, in other words, derive not from any line of text, but from its nature as a sovereign state in a violent and competitive world. These powers are a product of the law of nations, not a consequence of popular sovereignty. And in this sense, their origins are to be sought not in 1787 but in 1776.

For Hamilton and Wilson, writing during the critical period, the natural repository of these external powers was the Continental Congress. But Justice Sutherland, interpreting the Constitution, determined that the inherent powers they had discerned were most naturally vested in the presidency. Borrowing from a Senate speech by John Marshall, Sutherland spoke of “the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations.” This did not mean that there were no limits to the exercise of executive power in foreign affairs. But it did imply that the president might enjoy “a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved.” In Sutherland’s hands, Hamilton’s doctrine of plenary national power — originally articulated to vindicate the powers of Congress — was reborn as a theory of sweeping executive prerogative. The Declaration’s logic of sovereignty, once collective, had become singular — and it has never wholly relinquished that form.

The reception history of the Declaration, then, is best understood as a series of nested ironies. One of the era’s most lucid statements in defense of limited government became, through a series of political and judicial maneuvers, a justification for something approaching unlimited powers. International law, often assumed to restrain states, was invoked to bolster their freedom of action. And the nation’s founding charter of republicanism was reworked into a cornerstone of what has been dubbed its “imperial” presidency. Inevitably, then, the Declaration will continue to pose difficult questions about the entanglement of liberty and power, as the United States strides like a Colossus “among the powers of the earth.”

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