LAW STUDENT WRITING COMPETITION

Transcendent Truths as Embodied in the Declaration of Independence and their Relationship to the Constitution

by Michael J.. Mazza

Marquette University School of Law

I. INTRODUCTION

The Declaration of Independence announced more than the birth of a new nation. In asserting "self-evident" truths concerning the nature of God and man,¹ the 1776 Declaration set the tone of political discourse for the nascent democracy. It also provided a philosophical foundation on which the Constitution would be laid just over a decade later.² If our constitutional republic is to survive, the transcendent truths embodied in the Declaration must be believed, defended, and woven into the fabric of our democracy. ³

11. TRANSCENDENT TRUTHS IN THE DECLARATION

The affirmations in the Declaration do not reflect the mere personal preferences of the signatories gathered in Philadelphia that summer. These were transcendent truths, valid regardless of time or place, capable of discovery by any citizen on either side of the Atlantic with theright use of reason, and binding on everyone, even the British Crown.

Those who risked their lives and pledged their "sacred honor" ⁴ when signing the Declaration believed that the rights they had described were not simply matters of opinion. Otherwise, the King of Great Britain had just as much right to suppress freedom as the colonists had to encourage it, and a written declaration announcing a philosophy of rebellion was superfluous at best ⁵ Instead of an appeal to the reasonand good will of "a candid world," ⁶ the signatories of the Declaration of Independence might have been better served by a direct call to arms. But this was not the case. The Founding Fathers thought it importantto entrust their efforts to God and to base their actions on the firm ground of transcendent truth.'

The very act of writing a declaration indicates its authors presupposed at least two transcendent truths about human beings: (1) they were rational, and (2) they had a dignity worth protecting. If men and women were no higher than cattle in the order of nature, they did not deserve to be given reasons for the Founders' revolutionary acts, let alone bear the burden of self-government. ⁸ In linking the legitimacy of a government to the consent of those it governed,⁹ Declaration author Thomas Jefferson echoed the teachings of John Locke, who held this principle flowed from "the natural liberty of man.'' ^l0

In the document itself, the signers acknowledged the source of the timeless principles they had espoused. They claimed not only that God exists, but also that He is both ''Creator'' ¹¹ and "Supreme Judge of the World.'' ^l2 Further, they accepted that God has given men certain rights that no one may violate, surrender, or transfer. ^l3 The Declaration even ends with a prayer-an appeal to the protection of "divine Providence.'' ^l4

The bold religious references made by American revolutionaries contrast sharply with the militant secularism of the French Jacobin revolutionaries. In 1799, the year Napoleon established his dictatorship in France, U.S. President John Adams summarized America's "first principle":

[I]t is also most reasonable in itself that men who are capable of social arts and relations, who owe their improvements to the social state, and who derive their enjoyments from it, should, as a society, make acknowledgments of dependence and obligation to Him who hath endowed them with these capacities and elevated them in the scale of existence by these distinctions. ¹⁵

While it is clear the Americans did not intend to lock out religious truth from politics, it is also clear they wanted no part of the religious wars that had torn apart Europe. Thus, the foundational truths contained in the Declaration could be agreed upon by people of all faiths, having their roots in the natural law.

Though much maligned today, ^l6 the concept of the natural law had along history in English law even before being incorporated in the Declaration of Independence. It gave barons the right to call King John to task and became enshrined in the Magna Carta of 1215. Five centuries later, William Blackstone defined it in his commentaries on the common law:

[[W]hen the Supreme Being formed the universe, and created matter out of nothing, he impressed certain principles upon the matter, from which it can never depart and without which it would cease to be....[[Since] man depends absolutely upon his Maker for everything, it is necessary that he should, in all points, conform to his Maker's will. This will of his Maker is called the law of nature. ¹⁷

Alexander Hamilton defended the legitimacy of the Continental Congress with similar language: "The sacred rights of mankind are not to be rummaged for among old parchments or musty records. They are written as with a sunbeam, in the whole volume of human nature, by the hand of Divinity itself and can never be erased or obscured by mortal power.'' ^l8 George Washington, the nation's first president, recognized the origins of morality by warning his still-young nation in his farewell address against "the supposition that morality can be maintained without religion.... [for] reason and experience both forbid us to expect that National morality can prevail in exclusion of religious principle."¹⁹

References to the transcendent nature of the foundational truths of the republic did not end with the eighteenth century. After observing American democracy in action early in the nineteenth century, Alexis de Tocqueville concluded:

I do not know if all Americans have faith in their religion-for who can read the secrets of the heart? -but I am sure that they think it is necessary to the maintenance of republican institutions. This is not the view of one class or party among the citizens, but of the whole nation; it is found in all ranks. ²⁰

Three decades later, President Abraham Lincoln justified his 1863 Emancipation Proclamation with an appeal to "the considerate judgment of mankind and the gracious favor of Almighty God," and asserted this "act ofjustice" in freeing slaves was "warranted by the Constitution..." ²¹ In his Gettysburg address later that same year, Lincoln explicitly referred to the Declaration of Independence in reiterating the philosophy of the divided nation: "Four score and seven years ago our fathers brought forth, upon this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal." ²² Thus, Lincoln could say, alluding to Scripture,²³ that the Constitution was made to protect the principles embodied in the Declaration:

The assertion of that principle [in our Declaration of Independence]was the word "fitly spoken" which has proved an "apple of gold" to us. The Union, and the Constitution, are the picture of silver, subsequently framed around it. The picture was made, not to conceal, or destroy the apple; but to adorn, and preserve it. The picture was made for the apple -not the apple for the picture. ²⁴

Statements such as these show that America's greatest leaders understood the republic was founded on transcendent truths. The Declaration of Independence, as the nation's original founding document, clearly embodied these principles and implicitly acknowledged the natural law-that law given by God the Creator and which applied universally. The Constitution of the United States incorporates this same ethos. ²⁵ In order to be understood most accurately, let alone "preserved, protected and defended," ²⁶ the Constitution must be read in light of these transcendent truths.

III. INCORPORATION INTO THE CONSTITUTION

The drafters of the United States Constitution in 1787 presupposed certain truths: that human beings were rational, and were capable of action in furtherance of the common good. Otherwise, the effort of writing a constitution would have been an exercise in futility. At the first Congress in 1789, James Madison went so far as to refer to the foundational principle heralded in the Declaration of Independence-that all men were created equal-as an "absolute truth." ²⁷ The framers of the Bill of Rights, in a similar vein two years later, presupposed that all human beings deserved certain derivative rights, such asdue process of law. ²⁸

The overall structure of the Constitution shows an emphasis on the protection of ordered liberty as an essential requirement of human dignity. The principles of federalism, judicial review, and the separation of powers, which are implicit in the structure of the document, manifest the framers' conception of man as a rational creature who is capable of both great good and great evil,and whose personal freedom rests not merely in license, but in a "liberty under law." This is a liberty that requires self-discipline; it is a liberty enjoyed by those who know they owe a debt to their Creator; it is a liberty circumscribed by the religious institutions and common law traditions of the separate states.

Specific provisions in the Constitution bear out these principles. Various Constitutional amendments afford even those suspected or convicted-of certain crimes the right against self-incrimination or double jeopardy, ²⁹ to a "speedy and public" trial by jury and the assistance of counsel, ³⁰ and to beprotected against "cruel and unusual" punishment. ³¹ These principles flow from a particular view of human beings which stems from transcendent truths concerning man's origin, nature, and destiny. ³⁷ In addition to these provisions, a few sections of the Constitution illustrate the transcendent truths referred to in the Declaration of Independence even more explicitly.

A. Article III

Each of the first three Articles of the Constitution contains a provision outlining the process by which a federal government official could be expelled from office. Section One of Article III, however, is unique in providing that federal judges "shall hold their Offices during good Behavior...."33

In The Federalist Papers, Alexander Hamilton explains that the "good behavior" standard for judicial service not only serves as an "excellent barrier to the encroachments and oppressions of the representative body," but also "is the best expedient which can be devised in any government to secure a steady, upright, and impartial administration of the laws."³⁴

This provision makes no sense outside of the moral tradition referred to in the Declaration of Independence. The Founders could not have meant "good behavior" was to be defined in terms of politeness at public functions or sportsmanship on the playing field. By making reference to terms such as "upright" and "impartial", Hamilton was quite obviously referring to transcendent moral truths. Because truth mattered, immorality and corruption were to be avoided. Because character mattered, a judge who accepted bribes could face impeachment under Article III of the Constitution.

Without reference to transcendent truth, concepts such as "good" and "bad" will either be defined superficially or left simply incomprehensible. Never explaining more specifically what constituted "good behavior", Alexander Hamilton evidently thought that his use of "upright" and "impartial" would be enough. Apparently, he did not conceive of a time when Americans would not only disagree on what constituted "good" moral behavior, but no longer require it of their government officials. ³⁵ Thus, the words of President John Adams are particularly important for contemporary interpreters of the Constitution: "Our constitution was made only for a moral and religious people. It is wholly inadequate for the government of any other." ³⁶ This proposition, to be sure,applies to the entire Constitution.

B. First Amendment

The Constitution implicitly incorporates the principles of the Declaration in the First Amendment. The amendment protecting religious liberty was designed to protect the important role religion plays in a democracy. ³⁷ The Northwest Ordinance, passed by Congress in 1787 and renewed there after, explicitly stated its support for religion's role in fostering the necessary truths of the republic: "Religion, morality and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged."³³

When the original constitution was circulated among the states for ratification, three states-New Hampshire, New York, and Virginia-requested the addition of a clause prohibiting the establishment of a national church. The purpose of the "Establishment Clause", as it later came to be known, was to make sure Congress would neither coerce citizens into religious beliefs nor favor one particular religious sect over another. ³⁹

This clause was not binding on the states, however, and some states did in fact have established churches. ⁴⁰ When opponents of established churches on the state level made their arguments, they did so on religious grounds. ⁴¹ Sabbath. ⁴² James Madison, for example, introduced Jefferson's Bill for Establishing Religious Freedom at the time he proposed a bill punishing those who broke the Sabbath. ⁴³ All of this goes to show that when formulating the First Amendment, the Framers intended to preserve the pride of place that religion enjoyed in a democratic republic. They most certainly did not intend to keep transcendent truths out of the public square. ⁴³

C. Ninth Amendment

The Ninth Amendment to the Constitution, it may be argued, has its roots in the natural law. Echoing the language of rights contained in the Declaration of Independence, the text of the amendment reads as follows: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."⁴⁴

American legal historian Edward Corwin has noted that the purpose of the Ninth Amendment was not to make personal rights licit by assimilating them into the Constitution, but to lend legitimacy to the Constitution by stating unequivocally that "unalienable" rights cannot be legislatively fixed. ⁴⁵ This was the central issue of the U.S. Supreme Court's infamous Dred Scott decision in 1856.⁴⁶

In Dred Scott, the issue was whether a man with dark skin remained the "property" of his "owner" when he was taken from a slave state into a different territory. The Court was asked to decide which law would control: the law of the slave state or the law of "nature's God"⁴⁷ as enunciated in the Declaration of Independence. ⁴⁸ Casting aside both the natural law and Sanford's "reserved rights" under the Ninth Amendment, Chief Justice Taney opted for a peculiarly modem, that is to say positivist, approach. Claiming that "the right of property in a slave is distinctly and expressly affirmed in the Constitution," Taney maintained that "if the Constitution recognizes the right of property of the master in a slave, and makes no distinction between that description of property and other property owned by a citizen, no tribunal, acting under the authority of the United States... has a right to draw such a distinction...."⁴⁹

Taney's opinion has been universally condemned, and the Dred Scott decision stands as one of the low points in American jurisprudence. ⁵⁰ Yet without a firm mooring in the transcendent truths embodied in the Declaration, Taney's egregious error in constitutional interpretation will only be repeated. ^5l

IV. THE MODERN DENIAL OF TRUTH

Forty years after Dred Scott, the Court sanctioned "separate but equal" accommodations in passenger trains in Plessy v. Ferguson. ⁵² Writing in dissent, Justice John Harlan lambasted the majority opinion for forsaking the values of the Constitution, to which had been added the Thirteenth Amendment, forbidding non-criminal "involuntary servitude" anywhere in the United States, some thirty years before:⁵³

Our Constitution is color-blind, and neither knows nor tolerates classes among citizens... The arbitrary separation of citizens, on the basis of race, while they are on a public highway, is a badge of servitude wholly inconsistent with the civil freedom and the equality before the law estabIished by the constitution. ⁵⁴

Yet Justice Harlan was not the first Supreme Court justice to recognize the transcendent truths inherent in the Constitution. In Fletcher v.Pecks, almost a century earlier, Chief Justice John Marshall used not only "the words of the constitution, "but" the general principles of our political institutions" in reaching his conclusion that an ex post facto law was unconstitutional, even in a civil contract dispute. ⁵⁶ Marshall based his decision not on the language of the Contract Clause,⁵⁷ but on the underlying principles of the Constitution upon which the Contract Clause had been established. ⁵⁸

In the twentieth century, however, the jurisprudential reasoning of Marshall and Harlan has been viewed with increasing skepticism and even outright contempt. Justice Oliver Wendell Holmes, for example, when urged by his colleague Judge Learned Hand to "do justice, sir, do justice" responded: "That is not my job. It is my job to apply the law."⁵⁹ Whether transcendent truth exists at all-let alone in the Declaration of Independence- is disputed by many in the legal profession. Thus, the relevance of transcendent truth to the Constitution has been questioned by both ends of the political spectrum-by "liberal" law professors and "conservative" judges. ⁶⁰

Such denials of the prominent place transcendent truth enjoys in the Declaration of Independence-and, by extension, in the Constitution itself- are not only ahistorical, but dangerous. Abraham Lincoln reminded his divided nation that the aim of the Declaration of Independence was not simply to formalize America's separation from England. The lofty claims in the second paragraph that it was "self-evident" that "all men were created equal," and that they were "endowed by their Creator with certain unalienable Rights" ⁶¹ -were placed in the Declaration for use after July 1776:

Its authors meant it to be, thank God, it is now proving itself, a stumbling block to those who in after times might seek to turn a free people back into the hateful paths of despotism. They knew the proneness of prosperity to breed tyrants, and they meant when such should reappear in this fair land and commence their vocation they should find for them at least one hard nut to crack. ⁶²

V. CONCLUSION

The American democratic experiment cannot afford to slight the transcendent truths contained in the Declaration of Independence and woven into the Constitution. History has shown that democracies invite chaos when they forsake transcendent value; mutations in tototalitarianism are not unknown. Pope John Paul II, Time Magazine's "Man of the Year" in 1994, who vividly remembers Nazism from his days in the Polish underground and who had to deal with Communists as the bishop of Krakow, noted in his 1991 encyclical Centesimus Annus that "totalitarianism arises out of a denial of truth in the objective sense." ⁶³ He warns that, in the absence of transcendent truth,

there is no sure principle for guaranteeing just relations between people... [T]he force of power takes over, and each person tends to make full use of the means a this disposal in order to impose his own interests or his own opinion, with noregard for the rights of others... Thus, the root of modern totalitananism is to be found in the denial of the transcendent dignity of the human person. ⁶⁴

Our nation forgets this lesson at its own peril. We must rediscover the "self-evident" truths embodied in the Declaration and implicitly embraced by the Constitution. If these truths are not reclaimed, the fragile fabric of our democracy might not last. ⁶⁵

NOTES:

¹ "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." The Declaration of Independence pare. 2 (U.S. 1776).

² See, e.g., Walter Berns, Taking the Constitution Seriously 16-17 (1987).

³ See John Courtney Murray, We Hold These Truths at ix (1960).

⁴ The Declaration of Independence para. 36 (U.S. 1776).

⁵ See Walter Berns, The First Amendment and the Future of American Democracy 146 (1985).

⁶ The Declaration of Independence para. 5 (U.S. 1776).

⁷ Id. at para. 36.

⁸ See id. at para. 36; Hadley Arkes, Beyond the Constitution 43 (1990)

⁹ The Declaration of Independence para. 3 (U.S. 1776).

¹⁰ See Hadley Arkes, First Things 35 (1986).

¹¹ The Declaration of Independence para. 2 (U.S. 1776).

¹² Id. at para. 35.

¹³ Id. at para. 2.

¹⁴ Id. at para. 36.

¹⁵ Quoted in Murray, supra note 3, at 41.

¹⁶ See, e.g., Laurence H. Tribe, 'Natural Law' and the Nominee, N.Y. Times, July 15, 1991, at A15.

¹⁷ 1 William Blackstone, Commentaries *39-40 (William Draper Lewis ea.,1902).

¹⁸ Quoted in Clarence E. Manion, The Natural Law Philosophy of Founding Fathers, in 1 University of Notre Dame Natural Law Institute Proceedings 23-24 (Alfred L. Scanlan ea., 1949).

¹⁹ 35 The Writings of George Washington from the Original Manuscript Sources 1745-1799, at 299 (John C. Fitzpatrick ea., 1940), quoted in M.G. "Pat" Robertson, Squeezing Religion out of the Public Sguare--The Supreme Court, Lemon, and the Myth of the Secular Society, 4 Wm. & Mary Bill Rts. J. 223, 234 (1995). As recently as 1952, Supreme Court Justice William O. Douglas noted that "[w]e are a religious people whose institutions presuppose a Supreme Being". Zorach v. Clauson, 343 U.S. 306, 313 (1952).

²⁰ Alexis de Tocqueville, Democracy in America 293 (George Lawrence trans., 1969).

²¹ The Emancipation Proclamation, para. 6 (1863).

²² The Gettysburg Address, para. 1 (1863).

²³ See Proverbs 25:11 ("Like golden apples in silver settings are words spoken at the proper time.") (NAB).

²⁴ The Collected Works of Abraham Lincoln 169 (Roy P. Basler ea., 1953).

²⁵ One of the principal authors of the Constitution, James Madison, echoed the Declaration of Independence in explicitly referring to "the transcendent law of nature and of nature's God" in The Federalist No. 43, at 279 dames Madison) (Clinton Rossiter ea., 1961).

²⁶ U.S. Const. art. II, §1, cl. 8.

²⁷ See Madison's speech June 8, 1789), reprinted in 2 Bernard Schwartz, The Bill of Rights: A Documentary History 1029 (1971).

²⁸ U.S. Const. amend. V.

²⁹ Id.

³⁰ U.S. Const. amend. VI.

³¹ U.S. Const. amend.VIII.

³² See Donald A. Giannella, Religious Liberty, Nonestablishment,and Doctrinal Development: Part I. The Religious Liberty Guarantee, 80 Harv. L. Rev. 1381, 1404 (1967) (maintaining that "[t]he Bill of Rights itself gives constitutional force to a certain conception of man, a conception that is the outgrowth of the Judaeo-Christian tradition").

³³ U.S. Const. art. III, §1 (emphasis added).

³⁴ The Federalist No. 78, at 465 (Alexander Hamilton) (Clinton Rossiter ea., 1961).

³⁵ A recent survey, for example, reports that a majority of Americans would tolerate perjury and adultery by a president. See Jackie Calmes, American Opinion, Wall St. J., Mar. 5.\, 1998, at A12.

³⁶ Quoted in Stanley Hauerwas, A Community of Character 79 (1981).

³⁷ The pertinent part of the text of the First Amendment reads as follows: "Congressshall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...." U.S. Const. amend. I.

³⁸ Northwest Ordinance ch. 8, 1 stat. 52 (1789), quoted in Robertson, supra note 19,at 233 n. 48.

³⁹ See Robert J. Reinstein, Completing the Constitution: The Declaration of Independence, Bill of Rights and Fourteenth Amendment, 66 Temp. L. Rev.361, 370 n.56 (1993).

⁴⁰ See generally Gerard V. Bradley, Church-State Relationships in America 1968(1987).

⁴¹ See Robertson, supra note 19, at 263-64.

⁴² Robert L. Cord, Founding Intentions and the Establishment Clause: Harmonizing Accommodation and Separation, 10 Harv. J.L. & Pub. Pol'y 47,49 (1987).

⁴³ See generally Richard John Neuhaus, The Naked Public Square: Religion and Democracy in America (2d ed. 1986).

⁴⁴ U.S. Const. amend. IX.

⁴⁵ Douglas W. Kmiec, America's "Culture War" The Sinister Denial of Virtue and the Decline of Natural Law, 13 St. Louis U. Pub L. Rev. 183, 190-191 (1993)

⁴⁶ Dred Scot v. Sanford, 60 U.S. 393 (1856).

⁴⁷ The Declaration of Independence pare 1. (U.S. 1776).

⁴⁸ Harry V. Jaffa, What Were the Original Intentions of the Framers of the Constitution of the United States? 10 U. of Puget Sound L. Rev. 351, 411 (1987).

⁴⁹ 60 U.S. at 451.

⁵⁰ See, e.g., Planned Parenthood v. Casey, 505 U.S. 833, 1001-02 (1992) (Scalia, J., concurring in part and dissenting in part).

⁵¹ For an analysis of errors made in the interpretation of the Privileges and Immunities Clause of the Fourteenth Amendment, and the role of the natural law and the Declaration of Independence in the creation of this clause, see Trisha Olson, The Natural Law Foundation of the Privileges or Immunities Clause of the Fourteenth Amendment, 48 Ark. L. Rev. 347 (1995).

⁵² 163 U.S. 537 (1896)

⁵³ U.S. Const. amend. XIII.

⁵⁴ Plessy, 163 U.S. at 559, 562.

⁵⁵ 10 U.S. (6 Cranch) 87 1810

⁵⁶ Id. at 139.

⁵⁷ "No State shall...pass any...Law impairing the Obligation of Contracts..." U.S. Const.art. I,  §10, cl. 1.

⁵⁸ See Arkes, supra note 8, at 27.

⁵⁹ Robert H. Bork, The Tempting of America 6 (1990).

⁶⁰ See, e.g., Ronald Dworkin, Law's Empire 377 (1986) (contending that racial segregation is wrong because it "offends principles of equality that are accepted over most of the nation"); Robert Bork, Neutral Principles and Some First Amendment Problems, 47 Ins. L.J. 1, 30 (1971) (maintaining that "[t]ruth is what the majority thinks it is at any given moment precisely because the majority is permitted to govern and to redefine its values constantly."); see generally Jaffa v. Bork: An Exchange, Nat'l Rev., Mar. 21, 1994, at 56.

⁶¹ The Declaration of Independence para. 2 (U.S. 1776).

⁶² Quoted in Berns, supra note 2, at 17.

⁶³ Pope John Paul II, Centesimus Annus 44(1991).

⁶⁴ Id.