The Dobbs Fraud by SCOTUS's Fake Originalists (Part VIII)
The People's Declaration of Independence
In the public mind, the person most associated with the Declaration of Independence is Thomas Jefferson. Often, such association is excessive. Jefferson was far from alone in writing our Declaration. He relied extensively on other sources, including the particularly important Virginia Declaration of Rights (by George Mason with James Madison’s assistance). The First Continental Congress’s Committee of Five (including Jefferson, Benjamin Franklin and John Adams) made important contributions to Jefferson’s draft before the Committee’s draft was presented to Congress on June 28. Then, Congress significantly revised that draft. Even so, the connection between Jefferson and the Declaration is strong regarding the importance and the power of perception.
One important, but little-known, aspect of the Declaration is that even in July 1776 two profoundly different versions existed—for two profoundly different purposes and audiences. A picture may be worth a thousand words, but the picture of the Declaration in the minds of those who saw it turned out to be worth the world. For those who rose in the American Revolution and those who fell in the French Revolution (including the French king and Marie Antionette), their views of the Declaration turned out to be worth the right to rule and even life, itself.1
Our picture of the Declaration should be very similar to the picture of Jefferson that his contemporaries had. Of each (Jefferson and the Declaration) the first was decidedly democratic. The second was decidedly aristocratic. The first was suitable for and essential to Americans. The second was suitable for and essential to the royalty and aristocracy of France.2
In an unfortunate twist of fate, the second, aristocratic version of the Declaration is the version that our governors (our representatives) present to us and which most Americans immediately recognize. It was signed by many who saw themselves as America’s aristocracy (in an aristocracy of merit). Its form and font were fancy, suitable for presentation to a king. The big, bold caption, the capitalization in the last paragraph, and the signatures (organized by state) strongly accentuated the states (and, of course, state officials). They promoted the misperception that the point of the Declaration was the states’ separation from Britain (France’s mortal enemy at the time). The caption, the last paragraph and the signatures occupy about as much space as all the text addressing the rule of law and the people’s rights. The text was little more than one massive block of fine print. Some might say the French king was duped by a deep fake.3
The opinions of the SCOTUS majority in Dobbs and Alexander are part of a fake that is at least as great and dangerous—to us and our liberties. Misperception in France during the Revolutionary War that the Declaration was all about the states’ independence from Britain helped secure the sovereignty and independence of the people of America. Afterward in America, such misperception served the purposes of aristocratic state officials who asserted state sovereignty to establish their own personal power and influence. The power of such misperception supported southern secession in the 1860’s. Now, it supports the SCOTUS majority and state legislatures in Dobbs and Alexander.
The version of the Declaration that was first (both in time and in the hearts and minds of Americans) was the Dunlap Broadside. Its form was simple—print organized into paragraphs—easily read by common people. The use of space accentuated the rule of law and the rights of the people, and it read much like a bill of rights. In fact, it was often thought of as a bill of rights. The only names present were of Congress’s President and Secretary. The caption and the last paragraph very prominently emphasized that Congress represented not merely states, but the United States. Capitalization in the first, second and last paragraphs accentuated that Congress spoke “in the Name, and by the Authority” of “one People,” “the People,” “the good People.”
The Dunlap Broadside was sent to the states with a letter of transmittal from John Hancock. Hancock, as Congress’s President, declared that the text of the Declaration should be “considered” and “proclaim[ed]” the “Ground & Foundation of a future Government.” That first version was sent to states and soldiers and published in newspapers for the people to read themselves and to read to each other. Naturally, the people “heard mainly what was already in their heads.”4
They heard the words that Lincoln heard. They heard the words that we have heard for generations. The people heard the thunderous declarations of the people’s independence that fired hearts with the Declaration’s famous start. Thinking of themselves and those they loved, they heard that we “all” were “created equal” with “unalienable Rights,” including to “Life, Liberty, and the Pursuit of Happiness.” Thinking of their “Governments,” they heard their own representatives would serve “to secure these Rights,” they would exercise only “just Powers,” and they would govern only with “the Consent of the Governed.” They heard “the Right of the People” then and forever to “institute” and “alter” their own “Government” to “effect their Safety and Happiness.”
To the people fighting for their independence, the Declaration declared the people’s independence. It declared the self-evident truth in the Declaration’s first sentence: “one People” were seizing for themselves and assuming the “equal Station to which the Laws of Nature and Nature’s God entitle them.”
Our Declaration declared the demise of the so-called divine right of kings. It declared our own right to rule by “Nature” and by “God.” It declared “Truths” that were “self-evident” even then and truths that are even more self-evident now (under our Constitution). Each of “the People” had the right to rule his own “Life, Liberty, and the Pursuit of Happiness” as long as he did not endanger the “Safety and Happiness” of other “People.” Collectively, “the People” had the right to govern each other, but only to the extent necessary to “effect” society’s “Safety and Happiness.”
This political revolution reflected the evolution of sovereignty and sovereigns. The dogma of the divine right of kings was dead. Our new faith was in the people—citizens and society—who were sovereign over themselves and with the power to govern each other to the extent that government was necessary. The people declared themselves sovereign. They “assume[d]” the “Station to which the Laws of Nature and Nature’s God entitle them.” The “People” declared they were sovereign citizens, not mere “subjects” to be ruled ruthlessly and arbitrarily by so-called royalty or aristocracy. Americans no longer had any “rulers” at all.
As sovereigns, Americans have only representatives, their public servants. Congress (and John Adams and James Wilson) emphasized this same point in close connection with and proximity to the words and deeds of Congress that preceded the Declaration of Independence on July 4, 1776. To divine the meaning of the Declaration, we must consider the related Resolution and Preamble that introduced Congress’s conception of independence.
In May 1776, Congress made a point of publishing a Resolution—prompting states to write their own constitutions—with an even more emphatic Preamble. The Resolution and Preamble declared the vital principles permeating the American Revolution, the Declaration of Independence, and the state constitutions that were then being written, and eventually our national Constitution.
The Preamble declared that in America “all the powers of government” would and must be “exerted” only “under the authority of the people” and exclusively for “the defence of their lives, liberties, and properties” and “the preservation of internal peace, virtue, and good order.” All “government” would and must be instituted by “the representatives of the people” exclusively to “best conduce to the happiness and safety of” individual “constituents” and “America in general.” The Resolution emphasized that “Government” will do whatever is “necessary” (and only what is necessary) to “promote the Happiness of the People.”5
In discussion of the Resolution, James Wilson emphasized the sovereignty of the people and that public officials act only as representatives only with such powers as were delegated to them: “all Government originates from the People. We are the Servants of the People sent here to act under a delegated Authority.” Adams recalled being accused (by another member of Congress) of making “a Machine for the fabrication of Independence.” Adams clarified that the Resolution and Preamble were no mere machine; they were “independence itself.” They declared the independence of the people from public officials who would oppress them.
Privately, Adams revealed that the Resolution and Preamble were intended and expected to have three consequences—the same consequences as the Declaration of Independence. First, the people will institute “Government under the People.” Second, having done so, the people never “will give it up.” “People will never give up this Government” by their representatives “of their own Choice, whom they could trust, and whom they could displace if any of them should behave amiss.” Third, “Government of our own Choice, managed” only “by Persons whom We love, revere, and can confide in” (in whom we can have confidence) is a cause “for which Men will fight.” Those three consequences were, indeed, “the Cause” for which men fought.
Decades later, Jefferson and Madison fought abusive officials who were responsible for enacting and pretending to enforce (but actually egregiously violating) the Sedition Act of 1798. Jefferson and Madison did so with echoes of the Declaration’s second paragraph. Madison in his Report of 1800 emphasized “our constitution” was “issued from the sovereign authority of the people,” i.e., by “the people” in “their highest sovereign capacity.” So the Constitution expressly confirmed “the sovereignty of the people over constitutions” and the “authority of constitutions over governments,” and both are “truths which are at all times necessary to be kept in mind.”6
In a letter in 1859, Lincoln said something similar: “All honor to Jefferson” (and to the other Founders) who designed the Declaration to declare much more than mere “national independence” from Britain. They designed the Declaration to declare “truth, applicable to all men and all times” as a “rebuke” and “stumbling-block” to “re-appearing tyranny and oppression.” In President Lincoln’s Gettysburg Address in November 1863, he re-emphasized that the Declaration’s enduring message included that—for all time—we must remain “dedicated to the great task remaining before us,” i.e., the task of ensuring “that government of the people, by the people, for the people, shall not perish.”
In 1826, in connection with the “celebration of the 50th. anniversary of American independance,” Jefferson emphasized that the Declaration was “the Signal of arousing men to burst the chains, under which monkish ignorance and superstition had persuaded them to bind themselves, and to assume the blessings & security of self-government.” The Declaration declared “the palpable truth that” we were not “born” with “saddles on” our “backs, nor a favored few booted and spurred” to “ride” us purportedly “by the grace of god.” The Declaration declared “the free right to the unbounded exercise of reason and freedom of opinion,” including regarding the issue in Dobbs.
All citizens are their own sovereigns. All Americans have the right to sovereignty over their own hearts, mind, bodies and souls. We are free to think, say and do exactly and entirely as we please—as long as we fulfill our duties to society (support our Constitution) and do not injure or infringe on the rights of any other person.
Two interesting books provide important insights about the Declaration of Independence and its context. They address different issues and concepts, so they complement each other and both are well worth reading: Danielle Allen, Our Declaration: A Reading of the Declaration of Independence in Defense of Equality (2014); Pauline Maier, American Scripture: Making the Declaration of Independence (1997). A third book (Bernard Bailyn, The Ideological Origins of the American Revolution (2017) (50th anniversary edition)) also offers valuable insights about the ideology that permeates the Declaration, our Constitution, the American Revolution and America’s subsequent revolutions (the second revolution resulting in our Constitution and Bill of Rights, the third revolution comprising the Civil War and the Reconstruction Amendments, and the fourth revolution culminating in the Nineteenth Amendment).
The common cause in all four revolutions consists in establishing and securing the sovereignty, safety and happiness of the American people as a whole. That cause could be conceived of as the real divine right to rule: the right of each citizen to rule herself and the power of the people to govern each other to the extent necessary to secure their individual and common safety and happiness. America’s citizens and “the people” never relinquished their sovereignty or their rights. They merely delegated some powers to their representatives to ensure their common safety and happiness. This was the Originals’ understanding of our Constitution. This is the common principle that permeates the Preamble and Amendment I (“right” and “freedom”), Amendment IV (“The right of the people to be secure in their persons”), Amendment IX (all “rights” are “retained by the people”) and Amendment X (limited “powers” are “delegated” to our representatives “by the Constitution” and only for the purposes permitted “by the Constitution”).
The picture of Jefferson (the picture that he presented of himself) were illustrated by Akhil Amar in his very entertaining and insightful book, THE WORDS THAT MADE US: America’s Constitutional Conversation, 1760-1840 (2021). “Jefferson was a political genius, sartorially—as is evident” from “two famous paintings” that “show not so much the ‘Revolution of 1800’ as the stylistic redo, the fashion remake of 1800.” The first portrait of Jefferson was in 1786 by Mather Brown and the second was in 1800 by Rembrandt Peale.
With the Declaration of Independence, Jefferson, Adams, Franklin and Congress highlighted the democratic-republican essence of America and the sovereignty of the people. When Jefferson appealed to the sovereign people to choose him as their representative (president), his platform and even his public persona were modeled on the Declaration (specifically, the plain but powerful Dunlap Broadside). Jefferson the candidate accentuated his democratic-republican side, not his aristocratic side. The democratic-republican was the Jefferson whom Americans elected.
Amar, a Yale Professor teaching future and present lawyers to understand the Constitution, is frequently cited by SCOTUS justices. He and Andy Lipka (and distinguished guests) provide weekly enlightenment and entertainment in Amarica’s Constitution. Episode 10 (initially and again after 42 minutes) pertains to images and perceptions, including of Jefferson. In between, Episode 10 addresses egregious violations of our Constitution, our freedom of conscience and speech, and the sovereignty of the people by judges who imprisoned people for mere speech criticizing public officials and public policies. Coincidentally, Amar saw such SCOTUS justices as presenting themselves as “the great and powerful Oz” (much like the Dobbs majority).
The Declaration was not prepared with signatures until August 1776.
Pauline Maier, American Scripture: Making the Declaration of Independence (1997), p. 160. The phenomenon at issue here has a timely and highly illustrative analogue. In Trump’s criminal trial, his guilt was determined by jurors based on what they heard. They heard witnesses, attorneys and judges present the fine points of fact and law. Then, the jurors decided the truth and consequences. Such repeatedly has been the case with the Declaration of Independence.
At least four times, the American people were the jurors in a great trial (twice, truly trial by combat) in which the people, themselves, also were the real parties in interest. In the first trial, the parties were America’s Congress versus Britain’s king and Parliament. The people heard the facts and law (in the Declaration), and the people decided the truth and consequences. In the second trial (regarding the Constitution), the parties were state sovereigns and oppressive majorities within states versus those representing the Declaration’s safety and happiness of the people as a whole. In the third trial (the Civil War and the Reconstruction Amendments), the parties were state sovereigns and oppressive minorities (aristocrats who owned and exploited other people) who threatened the entire nation with subversion and military action versus those representing the Declaration’s equality, safety and happiness of the people as a whole. In the fourth trial (women’s suffrage) the parties were oppressive supremacists versus those representing the Declaration’s equality, safety and happiness of the people as a whole. Regarding each trial, the people decided the truth and consequences and rendered a verdict in writing with revolutionary constitutional significance.
Analysts may argue ad nauseam over fine points of the Declaration and the Constitution after scrutinizing particular words and phrases and points of history and tradition. Our Revolutionary War and Civil War were fought and won, however, by people for principles, not fine points of law. What the people who fought actually heard and thought is what the Declaration truly means.
To make an analogous point in economic terms, the Declaration is worth what people are willing to give for it, and what people actually gave and did for this nation is clear and convincing evidence of what they thought (or think) the Declaration and our Constitution say and do for the people. Nearly everyone knows at least that “We the People” created our Constitution after our Declaration declared we “all” are “equal” with “unalienable Rights” including the right to follow our own ideas about “Life, Liberty, and the Pursuit of Happiness.” Many know that our Declaration and Constitution mean that “government” is “of the people, by the people, and for the people.”
The Resolution was proposed by a Virginian, Richard Henry Lee (in collaboration with John Adams, who wrote the Preamble). Virginia wasted no time. Its influential Declaration of Rights was finalized on June 12 and its Constitution was finalized on June 29.
Such truths are the essence of the First Amendment’s security of each person’s freedom of conscience, thought, speech and assembly. So, as Madison emphasized, Americans enjoy full “freedom in canvassing” (criticizing) “the merits and measures of public men, of every description.”