I’m sure that many of you, like me, will be dusting off your copies of the Declaration of Independence to commemorate the 4th of July. The question is: will you read the whole thing or just the opening paragraphs?
Everyone likes to quote the invocation of the rights of “life, liberty, and the pursuit of happiness” but — for my money — that’s not the part that we most need to remember. Rather, the most important passage of the Declaration comes at the end when the Continental Congress describes the United States as a group of “Free and Independent States.” The key word here is the plural states. July 4th is America’s birthday, but America was born as a union of sovereign states, not a single consolidated nation. Our leaders often gloss over this basic historical fact; President Obama, for example, has stated that our Founders “declared a new nation” on July 4th.
In fact, nobody in 1776 thought that the United States was a single nation; the Declaration’s lead author, Thomas Jefferson, consistently described the U.S. as a “compact” among states. The Paris Peace Treaty, which formally ended the Revolutionary War, does not grant freedom to “the United States.” Rather, in language that mirrors the Declaration, it recognizes each individual state to be “free, sovereign and independent.” The American negotiators in Paris could not, for example, commit to pay compensation to British loyalists whose property was confiscated during the war but could only promise to “earnestly recommend” that each state pay such compensation. The American union at that time was governed by the Articles of Confederation, which described the United States as a “firm league of friendship.”
Ratification of the Constitution in 1789 created a stronger central government than had existed under the Articles of Confederation – a “more perfect” union – but a union nonetheless. James Madison, regarded as the father of the Constitution, famously asserted the right of each state to “interpose” its own authority to block federal laws that exceed Congress’s power – in that case, the Sedition Act, which criminalized political dissent. In the first half of the nineteenth century, states used their sovereign powers to offer refuge to fugitive slaves in defiance of federal law and to withhold troops from the War of 1812.
The idea of the United States as a single nation began to be promoted only in the decades after the Civil War by advocates of a strong central government, such as Francis Bellamy whose 1892 Pledge of Allegiance demands fealty to “one nation” (the “under God” part was added later). The Progressive and New Deal eras witnessed a massive transfer of powers to the central government, often at the behest of special interests who preferred to deal with a single regulator in Washington.
This history matters (as I discuss at length in my book, A Less Perfect Union) because it reminds us that the federal government did not create the states: it was the other way around. Although it is fashionable to dismiss the states as “mere administrative units,” as two Berkeley law professors wrote in 1994, the federal government simply would not exist without the states. Whatever sovereign powers the federal government possesses are powers that were granted to it by the states. The most treasured part of the Constitution – the Bill of Rights – was designed to protect the states against federal overreach. The final provision of the Bill of Rights, the Tenth Amendment, guarantees that the states shall preserve all their powers except those that the Constitution specifically grants to the federal government or withholds from the states.
The Fourth of July celebrates rebellion against centralized authority. The Declaration, like the revolutionary cry of “no taxation without representation,” is a plea for local self-government. The Founding Fathers thought that decisions about taxing, spending, and other domestic concerns should be made close to home, not by a distant and unresponsive sovereign. The Supreme Court’s June 26 ruling in Obergefell v Hodges starkly illustrates the current threat to local democracy: five unelected judges removing a critical issue from the democratic process to suit their own policy preferences.
What do you think? Are there other neglected parts of the Declaration we should focus on this 4th of July?
Image Credit: Deviant Art user HeerSander.