The Declaration of Independence and the American Theory of Government

Our country—indeed our people—has a discrete starting point, a singular moment in time when its founding was expressly defended in abstract and theoretical terms—a particular date in which the Congress of the United States unanimously articulated the American theory of government. That moment was July 4, 1776, when the Congress formally adopted the Declaration of Independence. To appreciate the nature of the American theory of government, and the Constitution that was later adopted in accordance with that theory, we must begin at the beginning, some thirteen years before the Constitution was enacted in 1788, when the principles upon which the new nation was formed were authoritatively declared.

Drafting the Declaration

On June 11, 1776, the Continental Congress appointed a committee to draft a declaration to effectuate Richard Henry Lee’s motion “[t]hat these United Colonies are, and of right ought to be, free and independent states; that they are absolved from all allegiance to the British Crown: and that all political connexion between them and the state of Great Britain is, and ought to be, totally dissolved.” This was the legal purpose of the Declaration. In addition, as John Hancock later put it, such a declaration would provide “the Ground & Foundation of a future Government.”

The Committee of Five consisted of the senior Pennsylvanian Benjamin Franklin, Roger Sherman of Connecticut, New York’s Robert Livingston, the Massachusetts stalwart champion of independence John Adams, and a rather quiet thirty-three-year-old Virginian named Thomas Jefferson. After a series of meetings to decide on the outline of the Declaration, the committee assigned Jefferson to write the first draft.

Jefferson did not have much time. With no executive, the war was being run entirely by congressional committees, and the business of waging war pressed heavily on its members. Over a six-month period, Jefferson served on some thirty-four different committees, which kept him very busy. On June 17, for example, the committee overseeing the Canadian campaign submitted two reports to Congress, both in Jefferson’s own hand. Two members of the Virginia delegation had left Philadelphia, increasing the pressure on Jefferson to attend the sessions of Congress.

So with the press of other matters, Jefferson did not have three leisurely weeks to write. He had merely a few days. Needing to work fast, Jefferson had to borrow. Historian Pauline Maier tells us that he had two sources in front of him from which to crib. The first was a list of grievances in his draft preamble for the Virginia constitution—a list that was strikingly similar to the first group of charges against the king that ended up in the Declaration. The second was a preliminary version of the Virginia Declaration of Rights that had been drafted by George Mason in his room at the Raleigh Tavern in Williamsburg, where the provincial convention was being held.

Mason’s May 27 draft proved handy indeed in composing the Declaration’s famous preamble. Its first two articles present two fundamental ideas. The first idea is that first come rights and then comes government. Here is how Mason expressed it:

THAT all men are born equally free and independent, and have certain inherent natural rights, of which they cannot, by any compact, deprive or divest their posterity; among which are, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.

So, in Mason’s draft, not only do all persons have “certain . . . natural rights” of life, liberty, and property, but these rights cannot be taken away “by any compact.” These inherent individual natural rights, of which the people cannot divest their posterity, are therefore retained by them. Mason’s words would become even more canonical than Jefferson’s more succinct version in the Declaration of Independence, as variations were incorporated into several state constitutions. Later James Madison proposed they be added to the preamble of the Constitution by way of an amendment. That did not happen, but Mason’s description of retained rights would be echoed in the Ninth Amendment, and much later in the Privileges or Immunities Clause of the Fourteenth Amendment.

Article 2 of Mason’s draft then identified the persons who comprise a government as the servants of the sovereign people, rather than their master: “That all power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants, and at all times amenable to them.” As trustees and servants, those people who serve as governing magistrates are to respect the inherent natural rights retained by the people.

Jefferson then compressed all this into fifty-five compelling words:

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.

John Adams later recalled that Jefferson took only a day or two to write the first draft, which was then turned over to the committee for its feedback before it was submitted to Congress. Although this draft was then heavily edited and shortened by Congress sitting as a Committee of the Whole, its Preamble was left pretty much as Jefferson had submitted it.

The American Theory of Government

I turn now to that Preamble, for these two paragraphs identify what is nothing less than the American theory of government. While the passage I just quoted is familiar, its component parts must be separated out. 

(a) “[A]ll men are created equal . . . .” This is an affirmation of the fundamental equality of each individual person. It speaks not of groups, but of individuals. Indeed, as the original draft read before it was edited, “all men are created equal and independent; that from that equal creation they derive rights inherent and inalienable.”

(b) The Declaration refers to “certain unalienable Rights.” What does it mean to say a right is inalienable or unalienable? It means it cannot be surrendered up to the general government. 

Recall Mason’s draft, which stated that “[a]ll men are born equally free and independent and have certain inherent natural rights of which they cannot by any compact deprive or divest their posterity.” (emphasis added.) Inalienable rights are those that cannot be given up by the adoption of a compact or a constitution. They continue to exist as a standard against which the performance of government is to be assessed.

(c) Next, “among these are Life, Liberty, and the pursuit of Happiness.” Once again, this succinctly echoes Mason’s draft Declaration of Rights, which referred to “the Enjoyment of Life and Liberty, with the Means of acquiring and possessing Property, and pursuing and obtaining Happiness and Safety.” Notice that each of these rights belongs to the people as individuals. They are not group rights. They are not collective rights. They are the individual rights of We the People, each and every one. 

(d) We now arrive at what may be the most important sentence identifying the American theory of government: “That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.” The expressly stated end of government is to “secure” the individual inalienable natural “rights” named in the preceding sentence. Moreover, governments are “instituted among Men.” Governments are not to be equated with the People themselves, but are rather composed of a subset of the People as their agents. 

In sum, governments are established as a means of securing the individual rights of each and every individual person, and the effective protection of these individual rights is the end against which such governments are to be judged. Because of the failure of the British government to fulfill the political function of securing the rights of each one of us, the Declaration concludes that “these united Colonies are, and of Right ought to be, Free and Independent States . . . and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved.” 

The political theory announced in the Declaration of Independence can be summed up in a single sentence: First come rights, and then comes government. This proposition is not, as some would say, a libertarian theory of government. Nor is it my theory of government. The Declaration of Independence established it as the officially-adopted American theory of government.   

• According to the American theory of government, the rights of individuals do not originate with any government but pre-exist its formation;   
• According to the American theory of government, the protection of these rights is both the purpose and first duty of government;   
• According to the American theory of government, at least some of these rights are so fundamental that they are inalienable, meaning that they are so intimately connected to one’s nature as a human being, that they cannot be transferred to another even if one consents to do so;   
• According to the American theory of government, because these rights are inalienable, even after a government is formed, they provide a standard by which its performance is measured; in extreme cases, a government’s systemic violation of these rights or failure to protect them can justify its alteration and abolition. In the words of the Declaration, “whenever any Form of Government becomes destructive of these ends,” that is the securing of these rights, “it is the Right of the People to alter or 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.”

But what about the passage “deriving their just powers from the consent of the governed”? Notice that, according to this passage, governments may exercise not all powers, not unlimited powers, but only their “just powers.” A just power is one that is within the competence of a legitimate government, which the Declaration defines as one that secures the inalienable natural rights of We the People, each and every one. 

Does the reference to “the consent of the governed” entail that the inalienable rights of We the People, as individuals, can be altered or abolished by popularly-elected legislators supposedly representing the consent of the governed? Hardly. Representative government is merely one means among several to the ends of protecting what the Ninth Amendment refers to as the “rights . . . retained by the people.” Neither by acts of legislation nor by the Constitution itself may the people “divest their posterity” of these inalienable rights to “life, liberty, and the pursuit of happiness.” 

So, the “consent of the governed” is not about popular governance by a representative assembly superseding (rather than “securing”) pre-existing individual rights. What, then, is this passage about? It’s about which government is to govern the independent polity that the Declaration is legally establishing: the polity of the American people. Will the American people be governed by the Crown and Parliament of Great Britain or by the governments of the United States? Will it be governed by separate state governments, a consolidated national government, or some combination of state and national governments? The “consent of the governed passage” addresses the matter of “who governs.” It is not about ”democratic” or majoritarian governance. 

Indeed, in his essay, the “The Vices of the Political System of the United States,” written in preparation for the Philadelphia convention, James Madison identified the democratic majoritarianism of the states as one of the fundamental problems that a new constitution was needed to solve. Under the heading the “Injustice of the laws of States.” Madison traced the cause of “this evil” to “the Representative bodies” in the states and, ultimately, to “the people themselves.” The experience of majoritarian state governments, he concluded, called “into question the fundamental principle of republican Government, that the majority who rule in such Governments, are the safest Guardians both of public Good and of private rights.”

To illustrate the problem with democratic majoritarianism, Madison posed the following thought experiment: “Place three individuals in a situation wherein the interest of each depends on the voice of the others, and give to two of them an interest opposed to the rights of the third? Will the latter be secure? The prudence of every man would shun the danger.” Likewise, will “two thousand in a like situation be less likely to encroach on the rights of one thousand? The contrary

is witnessed by the notorious factions & oppressions which take place in corporate towns limited as the opportunities are, and in little republics when uncontrouled by apprehensions of external danger.”

Nor was Madison alone in questioning the democratic majoritarianism of the states. Several delegates in Philadelphia expressed the same concern. Elbridge Gerry from Massachusetts stated: “The evils we experience flow from the excess of democracy.” After listing a number of abuses, he admitted that he “had been too republican heretofore.” He “was still however republican, but had been taught by experience the danger of the levilling spirit.” Experience, he claimed, had shown “that the State legislatures drawn immediately from the people did not always possess their confidence.”

Roger Sherman, of Connecticut, contended that the people “immediately should have as little to do as may be about the Government.” Virginian Edmund Randolph observed that “the general object was to provide a cure for the evils under which the U.S. laboured,” and that “in tracing these evils to their origin every man had found it in the turbulence and follies of democracy.”

Gouverneur Morris, a delegate from Pennsylvania who is credited with helping select the actual wording of the Constitution, noted that “[e]very man of observation had seen in the democratic branches of the State Legislatures, precipitation—in Congress changeableness, in every department excesses against personal liberty private property & personal safety.” Finally, George Mason of Virginia, “admitted that we had been too democratic” in forming state governments though he “was afraid that we should incautiously run into the opposite extreme.”

Which is not to say that the founders did not see a great value in democratic checks on the people’s agents in government. These checks continue to be of utmost importance to our republican form of government. But majoritarian checks on government power are not the same as an unchecked majoritarian power to govern—a concept extolled by New Dealers and by some conservatives today. The Declaration’s reference to “the consent of the governed” was not an affirmation of such a potentially tyrannical power. For current examples of such democratic majoritarian tyranny abetted by parliamentary supremacy, we need look no farther than the United Kingdom and Canada.

Of course, the original public meaning of the text of the Declaration of Independence is distinct from the original public meaning of the U.S. Constitution. The Constitution, however it should be interpreted, does not justify itself. To be legitimate, what it says must be consistent with political principles that are capable of justifying it. The Declaration articulates the American theory of government that our founders rightly thought justified government.

Moreover, these same publicly-identified original principles are needed to inform how the original public meaning of the Constitution is to be faithfully applied when the text of the Constitution is not by itself specific enough to decide a case or controversy. The original principles that the Founders thought underlie and justify the Constitution were neither shrouded in mystery nor to be found by parsing the writings of Locke, Montesquieu, or Machiavelli. The American theory of government was officially articulated and adopted in the Declaration of Independence.

How the Constitution Implements the American Theory of Government

After the Declaration established the American people as an independent polity, there were then two cracks at government. The first, the Articles of Confederation, operated like a treaty between separate and sovereign state governments. 

When the Articles were in effect, many states adopted protectionist measures that favored their own business and agricultural interests and discriminated against the economic activities of citizens of other states. These independent states also entered into their own trade agreements with foreign countries thereby undercutting Congress’s efforts to negotiate trade agreements with the far more powerful countries of Britain, France, or Spain. In addition, the country lacked a military sufficient to protect it from these European military powers who each continued to maintain a presence in North America. Then, after the Revolution, the U.S. suffered a severe economic depression, which some attributed to these protectionist policies of state governments and the lack of an effective foreign trade policy.

For all these reasons, activists like James Madison of Virginia, James Wilson of Pennsylvania, and Governeur Morris of New York pushed for a constitutional convention to propose alterations to the existing form of government. Soon, that convention decided that a new constitution, operating by different principles was needed. Of course, like Congress, the delegates to the convention lacked authority to adopt any constitution. That authority remained with the American people in their respective states.

The new Constitution proposed by the delegates to the people of the states established a more powerful, but still limited, national government. Rather than replace the existing state governments, the Framers chose to superimpose a new national government on top of the states, creating a novel system of dual sovereignty. The sovereignty of the states would be limited to the extent that the national government was delegated the powers to address such national issues as the regulation of commerce with foreign nations and among the several states; to establish post offices and post roads; and to establish both a national army and navy to protect against foreign threats. These new national powers would supersede any state powers over these subjects, thereby limiting the powers of the states–especially with respect to regulating commerce. The new national government would also have the power to establish taxation to pay for its proper functions. No longer would the national government be dependent on the fickleness of states for its funding.

Moreover, the new Constitution was to be ratified by the people of the states in conventions, not by the states themselves through their legislatures. Acting state-by-state, convention delegates of the sovereign people themselves would have to withdraw some measure of delegated powers from their own state governments and then delegate these powers instead to the new national government.

So the first function of the written Constitution was to empower a new national government better “to secure” the pre-existing rights of We the People, each and every one. So empowered, however, such a national government itself posed a threat to the rights retained by the people. So the second function of the written Constitution was to limit the new national government to its just powers.

To this end, the federal government was formally divided into three distinct branches or departments—as Montesquieu had recommended—each exercising what John Locke had identified as the three essential powers of government: the legislative power was given to Congress, the executive power was granted to the President, and the judicial power to the Supreme Court and any inferior courts that Congress might establish.

When Anti-federalist opponents complained that this separation of powers was not adequate to protect the natural rights retained by the people, Federalist proponents of the Constitution promised to consider amendments that would better protect these rights and liberties. After 11 states had ratified the Constitution–with Rhode Island and North Carolina still withholding their consent–James Madison pushed the first Congress to adopt a series of amendments that became what we today call the Bill of Rights. 

However, these amendments only limited the new national government; they did not limit the powers of the states. It was the grant of powers to Congress by the people in each state, not the Bill of Rights, that limited the powers of state governments.

In this manner did the Constitution—our second crack at government—seek to implement the American theory of government.

But What About Slavery?

In recent years, it has become tediously de rigueur to dismiss the Declaration and the Constitution as mere instruments of white male slave holders. These men were not only evil, we are repeatedly told, but hypocrites besides in their assertion that “all men are created equal.” As part of a broader culture war, the object of this exercise is to delegitimize both documents, indeed to delegitimize the American founding and even America herself. 

The facts tell an entirely different story.

As Princeton University historian Sean Wilentz has noted in his important book, No Property in Man: Slavery and Antislavery at the Nation’s Founding, “[i]n 1775, five days before the battles of Lexington and Concord, ten Philadelphians, seven of them Quakers, founded the first antislavery society in world history, the Society for the Relief of Free Negroes Unlawfully Held in Bondage.” This group was later reorganized as the Pennsylvania Society for Promoting the Abolition of Slavery.

Just five months after the Declaration, in January of 1777, the Vermont Republic was founded as an independent state. Its constitution barred slavery by declaring that “all men are born equally free and independent.” The constitution of the Vermont Republic was the first constitution in human history to abolish slavery. This language was borrowed directly from George Mason’s draft of the Virginia Declaration of Rights, which Jefferson had condensed in the Declaration. 

Mason’s language was also included in the Massachusetts constitution. Four years before the Constitution was drafted in Philadelphia, in three cases decided between 1781 and 1783, the Massachusetts high court relied on this language to hold chattel slavery unconstitutional in that state. (So much for the myth, embraced by many conservatives, that what we call “judicial review” was invented by John Marshall in Marbury v. Madison in 1803.)

This timeline is most important. In 1776, when the United States of America was founded, the legal institution of slavery existed in every state in the union. But by 1787—when the Constitution was being written in Philadelphia—five of these states had abolished or begun to abolish slavery. Then, in 1791, the free state of Vermont became the fourteenth state of the Union, bringing the count to six. In 1799, New York began the process of emancipation by enacting a gradual abolition law. Five years later, New Jersey followed with its own gradual emancipation law.

Were this chronology not enough to rebut the trendy dismissal of the Declaration and our Founding, during the same summer that the Philadelphia convention was deliberating over a new constitution, the Articles of Confederation Congress, sitting in New York, enacted “An Ordinance for the Government of the Territory of the United States North-West of the River Ohio.” Adopted on July 13, 1787, the Northwest Ordinance contained the following language: “There shall be neither slavery nor involuntary servitude in the said territory, otherwise than in the punishment of crimes whereof the party shall have been duly convicted.” It was this language that the Republicans in Congress copied when drafting the Thirteenth Amendment to abolish slavery in the whole of the United States. 

Thus was slavery abolished in 1787 from a vast area of the United States, which included the future states of Ohio, Indiana, Illinois, Michigan, Wisconsin, and about a third of what later became Minnesota. In a sign of the times, the Northwest Ordinance was approved by delegations from every state, including every delegate of every slave state. 

This is a remarkable amount of progress towards implementing the political theory of the Declaration in a very short period—a mere eleven years! Yet, as we all know, this progress was stopped in its tracks. Historians generally agree that what stymied this antislavery tide was the invention of the cotton gin by Eli Whitney in 1791. By mechanically separating the cotton fiber from the sticky seeds, which formerly had to be done by hand, the plantation farming of cotton using slave labor became enormously profitable. Later the invention of the steam engine made it feasible to more cheaply transport cotton north via the Mississippi as well as along the coast.

Prior to these technological developments, when the Constitution was drafted, slavery was widely viewed as an economically dying institution. After technology made plantation cotton farming highly lucrative, however, for the first time in America there arose a pro-slavery ideology that increased in its vehemence over time.

But what matters for evaluating the Declaration, and the original Constitution that was adopted to implement its principles, is not what came soon after both documents were drafted. What matters is the fact that the Declaration and the Constitution were both written before this change occurred. The Constitution was written on the cusp of half the states in the union turning away from slavery, and the Northwest Ordinance barring slavery in the territories from which future states would be formed. It was written before the rise of a pro-slavery ideology arrested what seemed like an inevitable and rapid progress towards a United States that was fully consistent with the principles officially adopted in the Declaration of Independence. 

In short, when the Constitution was written in 1787 in accordance with the American theory of government as articulated by both the Declaration and Mason’s draft of the Virginia Declaration of Rights, the United States was on the leading edge of the movement to end the world-wide practice of chattel slavery. And because the founders formed a federal government composed of several states with their own partial sovereignty, rather than a single consolidated government, it is inaccurate to say that the United States of America sanctioned slavery. Rather, in the United States of America, slavery was fully abolished in more than half these semi-sovereign states—again for the first time in human history.  

To be sure, some slaveholders, especially in the deep South, were adamantly insistent on preserving slavery. And even the many who conceded its injustice had deeply self-interested motives to kick the can of its demise down the road. Much of their wealth was bound up in their slaves. Some of them were also motivated by fear of violent retaliation by those persons they had enslaved. But the point here is that at the moment that the Constitution was drafted, these resisters were thought to be on the wrong side of history. Of course, in the long run, they really were on the wrong side of history.

If hypocrisy is the homage that vice plays to virtue, then the Declaration represents virtue.

The Declaration Deserves to be Revered

What came next was an American tragedy. The rise of a pro-slavery ideology in part of the U.S., which was met by an equally ardent anti-slavery ideology led eventually, and perhaps inevitably, to a bloody civil war, followed by ninety years of racial subjugation known as Jim Crow. The original Constitution needed to be updated to combat both, and so it was in the form of the Thirteenth, Fourteenth, and Fifteenth Amendments.

On July 5th, 1852, Frederick Douglass gave a keynote address at an Independence Day celebration and asked, “What to the Slave is the Fourth of July?” In it, he famously, bitterly, and justly condemned the hypocrisy of celebrating Independence Day while millions of his brothers and sisters were held in chains.

But Douglass did not deny that the Declaration and its authors had articulated the political principles of a just political order. To the contrary, he stated, “Fellow Citizens, I am not wanting in respect for the fathers of this republic. The signers of the Declaration of Independence were brave men. They were great men, too. Great enough to give frame to a great age. It does not often happen to a nation to raise, at one time, such a number of truly great men.” Notwithstanding that “the great principles of political freedom and of natural justice, embodied in that Declaration of Independence” were being denied to his fellow African Americans, “yet I cannot contemplate their great deeds with less than admiration. They were statesmen, patriots and heroes, and for the good they did, and the principles they contended for, I will unite with you to honor their memory.”

As we approach the 250th anniversary of the Declaration of Independence in 2026, so should we.

Note: Portions of this essay are based on Randy E. Barnett, Our Republican Constitution: Securing the Liberty and Sovereignty of We the People (2016); and Randy E. Barnett, “The Declaration of Independence and the American Theory of Government: First Come Rights, and Then Comes Government,” Harvard Journal of Law & Public Policy, Vol. 42, Issue 1, 23-28 (2019).