July 4, 2014


Inventing the Gettsyburg Address (Garry Wills) (Harry V. Jaffa, Fall 1992, First Principles)

Let us consider further how the relation­ship of independence and union was looked back upon in the after-light of the Found­ing. In 1825, Jefferson asked Madison for his recommendation of books or documents that ought to be made authoritative--norma docendi--for instruction by the law faculty of the new University of Virginia. In re­sponse, Madison did recommend--and Jef­ferson incorporated his recommendation into a resolution adopted by the Board of Visitors of the University--some of the "best guides" to "the distinctive principles of the government of our own State, and of that of the United States." The first was the "Decla­ration of Independence, as the fundamental act of Union of these States."

In his earlier book, Wills refers to the Declaration and the Gettysburg Address together as "war propaganda with no legal force" ( 362). But this is to ignore the testimony of Madison and Jefferson, that the Declaration was "the fundamental act of Union.""Act" here means "law." Article VI of the Constitution declares that:

All debts contracted and engagements en­tered into before the adoption of this Consti­tution shall be as valid against the United States under this Constitution as under the Confederation.

Article XII of the Articles of Confederation declares, in like manner, that all debts contracted under the authority of Congress before the Articles went into effect shall be considered charges against the United States, and honored as such. This more than con­firms Lincoln's contention that the legal and moral personality of the United States, as a Union, extends continuously not only to the Declaration of Independence, but before that to the Congress of the Union that declared independence, and which had incurred debts from the beginning of the war in 1775. The Declaration of Indepen­dence is today the first of the four organic laws of the United States, according to the United States Code, as adopted by the United States Congress.3 Article VII of the Consti­tution, as signed by George Washington, and submitted to the states for ratification declares that it was "done in Convention in the year of our Lord one thousand seven hundred and eighty-seven and of the inde­pendence of the United States of America the twelfth." All acts and deeds of the United States are by the Constitution itself dated from the Declaration of Independence. How anyone could write two books on this topic, as Garry Wills has done, and remain igno­rant of these most elementary historical and legal facts, is difficult to understand.

The enduring significance of the Decla­ration of Independence--embodied in the Gettysburg Address--is accordingly less in marking the separation of the colonies from Great Britain, than of marking the union of the states with each other. This enduring significance, however, is constituted less by the legal fact of union, than by the moral fact that--according to Madison and Jeffer­son--the Declaration embodies the prin­ciples of government of the States severally, and of the United States corporately. More­over, the Constitution of 1787 guarantees "to every state of this union a republican form of government," without ever defining that form. Can there be any doubt that, as indicated by the testimony of the aforesaid witnesses, such form is best defined in the Declaration of Independence?


What made the Declaration of Indepen­dence the best of all guides to educating the guardians of republican freedom? In 1978, as we have seen, Wills, following Kendall, thought that the equality mentioned in the Declaration referred to the collective legal equality of the States with each other, not to the moral equality of the human persons who were their "inhabitants." We have seen Wills quote with full approval--in opposi­tion to Lincoln--the assertion that:

. . . the statesmen who founded the govern­ment . . . were men possessing too much self-respect to declare that Negroes were their equals. . . .

That the Declaration of Independence in­cluded Negroes in the proposition of hu­man equality is the heart of hearts of Lin­coln's alleged "new past." Wills also inher­ited this thesis from Kendall, who had charged Lincoln with "a startling new interpretation of . . . 'all men are created equal'" ( 39). The denial that Negroes had been included in the humanity of the Dec­laration had also been the contention of Chief Justice Taney in his opinion for the Court in Dred Scott. By a strange twist of fate, what was an article of faith for the old defenders of slavery has become unques­tionable orthodoxy among "black power" historians and their allies of the radical Left, who take it as proof of the racism of the American Founding.

Where does the truth lie? Are individuals equal, or are only "peoples" collectively equal? Consider the Massachusetts Bill of Rights of 1780--whose author was John Adams, a member of the committee charged by the Congress in 1776 to draft the Declaration:

The body politic is formed by a voluntary association of individuals; it is a social compact by which the whole people covenants with each citizen and each citizen with the whole people, that all shall be governed by certain laws for the common good . . .

And the premise upon which this voluntary association is formed is that:

All men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seek­ing and obtaining their safety and happiness.

Here is an authoritative gloss upon the doc­trine of the Declaration, prefaced to a Revo­lutionary state constitution.

In 1835, after being engaged in mortal combat against the doctrine of state rights enunciated by Calhoun during the nullifi­cation crisis (1828-33), James Madison drafted an essay on the meaning of sover­eignty in constitutional jurisprudence. He wrote:

To go to the bottom of the subject let us consult the theory which contemplates a cer­tain number of individuals as meeting and agreeing to form one political society, in or­der that the rights, the safety, and the interest of each may be under the safeguard of the whole.
The first supposition is, that each individ­ual being previously independent of the oth­ers, the compact which is to make them one society must result from the free consent of every individual.

Therefore, there can be no doubt that the consent that brings the body politic into existence, the consent upon which majority rule and the "just powers of government" depend, is "the free consent of every indi­vidual." It is true that communities of men founded in this way are themselves equal to other independent communities. But this collective equality is a by-product of the equality that individuals enjoyed, as con­tracting parties, prior to forming them­selves into a people. The equality enjoyed by citizens and persons under the constitu­tional law of a free society is a consequence of the antecedent equality belonging to them under the laws of nature and of nature's God. It is this natural equality that defines the ends, and limits the powers, of all legiti­mate governments. This is the philosoph­ical core of the idea of limited government.

[originally posted: 7/04/08]

Posted by at July 4, 2014 12:49 AM

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