As a citizen of the United States from birth, I was raised on the significance of the Declaration of Independence. While not a legal document in the same vein as the Constitution, it is definitely part of the founding canon of the nation. In the context of this discussion, a seminal section of the document—from the opening and closing statements—is quoted here:
“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, . . . .
. . . And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.”
US Declaration of Independence
The self-evident truths stated in the Declaration of Independence resonate with those stated in the opening paragraph of this introduction, except that the Declaration correctly states them as being God given inalienable Rights. ‘Life’ is surely experienced as a mix of pleasure and pain, of exposure to good and ill, and recognition of either is a sufficient evidence of one’s existence. A commitment to ‘Liberty’ states the ability and insures the opportunity to move away from pain and toward pleasure as more explicitly does the ‘pursuit of Happiness’; the pursuit, but with no guarantees of results. The right to this pursuit brings us together and tears us apart, as we learn what truly pleases us and what gives us pain. It is therefore most important to burn into our memory the rest of the quote.
“That to secure these rights, Governments are instituted among Men,”
US Declaration of Independence
since it is equally self-evident that not all men respect these God given rights so that they must be explicitly defended by those that do so respect them, for the benefit of themselves and their fellow citizens. But it is equally clear that just as some men cannot be trusted to respect these rights, neither can be a government claiming to derive its right to govern on a divine dispensation who’s truth is read and thereby known only by a few—as with the divine right of good King George III. Be they divinely inspired or not, the only governments that are trustworthy are those
“deriving their just powers from the consent of the governed,”
US Declaration of Independence
and not those claiming a divine—or any other type of inspired— right to govern, since the rights worth preserving are already given to us by the Creator; it is the duty of Men—meaning Human Beings and not the male gender—to secure these rights through self government.
And in support of this Declaration of the mandate for self-governance, with the last sentence of the Declaration of Independence comes the supreme expression of the ‘pursuit of Happiness’, that “with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.” This pledge is not just by and for those that signed the Declaration for their war of independence from King George III, or for the framers of the Constitution in setting up a government deriving its power from the consent of the governed over two hundred years ago; it is for all Citizens of this or any nation similarly conceived, in perpetuity. It is a pledge of allegiance, not to some flag or other symbol which may be abased and dragged through the gutter and manipulated by those lacking in respect for the inalienable rights of others, but to “each other”, to our fellow, self-governing Men and Women; a pledge of “our Lives, our Fortunes and”—above all—“our sacred Honor.”
These are truths that each of us knows in the depths of our soul, though there is a multitude of temptations to ignore that knowledge. Affront to the Declaration, and to God, occurs when the life, liberty, or pursuit of happiness of one individual or group alienates these rights from another with disregard of the due process of law; yet so it was from the beginning of the nation, when the very Constitution designed to codify the rights emblazoned in the Declaration was used to deny those rights to African and Native American slaves and to women, and even now, to children.
There are some who say that the Constitution was designed to deny such rights, but this is not so. A read of the Constitution is in order. The revered text opens with the Preamble of the Constitution, parsed here in logical form to allow for the clear delineation of the six stated reasons for its creation:
“We the People of the United States, in Order to
Preamble to the US Constitution
form a more perfect Union,
establish Justice,
insure domestic Tranquility,
provide for the common defense,
promote the general Welfare and
secure the Blessings of Liberty to ourselves and our Posterity,
do ordain and establish this Constitution of the United States of America.”
“We the People.” No where in the document will you find these people referred to by the words men, women, white, black, colored, race, or slave. You will find the word Indians once. Otherwise, human beings are referred to universally as persons. Free Persons shows up once, in Article I, Section 2, Verse 3 of the original document with respect to apportionment and taxation, along with the Indians not taxed reference and the infamous three fifths of all other Persons. Such other Persons were by implication not free, however, as were those bound to Service for a Term of Years, i.e. as indentured servants. With the addition of Article IV, Section 2, Verse 3 of the original document, Person held to . . . Labour is added to that of Service in the fugitive slave reference, where the whole sentence is clearly understood to be about the existing institution of slavery. The term Citizen appears 11 times, and while it is not made clear whether it is synonymous with Person, and therefore whether a Person who is not free is also a Citizen, what is clear is that no where does it state that such Persons are not Citizens, nor does it say that either free persons or citizensmust be of any particular culture or race; or sex or age.
We belabor these distinctions here because they are pertinent to the current public discourse in the United States of America. The subject of race emerges in that discussion, particularly in conflated form and from a variety of sources, specifically with respect to any notions of racial superiority potentially held on the part of the Founding Fathers and their ilk and the institution of slavery. The subject of what we might today call race is found in the Constitution only once, with respect to Indians not taxed, apparently referring to those native Americans whose independent national status was still recognized. Slavery is referenced indirectly twice, in the apportionment and taxation section and in the fugitive slave section mentioned above.
Slavery is not a ‘white man’s’ creation. It has been with the human race since antiquity, arising throughout the world, generally as the natural result of military conquest, along with the companion institution of serfdom with the rise of feudalism. The primary difference between the two modes of servitude was that the serf was bound to the land on which he lived and worked and could not be removed from it; he could be sold but only with the land; as a result he was not separated from his family. Slavery arose externally as the result of military conquest and internally from incurred debt within a society, and included both indentured servitude for a contracted period of time and for life, in its most insidious form extending to the slave’s offspring.
By the time of the American revolution, slavery was on the way out throughout most of Europe and to varying degree throughout the rest of the world, though there was still significant resistance to its abolition from within the groups that continued to benefit from the system. Up to this time and for yet awhile to come it had been a pervasive economic institution across the globe, one practiced in varying degrees by all races and cultures. The institution in the Western Hemisphere had historically involved native Americans in addition to imported Africans. The range of attitude on the part of those primarily European members of society that helped to found the United States and who were against the institution no doubt ran the gamut from mild disapproval to repugnance, due to the enlightenment, the renaissance, the scientific revolution, the reformation, and their personally held beliefs from whatever source concerning human justice.
It is not my intention to go into the dynamics of the rise and fall of the American manifestation of slavery here, even if I had the expertise; rather it is to state unequivocally that the United States Constitution was not the creation of a racist mindset as Frederick Douglass rightly saw and stated, but as some would like us and themselves to believe. It was the creation of a few good men and some not so good urgently trying to fashion out a way to band together to complete the journey they had extemporaneously begun when they started a fight and told King George to go home; to band together so that they might establish their perceived God given rights to Life, Liberty, and the pursuit of Happiness, and yes Property without his insensitive and harmful neglect and intrusion; to band together so that he couldn’t come back and hang them all. The Articles of Confederation were proving they were not up to the task of protecting their Lives, Fortunes, and sacred Honor.
The issue of institutional slavery was of paramount economic import to some, while not to others, and was understood by all as not capable of being resolved quickly. What was of immediate need was ‘a more perfect union’ and provision of a ‘common defense’, and so Article I, Section 2, 3 and Article IV, Section 2, 3 were included as a compromise, but they were both stated in a manner designed to delegitimize the institution on a national level as the word slave or slavery is never used, nor is it tied to African lineage in any way. It should be acknowledged that the first slaves in the New World were its initial inhabitants, its so-called Indians, and that free Africans did live in the colonies and that a few of them even held slaves. The delegitimization of slavery was thereby left to the individual states; Massachusetts began the process for the former colonies in earnest in 1783, prohibiting slavery as part of the state constitution before work on the U.S. Constitution was even begun.
With respect to to the inclinations of the various colonies for or against slavery, the New England colonies, with the exception of New Hampshire which was established by English timber and fishing interests, were founded as places of religious liberty against which the institution of slavery was seen by most as a gross infringement of the laws of God and of the ideals of the public good. On the other hand, the southern colonies, from Maryland to Georgia, were founded as economic enterprises by proprietary interests residing in England who viewed them as private, for-profit endeavors. With some later exceptions such as the Quaker settlers of central North Carolina, and the Scotch-Irish and others who settled Appalachia, the colonists came to administer the farming and resource exploitation of the region for these British interests. Initial slavery developed through trade with Native American groups for indigenous slaves, then pivoted to the importation of African slaves from the Caribbean, then Africa, as the population from which the indigenous slaves where taken diminished. The middle colonies were inhabited from a mixture of public and private motivations, including the notable founding of Pennsylvania by the Quaker and public-minded philosopher, William Penn. There was therefore across the original thirteen colonies at the time of the writing and adoption of the Constitution a spectrum of attitudes toward the subject of slavery and, I would say, of what it means to be a citizen, a person, in truth, a human being. Clearly, those who held the correct view about the subjects understood the need to yield to time and the inevitability of Divine justice, while simultaneously preventing the national canonization of slavery or race, in the midst of the urgency of creating a more perfect unionto defend against the potential retribution of good King George.
The same can not be said of the Confederate Constitution, cloned from the US Constitution some 70 years latter, which explicitly mentions both slavery and race and links them together. Article IV, Section 2, 3 of that documents substitutes slave or person held . . . for Person held. And Article IV, Section 3, refers to the institution of negro slavery. Perhaps most importantly, Article I, Section 9, 1 states The importation of negroes [of the African race] from any foreign country other than the slaveholding States or Territories of the United States of America is hereby forbidden; . . . And 2Congress shall also have power to prohibit the introduction of slaves from any State not a member of, or Territory not belonging to, this Confederacy. The significance here on the part of the slaveholders, who obviously thought the Civil War would end soon and to their favor, is what appears to be the desire to maintain the value of their slave holdings, their principle form of capital and a self-replicating form at that, by not allowing its value to fall in light of a renewed slave trade; and perhaps some consternation about the possible effects of a growing African population down the road.
It is not generally recognized by many Americans, I do believe, that most of the laws governing the citizens day to day lives were left by the Constitution to the states, including how elections would be held. As there was no central government with enforcement authority at the time of its writing, if there had been no constitutional compromise, the newly independent thirteen states would have gone there own ways, with little change in the trajectory of the institution of slavery in the slave holding states. In the north it was already on the way out and it would have been in the south also were it not for Eli Whitney and the invention of the cotton gin in 1793; this during George Washington’s term of office.
Eli Whitney’s cotton gin is responsible for giving new vigor to southern slavery by making the growth of cotton a profitable industry, but his later popularization of interchangeable parts in making mass produced fire arms is credited with helping the North win the Civil War. As it is, Appomattox put an end to the institution of slavery roughly 75 years after the Constitution was adopted, put into force, and allowed to amend itself. With all Persons, eventually including women, declared to be free from birth by the 13th and 14th Amendments, Articles I, Section 2, 3 and IV, Sections 2, 3 ceased their effect.
The initial period of reconstruction following the civil war did much to enhance the Life, Liberty, and pursuit of Happiness of former slaves, as many prospered through their own initiative, proving the lie to the stereotypical representation of Africans as being of inferior intelligence and ability put forth by former slaveholding interests; that is until the political will and lack of financial assets of the Federal government resulted in a withdrawal of Union military from the South and the re-establishment of states rights in the region. The resulting Jim Crow era segregation laws then instituted the racial apartheid that governed in the Southern states until the Civil Rights Act of 1964 ended the regime in 1965.
The Declaration and the Constitution embody the notion of the social contract as the basis for enlightened government among men, though they go far beyond the normal understanding of that notion. That contract is viewed as an agreement, explicit or tacit, among the members of a society not to infringe on the life, liberty, or property of the other members, with property viewed as a means of enhancing happiness, along with a mutual reliance on a public redress of any infringement in lieu of individually initiated retribution. From the perspective of social contract theory, enlightened government exists primarily for its judicial role to settle social—and by logical extension private contract—disputes between independent, private individuals or groups, to ensure their rights to life, liberty, and the pursuit of happiness.
It is understandable to reasonable individuals that these inalienable rights can and should be protected, but it is equally understandable that they should be revoked by human agency for those who have prejudicially refused them to others and in commensurate manner. This may be a compensatory revocation of a wrongdoer’s rights, but its immediate consideration—not always acknowledged—is or should be prevention of a continuation of any infringement on the part of the offender or offending group going forward. A problem arises when the offense is not clearly and commonly understood between the offender and the offended as is so often the case between groups in civil matters of political economy, in particular with respect to an understanding of transactional externalities referenced earlier.
In order to prevent and mitigate as much as possible the occurrence of such offenses among the citizenry and between the citizenry and foreign entities, it follows that a second fundamental role of government is legislative, to provide in advance of such offense: a clear delineation of what is lawful and what is unlawful intentional activity; as much as feasible for what might otherwise be unintended, unforeseen consequences, what is rightful and what is tortious activity; where the private or the public good is at imminent or reasonably likely risk of injury or loss, the provision of prior restraint of such offense.
Implementation of any decisions of the judiciary and enforcement of enacted legislation requires yet another fundamental role of government, that of execution. Courts and statutes do not survey the social landscape for crimes, torts, or other wrongs nor prosecute, file suit, or defend against these on their own. This requires an operational component of government to maintain the order defined by the laws, and this requires, among other things, the designation and acquisition of property for public use for judicial and legislative proceedings and attendant administration, and by extension to infrastructure of jails and police stations, public right of ways for roads and bridges, ports and naval channels, and public commons; these last items being necessary for free and efficient economic and commercial activity—for free markets.
The notion that markets can ever be completely free—that they represent a natural condition free of government interference that must be assertively reclaimed—is a laissez faire conceit. This is stated without jeopardy to the principle of laissez faire, literally of government allowing the freedom to act, which is a reasonable approach to policy formulation; we would add, provided that such freedom on the part of some parties does not impinge on the inalienable rights of others.
With respect to the maintenance of free markets, we can make the following observations:
First, with respect to cost there is usually a cost to any transaction beyond the cost of producing a good or service and getting it to the market. For the seller there are generally capital costs, including sunk costs, that are not recouped in any particular transaction; there are entitlement, marketing, and other operating costs of running a business that may never be recovered, particularly in any given transaction. For the buyer there may be a compulsion to buy due to an agency beyond the control of the buyer; there are usually opportunity costs of a transaction from foregoing the purchase of an alternate product or simply saving the money.
Second, there is a certain lack of freedom, often with some sense of urgency, in any transaction stemming from the fact that each party comes to the transaction from a position of lacking, through want or need, what the other party to the transaction is offering, a good or service or a perceived monetary exchange value for a good or service.
Third, there is always an element of risk in a transaction, of loss or injury or fraud or misrepresentation or misunderstanding to either party; if the transaction is found to be beneficial by both parties to the transaction, in its aftermath, the risk becomes a recognized opportunity realized and can be deemed free, otherwise not so much.
Fourth, while not always present, there may be costs borne by other private individuals or the public, externalities, that are not a part of the transaction. These include the costs of insuring the freedom of the market place through government actions; policing and defense posture, product and monetary safety provisions, infrastructure and superstructure construction, maintenance, and insurance, among others.
As a result, the concept of free markets is an asymptote to be approached in policy planning and not a pre-existent reality that must be heroically defended. This is particularly true with respect to externalities. In this regards, as stated or implied in both the Declaration and the Constitution, government is a necessary institution of public capital required to make the transactions between private citizens and foreign entities as free and as fair as possible as part of the process of preserving the God given, inalienable rights of mankind.