The Declaration’s Substantive Global Appeal

Can one be completely neutral about the claims that are at the heart of the Declaration of Independence? JWI Founder & Director Hadley Arkes often recounts a story about the folly of neutrality when describing his work. A former president of his longtime academic home, Amherst College, once introduced Arkes as “having a theory of Natural Law.” Arkes was taken aback at the introduction. The problem, as Arkes sees it, is that describing someone as having a “theory of Natural Law” assumes that one may stand in “wholesome detachment, seeing theories of various sorts whizzing past” and choose among them.[1] But, Arkes corrects, the act of choosing requires one to have standards of judgment that person understands as being reasonable. Those standards of judgment, about which a person cannot be neutral, supply the grounds of the Natural Law.

In The Declaration of Independence: A Global History, Professor David Armitage situates himself as standing back in similar “wholesome detachment” about the claims of the document at the heart of his book. As our nation celebrates another Independence Day, I wanted to look at Armitage’s 2007 book, which is principally a comparative history and a discourse on international law, a bit more closely. Armitage’s basic thesis is the Declaration is underappreciated as having been shaped by global events, and then inspiring other declarations of rights worldwide. To demonstrate his thesis, Armitage focuses on the formal dimensions of the Declaration such as its argumentative structure, and also its role in garnering recognition by other countries. Yet, his book leaves unfulfilled the reader who seeks to understand the substantive appeal of the Declaration’s underlying philosophy beyond the United States.

Armitage’s approach, to view the Declaration as a “global phenomenon” and to chronicle its “afterlife in the world beyond the United States,” is intentionally modest. Armitage avoids any normative judgments on the individual rights philosophy at the heart of the Declaration. He sidesteps an analysis of the appeal of the Declaration’s philosophy to a global audience, claiming that those philosophic justifications only became relevant in the second half of the twentieth century, during a renewed interest in individual rights. Armitage’s interest in the Declaration is as “an event, a document, and the beginning of a genre.” No statement in the book better reflects Armitage’s lack of interest in the Declaration’s animating philosophy than “Every generation gets the Declaration of Independence it deserves.” Thus, Armitage’s thesis is one that elevates form over substance.

The form of the Declaration that particularly interests Armitage is its role in asserting the United States as “equal station…among the ‘Powers of the Earth.’” Armitage delves into the need of the nascent United States, after 1776, for external recognition of its claim of independence. To several of the Founders, the central point of the Declaration was to join the international system, “to enable the rebellious colonies to enter into diplomatic and commercial alliances with other powers.” External recognition by other powers such as France fulfilled this need, even if other powers such as Great Britain contested the independence of the United States. In this way, the Declaration was a formal vehicle for the recognition of the United States according to the “emerging positive law of nations in the late eighteenth century.”

No one should dispute Armitage’s account so far. However, does being formally recognized under the positive law of nations explain the coherence of the Declaration or its appeal to a future, global audience? Armitage explains the differences between how a state may acquire independence from the inherent right of individuals to assert independence. Unfortunately, the inherent right of individuals to assert independence is not important to Armitage in explaining the uniqueness of the Declaration. According to Armitage, the animating philosophy of the Declaration is of its time and place. He recounts that by the late eighteenth century, natural rights-based philosophies had waned in popularity in Europe. By contrast, only around the 1820s did Americans begin to echo the Declaration’s philosophic claims of individual right in a variety of domestic contexts, such as during the Second Great Awakening.

Furthermore, Armitage equivocates between the Declaration’s Natural Law basis and the positivist language securing sovereignty contained in the document. One infers from Armitage then that the Declaration’s Natural Law basis may be, as Jeremy Bentham said, “nonsense on stilts.” In that case, the Declaration stands more for the principle of “might makes right.” The United States as a new sovereign nation can join the “Powers of the Earth” because the United States has the wherewithal to do so. But if the unique appeal of the Declaration truly lies in the claims of individual equality in its second paragraph, the “abstract truth applicable to all men and all times” in Lincolnian construction,[2] Armitage’s analysis basically discounts it. Armitage argues that the “main message” of the Declaration, to secure the recognition of a new sovereign nation among other sovereign nations, is confirmed by the few invocations of individual rights in the more than one hundred assertions of independence following 1776.

The question then is to what extent can the formal aspects of the more than one hundred assertions of independence since 1776 claim lineage to the Declaration and not to the more general “unshackling” of peoples and their nation-states from long standing empires in the eighteenth, nineteenth, and twentieth centuries. The few invocations of individual rights in the assertions of independence by other new nations after 1776 confirm, to Armitage, that the Declaration “was an assertion of the rights of states among other states rather than an enumeration of the rights of individuals against their governors.”

Is this conclusive evidence for the Declaration’s formalism triumphing over its substance? No. Armitage spends the rest of the second half of his book undermining his own point. The assertions of independence in Haiti, the new nations of Spanish America, Greece, Hungary, and Liberia in the generation immediately following the Declaration are the exception by their demonstrating vivid and explicit invocations of  the American example. These assertions shared more in common with the Declaration’s substance due to their historical proximity to the Declaration itself.

But the dozens of other assertions of independence by other nations from multiple different eras showcase more of an attenuated connection between the Declaration and the “global phenomenon” it brought forth. Armitage notes that the French Revolution and historic British liberal traditions played a far larger role in shaping the understanding of rights, including the right of revolution, across the world.. After a long survey of what he calls the four distinct periods of independence globally–from the late eighteenth century through the twentieth century–Armitage concludes that this “contagion of sovereignty” can be sourced only as far back as the American Revolution. If the Declaration is to take on global meaning, that meaning derives from the formal act of claiming sovereignty against empires, colonizing nations, and occupying powers. But, as Armitage has demonstrated, many peoples have rebelled before and after the Declaration. Therefore, to tie his global study together, Armitage tries to lean heavily on describing certain periods as encouraging peoples to have vague inclinations towards independence since the late eighteenth century, in fits and starts, with their inspiration as the Declaration.

Where though does this leave the reader who is not as convinced as Armitage that the Declaration’s formal aspects overshadow its substantive core in explaining the Declaration’s global appeal? Justice Scalia frequently compared the Soviet constitution with the American constitution to illustrate a deeper point about a text in theory and a text in practice. Justice Scalia observed that the Soviet constitution, by its written terms, secured more positive rights, and in greater detail, than the American constitution. Yet the Soviet constitution obviously was inferior in practice. Why? The Soviet constitution was no more than a “parchment guarantee.” The structures underlying the Soviet constitution allowed the consolidation of power within one body, the Politburo, thus eliminating structural protections of liberty. In sharp contrast, the structures of the American constitution largely preserve the core promises of liberty and equality under law (though a greater appreciation by all actors in our constitutional scheme of the American constitution’s departmentalist basis is needed more than ever). The technical form of the Soviet constitution obscured its empty substance. The American constitution, by contrast, is grounded in in the Declaration’s operating principles. The Declaration informs and prescribes the telos of the American constitution. As Harry Jaffa wrote, “The Constitution of the United States meant to do what, in fact, it has done. By grounding the regime in the doctrine of human equality, proclaimed in the Declaration of Independence, it has, as Lincoln said, cleared paths for all, given hope to all, and, by consequence, enterprise and industry to all.”[3]

In contrast, because Armitage’s “one-size fits all” analysis essentially recites hundreds of assertions of independence, the substance of the Declaration, and its global meaning, becomes obscured. Indeed, the Declaration was an assertion of sovereignty that relied on external recognition by powers greater than the nascent United States. In that way, the American assertion of independence shared much in common with other assertions of independence before and after the American Revolution. But Armitage reads too much into how connected those assertions of independence were with what made the Declaration unique. The Declaration’s instantiation of “all men are created equal” in its second paragraph was, as Lincoln analogized, “the apple of gold” at the heart of the novus ordo seclorum and later the Constitution the Founders wrought. That unique, substantive feature is what made the Declaration truly revolutionary in world history. Any global analysis of what the Declaration inspired that ignores the particular justification for independence articulated by the American Founders, provides us a limited, at best, account of its unique appeal.    

[1] Hadley Arkes, Constitutional Illusions and Anchoring Truths: The Touchstone of the Natural Law 43 (2010).

[2] Abraham Lincoln, April 6, 1859, Letter to Massachusetts State Rep. Henry L. Pierce.

[3] See Harry Jaffa, “The American Founding as the Best Regime”, Claremont Review of Books, Summer 2007.

Garrett Snedeker is the Deputy Director of the James Wilson Institute and a J.D. student at the Antonin Scalia Law School.
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The James Wilson Institute’s Mission is to restore to a new generation of lawyers, judges, and citizens the understanding of the American Founders about the first principles of our law and the moral grounds of their own rights.
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