US Founding Documents — themes & analysis

The second paragraph of the Declaration of Independence is one of the most carefully composed pieces of political philosophy ever produced for a public audience, and it is closely modelled on John Locke's Second Treatise of Government, published almost a century earlier in 1689. Jefferson is not concealing the source; he is paraphrasing it. 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.

Every clause of the paragraph traces to Locke. The natural rights to life, liberty, and property; the doctrine that government is instituted for the protection of those rights; the principle of consent of the governed as the only legitimate ground of political authority; the right of revolution against a government that violates its trust — all of these are Lockean doctrines, taken into the Declaration with very little modification of substance.

Jefferson's chief alteration is the substitution of the pursuit of Happiness for property in the trio of natural rights — a phrase that has been variously read as a softening of Locke for revolutionary purposes, as a borrowing from the Scottish moralists Jefferson had read at William and Mary, or as a reflection of the wider Enlightenment sense of human flourishing as the aim of political life.

Whatever its source, the substitution gives the American foundation a slightly different texture from the British liberal tradition without breaking with it. The Declaration is, in this sense, the most consequential political application of Lockean philosophy in modern history. Because Jefferson chose to argue the revolution in Lockean terms, and because the Continental Congress signed his draft, the United States entered the world as a deliberately Lockean state — and the political tradition built on it has been working out the implications of that founding choice ever since.

Where to follow it: Declaration — the philosophical preamble, Bill of Rights — rights enumerated, Later Amendments — rights extended.

The Constitution's most enduring structural achievement is the separation of powers among three coordinate branches — legislative, executive, judicial — each given its own enumerated authority and each given the constitutional means to check the encroachments of the others. The doctrine had been articulated in theory by Montesquieu in The Spirit of the Laws (1748), but it had never been put into practice in quite the form the Convention of 1787 produced.

Article I creates a bicameral legislature — a House elected directly by the people every two years, a Senate originally chosen by state legislatures for staggered six-year terms — with carefully enumerated powers (tax, borrow, regulate commerce, coin money, declare war, raise armies) and explicit prohibitions (no titles of nobility, no bills of attainder, no ex post facto laws). Article II creates a single chief executive, elected indirectly through state electors, with vested executive power and the duty to take care that the laws be faithfully executed. Article III creates a federal judiciary with original and appellate jurisdiction over a defined set of cases.

The crucial feature is not the existence of three branches but the mutual checks among them. The legislature can be vetoed by the executive (overridden by a two-thirds vote of both houses); the executive's appointments and treaties can be blocked by the Senate; the judiciary, by Hamilton's Federalist 78 doctrine that became Marbury v. Madison (1803), can declare both legislative and executive acts unconstitutional.

This is what Madison, in Federalist 51, called auxiliary precautions: the constitutional architecture is designed so that the ambition of officeholders in each branch will, in the ordinary course, defend the boundaries of that branch against the others. Two and a half centuries of American constitutional development is, in one dimension, the working out of how the boundaries actually run when concrete cases arise — and the boundaries have moved, but the basic structural settlement of 1787 has held.

Where to follow it: Constitution — Articles I, II, III, Bill of Rights — limits on federal power.

The Constitution is, before it is anything else, a federal compromise. Twelve states sent delegations to Philadelphia in May 1787 (Rhode Island refused), and the central political problem of the Convention was how to construct a national government that would actually work without dissolving the existing states or alienating any of them so badly that they would refuse to ratify.

Two main proposals contended through June. The Virginia Plan, drafted largely by Madison and presented by Edmund Randolph, called for proportional representation in both houses based on population — a plan that would have given the large states commanding influence. The New Jersey Plan, presented by William Paterson, called for equal state representation in a single chamber — essentially a modified version of the Articles of Confederation. The Connecticut Compromise, proposed by Roger Sherman in mid-July, produced the bicameral legislature the Constitution actually has: a House apportioned by population, a Senate with two senators per state regardless of population.

A second great compromise, equally consequential and considerably more shameful, was the Three-Fifths Compromise on apportionment. Should enslaved people be counted in the population for purposes of representation? Counting them fully would have given the slave states more weight in Congress; not counting them at all would have given the free states more. The compromise — three-fifths of the enslaved population would be counted — gave the slave states a permanent disproportionate voice in the House and the Electoral College that was not finally erased until the Civil War and the Fourteenth Amendment.

The Constitution that came out of Philadelphia is therefore a document of compromise more than of principle in some of its central provisions. Reading it requires holding two truths together: that the framework it produced has lasted longer than any other written constitution in continuous force, and that some of the compromises that made the framework possible were morally indefensible at the time they were made.

Where to follow it: Constitution — the structural compromise, Later Amendments — the Fourteenth Amendment.

The Bill of Rights exists because the Anti-Federalists won an argument the Federalists had thought they could win without conceding it. During the ratification fight of 1787–88, the most consistent Anti-Federalist objection was the absence of an explicit declaration of rights — a failure that critics from George Mason in Virginia to Patrick Henry to the New York Anti-Federalists made central to their case against ratification.

Hamilton in Federalist 84 produced the most carefully argued Federalist reply: a bill of rights is unnecessary in a government of enumerated powers, because a government that has not been given the power to abridge speech, the press, or religion cannot abridge them; a bill of rights is positively dangerous, because explicit prohibitions of certain governmental powers might be read to imply that the government has any powers it has not been forbidden to exercise. The argument was logical and was made in good faith. It also lost.

State ratifying conventions in Massachusetts, New Hampshire, Virginia, and New York voted to ratify only on the explicit understanding that the first Congress would propose amendments protecting individual rights. Madison, who had agreed with Hamilton in 1788 that no bill was needed, became the political figure who took the commitment seriously. He drafted twelve proposed amendments in the summer of 1789, drawing heavily on the state-convention proposals and on the long English tradition of declarations of rights running back to Magna Carta and the 1689 Bill of Rights. Ten of the twelve were ratified by the states by December 15, 1791.

The result is the most influential single set of constitutional rights in modern history. The First Amendment's protections of religion, speech, press, and assembly; the Fourth Amendment's protection against unreasonable searches and seizures; the Fifth Amendment's due process clause and protection against self-incrimination; the Eighth Amendment's prohibition on cruel and unusual punishment — all of these have done extensive work in two centuries of American jurisprudence and have been borrowed, sometimes verbatim, into constitutional documents around the world. The Anti-Federalists were better politicians than Hamilton on this single point, and the United States has been better off for the loss.

Where to follow it: Bill of Rights — all ten amendments, Later Amendments — the Ninth and Tenth at work.

Reading the founding documents two and a half centuries later requires a willingness to see clearly both what they accomplished and what they did not. The accomplishment is enormous and undeniable. A continental republic on the scale of the United States had no precedent in modern history; the Anti-Federalists had argued, citing Montesquieu, that republican government was possible only on a small scale. The framers' answer — an extended republic with multiple layers of government, separation of powers, federal-state division of authority, explicit individual rights — has been the working political framework of more than three hundred million people for over two centuries.

What the documents did not settle is also clear. Slavery is left in place by the Constitution and named only obliquely: the Three-Fifths Clause, the slave-trade clause that prohibits Congress from banning the importation of enslaved people before 1808, the Fugitive Slave Clause. The status of women is unspecified — women are not given the vote, are not present at the Convention or the ratifying conventions, and are not addressed as full political agents. The status of Native nations is largely subordinated to the wartime framework of the Constitution.

The founding settlement is therefore not a finished document but the framework within which the unfinished questions of the American republic have been argued. The Civil War amendments — Thirteenth, Fourteenth, Fifteenth — abolished slavery, established birthright citizenship and equal protection, and prohibited racial discrimination in the franchise. The Nineteenth Amendment (1920) extended the vote to women. The civil-rights legislation and constitutional jurisprudence of the twentieth century carried the founding principles into territory the framers had not been willing to take them.

The documents are therefore best read not as a closed text but as a starting point: the philosophical premises and the working machinery on which an ongoing political project has been built. The ongoing project has been the working out, by each subsequent generation, of what the founding principles actually require when extended to the cases the framers did not address.

Where to follow it: Declaration — the philosophical premises, Constitution — the compromises, Later Amendments — the extensions.