Another Independence Day rolls around. Heather Cox Richardson has written a brief essay for the occasion. You should read it. It refers, fittingly, to the Declaration of Independence.
I want to say a little bit about the Declaration myself.
Note that the document itself is not titled “Declaration of Independence.” We are in the habit of calling it that, because it declares the independence of the thirteen colonies from England. But independence from England is not the first or most important thing that it declares. Its authors would not have dreamed of declaring independence from England except on the basis of another declaration that was more radical and is of more abiding importance.
Before it is a declaration of independence it is a declaration of equality. It states that all men are created equal. It holds that government, in order to remain legitimate, must be grounded in, and must in its ways of making and implementing its decisions about all manner of things, be essentially guided by the insight that all men are created equal and by virtue of that equality share in common the rights to life, liberty, and opportunity to pursue the good life. A rebellion against English rule not motivated by such a weighty moral imperative, the authors of this statement knew, would be perceived as—and would be—a mere rebellion, an insurrection. They did not claim the right to establish a new nation apart from the right to be governed according to the principle that all men are essentially, ontologically, in the order of nature, equal.
Why “created equal” and not just “equal”? Because it would have been demonstrably false to say that all men are equal. Obviously all were not equal. Some are rich. Some are poor. Some are powerful. Others have low social position and little political power. But these differences are accidental, not essential; i.e., they could be otherwise. There is nothing inherent in one person—nothing that is proper to that person simply by birth, nothing in the quality of one individual person as such—that justifies that person’s possessing greater wealth and power than another. No one can legitimately inherit the right to lord it over anyone else, much less over everyone else. Ergo: the “divine right of kings” is bullshit: ideology fabricated and promulgated as a bad-faith pretext for injustice.
We note “men” in the Declaration’s formulation of its foundational statement. We know that the “intention of the founders” was that propertied white males should be recognized as equal. They do not mention slaves or women; they do mention “Indian Savages.” These are all “men” in the inclusive usage of the day, but they were not included in the intentionality of the founders if we can read their minds from their words and actions outside the Declaration.
But this is where we not only can but must decide that the intentionality of a canonical, foundational statement like the Declaration transcends intentionality of its authors. In the moment in which the Declaration was made, something transcending the mind of the authors was coming to expression.
They say so themselves! This is the meaning of the language “are created” and “their Creator.” The point is not to establish Christianity as the religion of the new nation. The point is not to assert a particular theology—the founders, as a whole, were not especially gifted or even orthodox theologians. Some of them were deists. Some of them were not even theists. But this document which they produced, in its appeal to “created” and “creator,” asserts: We are not making this stuff up. This equality is not our idea, not our decision. It is real, in the nature of things, prior to any thought or decision of ours, and if we construct our life together in a way that recognizes it, then we will have a legitimate nation with a legitimate government, and if we do not (as England, they say, has not in its policy vis-à-vis the colonies), then we will not have a legitimate nation or government.
That is to say: if they are wrong in their declaration of equality—in recognizing equality as a transcendent principle—then their declaration of independence is a sham. And if they are right in recognizing equality not as their own assertion but as a transcendental principle, then we must recognize that it may have applications that extend beyond their capacity to recognize or implement those applications. Their declaration does not create equality, it recognizes equality. They have recognized something that King George did not recognize. Which means later generations of Americans may recognize implications that they did not themselves realize.
Which did in fact happen. Eventually it was possible for most Americans to recognize—though the drafters of the Declaration of Independence did not, nor did the drafters of the Constitution—that the “all men” who are created equal and endowed with equal rights includes people of African descent, and people of native American descent, and women. Americans—the people, and the federal judges tasked with interpreting and applying the founding documents—have discovered things in the intentionality of the founding documents that are not explicit in those documents and were demonstrably not included in the intentions of the founders, and that is right and good. It is in fact required. It follows inevitably from “created” and “their Creator.”
And this is why strict constructionism, as they used to say, or originalism, as they say now, is essentially an anti-American and even anti-God hermeneutical principle. It elevates the “intentions of the founders” to a place that the founders themselves did not claim. It makes them the creators and therefore also the legitimate limiters of the principles of equality and freedom, not—as they arguably knew themselves to be—the imperfect servants of these principles. They did not share a clear and orthodox doctrine of God, but they knew that human equality was grounded in something greater than themselves and their own words, and they called that something “Creator.”
Regressive, reactionary folk love to mock judges who “discover” things in the Constitution that its authors did not knew were there. But the minute we stop discovering things in the Constitution will be the moment when you can sign America’s death certificate, just as (sorry, but by training I’m a preacher and theologian, not a lawyer or politician) the moment when a Christian stops discovering, under the guidance of the Spirit, new things in Scripture is the moment of that believer’s spiritual death.
But these days we have fellow Americans—including, strangely, Catholic justices on our Supreme Court—who honor the creatures (the historically conditioned intentions of Jefferson, Madison, and their friends) above the Creator (the transcendent principles that constitute the intentionality of their documents). I say “strangely” because Catholic theologians know that the sacred scriptures must be interpreted in the Spirit that inspired the scriptures, and that this means in many cases allegorizing or even in effect annulling particular verses of scripture which in their literal sense can now be seen to be contrary to the spirit of Christ (and perhaps the spirit of Sinai). But our Catholic jurists on the Supreme Court seem to be rank fundamentalists with regard to the nation’s founding documents. They see themselves not as stewards of equality and liberty, recognized as transcendent principles encoded in a constitution whose interpretation has evolved over time in a process of sometimes amendment, sometimes reinterpretation: not arbitrary and arbitrarily reversible reinterpretation, but a deliberate, continuous, and essentially unidirectional process of unfolding the implications of “all are created equal” in each generation to a greater extent than in the previous generation. Rather, they seem to be seeing themselves as the people who are going to roll it back up and shut it down.
The year 1776 was a good year. It was the beginning of America as a way of being a nation in the world. But if we let them slam us all the way back to 1776, the momentum will surely throw us back into 1775. And I don’t mean repossession by England.
Happy Independence Day, friends. “A republic—if you can keep it,” said Ben Franklin. But keeping cannot mean preserving in a jar like a pickle or pinning to a board like a dead butterfly. Keeping cannot be a matter of wrapping in a napkin and burying in the ground. Preservation of a republic is a matter not only of constant vigilance but of nurturing and growing. It lives (and breathes, and grows), or it dies.
Verba Sparsa 