What Governments Are For

R evisionist historians have claimed that the Declaration of Independence’s most essential part is not the famous opening passages, but its list of 27 grievances against King George III. These injuries, it is said, are the real meat of why the Americans sought to escape British rule and were willing to wage war to attain independence. Yet these revisionists make the mistake, in Alexander Hamilton’s words, of affirming “that the deputy is greater than his principal; that the servant is above his master.” The series of grievances serves as evidence of unjust government under a higher standard of what just government is and must be. That standard is laid out most clearly in the second paragraph of the Declaration.

For subsequent generations of Americans who study their founding document, this paragraph seems to contain two principles that appeal to different minds. The first is popular sovereignty, or democracy. “All men are created equal,” so each must have an equal say in how the society is governed. “Governments are instituted among Men” as their creation to control — no more divine right of kings to rule over the rest. All power is derived from the “consent of the governed.” When government becomes destructive of the ends for which it was established, “it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.” The people always remain in ultimate control of their government. When government turns to despotism, “it is their right, it is their duty, to throw off such Government.”

The second principle apparent in this paragraph is the protection of natural liberty, or freedom from government even after its establishment. It begins in the same place: “All men are created equal,” so no man has any right to rule over another. We are each endowed with “certain unalienable Rights” that preexist government, including “Life, Liberty and the pursuit of Happiness.” Government’s purpose, its raison d’être, is “to secure these rights.” Rights are inherent; government powers, including those exercised democratically, are conditional. The people must overthrow a tyrannical government so they may “provide new Guards for their future security” against illegitimate power. The security of rights remains the North Star.

These two principles of democracy and freedom can appear in tension. James Madison’s great fear was that unfettered majorities in the states would trample minority and individual rights if left unchecked. To him, letting the people have their way with government in every instance was a menace. Madison’s proposed remedy was an anti-democratic measure imposed from above: a national “negative in all cases whatsoever on the legislative acts of the States.” His idea was rejected at the Constitutional Convention, as Madison’s fellow framers wanted to respect the people’s sovereignty through their state governments. Decades later, another clash between popular sovereignty and natural liberty arose over slavery. Stephen Douglas famously favored the first principle; Abraham Lincoln, the second.

Even when the principles conflicted in practice, the Declaration’s second principle held them in harmony. This combination raises a theoretical question beneath the real-world conflicts: How can the people simultaneously govern themselves, yet be limited in how they can use that power to respect individual rights? The answer lies in the document’s most overlooked modifier: Government derives its “just powers” from the consent of the governed (emphasis added), which are decidedly not all powers a government could conceivably exercise.

In John Locke’s Second Treatise of Government, from which Thomas Jefferson took obvious inspiration, a natural law of justice exists before any government is instituted. In a precursor to the Declaration’s retelling, men exist in a state of nature with equal rights to life, liberty (or self-direction), and property acquired through exertion. Each person may exercise these rights freely, but only within the bounds of others’ rights. When one man violates the rights of another — by harming him, enslaving him, or stealing from him — he enters an unjust state of war, and his victim has the right to uphold the natural law by punishing his aggression.

In Locke’s narrative, governments are established to bring formality and regularity to this just adjudication of rights. Yet it would make no sense for men to surrender more natural liberty than they secure when submitting to a government. Therefore, legitimate governments are vested only with the powers necessary to secure citizens’ rights, not to abridge or abolish those rights for any separate purpose. Government does not exist for one individual to force his will on others, but for the equal protection of all.

From this formulation, the scope of popular sovereignty is robust yet quite limited. The people must decide how to best secure their rights, both from one another and from those outside the political society. When rights come into conflict, as they often and invariably do, they must create laws to settle disputes. The people are also free to establish certain public goods for everyone to share. What a majority of society cannot do through government — as it never had the right to do so in the state of nature, and thus could never have vested the power in a state — is vitiate the natural rights of others. Positive law must be aligned with the law of nature.

In a word, the singular principle of the Declaration’s second paragraph is “self-government.” Some may place a greater emphasis on the “self,” others on the “government,” but the compound term stands as freedom from external domination in both the private and public realm. Lincoln harkened back to the concept in his first major speech against slavery: When one man “governs himself that is self-government,” he said, “but when he governs himself, and also governs another man, that is more than self-government — that is despotism.”

By the Declaration’s standard, government is just when it enables the people to rule themselves, but becomes unjust when it lets one part of the people rule over another. The Constitution still to come would attempt to make that former kind of government a reality, and, perhaps even more critically, to protect against the development of the latter.