The Constitution Vs The Declaration of Independence

In exploring the workings of governments; the bureaucracies that define how they interact with the citizenry, and how the citizenry are manipulated for political and economic purposes; I have learned that there is a great deal of confusion in the average citizen concerning the formation of governments and the power available to preserve those governments.

A good example is the lack of understanding of our own historical foundations. Europeans discovered the Americas and associated islands over 250 years before some of the British colonies seceded from the British Empire, and established their own governments. For over two and one half centuries the laws of Britain along with the colonial laws, approved by Britain, provided to the citizenry their social, economic, and political structure. With the increasing development of the colonial economies and the abundance of resources for manufactures and trade, England continually taxed the Colonies of their productive labor and resource wealth. Economic disparity with England, reinforced by the social and political disparities between England and the Colonies, was the motivation for colonial self-determination and desire for complete control and ownership of the wealth generated by the Colonies.

Thus was born the Declaration of Independence; a very strange document, whose validity cannot be argued in any court, since it predates any court that its formulators would recognize as a valid court. The authority claimed by those who wrote this document is placed by them above all other. However, the U.S. Declaration of Independence and the U.S. Constitution with its Bill of Rights, are in such great conflict with each other, that they mutually exclude the authority of the other to be the vehicle by which society may establish, promote and preserve its government; to enforce the authority of one is to negate the authority of the other. It is impossible to believe that both of these documents are valid in their exclusive philosophies.

From the Declaration of Independence:

“When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them,…} {…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. That whenever any Form of Government becomes destructive of these ends, 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. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shown, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such government, and to provide new Guards for their future security.}…..{ We, therefore, the Representatives of the United States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions do, in the Name, and by authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be, Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the state of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and do all other Acts and Things which Independent States may of right do. 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.”

This sounds like pretty strong stuff. Why would the Colonies, which were being treated like Third World countries, want to justify their intentions and subsequent actions? Principally because the validity of any government formed to control the myriad duties of government, must follow from some authority. When the British, and other peoples, were colonizing the world, they governed by the authority of their King or queen and their Parliament. They enforced their authority with their army and navy. The American colonists needed some equal or greater authority to justify their illegal insurrection, and proceeded to claim that authority from the Creator. The Declaration informs us that the elected representatives of some of the colonists had received authority from some of their constituents to dump the British government and to form an independent government for each Colony. Since you had to be white, male, and a property owner, just to be a constituent, it is unlikely that any natural law or divine authority could be forthcoming from such a limited group.

The authors of the Declaration have informed us that the “Laws of Nature and Nature’s God” entitle self-determination; that people are endowed by their Creator with certain unalienable rights; and that these authors appealed to the Supreme Judge of the world to claim validity for their actions; and that they prayed for the protection of divine Providence for their undertakings. These authors were in fact claiming divine authority for their intentions. The common citizen of the time had no authority to give. Over two hundred years later it is still not clear if this authority from the Creator is a one shot deal, or if any group of people willing to exercise self-determination may also use this exquisite authority.

Oddly enough, the United States Supreme Court could not rule on the legality of anyone forming a government in a similar manner. To rule in favor of such an action would be to interfere with a foreign power. To rule against such an action would be to negate its own existence, and thereby render all of its decisions null and void. The Supreme Court is limited to only verifying whether or not a legal argument brought before it is constitutional within the framework of the United States Constitution. No constitution has the authority to void or nullify the formation of other constitutions. The Supreme Court cannot rule on the validity of the United States Constitution itself, and is thereby unable to legally rule on the validity of any other constitutions. The legality of insurrections and revolutions must always be determined by a different court than we can peacefully convene on Earth; namely, the court of war.

After gaining the necessary authority to justify their actions, the colonists then proceeded to raise an Army and a Navy, which after a long and difficult war, were able to demonstrate to the British Army and Navy that they no longer had any power to enforce British political and economic authority in the American Colonies.

So what did these free, independent, and self-determining Colonies do to further this God-given opportunity for any peoples to claim the right of self-determination? They formed a Confederation, elected a Congress that could appoint military men, and gave to them the necessary authority to unite the Colonial Armies and Navies into one force. After the war they formed a new Continental Congress, which established a Constitution founded on the authority of the confederated congress and its Army and Navy. They proceeded to enact statutes that forbade divine right as a justification for establishing government, as being invalid and illegal. They now had the authority of their own Army and Navy to support any body of law that they would choose to establish. They proceeded to invalidate the Declaration of Independence and their previous twelve years of labor and sacrifice.

Although we attach a great deal of significance to our Declaration of Independence, we must understand that this Declaration, and all declarations, are irrelevant to any other groups exercising political authority. They only serve as red flags waved in the face of institutional authority. Everyone that declared their independence from England in 1776 was promoting and partaking in an insurrection against established and lawful authority. This type of action can only result in civil war. Both sides call themselves patriots. But the established society calls the revolutionists rebels, while the revolutionists call the ruling government despots and demagogues.

Our history has two examples of insurrection and civil war. The rebels of 1776 succeeded in declaring their independence by raising an army sufficient to establish the authority that arises from superior arms. Superior arms, however, defeated the Confederate States of America in 1865, and therefore their declaration of independence has failed to establish a date from which to record the birth of a new nation.

Declarations of independence and constitutions are words on paper; they carry absolutely no authority. From their very beginning and throughout their existence their authority arises either from voluntary assent of the citizenry, or force of arms to compel dissenters to act in accordance with existing law. A nation is made whole everyday, by assent or by force.

The following are excerpts from the U.S. Constitution, which will demonstrate the conflict between the Declaration and the Constitution.

Article 1, Section 8:

The Congress shall have power…} {…To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

Article 1, Section 9:

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

Article 3, Section 1:

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility

No State shall, without the consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the use of the Treasury of the United States; and all such Laws shall be subject to the Revision and control of the Congress.

No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

Article 3, Section 3:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No person shall be convicted of Treason unless on the Testimony of two witnesses to the same overt act, or on Confession in open Court.

Article 4, Section 3:

New States may be admitted by the congress into this Union; but no new state shall be formed or erected within the Jurisdiction of any other state; nor any state be formed by junction of two or more States or Parts of States, without the Consent of the Legislatures of the States concerned as well as the Congress.

The Congress shall have power to dispose of and make all needful Rules and Regulations respecting the Territory or their Property belonging to the United States and nothing in this Constitution shall be construed as to Prejudice any Claims of the United States or of any particular State.

Article 4, Section 4:

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

Article 5:

The Congress, whenever two thirds of both houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures or two thirds of the several States, shall call a Convention for proposing Amendments, which in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or be Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress.

These are the several areas of Constitutional law that are in direct conflict with the guarantees of the Declaration. In Article 1, Section 8, the national government is given the right to establish and call forth the militia (armed forces) “. . . to execute the laws of the union, suppress insurrections . . .” Such laws are extremely contrary to all peoples declared right to abolish the government over themselves, and their declared right to establish new laws of their own choosing. The United States was born out of the moral illegality of the British using military forces to enforce unpopular laws. How quickly the founding fathers forgot that governments do not have the right to militarily oppress any citizens of any country, including their own. Nor have any governments the right to militarily suppress any people’s efforts to separate themselves from old government, and establish new government for their own benefit and happiness; might does not make right.

In Article 1, Section 9, we see that the Constitution gives the authority to the government to suspend the Writ of Habeas Corpus and to imprison persons whom the government considers to be in rebellion. But rebellion is a declared right, guaranteed by the Declaration and “Nature’s God,” which people may invoke in order to pursue the unalienable rights of life, liberty, and the pursuit of happiness. To pass a law against rebellion, is to admit that unpopular governments have a right to suppress those they govern; or that a government representing a majority has the right to oppress and suppress minorities, enslaving them to the will of others. Popular governments, serving all the people, have no need to fear rebellion, and therefore no need of any laws against it. Rebellion was the indispensable midwife in this nation’s birth. The conflict between the Declaration of Independence and the Constitution cannot be greater than that associated with the right of rebellion. The people will fashion the mode of government by which they will assent to act toward each other.

In Article 1, Section 10, the Constitution expressly forbids the various states from exercising the rights that the Declaration declared they should retain, that all peoples have the right to unite in the manner they choose and to exercise all the rights of an independent nation.

In Article 3, Section 3, the Constitution gives the government the right to accuse its citizens of the act of treason, if they commit acts of friendship towards nations defined by Congress to be enemies. The Declaration of Independence guarantees that any group of people have the right to be independent and self-determining, and to ” . . .have full power to levy war, conclude peace, contract alliances . . .” In other words the Declaration makes treason an impossible act to commit when establishing a new society.

In Article 4, Section 3, The Constitution gives the government the right to admit new states to the Union, but prohibits any state from dividing, on its own, into more states. It also gives the government the right to colonize and claim jurisdiction to lands outside of its first boundary. This is not only contrary to the expressed themes of the Declaration; it is also contrary to the spirit of the Declaration. This section of the Constitution gives the United States the right to colonize wilderness territory, a right that the American Colonies rebelled against when England claimed it.

In Article 4, Section 4, all states are guaranteed a republican form of government and protection against foreign and domestic violence. Again, this is contrary to the Declaration’s guarantee of the right to self-determination for all people. Included in the right of self-determination is the right of minorities to resort to violence when the republican form of government is oppressive or unresponsive to the needs of those minorities. The Revolutionary War was fought because of the ideas expressed in the Declaration of Independence, opening the door for that kind of action forever more.

In Article 5, the Constitution allows for amendments to be added to the Constitution, providing three-fourths of the states ratify them. Even this article is contrary to the spirit of the Declaration, because it allows majorities to oppress minorities. The colonists exclaimed loudly against taxation without representation. If representatives had been sent to the English Parliament on behalf of the colonists, the majority in Parliament would have overruled their petitions and levied the taxes anyway. Most colonists were looked on as second-class British subjects, just as the colonists looked on Blacks and Indians as second-class citizens. The right of majorities to oppress by amendment or to refuse to liberate by amendment, may be republican, but is certainly immoral. It is contrary to the Declaration’s guaranteed right to separation and independence for minorities, especially when petitions for redress go unanswered.

One must understand that the Constitution did not follow from the Declaration of Independence, but rather the Constitution followed from the Articles of Confederation. The Confederation formed out of the necessity of war that the Colonies form a government to raise an army and navy capable of fighting the British. This does not elevate the Constitution to a position of authority over activities that preceded and promoted its formation. Thomas Paine, in his book Rights of Man, tells us that constitutions are formed and agreed too, so that governments can be formed to enact laws to control commerce and social activities. Governments do not precede constitutions in a democratic environment. And constitutions do not precede the independence of people who wish to govern themselves. In all cases, any people forming a government must declare their independence from any other government, giving precedence of power for the creation of government to that Declaration. A declaration of independence is the freedom to act within the fundamental principal of government, “Do unto others as you would have them do unto you”; to establish the wisdom we wish to embody in a constitution; and to form a government to apply that wisdom to control our socio-economic interactions.

The fundamental purpose of a declaration of independence is to promote the establishment of government. It does not exclude any type of government. The Constitution, on the other hand, does forbid all activities associated with the idea of establishing government, separate from and equal to the United States Government. The United States Government would make war on anyone participating in the establishing of independent government, as history has shown. We can only conclude that the mutual exclusivity of these Documents lies fully with the Constitution. There is no justification whatsoever for this oppressive language in the Constitution. Government should respond to the will of the people. If there is conflict of will, then there must be arbitration and compromise, or there must be separation and the establishment of independent government.

Every society, every organization, every congregation, has a constitution that expresses and explains the rules and bylaws that establish the manner in which each group is to govern itself. Various and sundry constitutions are both desirable and necessary to fulfill the needs of human societies. The flaw in our National Constitution is that those who are elected to the public trust, by a majority, are given the power to attack, incarcerate, and punish people over whom they have absolutely no authority, morally or by precedent. In fact, the Declaration of Independence is precedent that no such authority can exist, but to the pain and suffering of Creation.

The inclusion into the Constitution of language that allows authoritarian interference by majorities into the political and social actions of minorities is turning out to be one of the undoings of American society. Majorities have for 200 years used that authority (many times very oppressively) to keep minorities from seceding, from forming labor unions, from voting, etc.

Because we live in communities, and because our communities are often founded on moral and ethical principles of behavior, stemming from various religious heritages, we must accept, even pursue political autonomy for the community, keeping our great social alliance for economic and security purposes only.

The Constitution is not a perfect instrument of government; while continual changes in our social philosophies render it less perfect; but it was mistakenly crafted to be very difficult to change. Who, that are alive today, have elected a representative to a Constitutional Convention? Whose representative has voted to uphold each part of the Constitution, or has voted to replace parts with new articles that have more correspondence with today’s social problems and obligations? Your representative took an oath to uphold a manner of maintaining government and is thus limited to forming laws that cannot be in conflict with the Constitution. Any law that is deemed by the courts to be in conflict is void and un-enforceable.

England is said to not have a constitution, because every law passed by Parliament displaces or voids older laws that are in conflict with the new law. In England the will of the people today, as expressed through their representatives today, is the law, and cannot be superseded by the past. In the United States, the Constitution cannot be changed unless 75% of the various state legislatures agree to the proposed changes. A new law, not in conflict with the Constitution, only needs a simple majority to become law. A new law, desired by the people but in conflict with a Constitution embodied and empowered by men long since dead, must be set aside, until and unless that Constitution is amended to remove any conflicts with such a law. The dead have power that the living should envy.

Americans are fond of their democratic heritage, often referring to majority rule as the foundation of our social laws. But 74% of the living, desiring a change in the way society will form laws and hold itself accountable, are not enough to overcome the desires of 26% who would benefit more by leaving the Constitution as structured by the dead. This is not majority rule, unless one considers the dead more wise than the living, and better able to formulate the manner of making laws, as well as the breadth and depth of laws.

Those who say that we must make it very hard to amend the Constitution are suggesting that we do not have government by the people, and for the people. They suggest that factions run our government and that some prosper more, at the expense of others. They would have us believe that operating on a basis like England, where every new law would automatically become part of the Constitution, would make it easier for some faction to take complete control of the country and take away the rights of others. However, in such an instance the majority could quickly regain their sovereignty and just powers by changing the law. America is controlled politically and economically by a faction that uses the near impossibility of changing the Constitution as a political shield for their economic power. The difficulty in changing the Constitution is a curse, not a blessing. And if social oppression continues, the Constitution will be replaced via many declarations of independence.

We must be allowed to have governments that promote and protect our moral philosophies. Treaties such as the Constitution serve to establish commerce and communication externally, where different political structures interface. But internally our Constitution is allowing the guise of individual opportunity to control commerce for the benefit of business, and morality to be diluted.

If the Constitution is alive, then it must function for all of the people. If it cannot function for all of the people, then it must be altered to do so or be replaced with new constitutions for the benefit and protection of the communities who have it in their interest to be self-determining. Self-determination has gone too far in defining individual rights, and not nearly far enough in defining community rights.

The Constitution’s originators assumed that the individual would always support the community he or she belonged to, or move to one that they could support. So the language of the Constitution is made to favor the individual. But in today’s world, individuals out of sync with their community do not move to more harmonious situations. Instead they enlist the aid of the courts and the language of the Constitution to pursue not only an individual, but also a non-communal philosophy. They force acceptance of their behavior onto a community that does not desire their presence. To be truly individual is to be singularly self-determining, to be a nation unto oneself. This is only a worthy goal of anarchists, and should not be a political or judicial goal of our government.

The prisons that hold those deemed to have transgressed some social law are not the place to measure society’s ability to establish and maintain harmony. More and more prisons demonstrate a failed social government. These prisons are microcosms of the great prison that society is to itself. While the majority of citizens have become economic prisoners of a political elite. Who today does not feel imprisoned by the threat of violence against their person and property, at home and in public? The number of prisoners incarcerated is a signpost of the economic despair and social corruption increasing in our society. We segregate them in the hope of purifying that which decays, because it is imperfect by design, and kept imperfect by a political-industrial conspiracy of greed and profit in place of social fairness.

Below are some excerpts from Tom Paine’s book “Rights of Man.” They are forever timely.

“Reason and Ignorance, the opposite to each other, influence the great bulk of mankind. If either of these can be rendered sufficiently extensive in a country, the machinery of Government goes easily on. Reason obeys itself; and Ignorance submits to whatever is dictated to it.”

“Whether the forms and maxims of Governments which are still in practice were adapted to the condition of the world at the period they were established is not in this case the question. The older they are the less correspondence can they have with the present state of things.

Time, and change of circumstances and opinions, have the same progressive effect in rendering modes of Government obsolete as they have upon customs and manners. Agriculture, commerce, manufactures, and the tranquil arts, by which the prosperity of Nations is best promoted, require a different system of Government, and a different species of knowledge to direct its operations, than what might have been required in the former condition of the world.

From what we now see, nothing of reform in the political world ought to be held improbable. It is an age of Revolutions, in which everything may be looked for.”

“It is for the good of Nations and not for the emolument or aggrandizement of particular individuals, that Government ought to be established, and that mankind are at the expense of supporting it. The defects of every Government and Constitution, both as to principle and form, must on a parity of reasoning, be as open to discussion as the defects of a law, and it is a duty which every man owes to society to point them out. When those defects, and the means of remedying them, are generally seen by a Nation, that Nation will reform its Government or its Constitution in the one case, as the Government repealed or reformed the law in the other. The operation of Government is restricted to the making and the administering of laws; but it is to a Nation (the citizens) that the right of forming or reforming, generating or regenerating, Constitutions and Governments belong; and consequently those subjects, as subjects of investigations, are always before a country as a matter of right, and cannot, without invading the general rights of that country, be made subjects for prosecution.”

© April 2009

Craig D. Hanks