‘Constitutions are created by revolutions, not by jurists’
In our era of legalistic nitpicking over dull charters of rights, the republication of Thomas Jefferson’s Declaration of Independence should make your heart beat faster.
What constitutional reforms can we expect in the UK under Gordon Brown? Will it be an elected or an appointed House of Lords? Will the European Union’s new Reform Treaty make a big difference? Is the UK’s opt-out from the treaty’s Charter of Rights a good thing?
Who cares? Well if you do, you almost certainly have some sort of professional interest in the subject. It is refreshing therefore, and very instructive, to have the opportunity to look again at a constitutional document that should make any heart beat faster.
‘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. — 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.’
Take that. It is all there really, in those few lines – if you throw in the fact that this Declaration of Independence, written by Thomas Jefferson, was part of the successful institution of a new government in a new country. For the first time in human history, a government was established on the explicit basis that all men are equal, that sovereignty lay with the people, and that unjust governments were there to be overturned. Women and negroes had to wait, but the crucial point is that they came to be included very much more because of this statement of principles, than despite it. Even in the doldrums and alarums of our world today, it is hard to envisage the catastrophe that would see humanity falling back again to a point before this moment in our history – although undoubtedly without vigilance a catastrophe is ever possible.
There is no shortage of Jefferson studies, but here are two accounts that each contain fresh and useful insights. Michael Hardt introduces the text of the original draft of the Declaration principally written by Jefferson, together with the slightly amended final text adopted by Congress on 4 July 1776 as ‘The unanimous Declaration of the thirteen united States of America’. There is also a small selection of Jefferson’s letters on rebellion, the French Revolution, republicanism and self-government, and native Americans and black slavery. In his contribution, Thomas Jefferson: Author of America, Christopher Hitchens provides a short biography in an Eminent Lives series, providing both an appreciative and, where he feels it necessary, iconoclastic account of his hero.
Hitchens, as biographer, of course focuses on the man rather than the Declaration, and more on the contradictory variety of his subject’s extraordinary contribution to the making of America – indeed, more on the nation-building effected by his later conduct, as Secretary of State and President, and on such matters as the Barbary wars, the Louisiana purchase (which doubled the size of the country), the Lewis and Clark expedition to the West, and diplomatic dealings with the great powers of the day.
It is a lively account, all the richer for Hitchens’ customary opinionation, and for his striking briskly at hagiographical whitewashes of the great man – for example in relation to his mixed-race mistress. It is marred somewhat by his repeated attempts to drag from Jefferson support for his own King Charles’s head: the hatefulness of religion. Jefferson was absolutely no fan, but he was clearly more circumspect (as political prudence and personal reticence appear to have dictated) than Hitchens would have liked.
Hardt focuses on a comparison with Lenin and his State and Revolution because of the valuable attention both men gave to the notion of revolution as involving both punctual event and also a following period of transition to a truly democratic society. Hardt relies on Jefferson’s writings after 1776 to bring out the extent to which his conception of a revolutionary transformation requires a continual process of self-transformation by the people during this transition through their direct participation in their own government.
He compares Jefferson’s emphasis upon self-government with that of Marx in his writing about the Paris Commune, where Marx comments that the self-policing measures taken by the Commune ‘betoken the tendency of a government of the people by the people’ (1). There are suggestive points here, but on the whole there is something forced about the conclusion Hardt is seeking to draw: that a permanently self-transforming multitude is crucial to a revolutionary transition to democracy. His conceptions of revolution, transition and democracy are schematic, abstract and fixed. He appears to lose sight of the punctual event, requiring as it must a very high degree of concentrated, conscious endeavour. He does not mention that Lenin, in his essay, reminds us of another lesson that Marx took from the Commune, that is the need to destroy the existing apparatus of power (2). It is difficult to envisage such a step as a spontaneous achievement of a self-transforming multitude.
What neither book draws out in any detail at all, or in point of its importance, is the specific context in which Jefferson and his colleagues were able to proffer their manifesto. The context was war. The Congress that adopted it was the Second Continental Congress which met from May 1775 to March 1781. The First Congress from September to October 1774 had tried boycotts. The American Revolutionary War (as Americans call it, or what the British still tend to refer to as the American War of Independence) had begun in April 1775 even before the Second Congress first met. By the time that it adopted the Declaration on 4 July 1776, it had appointed George Washington to lead its army, and had registered important successes against the British.
The point is of course that Jefferson, Washington et al were attending very forcefully to the punctual matter of removing the British power. The Declaration was a declaration of war, or rather of a war that was already proceeding in earnest. Circumstances were similar some years later. In 1789, Jefferson, then in Paris as American ambassador, helped the Marquis de La Fayette and his comrades draft The Declaration of the Rights of Man and of the Citizen. The Bastille had fallen in July, the Declaration was adopted in August.
The American revolt, which inspired the French, had itself been inspired by earlier developments in England. When Jefferson penned those words that still resound across the world, he was of course leaning on the philosophy and phrases of men such as Thomas Paine (his Common Sense was published in January 1776) and John Locke (his Second Treatise of Government was published in 1690). He was also leaning on the struggles of men such as the Levellers who fought in Oliver Cromwell’s New Model Army during the 1640s.
The Levellers and their supporters in the Army drew up a document which was proposed by ‘five regiments of horse’ and read to the General Army Council at Putney on 29 October 1647. It was entitled An agreement of the people for a firm and present peace upon grounds of common right and freedom and it set out some ‘principles or rules of equal government for a free people’ (3). It declared that the people (nearly all males, that is) were the sovereign power and should choose a new parliament every two years composed of representatives from constituencies of equal size, that there should be equality of all under the law, that every person (without qualification) should enjoy freedom of religion and freedom from conscription, and so on. It was subject to furious debate, and amendment, and eventually it was headed off by Cromwell and the grandees. But it left a mark, and set an example.
In each case, a group of human beings had consciously articulated a set of demands about how society should be organised on the basis of the equality of all, and had struggled to make those demands real. The democratic principles that survive in constitutional form today from these attempts are important both as a standard to be fully realised or transcended, and also as a lesson in how we might go about achieving such things again.
It was not until the second half of the twentieth century that the sort of language used in these statements was employed again, in the United Nations Charter of 1945, the UN Declaration of Human Rights in 1948 and the European Convention of Human Rights in 1950. This time, however, there were no revolutions and no struggles, and no participation of any sort to speak of.
Whereas the American and French declarations had been adopted amidst high excitement in the Independence Hall in Philadelphia and in the National Constituent Assembly in Paris, the founding signatories of the European Convention on Human Rights met in 1950 in the quiet splendour of the Palazzo Barberini, a palace in Italian baroque style finished in 1633 for Pope Urban VIII (4). Ernest Bevin, the British foreign minister responsible for the United Kingdom’s signature, was too ill to attend. He did not, apparently, consider it very important anyway. Brian Simpson, an expert on the European Convention, tells us that in the great political biography of Bevin by Alan Bullock there is only one reference in a volume of 896 pages, and that en passant, to ‘his’ European Convention on Human Rights.
CLR James is one historian who could tell the difference between more recent charters and bills of rights and those that had been fought for of old. In his account of the Ghana revolution he bemoaned the fact that the dynamic of mass assembly and general strike had given way after Nkrumah’s election in 1951 to a long legalistic, constitutional negotiation. James was clear that the outcome, in 1957, had in reality been settled years earlier by the disappearance of the mass of the people from the centre of the political stage:
‘The British people, the people of the United States, the people of France had at various critical stages of their evolution worked out their own constitutions and amended or repealed them in accordance with their own internal relations, historical past and perspectives of the future. The people of the Gold Coast were well on their way to doing that as late as February 1951. But as soon as the struggle became internal, the revolutionary impetus was lost, and constitutions are created by revolutions, not by jurists.’ (5)
John Fitzpatrick is director of the Kent Law Clinic at the University of Kent, England.
(1) Karl Marx, Civil War in France: the Paris Commune, New York: International Publishers, 1988, p65
(2) VI Lenin, The State and Revolution, Moscow: Progress Publishers, 1977, p38
(4) AW Brian Simpson, Human Rights and the End of Empire, London and New York: Oxford University Press, 2001, pp1-2
(5) CLR James, Nkrumah and the Ghana Revolution, London: Alison & Busby, 1977, p157
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