Strengthening Constitutional Self-Government

No Left Turns

Political Philosophy

Illegal Declaration?

Last Tuesday at Philadelphia's Ben Franklin Hall (a more suitable venue is difficult to imagine), British barristers sparred with American lawyers over the legality of the American colonists' Declaration of Independence.

The American's invoked natural law and the consent of the people. "The English had used their own Declaration of Rights to depose James II and these acts were deemed completely lawful and justified." Indeed, self-determination is now reflected in the fundamental rights of the UN Charter.

The British case recalled the historic lawlessness and fecklessness of the secession. "There is no legal principle then or now to allow a group of citizens to establish their own laws because they want to. What if Texas decided today it wanted to secede from the Union?" Denigrating "no taxation without representation" as little more than a wish to avoid paying their due share for the protection of the empire during the French and Indian War, the barristers listed the grievances in the Declaration as "too trivial to justify secession."

I believe it was Gordon Wood, clarifying Jefferson's supposed sufferance of "a long train of abuses and usurpations," who observed that never in the course of human history had men revolted over such slight actual harms. The empty and retreating declaration by the British Parliament that they had the power to rule over the colonies "in all cases whatsoever" was the sort of injury to which the Americans mainly revolted. Abuses of principle. Usurpations of ideas.

Of course, it is the jealous love of these principles and ideas which enabled to new nation to survive and prosper (contrary to the flawed recipe of the French Revolution, for example). Yet these grievances are not the sort for which the U.S. or NATO would now intervene on behalf of a restless people in a foreign land.

The British even slyly invoked the authority of Lincoln as they diminished the authority of "the laws of nature" and, by extension, of "nature's God."

Lincoln made the case against secession and he was right. The Declaration of Independence itself, in the absence of any recognised legal basis, had to appeal to "natural law", an undefined concept, and to "self-evident truths", that is to say truths for which no evidence could be provided.

It is noteworthy that the British attempt to reduce the American argument to a religious dogma. While the spirit of the revolution was democratic and the mode was legalistic, the foundation rested upon a sense of Providence. Interestingly, the British do not seem compelled to address this third leg of the revolution.

There are many compelling and legitimate arguments by which to address the question at hand - and most are well worth serious contemplation.  

Discussions - 4 Comments

"(contrary to the flawed recipe of the French Revolution, for example)."


I would hold that in all of western civilization and world history, only the british empire outclasses France.

The French from Charlemagne (768 AD-2011 AD) onwards lived under some of the best conditions of world history, bar none.

Jefferson and Washington would not have pulled off the revolution except for France.

The French were on the right side of both the "World" wars.

You can't concede that the french revolution was a flawed recipe, and hold to a view that vindicates Jefferson.

"The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is it’s natural manure."

The Anglicans, and all of good british temperament decry both the american revolution and the french one.

Outside of french aid, the only reason the American revolution had better immediate results than the french revolution, has to do with JURISDICTION.

The french monarchy and the 2nd estate, i.e. the "catholic church" was an internal threat, while the americans in part by offering freedom of religion only had to contend with the english coming from across the atlantic.

That is the French revolution was more personal and more theocratic, in part because the second and third sons of all the landed aristocracy took up with the church/2nd estate and held power.

The French revolution simply required more domestic manure.

The principles were the same, and today French law is not that far off american law. In addition french standards of living are not that much different from american standards of living. Which is to say that both nations enjoy some of the greatest wealth ever produced in world history.

The problem of course is that neither Canadian nor English standards of living far outstrip american or French ones.

In fact even taking the worse England had to offer and shipping it off to Australia, resulted in an arguable fifth candidate for an even money bet on good government.

To be a citizen of any of those four (five) countries is a fairly even proposition, with America, Canada or the land down under coming in ahead if you favor outdoor living.

If the Gordon Wood argument was strong at the time vis a vis America 1775, I think it is fairly good with regard to a lot of europe and america today.

The only question is how far you want to push it.

I think the Britts won! (or perhaps Jefferson, depending on your fact finding).

"Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed."

In this sense even, no one goes so far as to argue that Greece for example should be kicked out of the EU. (they joined under false pretenses and accouting).

So it is more of the END of History in regards the triumph of "Liberal Democracy" (A story that might start with the French and Charlemagne)

The French Revolution was imprudent for the likes of Burke, but for the peasant who presented his cahier de doleance it was worth dying for, and as potentially silly or trumped up as Jefferson's DI was, the same spirit animated the less eloquent french simpleton who presented arguments en mass for a change of regime.

In any case neither the Tea Party nor the Occupy Wall-Street protestors have quite the case that both Jefferson or the French third estate had.

""natural law", an undefined concept, and to "self-evident truths", that is to say truths for which no evidence could be provided."

Here again, the DI actually has more than 25 specific complaints. I suppose the argument on the Brit side is that these complaints don't give rise to a cause of action. But the definition of Tyranny is provided by a sense of injustice apparent to those who read the complaints and realize that no remedy is provided under the law.

That is in some sense revolution is borne from a large enough gap between perceived justice, self evident truths and reality even under a positivist scheme.

So I am ok with both the french revolution, the cahier de doleance the DI and the american revolution, but I am also okay with the idea that prudence and a compromise could have prevented both.

A bit indecisive, but of course the "Natural manure" in all fairness probably included some good britts and some good french aristocracy, some good priests, some valient american patriots and some freedom loving 3rd estater's all with good claims.

I think we do the Founding generation a disservice--as well as deny ourselves a useful object lesson for our own times--if we simply look at the state of affairs as they were in 1773/4 and ignore the concerns of the colonists about where things could be leading. It is true that the reasons listed in the Declaration don't exactly, in this age of Hussein and Qaddafi, after a century that had Hitler and Stalin, make one think of England as some great tyranny.

But it is worthwhile to remember that the Americans knew their English, for they *were* English, and thus they knew how the corruption that was endemic and part and parcel of English political life could very well play out if the colonial legislatures lost relative power--with America becoming the new Ireland or Scotland; with those colonists (both gentry and yeoman) who once had a say in their own counties and towns having to see everything rearranged for the benefit of absent grandees who had the ears of Parliamentary ministers. Or in other words, the colonists did a "frontlash" against the crony capitalism they saw coming, once it was clear Parliament intended to make rules for America "in all cases whatsoever".

Remember, as Thucydides tells us, men go to war sometimes over what they fear, not what they say. In 1775, Americans went to war over both. England had already proved--in Ireland, if nowhere else--that it could oppress a people. There was no reason for the colonists to risk that once England showed signs that it would restrain itself as the impulse moved it, not as a general principle.

Eh, the whole exercise is sophistry. Any group of people anywhere who are sufficiently unified has the right to set up its own government. Self-rulership IS a natural "right," at least as much as Nature provides "rights." This is why King George was wrong, and so was Abe Lincoln, although I do not blame them for trying to hold their polities together (that too is natural and to be expected). I suppose those trying to defend the status quo can always point to prior agreements, but paper is useless without the power to enforce it. King George didn't have that power, Abe Lincoln did. That's all there is to it.

Living communal life by a strict set of rules just never works. Human nature doesn't allow consistent philosophy.

In both cases (the Anglo-American Civil War, and the Intra-American Revolution), the legality of secession was proven - or not - in the ultimate trial court: the field of battle. In the former case, legality was proven; in the latter, not so much.
Kevin Phillips posits a theory (in The Cousins' War) that the English Civil War, the American Revolution, the War of 1812, and the American Civil War were all different aspects of the same conflict between Roundhead and Cavalier. Ultimately, the Cavaliers lost.

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