Modern political philosophy and modern politics brought “the State” to the fore in novel and contentious ways. Leo Strauss argued that Machiavelli’s concept of “lo stato” was an essential component of a revolution in human thought and aspiration. The Treaty of Westphalia is rightly said to have inaugurated a new international order in Europe, precisely with its legitimatization of absolute territorial sovereignty, expanding upon the principle of cuius regio, eius religio—that is, the modern state system. And Will Morrisey, in his Regime Change: What It Is, Why It Matters, argued that fledgling America sought to escape the Westphalian conception with a new understanding of liberal republican government. While such claims are not the full story of the modern State, they provide precious contexts and pointers. They point us to things we may take for granted and thus fail to appreciate or even consider. What exactly is this strange beast, this new form of political authority?
In this year’s reflections on the Declaration, therefore, I want to draw attention to the topic of the State, as it is found in the founding document. Contrary to those who claim that the use of the term “State” is foreign to classical American political thought, a later import from Germany perhaps, the Declaration gives it an impeccable American pedigree. This does not mean that innovations and departures in theory, structure, and practice have not happened. They have. But to gauge them, one needs to have some idea of the original.
My main claim will be that the term “State” in the Declaration indicates the recognition, on the part of its signatories, of “the united States of America’s” participation in an already operative international legal order. However, as Morrisey suggests, the American understanding went beyond the continental version: it incorporated principled freedom within its notion of the State and took seriously and indeed emphasized that the international order itself was ordained by and subordinated to a higher legal Order and Authority: “the laws of Nature and of Nature’s God.” These were decidedly American contributions to the novus ordo seclorum.
A Quick Overview
The term “State” occurs eight times in the document, six in the plural (“States”), twice in the singular (“State”). It is brought to the reader’s attention from the very outset of the document, which is headed:
In Congress, July 4, 1776 The unanimous Declaration of the thirteen united States of America.
The thirteen States are the agents of the document, independent but unanimously concurring. That concurrence is expressed, as the last part of the document indicates, through their authorized “Representatives,” “in General Congress, Assembled.” Plurality of States does not preclude concerted action on the international stage.
The term does occur most frequently in the plural: one reads of “these States” (three times), and of “the united Colonies” now become “the united States of America.” One also reads that these States are “Free and Independent”, having all the “powers”—the “full Power”—that States possess and exercise de jure, “of right.”
The two singular occurrences tend in different directions. The first speaks of the colonial past, of the times when, due to monarchial “dissolutions” of their Legislative Bodies and obstinate refusal to convene them,
the Legislative powers, incapable of Annihilation … returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.
The second speaks presently of “the State of Great Britain,” and declares “that … all political connection between [the Colonies] and the State of Great Britain, is and ought to be totally dissolved.” As a result, the “Colonies” have become “States,” and
“as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do.”
Before we reflect on these passages, a caveat is in order. The invocation and use of “State” is part of a cluster of terms that the Declaration employs. It does not stand entirely on its own. It belongs to a group of terms bearing upon the same reality, albeit looked at from different angles. These include “Government,”“Systems of Government,” “powers” (as in “separate and equal” “powers of the earth.”), and “People” or “Peoples”; they also are entities possessing “powers.” What follows therefore is not a full treatment of the Declaration’s view of political authority, its sources, its constitution, its exercise. Still, a focus on an important part contributes to a fuller understanding of the complex whole.
War, Peace, and Commerce
The most explicit statement concerning States is the best starting point for reflection. In the final paragraph declaring independence, we are told that “as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do.” One is struck by a number of things. War and peace have a certain primacy and prominence in the work of States. While war is mentioned first, that does not necessarily mean the State is a war-making machine: “concluding peace” balances “levying war,” while “contracting alliances” is part of the calculus of war and peace, one aimed to help ward off or win war and maintain or restore peace.
The prominence given here to war and peace, while intrinsic to the nature and work of the State, also has what one could call a circumstantial reason, a function of the purpose of the document itself. The king has withdrawn his protection from the colonies, has declared, and now wages “War” against them, so they must reciprocate in kind. War and peace belong (chiefly, although not exclusively) to State actors. This function of the State is paramount in at-war American minds.
What States have created, States must actively maintain and defend. This can be done well or badly (or not at all), while a number of extra-legal norms are also involved.
Somewhat “softening” the concern for war in the life of a State is a complementary power that Benjamin Constant would appreciate. States also “establish” or regulate commerce. Invoking a distinction we saw above, they do so “within” and “without.” Here, too, the claim of a general power can be connected with an abuse laid out earlier in the document. One of the nine indictments against the British parliament is its “unwarranted” interference with the colonies’ commercial activities (recall, for instance, the infamous “Hat Act”), extended recently to attempts to ban their “Trade with all parts of the world.” The last phrase is telling. As its eighteenth-century proponents argued, commerce has a universal reach or ambition, although of a benign sort, with “competition” replacing war, and “comparative advantage” a new criterion of national superiority and a new bond between States. When it comes to commerce, the State has all this and more in its purview. One of many legacies from the metropole, the newborn American States already possess this broad commercial perspective on the world.
War, peace, and commercial life: the responsibilities of the State are extensive and decisive in the life of the community it governs.
“All Other Acts and Things”
The passage also alludes to “all other Acts and Things which Independent States may of right do.” Staying with war, peace, and alliances, the full range of permanent relations and occasional interactions with other sovereign States—receiving and sending diplomats, establishing embassies, entering into treaties of all sorts, etc.—are parts of what is envisaged.
As for “other Acts and Things,” the power “to impose taxes” is also included, since the State has to fund its activities. However, according to the Declaration, it must follow certain inviolable principles, the chief of which is, no taxation without the “Consent” of the taxed. (This, too, was one of the indictments against parliament.) Whether with respect to taxation or the broader principle of representation, the State is being cast or recast along liberal lines. It is not simply atop those it governs, it must be “systematically” responsive to them, both their ruler and their instrument. We begin to see why the Declaration speaks of “Free” as well as “Independent” States in connection with the American States.
A Legal Subject, Two Legal Orders
The passage above speaks of what States “may of right do” when it comes to war, commerce, and much else. A State is a juridical subject, a recognized member of an international legal order. From the beginning of the Declaration, such an order is brought to the reader’s attention when it refers to the “separate and equal station” held by the various “powers of the earth.” The two phrases are legal-juridical terms and point to international law. This order itself, the Declaration continues, is ordained and justified by a yet higher legal order, “the laws of Nature and of Nature’s God.”
The Declaration thus inserts States within a double legal order, one manmade and conventional, the other by Nature and Divinely established. Given the difference of orders and authorities, it is plausible to think that the higher order issues general injunctions and directives, while it is left to human intelligence and ingenuity to refine the conventions that further define States’ powers and relationships. That may indeed be the case. On the other hand, “the course of human events” is subject to divine “Providence” and “Judg[ment],” so particular peoples and State-actions fall under its cognizance as well.
Human action is a necessary complement to divinely intended human order in (at least) two ways. It is necessary for the establishment of international law, but also, as its own example brings to the fore, the defense of the two orders requires vigilant human activity, including the exercise of principled prudence and the force of arms. What States have created, States must actively maintain and defend. This can be done well or badly (or not at all), while a number of extra-legal norms are also involved.
The Norms of Civilization
While war is typically between States, in the case at hand, one State (Great Britain) has enlisted certain “Indian Savages” whose “known rule of warfare” is the indiscriminate killing of all ages, sexes, and conditions. This is a direct violation of civilized norms, one that other tribes, for example, the southeastern “Five Civilized Tribes,” acknowledged. Instigated by the crown, the document makes clear just how far the king has fallen beneath the norms of civilized conduct. In addition to inciting indiscriminate natives, he is “at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.”
States themselves, and an international juridical order obtaining among them, are high achievements of civilization. But like all such achievements, human beings must work to live up to them, and they remain subject to relevant norms. In their turn, the United States of America aim to maintain them, but also to enhance them.
The passage we have been commenting on points to two other features of a State, or at least of the thirteen American States: they are “free” and they are “independent.” The distinction between the two is not as straightforward as one might think. “Independent” rather clearly means “not governed by another political entity,” independent in the exercise of its rightful powers, thus self-governing. But what about “free”? What does it add to “independent”? Quasi-absolutist France was a member in good standing in the international order of the day. The use of the term “free” indicates a normative requirement, that a State should be of a certain kind, at the service of, and an expression of, a “free people.”
To appreciate how this would be achieved, one must look at other aspects of what the Declaration says about “Government,” about the “principles,” “powers,” and “Form” of government. For our purposes, it suffices to point out the various principles of rightly constructed government recognized in the Declaration—legislative primacy, the independence of the judiciary, and the subordination of military to civilian rule, among others—all rooted in the sovereignty of the people, who are the proximate origin of all “just powers” and who always retain the right “to alter and abolish” any “form of government” that systematically or by “design” violates government’s purposes.
The American States would thus be a novelty on the world stage, qualitatively different from the absolutism that inaugurated the Westphalian order and going beyond anything achieved by its immediate predecessor and mother-country, “the State of Great Britain.” The American States entered the world acknowledging and respecting established norms, while significantly pushing the envelope in the direction of individual freedom and popular sovereignty. One might venture that this is America’s aboriginal vocation, to put new wine in old wineskins, with varying degrees of emphasis as circumstances require.
