Eighty-Nine Divided by Seventy-Six

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That the US continues to venerate both the Declaration of Independence and the Federal Constitution testifies to a deceptively banal refusal to give up on apparently exclusive political desires. Stripped to their bare rhetorical essentials, these documents have generated a familiar series of ideological oppositions: where the Declaration stands for liberty, natural rights, and the revolutionary rejection of authority, the Constitution connotes order, legal codification, and institutional security. The Declaration, with its opening temporal reference, invokes the immediacy of the revolutionary present (it was, and always will be “live”); the Constitution, with its commitment to “posterity” and to what “shall be” (“in order to form a more perfect Union”), seems to sacrifice the charisma of the present in the name of a deferral that has everything to do with “establish[ment].” Celebrations of the Declaration are thus also celebrations of a day, 4 July 1776, or celebrations of the very possibility of grasping the present, of framing presence itself in the form of a specific date. But few Americans celebrate, annually, the ratification of the Constitution. Most aren’t even sure when exactly it came into effect. And while the Declaration retains the tortured grain of Jefferson’s proprietary voice and is still read aloud in public on July 4th as it was, by decree, throughout the colonies in 1776, the Constitution remains a resolutely written, or printed, document. The Declaration, in other words, continues to realize itself as an oral performance, conjuring the moment of revolution as it returns each year, while the Constitution calls for interpretation and thus marks the nation’s constant engagement with writing’s unsettling capacity to signify in the radical absence of its author(s). The Declaration resurrects the founders; the Constitution keeps announcing their death.

For all these reasons, and as nineteenth-century antislavery activists were well aware, the Declaration has been, and continues to be, a radical instrument of opposition to any form of perceived injustice: it establishes nothing but the superiority of “the laws of nature and of nature’s god” and of the unwritten rights to “life, liberty and the pursuit of happiness.” The Declaration promises a fundamental right to revolution (“it is their right, it is their duty”), while the Constitution ominously inscribes the power of the government to suspend all rights in the name of the security of the state: “The privilege of the Writ of Habeas Corpus shall not be suspended,” says Article 1, Section 9 of the Constitution, “unless when in cases of Rebellion or Invasion the public Safety may require it.”¹ The Constitution, as we have been told by generations of anti-Federalists, replaces revolutionary suspense with institutional compromise, the drama of virtual regicide with the tedium of electoral procedure and the sublimity of a mutual pledge (“to each other our lives, our fortunes, and our sacred honor”) with the dull thud of the Constitution’s closing words: “Done in Convention.” Done in, indeed.

Yet rehearsing these distinctions also notes their fragility. The significance of these two documents, and their rhetorical and political legacy in the US, suggests that Americans are founded, and realize themselves, in the political space opened up by the incommensurability of their two “sacred” texts, a space opened up by what Eric Slauter calls an “open question” (18, 226).² In his impressive new study of the reception of the Constitution, The State as a Work of Art (2009), Slauter suggests that one pervading form of this question in the early national period asked, “Did rights originate in a state of nature, or were they really created by governments?” (18). To put it another way, “was it better to consider states as artificial products of individuals or the individual as an artificial product of the state?” (18). Slauter intervenes in what he clearly considers to be an ongoing, consequential political project by giving us a historical...