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America’s First Constitutions and Declarations of Rights
continuing interest and debate, and in some respects an enigma. This
may be attributed in large measure to the fact that the first part of the
Declaration, the preamble, which has been the cause of these disputes, is
obscured by vague and ambiguous language that is susceptible to different interpretations. As a result, there has always been some uncertainty
about the exact origin and nature of the rights proclaimed. It is no small
irony that Jefferson Davis, the President of the Confederacy, and Abraham Lincoln, President of the United States, both found support for their
positions in the Declaration of Independence, Davis claiming that the
Confederate States had a right to secede and declare their independence,
and Lincoln asserting that slavery was incompatible with the principles
of the Declaration.
As we noted in our examination of the Declaration and Resolves of
1774, the colonists experienced difficulty and disagreement in deciding
whether to base their rights on the laws of nature, the common law and
the English constitution, or their colonial charters. In the end, they opted
to muddle their way through the problem by claiming that Parliament
had abridged their natural rights, their common law rights, and their
chartered or prescriptive rights. This confusion or inability to agree among
themselves was carried over to the Declaration of Independence two years
later. Thus in the preamble of the document Jefferson presented an argument for the right of revolution and secession based on the philosophy of
natural rights; but when he turned to an enumeration of rights that had
been abridged, he mentioned only constitutional, common law, and charter rights.
One right prominently mentioned, for example, is the right of trial by
jury. This is a common law right, of course, that has never been regarded
as universal in nature and is not even recognized under the Civil Law. Is
the reference in the document to the ‘‘laws of nature’’ anything more than
political rhetoric? What did the colonists mean when they asserted that
‘‘all men are created equal’’ and that they are endowed by their Creator
with ‘‘certain’’ unalienable rights?
Puzzled by these anomalies, later generations called upon Jefferson after he had retired to Monticello to clarify the meaning of the document.
Disclaiming any originality of thought, and seeing no inconsistencies,
Jefferson told one correspondent in 1825 that the purpose of the Decla-