July 5, 2014

“If Only Thomas Jefferson Could Settle the Issue”

NYT:

A scholar is now saying that the official transcript of the document produced by the National Archives and Records Administration contains a significant error — smack in the middle of the sentence beginning “We hold these truths to be self-evident,” no less.

The error, according to Danielle Allen, a professor at the Institute for Advanced Study in Princeton, N.J., concerns a period that appears right after the phrase “life, liberty and the pursuit of happiness” in the transcript, but almost certainly not, she maintains, on the badly faded parchment original.

That errant spot of ink, she believes, makes a difference, contributing to what she calls a “routine but serious misunderstanding” of the document.

The period creates the impression that the list of self-evident truths ends with the right to “life, liberty and the pursuit of happiness,” she says. But as intended by Thomas Jefferson, she argues, what comes next is just as important: the essential role of governments — “instituted among men, deriving their just powers from the consent of the governed” — in securing those rights.

“The logic of the sentence moves from the value of individual rights to “” Ms. Allen said. “You lose that connection when the period gets added.”

Correcting the punctuation, if indeed it is wrong, is unlikely to quell the never-ending debates about the deeper meaning of the Declaration of Independence. But scholars who have reviewed Ms. Allen’s research say she has raised a serious question.

“Are the parts about the importance of government part of one cumulative argument, or — as Americans have tended to read the document — subordinate to ‘life, liberty and the pursuit of happiness’?” said Jack Rakove, a historian at Stanford and a member of the National Archives’ Founding Fathers Advisory Committee. “You could make the argument without the punctuation, but clarifying it would help.”

Ms. Allen first wondered about the period two years ago, while researching her book “Our Declaration: A Reading of the Declaration of Independence in Defense of Equality,” published last week by Liveright. The period does not appear on the other known versions produced with Congressional oversight in 1776, or for that matter in most major 20th-century scholarly books on the document. So what was it doing in the National Archives’ transcription?

Ms. Allen wrote to the archives in 2012 raising the question, and received a response saying its researchers would look into the matter, followed by silence.

But over the past several months, she has quietly enlisted a number of scholars and manuscript experts in what the historian Joseph J. Ellis, who supports her efforts to open the question, wryly called “the battle of the period.”

And now the archives, after a meeting last month with Ms. Allen, says it is weighing changes to its online presentation of the Declaration of Independence.

[emphasis mine]  I’ve discussed this issue in the comments to Darleen’s July 4 thread — with thanks to geoff B for bringing it to my attention and providing the emphasis I’ve added to the NYT excerpt — but I’m going to place my response to Ms Allen here, so that the post can be readily referenced.

First, let me say that I don’t know enough about Ms Allen to place here anywhere specific on a political / ideological scale.  So I’ll address only the argument she makes as reported by the NYT, then picked up by the Daily Beast.  To begin, I’ll pick up an argument made at Volokh (and printed in the WaPo) and expand upon the linguistic / hermeneutic aspect of the “sentence logic” that seems so important to Ms Allen.

First let’s look at the language as it’s been promulgated:

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.

To address the NYT’s glib title, there are ways Jefferson can settle the issue. To wit, you’ll note that the argument for a comma after “Happiness,” while it is consistent with the comma that comes after “consent of the governed”, is nevertheless set off by the dash and capitalized in both instances.  Which means that to accept that we must attach, by comma, the securing of rights by way of government, we must also, by the same logic, attach “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.” — which emphasizes the importance of deterring governmental overreach, to the point of describing it as illegitimate.

Looking at Jefferson’s other writings, or writings of the period, or ancillary documents like Mason’s Virginia Declaration of rights, is a way — and an originalist one at that, which is to say, an intentionalist reading of the text — that could, by way of intra or intertextuality, eg., with respect to both Jefferson specifically and contemporary conventions of punctuation more generally, shed some light on what the actual intent was, having first endeavored to understand the function of clausal connections of the period.  And of course, the palimpsest of drafts, tethered to the source material Jefferson borrowed from (including Locke), can also give us insight into Jefferson’s intent.

But back to the topic at hand.  Ms Allen’s discovery would make the text look thus:

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.

This does not, I’d argue, result in what Ms Allen calls a “routine but serious misunderstanding” of the document, unless she is addressing the misunderstandings of those who believe, implausibly, that the text of a document declaring independence from a overweening centralized authority was looking to create an overweening centralized authority for some purpose other than to secure individual rights.  I have no issue with the argument that “the importance of government as a tool for protecting those [individual] rights” is potentially strengthened by the punctuation change.  But that just means the responsibilities of the government are more forcefully described, and then tied to a failure to uphold that main responsibility, namely the security of individual rights, with the consequences of infidelity being a mandate for the altering or abolishing that government.

Volokh:

The assumption of natural rights expressed in the Declaration of Independence can be summed up by the following proposition: “first comes rights, then comes government.” According to this view: (1) the rights of individuals do not originate with any government, but preexist its formation; (2) The protection of these rights is the first duty of government; and (3) Even after government is formed, these rights provide a standard by which its performance is measured and, in extreme cases, its systemic failure to protect rights — or its systematice violation of rights — can justify its alteration or abolition; (4) At least some of these rights are so fundamental that they are “inalienable,” meaning they are so intimately connected to one’s nature as a human being that they cannot be transferred to another even if one consents to do so. This is powerful stuff.

This is absolutely correct, and […] the change, even should we accept it, is either moot or, if you prefer, favorable to individual liberty.

In fact, I’ll go one step further, per Volokh, and note that the addition of the comma, along with the necessary attachment, then, of the restrictive clause that uses the same punctuation and so is tied, too, to the sentence logic, strengthens the case for individual liberty’s primacy in that it attaches the very existence of a government to the protection of individual rights; to do this in practice, the Constitution then enumerates the powers the federal government legitimately has in taking on that function, leaving — per 9th and 10th Amendments — all else out of their grasp. Declaring independence from an overweening centralized authority — an aristocracy, in the case of our revolutionaries — cannot plausibly be interpreted as a call for an importance of centralizing governmental powers.

Actions by a fed govt., in the new “comma” reading, therefore must — as a point of the sentence logic in question — protect, foremost, individual rights, certain of which are unalienable, with a failure to do so tied by an appended clause to the potential abolition of the government as illegitimate.  Ms Allen’s suggestion that there is an increased importance in the goverment’s protection of those rights may be correct; but per her own reading, that only underscores the essential truth that it is individual rights govt. is charged with securing — and that it’s behavior, insofar as it may impinge upon those rights by any “progressive” aggregation of power, or by any attempt to coerce individual rights into new modes of existence that are collectivist in scope — is doubly illegitimate under the very internal logic of the new reading.

Plus, we have enough ancillary writings, letters, Mason’s Virginia Declaration of Rights, etc., to tell us exactly what was intended by the Declaration of Independence in terms of its radical ambitions. And the codifying of law that draws on the Declaration, the Constitution, makes the intent doubly clear. Which is why we musn’t simply look at the “plain meaning” outside of its intended context; because that intended context controls what was, at the time of composition, the plain meaning — and so is and remains the plain meaning.

I’m happy to have this conversation with Ms Allen. Or our “pragmatic” lawyer friends who are back on Twitter torching straw men with respect to  intentionalism. So I’ve decided to put the ball in their court. To wit: I argue, and will debate the proposition publicly, that any interpretative maneuver that doesn’t adhere to Originalism, which is the legal interpretive manifestation of the intentionalist stance, does violence to representative government by upsetting the coequal powers of the 3 branches; because signifiers can accrue any number of new and potential referents over time, courts have taken it upon themselves to use those post-hoc references (14th Amendment cases most notably) to expand what “plain language” read by “reasonable people” can come to mean.

But what it can “come to mean” is not the same as what was meant, and to alter that dynamic is to remove the legislature’s role in writing laws. After all, if a court can change them in essence after the fact by applying referents not applicable at the time of composition, they are essentially saying the legislator has given them a blank canvas, and they can, at their whim, arrange new referents with older ones to rewrite law at their own motivated whim. In that sense, the judiciary BECOMES the legislative branch while maintaining a veneer of merely interpreting and applying the law.

They are doing no such thing. Because as I’ve been at pains to point out — and the lawyerly types on the right whose bread is buttered by incoherent interpretative assertions have been at pains to try to bracket, mostly by marginalizing me after having first tried to run me down as a messenger — any supposed interpretation that doesn’t take at its starting point the corporate intent of those who passed the law, is but a realignment of whose intent becomes controlling.

To move that function to the judiciary through some linguistically (and quintessentially leftist (cf Gramsci, DeMan, the agrarian New Critics, et al) maneuver, is to, in all but appearances, obviate the legislative branch.

Which is why if we’re to regain control of the Constitution, we must insist upon a stable rule of law that is kept stable by a stable and coherent set of practices by the judiciary: namely, originalism. It is the only check on the judiciary that makes sure it cannot, with such recent ease, usurp the function of the legislature in writing and passing law.  Putative conservatives should, by now, understand this.

End of story.

 

 

Posted by Jeff G. @ 12:22pm
27 comments | Trackback

Comments (27)

  1. One question which occurred to me but which I have not seen addressed in the cursory inspection of the charge I have made and the answers to it regarding the peculiarity of the “period” in the artifact at hand (namely, the copy of the Declaration which seems to be in dispute), is this: did not the men who wrote the Declaration see that artifact themselves with their own eyes? Did not one of them comment on the purported substance changing period?

    If not, why not? Would it happen that they may have seen the period and took no umbrage to it whatsoever, never wrote of this momentous mistake, never spoke to anyone for the sake of their posterity?

    If that is the case, then perhaps that might be because they never believed the meaning of their writing was altered by a misplaced period, or that the period was in no way misplaced at all? Perhaps someone would know.

  2. “The very enumeration of the right takes out of the hands of government – even the Third Branch of Government – the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all.” — Supreme Court Associate Justice Antonin Scalia, writing for the 5-4 majority in District of Columbia, et al., v. Heller (2008)

    This could easily be said to apply to ANY portion of the Constitution and its various Amendments. The moment it gets written down and ratified as a part of the Law of the Land, it becomes beyond the reach of the government to affect in any way short of a repealing Amendment at a later date. That having been said, subsequent refusal to actually enforce the plain text does NOT erase that plain text — or the meaning thereof — from the Constitution.

  3. Did not one of them comment on the purported substance changing period?

    I think it was just a random droplet of ink from the quill pen, and they thought “No one would be so stupid as to think that we would include a period at the end of a explanatory sub-clause, and pretend that we were just rebuilding the same kind of abusive government we were planning on kicking the hell off the continent in the first place.”

  4. Regressives.

  5. Man, those early copies really are a mess. I cannot read any of them on this 13″ laptop. Too bad.

    But you know what I can read? “We hold thefe thruthf to felf evident.” Ha ha ha. That kills me.

    Know what also I can read. Following a comma the next word is written in lower case. And following a full stop there is a space and the first letter of the next word is capitalized. That’s what.

    You know what else? I’m getting sick and tired of people continuously trying to re-write American history down to the very first dot, and then all Academialand following right in line and giving them oxygen. I’m sick o fit. I meant to say sick of it.

    It is a form of self-fellatio and most unseemly performed in public like this.

    So, as antidote to this quasi-intellectual porn:

    Here’s Clutch Cargo VS Gretta Van Susteren animated.

    And here’s Nancy Grace VS Twin separated at birth unanimated.

  6. Well hell, if we’re going to talk about The Declaration of Independence and it’s importance to the founding of the country, then, perhaps we should also talk about the Articles of Confederation and look for missing punctuation, implied punctuation and, perhaps, oddly spelled words. Heck, perhaps The Constitution was never properly adopted or punctuated correctly.

    I think I’ll start an argument about sentence structure and process and declare the Constitution invalid. Bring back the Articles of Confederation!

    Anyway, the Declaration of Independence is an extremely important document, historically speaking, but it is not a controlling document like the Constitution.

    The title says it all: Declaration of Independence.

    It is not titled: “Declaration of Independence and How the Government Shall Govern.”

  7. I suppose it could be time to point out that the Preface to the actual Constitution reads “provide for the common defense, {and} promote the general welfare…”, not the other way around…

  8. What I also love about the argument regarding punctuation is the usual liberal crap of reversing how things should be interpreted.

    Instead of looking at the paragraph in the context of the entire document, liberals are trying to look at the entire document in the context of a single paragraph.

  9. The declaration was composed to justify the revolution. The constitution was hashed out AFTER that revolution between states and those seeking to unite them more firmly than did the articles of confederation. So even if the Declaration was obsessed with collectivism, as evidenced by a suspected period in one draft, the Constitution was not. Thus we must assume that either people changed their minds or they couldn’t convince the states of the value of collectivism as it was supposedly accentuated in the declaration. Either way it’s a waste of time to talk about and a foundation of NOTHING.

  10. I am the comma and the period, the colon and the semi-colon, the question mark and the exclamation point.

  11. general welfare

    Also that doesn’t mean what the Left feels it means.

  12. Welfare for everyone except white men!

    Woohoo!!

  13. A G rated illustration of the legacy of command economies.

    http://s3-ec.buzzfed.com/static/2014-07/5/13/enhanced/webdr11/enhanced-12587-1404581915-9.jpg

  14. Hey, Thomas Jefferson? He STOLE the idea for the Declaration of Independence!

  15. -Well said by you all, Gentlemen, well said.

    -When you count the liar Joseph Ellis on your side, well…
    http://en.wikipedia.org/wiki/Joseph_Ellis#False_claims_of_combat_service_and_anti-war_leadership

  16. There are, in fact, earlier versions of the Declaration of Independence still available.
    A quick reconnoiter shows the earlier versions had no comma in the position under dispute, instead they had a semi-colon.

  17. Posts like this one is why I come here every day to read.

    Well said.

  18. John Adams: [long pause] Jefferson, say something.

    Thomas Jefferson: What else is there to do?

    John Adams: Well, man, you’re the one that wrote it.

    Thomas Jefferson: I wrote ALL of it, Mr. Adams.

    [stands and goes to the Declaration, crosses out the clause]

    -That was for you McGehee.

  19. Dunno about this comma business. In older usage, proper nouns would be capitalized, not conjunctions and such. There are commas in the Declaration that are clearly just that, so the claim that perhaps there was some confusion is…not justified.

    However, there isn’t much clue in my limited experience what the construction .____(Next sentence) is supposed to do. Emphasis?

  20. However, there isn’t much clue in my limited experience what the construction .____(Next sentence) is supposed to do. Emphasis?

    I’m pretty sure the long underscore is an artifact created when Jefferson copied and pasted the document from WordPerfect to Notepad. Each of those characters is really supposed to be a carriage return and a bullet.

  21. However, there isn’t much clue in my limited experience what the construction .____(Next sentence) is supposed to do. Emphasis?/blockquote>In the later part the construction :____ (next sentence) and .____ (next sentence) in seemingly interpreted as a (next sentence) to be done as as separate indented paragraph as is done with the listing of offenses of the Crown. It is the construction after the word “governed” [ ,___ (Next sentence) ] which is unusual, singular, in this document.

  22. I see that one “<" is missing and so the whole went out as a quote when it should have ended the quote at the "?".

  23. Thanks, that makes some sense.

  24. After I wrote that Rush said that the dashes are punctuation for when it is read aloud. They indicate pauses and how long to pause. That makes sense to me at least.

  25. My understanding of the Declaration’s meaning has been the same as Prof. Volokh’s since I first read the Declaration. Even after four years of undergraduate education in an increasingly debased educational system taught by increasing ignorant and leftist professors. Even after law school, where there was precisely one conservative professor and only a handful of professors who were coherent, even in their own supposed specialties. (Doubt? A ConLaw professor whose proudest brag on his professional experience is that he could help defend Nazis in First Amendment cases, but only by dehumanizing them in his thoughts.) Of course human rights precede the formation of governments. Governments are formed by human beings, only after they are born and reach whatever passes for maturity in their culture and society. Since rights inhere in humans (not in legal fictions, philosophical abstractions or elsewhere), it cannot be any other way. That the purpose of government ought to be the protection of those rights seems likewise self-evident. Who would consciously and intentionally create a government that will destroy his or her rights?? Is there some other position that has coherence and intelligibility? And which doesn’t require twisting words around or ignoring the plain facts of life, living and human nature, of course.

  26. We moderns suffer a condition which the men who wrote the Declaration did not suffer — we have it to read, they did not.

    What then happens when we read the Declaration before we read what those writers of it had available to read prior to their writings?

    What happens is this: we work backwards to understand their creative or synthetic moment, and if we’re careful, go on to do the same in order to understand the creative or synthetic efforts of those writers who preceded the writers and endorsers of the Declaration, laying the ground which the writers of the Declaration subsequently took up (if we work at this at all — no surety that, for we are busy men, important men, don’t we know, who even often enough are terribly busy at work deleting the effects of that Declaration in the name of a higher, more noble vision of justice called Socialism!)

    Does this Princeton scholar focus and concentrate her efforts on those earlier men, the Declaration’s writer’s priors: Locke, Sydney, et al? Piffle. Who needs them? We have the Declaration to abuse!

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