JEFFREY ROSEN AND DAVID RUBENSTEIN CONSTITUTING

JEFFREY ROSEN

AND

DAVID RUBENSTEIN

CONSTITUTING LIBERTY: FROM

THE

DECLARATION

TO THE

BILL OF RIGHTS

At the National Constitution Center, you will find

rare copies of the Declaration of Independence, the

Constitution, and the Bill of Rights. These are the

three most important documents in American history.

But why are they important, and what are their similarities

and differences? And how did each document, in turn,

inﬂuence the next in America’s ongoing quest for liberty

and equality?

There are some clear similarities among the three documents.

All have preambles. All were drafted by people of similar

backgrounds, generally educated white men of property. The

Declaration and Constitution were drafted by a congress

and a convention that met in the Pennsylvania State House

in Philadelphia (now known as Independence Hall) in 1776

and 1787 respectively. The Bill of Rights was proposed by the

Congress that met in Federal Hall in New York City in 1789.

Thomas Jefferson was the principal drafter of the Declaration

and James Madison of the Bill of Rights; Madison, along with

Gouverneur Morris and James Wilson, was also one of the

principal architects of the Constitution.

Most importantly, the Declaration, the Constitution, and

the Bill of Rights are based on the idea that all people have

certain fundamental rights that governments are created to

protect. Those rights include common law rights, which

come from British sources like the Magna Carta, or natural

rights, which, the Founders believed, came from God.

The Founders believed that natural rights are inherent in

all people by virtue of their being human and that certain

of these rights are unalienable, meaning they cannot be

surrendered to government under any circumstances.

At the same time, the Declaration, the Constitution, and the

Bill of Rights are different kinds of documents with different

purposes. The Declaration was designed to justify breaking

away from a government; the Constitution and Bill of

Rights were designed to establish a government. The

Declaration stands on its own — it has never been

amended— while the Constitution has been amended

27 times. (The ﬁrst ten amendments are called the Bill of

Rights.) The Declaration and Bill of Rights set limitations

on government; the Constitution was designed both to

create an energetic government and also to constrain it.

The Declaration and Bill of Rights reﬂect a fear of an overly

centralized government imposing its will on the people of

the states; the Constitution was designed to empower the

central government to preserve the blessings of liberty for

“We the People of the United States.” In this sense, the

Declaration and Bill of Rights, on the one hand, and the

Constitution, on the other, are mirror images of each other.

Despite these similarities and differences, the Declaration,

the Constitution, and the Bill of Rights are, in many

ways, fused together in the minds of Americans, because

they represent what is best about America. They are

symbols of the liberty that allows us to achieve success

and of the equality that ensures that we are all equal in the

eyes of the law. The Declaration of Independence made

certain promises about which liberties were fundamental

and inherent, but those liberties didn’t become legally

enforceable until they were enumerated in the Constitution

and the Bill of Rights. In other words, the fundamental

freedoms of the American people were alluded to in the

Declaration of Independence, implicit in the Constitution,

and enumerated in the Bill of Rights. But it took the

JEFFREY ROSEN

AND

DAVID RUBENSTEIN

CONSTITUTING LIBERTY: FROM

THE

DECLARATION

TO THE

BILL OF RIGHTS

Civil War, which President Lincoln in the Gettysburg

Address called “a new birth of freedom,” to vindicate the

Declaration’s famous promise that “all men are created

equal.” And it took the 14th Amendment to the Constitution,

ratiﬁed in 1868 after the Civil War, to vindicate James

Madison’s initial hope that not only the federal government

but also the states would be constitutionally required to respect

fundamental liberties guaranteed in the Bill of Rights — a

process that continues today.

Why did Jefferson draft the

Declaration of Independence?

When the Second Continental Congress convened in

Philadelphia in 1775, it was far from clear that the delegates

would pass a resolution to separate from Great Britain.

To persuade them, someone needed to articulate why

the Americans were breaking away. Congress formed a

committee to do just that; members included John Adams

from Massachusetts, Benjamin Franklin from Pennsylvania,

Roger Sherman from Connecticut, Roger Livingston from

New York, and Thomas Jefferson from Virginia, who at age

33 was one of the youngest delegates.

Although Jefferson disputed his account, John Adams later

recalled that he had persuaded Jefferson to write the draft

because Jefferson had the fewest enemies in Congress and

was the best writer. (Jefferson would have gotten the job

anyway— he was elected chair of the committee.) Jefferson

had 17 days to produce the document and reportedly wrote

a draft in a day or two. In a rented room not far from the

State House, he wrote the Declaration with few books and

pamphlets beside him, except for a copy of George Mason’s

Virginia Declaration of Rights and the draft Virginia

Constitution, which Jefferson had written himself.

The Declaration of Independence has three parts. It has

a preamble, which later became the most famous part of

the document but at the time was largely ignored. It has a

second part that lists the sins of the King of Great Britain,

and it has a third part that declares independence from

Britain and that all political connections between the British

Crown and the “Free and Independent States” of America

should be totally dissolved.

The preamble to the Declaration of Independence contains

the entire theory of American government in a single,

inspiring passage:

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.

When Jefferson wrote the preamble, it was largely an

afterthought. Why is it so important today? It captured

perfectly the essence of the ideals that would eventually

deﬁne the United States. “We hold these truths to be self-

evident, that all men are created equal,” Jefferson began, in

one of the most famous sentences in the English language.

How could Jefferson write this at a time that he and other

Founders who signed the Declaration owned slaves? The

document was an expression of an ideal. In his personal

conduct, Jefferson violated it. But the ideal — “that all men

are created equal”— came to take on a life of its own and

is now considered the most perfect embodiment of the

American creed.

When Lincoln delivered the Gettysburg Address during

the Civil War in November 1863, several months after the

Union Army defeated Confederate forces at the Battle of

JEFFREY ROSEN

AND

DAVID RUBENSTEIN

CONSTITUTING LIBERTY: FROM

THE

DECLARATION

TO THE

BILL OF RIGHTS

Gettysburg, he took Jefferson’s language and transformed it

into constitutional poetry. “Four score and seven years ago

our fathers brought forth on this continent, a new nation,

conceived in Liberty, and dedicated to the proposition that

all men are created equal,” Lincoln declared. “Four score and

seven years ago” refers to the year 1776, making clear that

Lincoln was referring not to the Constitution but to Jefferson’s

Declaration. Lincoln believed that the “principles of Jefferson

are the deﬁnitions and axioms of free society,” as he wrote

shortly before the anniversary of Jefferson’s birthday in 1859.

Three years later, on the anniversary of George Washington’s

birthday in 1861, Lincoln said in a speech at what by that time

was being called “Independence Hall,” “I would rather be

assassinated on this spot than to surrender” the principles of

the Declaration of Independence.

It took the Civil War, the bloodiest war in American history,

for Lincoln to begin to make Jefferson’s vision of equality a

constitutional reality. After the war, the Declaration’s vision

was embodied in the 13th, 14th, and 15th Amendments to

the Constitution, which formally ended slavery, guaranteed

all persons the “equal protection of the laws,” and gave

African-American men the right to vote. At the Seneca Falls

Convention in 1848, when supporters of gaining greater

rights for women met, they, too, used the Declaration of

Independence as a guide for drafting their Declaration

of Sentiments. (Their efforts to achieve equal suffrage

culminated in 1920 in the ratiﬁcation of the 19th Amendment,

which granted women the right to vote.) And during the civil

rights movement in the 1960s, Dr. Martin Luther King, Jr.

said in his famous address at the Lincoln Memorial, “When

the architects of our republic wrote the magniﬁcent words of

the Constitution and the Declaration of Independence, they

were signing a promissory note to which every American

was to fall heir. This note was a promise that all men — yes,

black men as well as white men—would be guaranteed the

unalienable rights of life, liberty, and the pursuit of happiness.”

In addition to its promise of equality, Jefferson’s preamble

is also a promise of liberty. Like the other Founders, he was

steeped in the political philosophy of the Enlightenment, in

philosophers such as John Locke, Jean-Jacques Burlamaqui,

Francis Hutcheson, and Montesquieu. All of them believed

that people have certain unalienable and inherent rights

that come from God, not government, or come simply from

being human. They also believed that when people form

governments, they give those governments control over

certain natural rights to ensure the safety and security of other

rights. Jefferson, George Mason, and the other Founders

frequently spoke of the same set of rights as being natural and

unalienable. They included the right to worship God “according

to the dictates of conscience,” the right of “enjoyment of

life and liberty,” “the means of acquiring, possessing and

protecting property, and pursuing and obtaining happiness

and safety,” and, most important of all, the right of a majority of

the people to “alter and abolish” their government whenever it

threatened to invade natural rights rather than protect them.

In other words, when Jefferson wrote the Declaration of

Independence and began to articulate some of the rights

that were ultimately enumerated in the Bill of Rights, he

wasn’t inventing these rights out of thin air. On the contrary,

10 American colonies between 1606 and 1701 were granted

charters that included representative assemblies and promised

the colonists the basic rights of Englishmen, including a

version of the promise in the Magna Carta that no freeman

could be imprisoned or destroyed “except by the lawful

judgment of his peers or by the law of the land.” This legacy

kindled the colonists’ hatred of arbitrary authority, which

allowed the King to seize their bodies or property on his own

say-so. In the revolutionary period, the galvanizing examples

of government overreaching were the “general warrants”

and “writs of assistance” that authorized the King’s agents

to break into the homes of scores of innocent citizens in an

indiscriminate search for the anonymous authors of pamphlets

criticizing the King. Writs of assistance, for example,

authorized customs ofﬁcers “to break open doors, Chests,

Trunks, and other Packages” in a search for stolen goods,

JEFFREY ROSEN

AND

DAVID RUBENSTEIN

CONSTITUTING LIBERTY: FROM

THE

DECLARATION

TO THE

BILL OF RIGHTS

without specifying either the goods to be seized or the houses

to be searched. In a famous attack on the constitutionality of

writs of assistance in 1761, prominent lawyer James Otis said,

“It is a power that places the liberty of every man in the hands

of every petty ofﬁcer.”

As members of the Continental Congress contemplated

independence in May and June of 1776, many colonies were

dissolving their charters with England. As the actual vote

on independence approached, a few colonies were issuing

their own declarations of independence and bills of rights.

The Virginia Declaration of Rights of 1776, written by George

Mason, began by declaring that “all men are by nature equally

free and independent, and have certain inherent rights, of

which, when they enter into a state of society, they cannot,

by any compact, deprive or divest their posterity; namely, the

enjoyment of life and liberty, with the means of acquiring and

possessing property, and pursuing and obtaining happiness

and safety.”

When Jefferson wrote his famous preamble, he was restating,

in more eloquent language, the philosophy of natural rights

expressed in the Virginia Declaration that the Founders

embraced. And when Jefferson said, in the ﬁrst paragraph of

the Declaration of Independence, that “[w]hen in the Course

of human events, it becomes necessary for one people to

dissolve the political bands which have connected them with

another,” he was recognizing the right of revolution that, the

Founders believed, had to be exercised whenever a tyrannical

government threatened natural rights. That’s what Jefferson

meant when he said Americans had to assume “the separate

and equal station to which the Laws of Nature and of Nature’s

God entitle them.”

The Declaration of Independence was a propaganda

document rather than a legal one. It didn’t give any rights

to anyone. It was an advertisement about why the colonists

were breaking away from England. Although there was no

legal reason to sign the Declaration, Jefferson and the other

Founders signed it because they wanted to “mutually pledge”

to each other that they were bound to support it with “our

Lives, our Fortunes and our sacred Honor.” Their signatures

were courageous because the signers realized they were

committing treason: according to legend, after afﬁxing his

ﬂamboyantly large signature John Hancock said that King

George — or the British ministry— would be able to read

his name without spectacles. But the courage of the signers

shouldn’t be overstated: the names of the signers of the

Declaration weren’t published until after General George

Washington won crucial battles at Trenton and Princeton and

it was clear that the war for independence was going well.

What is the relationship between the

Declaration of Independence and the Constitution?

In the years between 1776 and 1787, most of the 13 states

drafted constitutions that contained a declaration of rights

within the body of the document or as a separate provision at

the beginning, many of them listing the same natural rights

that Jefferson had embraced in the Declaration. When it came

time to form a central government in 1776, the Continental

Congress began to create a weak union governed by the

Articles of Confederation. (The Articles of Confederation

was sent to the states for ratiﬁcation in 1777; it was formally

adopted in 1781.) The goal was to avoid a powerful federal

government with the ability to invade rights and to threaten

private property, as the King’s agents had done with the hated

general warrants and writs of assistance. But the Articles

of Confederation proved too weak for bringing together a

ﬂedgling nation that needed both to wage war and to manage

the economy. Supporters of a stronger central government,

like James Madison, lamented the inability of the government

under the Articles to curb the excesses of economic populism

that were afﬂicting the states, such as Shays’ Rebellion

in Massachusetts, where farmers shut down the courts

demanding debt relief. As a result, Madison and others

gathered in Philadelphia in 1787 with the goal of creating a

stronger, but still limited, federal government.

JEFFREY ROSEN

AND

DAVID RUBENSTEIN

CONSTITUTING LIBERTY: FROM

THE

DECLARATION

TO THE

BILL OF RIGHTS

The Constitutional Convention was held in Philadelphia

in the Pennsylvania State House, in the room where the

Declaration of Independence was adopted. Jefferson, who was

in France at the time, wasn’t among them. After four months

of debate, the delegates produced a constitution.

During the ﬁnal days of debate, delegates George Mason and

Elbridge Gerry objected that the Constitution, too, should

include a bill of rights to protect the fundamental liberties

of the people against the newly empowered president and

Congress. Their motion was swiftly— and unanimously —

defeated; a debate over what rights to include could go on

for weeks, and the delegates were tired and wanted to go

home. The Constitution was approved by the Constitutional

Convention and sent to the states for ratiﬁcation without a

bill of rights.

During the ratiﬁcation process, which took around 10 months

(the Constitution took effect when New Hampshire became

the ninth state to ratify in late June 1788; the 13th state, Rhode

Island, would not join the union until May 1790), many state

ratifying conventions proposed amendments specifying the

rights that Jefferson had recognized in the Declaration and

that they protected in their own state constitutions. James

Madison and other supporters of the Constitution initially

resisted the need for a bill of rights as either unnecessary

(because the federal government was granted no power to

abridge individual liberty) or dangerous (since it implied that

the federal government had the power to infringe liberty in the

ﬁrst place). In the face of a groundswell of popular demand for

a bill of rights, Madison changed his mind and introduced a

bill of rights in Congress on June 8, 1789.

Madison was least concerned by “abuse in the executive

department,” which he predicted would be the weakest

branch of government. He was more worried about abuse

by Congress, because he viewed the legislative branch as

“the most powerful, and most likely to be abused, because it

is under the least control.” (He was especially worried that

Congress might enforce tax laws by issuing general warrants

to break into people’s houses.) But in his view “the great

danger lies rather in the abuse of the community than in the

legislative body”— in other words, local majorities who would

take over state governments and threaten the fundamental

rights of minorities, including creditors and property holders.

For this reason, the proposed amendment that Madison

considered “the most valuable amendment in the whole list”

would have prohibited the state governments from abridging

freedom of conscience, speech, and the press, as well as trial

by jury in criminal cases. Madison’s favorite amendment

was eliminated by the Senate and not resurrected until after

the Civil War, when the 14th Amendment required state

governments to respect basic civil and economic liberties.

In the end, by pulling from the amendments proposed by

state ratifying conventions and Mason’s Virginia Declaration

of Rights, Madison proposed 19 amendments to the

Constitution. Congress approved 12 amendments to be sent

to the states for ratiﬁcation. Only 10 of the amendments were

ultimately ratiﬁed in 1791 and became the Bill of Rights.

The ﬁrst of the two amendments that failed was intended

to guarantee small congressional districts to ensure that

representatives remained close to the people. The other would

have prohibited senators and representatives from giving

themselves a pay raise unless it went into effect at the start of

the next Congress. (This latter amendment was ﬁnally ratiﬁed

in 1992 and became the 27th Amendment.)

To address the concern that the federal government

might claim that rights not listed in the Bill of Rights

were not protected, Madison included what became the

Ninth Amendment, which says the “enumeration in the

Constitution, of certain rights, shall not be construed to deny

or disparage others retained by the people.” To ensure that

Congress would be viewed as a government of limited rather

than unlimited powers, he included the 10th Amendment,

which says the “powers not delegated to the United States

by the Constitution, nor prohibited by it to the States, are

JEFFREY ROSEN

AND

DAVID RUBENSTEIN

CONSTITUTING LIBERTY: FROM

THE

DECLARATION

TO THE

BILL OF RIGHTS

reserved to the States respectively, or to the people.” Because

of the ﬁrst Congress’s focus on protecting people from the

kinds of threats to liberty they had experienced at the hands

of King George, the rights listed in the ﬁrst eight amendments

of the Bill of Rights apply only to the federal government, not

to the states or to private companies. (One of the amendments

submitted by the North Carolina ratifying convention but

not included by Madison in his proposal to Congress would

have prohibited Congress from establishing monopolies or

companies with “exclusive advantages of commerce.”)

But the protections in the Bill of Rights — forbidding

Congress from abridging free speech, for example, or

conducting unreasonable searches and seizures — were

largely ignored by the courts for the ﬁrst 100 years after the

Bill of Rights was ratiﬁed in 1791. Like the preamble to the

Declaration, the Bill of Rights was largely a promissory note.

It wasn’t until the 20th century, when the Supreme Court

began vigorously to apply the Bill of Rights against the states,

that the document became the centerpiece of contemporary

struggles over liberty and equality. The Bill of Rights

became a document that defends not only majorities of the

people against an overreaching federal government but also

minorities against overreaching state governments. Today,

there are debates over whether the federal government has

become too powerful in threatening fundamental liberties.

There are also debates about how to protect the least powerful

in society against the tyranny of local majorities.

What do we know about the documentary history of

the rare copies of the Declaration of Independence,

the Constitution, and the Bill of Rights on display at

the National Constitution Center?

Generally, when people think about the original

Declaration, they are referring to the ofﬁcial engrossed —or

ﬁnal — copy now in the National Archives. That is the one

that John Hancock, Thomas Jefferson, and most of the other

members of the Second Continental Congress signed, state by

state, on August 2, 1776. John Dunlap, a Philadelphia printer,

published the ofﬁcial printing of the Declaration ordered by

Congress, known as the Dunlap Broadside, on the night

of July 4th and the morning of July 5th. About 200 copies are

believed to have been printed. At least 27 are known to survive.

The document on display at the National Constitution

Center is known as a Stone Engraving, after the engraver

William J. Stone, whom then Secretary of State John Quincy

Adams commissioned in 1820 to create a precise facsimile

of the original engrossed version of the Declaration. That

manuscript had become faded and worn after nearly 45 years

of travel with Congress between Philadelphia, New York

City, and eventually Washington, D.C., among other

places, including Leesburg, Virginia, where it was rolled up

and hidden during the British invasion of the capital in 1814.

STONE ENGRAVING

OF THE

DECLARATION

INDEPENDENCE

Courtesy of David Rubenstein

JEFFREY ROSEN

AND

DAVID RUBENSTEIN

CONSTITUTING LIBERTY: FROM

THE

DECLARATION

TO THE

BILL OF RIGHTS

To ensure that future generations would have a clear image of

the original Declaration, William Stone made copies of the

document before it faded away entirely. Historians dispute

how Stone rendered the facsimiles. He kept the original

Declaration in his shop for up to three years and may have

used a process that involved taking a wet cloth, putting it

on the original document, and creating a perfect copy by

taking off half the ink. He would have then put the ink on a

copper plate to do the etching (though he might have, instead,

traced the entire document by hand without making a press

copy). Stone used the copper plate to print 200 ﬁrst edition

engravings as well as one copy for himself in 1823, selling

the plate and the engravings to the State Department. John

Quincy Adams sent copies to each of the living signers of the

Declaration (there were three at the time), public ofﬁcials

like President James Monroe, Congress, other executive

departments, governors and state legislatures, and ofﬁcial

repositories such as universities. The Stone engravings give

us the clearest idea of what the original engrossed Declaration

looked like on the day it was signed.

The Constitution, too, has an original engrossed,

handwritten version as well as a printing of the ﬁnal

document. John Dunlap, who also served as the ofﬁcial

printer of the Declaration, and his partner David C.

Claypoole, who worked with him to publish the Pennsylvania

Packet and Daily Advertiser, America’s ﬁrst successful daily

newspaper founded by Dunlap in 1771, secretly printed

copies of the convention’s committee reports for the delegates

to review, debate, and make changes. At the end of the day

on September 15, 1787, after all of the delegations present

had approved the Constitution, the convention ordered it

engrossed on parchment. Jacob Shallus, assistant clerk

to the Pennsylvania legislature, spent the rest of the weekend

preparing the engrossed copy (now in the National Archives),

while Dunlap and Claypoole were ordered to print 500

copies of the ﬁnal text for distribution to the delegates,

Congress, and the states. The engrossed copy was signed

on Monday, September 17th, which is now celebrated as

Constitution Day.

The copy of the Constitution on display at the National

Constitution Center was published in Dunlap and

Claypoole’s Pennsylvania Packet newspaper on September

19, 1787. Because it was the ﬁrst public printing of the

document — the ﬁrst time Americans saw the Constitution —

scholars consider its constitutional signiﬁcance to be

especially profound. The publication of the Constitution in

the Pennsylvania Packet was the ﬁrst opportunity for “We the

People of the United States” to read the Constitution that had

been drafted and would later be ratiﬁed in their name.

FIRST PUBLIC PRINTING

OF THE

CONSTITUTION

IN THE

PENNSYLVANIA PACKET

National Constitution Center Collection, Gift from Robert L. McNeil, Jr.

JEFFREY ROSEN

AND

DAVID RUBENSTEIN

CONSTITUTING LIBERTY: FROM

THE

DECLARATION

TO THE

BILL OF RIGHTS

The handwritten Constitution inspires awe, but the ﬁrst

public printing reminds us that it was only the ratiﬁcation

of the document by “We the People” that made the

Constitution the supreme law of the land. As James

Madison emphasized in Federalist No. 40 in 1788, the

delegates to the Constitutional Convention had “proposed

a Constitution which is to be of no more consequence than

the paper on which it is written, unless it be stamped with

the approbation of those to whom it is addressed.” Only 25

copies of the Pennsylvania Packet Constitution are known to

have survived.

Finally, there is the Bill of Rights. On October 2,

1789, Congress sent 12 proposed amendments to the

Constitution to the states for ratiﬁcation — including the 10

that would come to be known as the Bill of Rights. There

were 14 original manuscript copies, including the one

displayed at the National Constitution Center—one for

the federal government and one for each of the 13 states.

Twelve of the 14 copies are known to have survived. Two

copies —those of the federal government and Delaware —

are in the National Archives. Eight states currently have

their original documents; Georgia, Maryland, New York,

and Pennsylvania do not. There are two existing unidentiﬁed

copies, one held by the Library of Congress and one held by

The New York Public Library. The copy on display at the

National Constitution Center is from the collections of The

New York Public Library and will be on display for several

years through an agreement between the Library and the

Commonwealth of Pennsylvania; the display coincides with

the 225th anniversary of the proposal and ratiﬁcation of the

Bill of Rights.

The Declaration, the Constitution, and the Bill of Rights

are the three most important documents in American history

because they express the ideals that deﬁne “We the People of

the United States” and inspire free people around the world.

From the collection of The New York Public Library