Popular Sovereignty and Colonialism (Jurisprudence for Jailhouse Lawyers, Part VIII)

by Eric C. Sapp, LSPC Senior Staff Attorney

A quarter of a millennium after declaring independence, the U.S.A. remains a complex of opposites. A relatively strong democratic culture is combined with a political economy of plutocracy, the rule of wealth. Its legal order of formal equality is joined to material inequalities. The constitutional republic has grown into an empire of global reach. Contradictions built into the structure of the polity are, in part, readable in its founding documents.

The Declaration of Independence posits the “self-evident” “truth” that “all men are created equal” and “endowed […] with certain unalienable Rights” including “Liberty.” The same document, however, lists as one of the main grievances of colonists against the British King that he “excited domestic insurrections amongst us.” This is generally understood to refer to the royal Governor of Virginia, Lord Dunsmore’s proclamation that any persons enslaved or indentured, in that colony, who joined the British army would be emancipated.¹ The Declaration goes on to decry the King’s allying with “merciless Indian Savages” engaged in violating rules of warfare. The liberty of the enslaved and the survival of the indigenous were less than certain and far from unalienated.²

Jarring hypocrisies mingle with sublime rhetoric in the history of political declarations, sometimes, as here, in the same text. Take for comparison the Declaration of Arbroath (year 1320 C.E.), a letter from Scottish Earls and Barons to the Pope, affirming the Scots’ freedom from English subjugation. They fight not for riches or glory but for liberty alone. The nobles argue, further – in an era after the decline of the Crusades – that were they not busy fighting the English, they would gladly go in force to the holy land to reverse the “scandal” of the “eclipse” of Christianity’s reign there. Instead of confronting the “unbelievers’ ferocity”³, the Scottish lords allege that princes like the English prefer to antagonize their neighbors. The conclusion thus chimes with the opening of the letter which recalls, without irony, a legendary⁴ past when Scots conquered Scotland, expelling and destroying its prior inhabitants.

The ideological structure of both documents is similar. The sovereign independence of the people is founded ultimately on the divine providence and authority of God.⁵ The principle of monarchy is repudiated in the American instance, but even the late medieval Scottish barons, in affirming their allegiance to their King Robert, also indicate a preparedness to depose him were he to capitulate to the English. Moreover, they warn the pope that the blood of both nations would be on his holiness’s hands were he to take the side of English supremacy. Strong assertions of the freedom of a “good People”⁶ are intertwined with and, perhaps, dependent on the presumed right, the will or accomplished fact, and the perceived necessity to conquer and subordinate others. In such contexts, the distinction between a republic and a colonial project appears indiscernible.

1.  Rosemarie Zagarri, “The Declaration’s Grievances Against the King” at https://constitutioncenter.org/essays/the-declarations-grievances-against-the-king ↩︎
2.  On the war of independence as a “counter-revolution”, a revolt by slave-holders against the looming prospect of abolition, see Gerald Horne, The Counter-Revolution of 1776: Slave Resistance and the Origins of the United States of America (2014). ↩︎
3.  My translation of Latin “feritatem paganorum” as against both a more literalistic “pagans’ ferocity” and Borthwick and Fergusson’s rendering “savagery of the heathen.” https://www.nrscotland.gov.uk/learning-and-events/the-declaration-of-arbroath/transcription-of-the-declaration-of-arbroath/ ↩︎
4.  The Arbroath Declaration says the Scots originated from ancient Scythia, which nowadays includes parts of Ukraine and Russia. ↩︎
5.  On complications of the intentional structure of the drafting and signing of the 1776 Declaration, see Jacques Derrida, Declarations of Independence, trans. T. Keenan and T. Pepper, 7 New Political Science 7-15 (1986). ↩︎
6.  U.S. Declaration of Independence. ↩︎