Sam Ben-Meir
On Saturday, July 4, Americans celebrated the nation’s 250th anniversary with the familiar fanfare: fireworks, flags, patriotic speeches, and ritual invocations of liberty. Yet at this extraordinary milestone, when the country is more deeply divided than at any time in recent memory over the meaning of democracy itself, it is worth asking what, precisely, we are celebrating.
The obvious answer is that we celebrate the birth of the United States. But that answer is incomplete. Every Fourth of July Americans commemorate not the Constitution but the Declaration of Independence. This is a remarkable fact, though we seldom pause to consider it. The Constitution governs us. Judges interpret it. Presidents swear to preserve, protect, and defend it. Congress legislates under it. The Declaration possesses no binding legal authority, and yet it remains the moral touchstone of the American political tradition. The Declaration embodies a conception of democracy considerably more radical than the constitutional order that followed it. It announces a political principle that no constitution—not even the Constitution of the United States—can ever fully contain.
What the Declaration reveals, perhaps more clearly than any modern political document, is what Antonio Negri calls constituent power. In Insurgencies, Negri writes that “the Declaration of Independence reveals itself an act of constituent power.” That observation invites us to read America’s founding documents in an entirely different light. We ordinarily understand the Declaration as a justification for independence and the Constitution as its natural completion. Negri suggests the reverse. The Declaration is not merely the preface to the Constitution. It is the democratic principle against which every constitution must forever be judged.
This distinction lies at the heart of democracy itself. Every political order rests upon two different kinds of power: the power to create institutions and the power exercised by those institutions once they exist. Negri calls the first constituent power and the second constituted power. Constituent power belongs to the people; constituted power belongs to the governments they create. The mistake of modern constitutional thought has been to confuse the two, treating constituted power as though it exhausted the constituent power from which it first arose. The Declaration refuses precisely this confusion.
What distinguishes the Declaration is that it relocates the very source of political legitimacy. Its most radical claim is not that George III abused his office, but that no ruler possesses legitimate authority except through the people themselves. Jefferson’s political genius lay not simply in proclaiming independence from Britain but in relocating sovereignty altogether. As Negri observes, Jefferson “will vigorously and unequivocally reconnect any legitimacy of government to popular sovereignty, to direct democratic consent understood as expression of the rights preceding any constitution. That is, as permanent expression of constituent power.”
The final phrase is decisive. Permanent expression. Not temporary, or merely historical, but permanent. Rights precede constitutions. The people precede governments. Constituent power precedes constituted power. The order cannot be reversed. We have become accustomed to imagining the Constitution as the foundation of American political life. Yet constitutions themselves require a foundation. Before there can be constitutional authority, there must first exist a people capable of constituting political authority in the first place.
The Constitution presupposes what it can never itself produce – namely, the people. Few thinkers understood this more clearly than the German jurist Carl Schmitt. Although his politics stand worlds apart from Negri’s, Schmitt offered perhaps the clearest definition ever written of constituent power. Every constitution, he argued, ultimately rests upon a constituent power lying outside the constitutional order it creates. No constitution can authorize its own beginning. Every legal order presupposes a prior political decision that law itself cannot explain.
More remarkably still, Schmitt insisted that constituent power never disappears once a constitution has been established. It “cannot be delegated, alienated, absorbed, or consumed.” The constitution depends upon constituent power, but constituent power always exceeds the constitution. Schmitt found the clearest democratic formulation of this principle not in America but in revolutionary France. The Constitution of 1793 declared: “A people always has the right to revise, reform, and change its constitution.” The implications are astonishing. The constitution does not authorize the people. The people authorize the constitution.
Nor is that authorization exhausted by the founding moment. The constituent people remain permanently greater than every constitutional arrangement they establish. Read in this light, the Declaration becomes something quite different from the patriotic relic into which it has often been transformed. Its opening words are not simply eloquent. They are performative. “We hold these truths to be self-evident…” Who is this “we”? Not a king, parliament, group of judges, or even constitutional framers; but ordinary people. Authority no longer descends from above: it speaks in the first-person plural.
Even the famous proposition that “all men are created equal” has been domesticated by familiarity. We usually hear it as a moral proposition, when it is far more explosive than that. Its deepest significance is political. If all are created equal, then no one possesses a natural title to rule another. The source of sovereignty is equally distributed because constituent power belongs equally to everyone. This is democratic egalitarianism in its purest form. It is also why the Declaration remains an unsettling document. For if sovereignty belongs equally to the people, then no existing political order can ever claim final legitimacy simply because it exists. Every institution remains answerable to the constituent power from which it arose.
The Declaration therefore contains a revolutionary principle that extends far beyond 1776. It announces not simply the birth of a nation. It announces the permanent sovereignty of the people. That, however, immediately created a new problem. How does one institutionalize a revolution whose deepest principle is that the constituent people always remain greater than the institutions they create?
The decade separating 1776 from 1787 was one of the most democratic—and politically turbulent—moments in American history. Royal authority had collapsed. State legislatures and local assemblies flourished. Ordinary farmers, mechanics, artisans, and laborers entered political life with an energy that alarmed many members of the revolutionary elite. Politics ceased to be the exclusive preserve of gentlemen and became, for the first time, the business of ordinary citizens.
To many Americans, this was precisely what the Revolution had promised. To many of its leaders, it appeared dangerously unstable. The shock of Shays’ Rebellion in western Massachusetts only intensified these anxieties, convincing many among the political elite that the democratic energies released in 1776 threatened not only public order but property itself. Nothing illustrates this anxiety more clearly than the debates surrounding the Constitutional Convention of 1787. The Constitution was certainly intended to create a stronger union after the evident weaknesses of the Articles of Confederation. But it also pursued another objective that is discussed far less often: the disciplining of democratic power.
This is not a cynical interpretation imposed upon the Constitution from the outside. It emerges from the arguments of the framers themselves. No figure better embodies this tension than James Madison. Madison remains one of the greatest constitutional thinkers in history precisely because he understood the paradox of democracy. He believed political authority originated in the people. Yet he also believed that the immediate exercise of popular power posed a continual danger to liberty itself.
His concern appears most famously in Federalist No. 10. The danger he feared was not the return of monarchy but the unmediated exercise of popular sovereignty itself. Madison’s solution was not to reject democracy. It was to mediate it. Representation, he argued, would “refine and enlarge the public views” by passing them through a body of elected representatives presumed to possess greater wisdom, deliberation, and independence than the people acting directly. The Senate, the Electoral College, the independent judiciary, indirect election, federalism, and the separation of powers all served the same philosophical purpose: to interpose institutions between constituent power and political decision. The people remained sovereign, but they no longer ruled directly. Their sovereignty became mediated, filtered, refined.
Madison’s own writings repeatedly identify the unequal distribution of property as the most enduring source of political conflict, making clear that the Constitution was designed as much to manage democracy as to secure it. Because unequal property inevitably becomes unequal political influence, constituent equality can never be secured through constitutional form alone. The constitutional architecture Madison designed could regulate political conflict, but it could not eliminate the material inequalities that continually threaten to transform equal citizenship into unequal power.
The Constitution did not abolish constituent power but institutionalized it – and in institutionalizing it, it necessarily limited it. Seen through Negri’s lens, the Constitutional Convention appears in a strikingly different light. Rather than reading the Declaration as an introduction to the Constitution, we begin to read the Constitution as a response to the Declaration.
Every constitution performs an indispensable act of closure. Constituent power opens history; constituted power seeks to stabilize it. No society can remain permanently in the revolutionary moment, and freedom requires durable institutions. Yet institutions always exact a price: they preserve constituent power only by containing it, translating the infinite creativity of democratic founding into finite constitutional forms.
The Revolution becomes government. The constituent people become citizens. Political creation becomes administration. Negri’s great insight is that this transformation is never complete. The constituent power does not disappear once the Constitution has been ratified. It survives beneath every constitutional order as the inexhaustible capacity of the people to found political life anew.
This insight casts the entire history of American democracy in a new light. The Constitution did not conclude the Revolution. It inaugurated a permanent tension between constituent and constituted power—a tension that has defined the American experiment ever since. Every great democratic struggle in American history can be understood as the return of constituent power against the limitations of the constitutional order. The history of American democracy is therefore not the gradual perfection of a finished constitutional order. It is the recurring reappearance of constituent power whenever existing institutions cease to embody the equality from which they first derived their legitimacy.
When abolitionists denounced slavery, they appealed less to constitutional procedure than to the self-evident truth that all are created equal. When Frederick Douglass asked, “What, to the slave, is the Fourth of July?” he was not rejecting the Declaration. He was insisting that the nation had betrayed it. When Abraham Lincoln returned repeatedly to the Declaration rather than the Constitution, he understood that equality, not constitutional compromise, expressed the moral center of the American experiment. The Constitution organized the republic. The Declaration explained why it deserved to exist.
Speaking at Independence Hall in Philadelphia on February 22, 1861, only days before assuming the presidency, Lincoln declared: “I have never had a feeling, politically, that did not spring from the sentiments embodied in the Declaration of Independence.” This was no rhetorical flourish. Lincoln understood that the Constitution, indispensable though it was, rested upon a prior moral and political principle. The Declaration articulated the constituent truth from which the Constitution derived its legitimacy: that political authority originates in the equal freedom of the people. It was this principle—not the constitutional compromises that accommodated slavery—that Lincoln believed the nation had been called to realize. The Civil War thus became not merely a struggle to preserve the Union but a struggle over whether the constituent promise announced in 1776 would finally become a constitutional reality.
When the suffrage movement demanded political equality for women, when workers organized for the right to unionize, when the civil rights movement challenged segregation, they did not stand outside the American tradition. They stood within the constituent tradition inaugurated in 1776. Martin Luther King Jr. returned, like Lincoln before him, to the Declaration’s promise of equality, while describing the nation’s founding commitments—embodied in both the Declaration and the Constitution—as a promissory note that remained unpaid. Each of these movements asserted, in its own way, that the existing constitutional order had failed to embody the democratic principle from which it first derived its legitimacy. Each represented not a rejection of the American founding but a renewed eruption of the constituent power the Declaration first proclaimed.
If Negri is right, then the Declaration does not belong only to the past. It belongs equally to the future. Its significance lies not simply in what it accomplished in 1776 but in what it continues to demand of every generation that claims fidelity to it. This is precisely why the Declaration remains more radical than the republic it inaugurated.
The Constitution necessarily asks how political power should be organized, distributed, and restrained. The Declaration asks a prior question. Where does political power come from? Its answer remains revolutionary. It comes from the people—and it remains with the people. That has consequences extending well beyond the institutions established in 1787.
If constituent power belongs equally to all, democracy cannot consist merely in equal voting rights. Political equality presupposes the material capacity to participate as an equal in shaping the common world. A citizen deprived of those conditions possesses constituent power only in the most abstract sense. Where wealth becomes political power, democracy becomes increasingly formal rather than substantive. Political democracy without economic democracy therefore remains incomplete—not because equality of outcomes is required, but because extreme concentrations of wealth gradually become concentrations of political power.
The American Revolution therefore cannot be regarded as a completed event, safely enclosed within the eighteenth century. It remains an unfinished democratic project. Not because the Constitution failed, nor because the founders were hypocrites – but because constituent power is, by its very nature, inexhaustible. Every constitution is provisional before the sovereign people. Every institutional settlement remains open to revision. Every generation inherits not merely a constitutional order but the responsibility of asking whether that order continues to embody the democratic principle from which it first derived its legitimacy.
Jefferson understood that rights precede constitutions because the people precede constitutions. The Declaration therefore does not merely authorize the republic founded in 1787. It permanently authorizes the people to judge whether that republic continues to embody the democratic equality from which it first derived its legitimacy.
We often imagine that fidelity to the Founding means preserving the constitutional order inherited from 1787. The Declaration suggests something far more demanding. Fidelity to the Founding means remaining faithful to the constituent power from which every constitutional order derives its legitimacy. That fidelity cannot consist in patriotic nostalgia. It requires remaining open to new forms of democratic equality that the founders themselves could scarcely have imagined. The Revolution could never be completed because constituent power can never be exhausted. Every generation inherits not merely a Constitution but the authority—and the responsibility—to ask whether existing institutions continue to embody the democratic principle announced in 1776. The Constitution may organize democracy, but only the Declaration continually renews it.