by RANDY E. BARNETT
The Declaration of Independence used to be read aloud at public gatherings every Fourth of July. Today, while all Americans have heard of it, all too few have read more than its second sentence. Yet the Declaration shows the natural rights foundation of the American Revolution, and provides important information about what the founders believed makes a constitution or government legitimate. It also raises the question of how these fundamental rights are reconciled with the idea of “the consent of the governed,” another idea for which the Declaration is famous.
The adoption of the Declaration, and the public affirmation of its principles, led directly to the phased in abolition of slavery in half of the United States by the time the Constitution was drafted–as well as the abolition of slavery in the Northwest Territory. The Rhode Island gradual abolition law of 1784 read:
All men are entitled to Life, Liberty, and the Pursuit of Happiness, and the holding Mankind in a State of Slavery, as private property, which has gradually obtained by unrestrained Custom and the Permission of the Law, is repugnant to this Principle, and subversive of the Happiness of Mankind.
Later, the Declaration also assumed increasing importance in the struggle to abolish slavery. It became a lynchpin of the moral and constitutional arguments of the nineteenth-century abolitionists. As one New Yorker opposed to slavery wrote in 1797:
The right of property which every man has to his personal liberty is paramount to all the laws of property…. All I contend for at present is, that no claims of property can ever justly interfere with, or be suffered to impede the operation of that noble and eternal principle, that “all men are endowed by their Creator with certain unalienable rights–and that among these are life, liberty, and the pursuit of happiness.
The Declaration was much relied upon by Abraham Lincoln and many others before him:
Without the Constitution and the Union, we could not have attained the result; but even these, are not the primary cause of our great prosperity. There is something back of these, entwining itself more closely about the human heart. That something, is the principle of “Liberty to all”–the principle that clears the path for all–gives hope to all–and, by consequence, enterprize, and industry to all.
The expression of that principle, in our Declaration of Independence, was most happy, and fortunate. Without this, as well as with it, we could have declared our independence of Great Britain; but without it, we could not, I think, have secured our free government, and consequent prosperity. No oppressed, people will fight, and endure, as our fathers did, without the promise of something better, than a mere change of masters.
The assertion of that principle, at that time, was the word, “fitly spoken” which has proved an “apple of gold” to us. The Union, and the Constitution, are the picture of silver, subsequently framed around it. The picture was made, not to conceal, or destroy the apple; but to adorn, and preserve it. The picture was made for the apple—not the apple for the picture.
The Declaration had to be explained away–quite unconvincingly–by the Supreme Court in Dred Scott. And eventually it was repudiated by some defenders of slavery in the South because of its inconsistency with that institution.
When reading the Declaration, it is worth keeping in mind two very important facts. The Declaration constituted high treason against the Crown. Every person who signed it would be executed as traitors should they be caught by the British. Second, the Declaration was considered to be a legal document by which the revolutionaries justified their actions and explained why they were not truly traitors. It represented, as it were, a literal indictment of the Crown and Parliament, in the very same way that criminals are now publicly indicted for their alleged crimes by grand juries representing “the People.”
But to justify a revolution, it was not thought to be enough that officials of the government of England, the Parliament, or even the sovereign himself had violated the rights of the people. No government is perfect; all governments violate rights. This was well known. So the Americans had to allege more than mere violations of rights. They had to allege nothing short of a criminal conspiracy to violate their rights systematically. Hence, the famous reference to “a long train of abuses and usurpations” and the list that follows the first two paragraphs. In some cases, these specific complaints account for provisions eventually included in the Constitution and Bill of Rights.
In Our Republican Constitution: Securing the Liberty and Sovereignty of We the People, I explain how the Declaration encapsulated the political theory that lead the Constitution some eleven years later. To appreciate all that is packed into the two paragraphs that comprise the preamble to the list of grievances, it is useful to break down the Declaration into some of its key claims.
“When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.”
This first sentence is often forgotten. It asserts that Americans as a whole (and not as members of their respective colonies) are a distinct “people.” To “dissolve the political bands” revokes the “social compact” that existed between the Americans and the rest of “the People” of the British commonwealth, reinstates the “state of nature” between Americans and the government of Great Britain, and makes “the Laws of Nature” the standard by which this dissolution and whatever government is to follow are judged. “Declare the causes” indicates they are publicly stating the reasons and justifying their actions rather than acting as thieves in the night.
The Declaration is like the indictment of a criminal that states the basis of his criminality. But the ultimate judge of the rightness of their cause will be God, which is why the revolutionaries spoke of an “appeal to heaven”—an expression commonly found on revolutionary banners and flags. As British political theorist John Locke wrote: “The people have no other remedy in this, as in all other cases where they have no judge on earth, but to appeal to heaven.” The reference to a “decent respect to the opinions of mankind” might be viewed as a kind of an international public opinion test. Or perhaps the emphasis is on the word “respect,” recognizing the obligation to provide the rest of the world with an explanation they can evaluate for themselves.
“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. “
The most famous line of the Declaration. On the one hand, this will become a great embarrassment to a people who permitted slavery. On the other hand, making public claims like this has consequences—that’s why people make them publicly. To be held to account. This promise will provide the heart of the abolitionist case in the nineteenth century, which is why late defenders of slavery eventually came to reject the Declaration. And it forms the basis for Martin Luther King’s metaphor of the civil rights movement as a promissory note that a later generation has come to collect.
Notice that the rights of “life,” “liberty” and “the pursuit of happiness” are individual, not collective or group rights. They belong to “We the People”—each and every one. This is not to say that government may not create collective, positive rights; but only that the rights that the next sentence tells us are to be secured by government belong to us as individuals.
What are “unalienable,” or more commonly, “inalienable rights”? Inalienable rights are those you cannot give up even if you want to and consent to do so, unlike other rights that you can agree to transfer or waive. Why the claim that they are inalienable rights? The Founders want to counter England’s claim that, by accepting the colonial governance, the colonists had waived or alienated their rights. The Framers claimed that with inalienable rights, you always retain the ability to take back any right that has been given up.
A standard trilogy throughout this period was “life, liberty, and property.” For example, the Declaration and Resolves of the First Continental Congress (1774) read: “That the inhabitants of the English colonies in North-America, by the immutable laws of nature, the principles of the English constitution, and the several charters or compacts, have the following RIGHTS: Resolved, 1. That they are entitled to life, liberty and property: and they have never ceded to any foreign power whatever, a right to dispose of either without their consent.” Or, as John Locke wrote, “no one ought to harm another in his life, health, liberty, or possessions.”
When drafting the Declaration in June of 1776, Jefferson based his formulation on a preliminary version of the Virginia Declaration of Rights that had been drafted by George Mason at the end of May for Virginia’s provincial convention. Here is how Mason’s draft read:
THAT all men are born equally free and independent, and have certain inherent natural rights, of which they cannot, by any compact, deprive or divest their posterity; among which are, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.
Notice how George Mason’s oft-repeated formulation combines the right of property with the pursuit of happiness. And, in his draft, not only do all persons have “certain . . . natural rights” of life, liberty, and property, but these rights cannot be taken away “by any compact.” Again, these rights each belong to individuals. And these inherent individual natural rights, of which the people—whether acting collectively or as individuals—cannot divest their posterity, are therefore retained by them, which is helpful in understanding the Ninth Amendment’s reference to the “rights…retained by the people.”
Interestingly, Mason’s draft was slightly altered by the Virginia Convention in Williamsburg on June 11, 1776. After an extensive debate, the officially adopted version read (with the modifications in italics):
See author page
One Amendment we need is one that prohibits any Foreign Ownership and Control of any part of the USA and that means No More United Nations the China especially
Dont need an amendment just a law for that. Article IV Section 4 –protection from foreign invasion should cover that.
Instead, we have a regime that believes their first duty is to SUPPRESS Constitutional rights when those rights threaten their power. 1st and 2nd Amendment rights stand in the way of Democrat total power, so they are in the business of suppressing and ultimately eliminating them.