A reader sends….
“Excellent “Annotated Declaration of Independence”, by Randy Barnett (see bio, at end).”
[Here is an excerpt from my constitutional law casebook that I have previously posted on Independence Day:]
When reading the Declaration, it is worth keeping in mind two very important facts. The Declaration constituted high treason against the Crown and 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. In some cases, these specific complaints account for provisions eventually included in the Constitution and Bill of Rights.
The Declaration of Independence used to be read aloud at public gathering 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 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” for which the Declaration is also famous.
Later, the Declaration also assumes increasing importance in the struggle to abolish slavery. It is a foundational document of the Nineteenth Century abolitionists and was much relied upon by Abraham Lincoln. It had to be explained away by the Supreme Court in Dred Scott. Eventually, it was repudiated by some defenders of slavery in the South because of its inconsistency with that institution.
To appreciate all that is packed into these two paragraphs, it is useful to break down the Declaration into some of its key claims.
1. “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, which resumes the “state of nature” between Americans and the government of Great Britain, and “the Laws of Nature” are then 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 being 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.”
2. “Decent respect to the opinions of mankind.” This might be viewed as a kind of an international public opinion test. Or perhaps, the emphasis is on the word “respect.” The obligation to provide the rest of the world with an explanation others can evaluate for themselves. Again, like the presentation to the public of an indictment stating legal and factual grounds for incarcerating an individual.
3. “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 for account. And this promise will provide the heart of the abolitionists case in the Nineteenth Century, which is why late defenders of slavery eventually came to reject the Declaration.
What are “unalienable,” or more commonly, “inalienable rights”? Inalienable rights are those you cannot give up even if you want to and consent. Unlike other alienable rights that you can consent to transfer or waive. Why inalienable rights? The Founders want to counter England’s claim that by accepting the colonial governance, the colonists had 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.
The 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.”
Perhaps the most commonly repeated formulation was found in the Virginia Declaration of Rights of May 15, 1776 drafted by George Mason: “That all men are by nature equally free and independent and have certain inherent rights, . . . namely the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.” The switch from property to “pursuit of happiness” came at the last minute of the drafting process.
4. “That to secure these rights, Governments are instituted among Men. . . .” Another overlooked line, which is of greatest relevance to our discussion of the first underlying assumption of the Constitution: the assumption of natural rights. Most emphasis today is placed on “the consent of the governed” passage that follows. But both parts of this sentence need to be reconciled. This part identifies the end of governments as securing the natural rights retained by the people (to which the Ninth Amendment also refers) which the previous sentence affirms is the measure against which all government—whether of Great Britain or the U.S.—will be judged.
5. “. . . deriving their just powers from the consent of the governed.” Today, there is a tendency to focus entirely on this portion of the sentence to the exclusion of the first part, but we should recognize both parts are there and do not mean the same thing. Although the ultimate criteria of legitimate governance is the protection of natural rights, this affirms that particular governments only gain jurisdiction to protect these rights by the consent of those who are governed. The “consent of governed” is a different idea from protecting rights. It is how to get government up and running. But it is a problematic idea in terms of rights. If you emphasize consent and de-emphasize rights, government gets empowered to do anything in the name of the people, so long as it can claim the “consent of the governed,” which is never going to be the actual consent of each and every person. So there is a tension between the first and second parts of the sentence.
“>One way this tension was later resolved was with the concept of presumed consent. The people can only be presumed to have consented to what was actually expressed in the written constitution; conversely, absent a clear statement to the contrary, they cannot be presumed to have consented to surrender any of their natural rights. So to interpret the meaning of what must be an amorphous “popular” consent, we must know what natural rights the people have. (For more on this see my recent article in the Yale Law Journal.)
6. “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.” People have the right to take back power from the government. Restates the end—human safety and happiness—and connects the principles and forms of government as means to this ends.
7. “Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed.” Affirms at least two propositions: On the one hand, long established government should not be changed for just any reason. The mere fact that rights are violated is not enough to justify revolution All governments on earth will sometimes violate rights. But things have to become very bad before anyone is going to organize a resistance. Therefore, the very existence of this Declaration is evidence that things are very bad indeed.
8. “But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.” Revolution is justified only if there “is a long train of abuses and usurpations, pursuing invariably the same Object.” Evidence of what amounts to an actual criminal conspiracy by the government against the rights of the people. The opposite of “light and transient causes,” that is, the more ordinary violations of rights by government.
9. “Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain [George III] is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.” What follows is a bill of indictment. Several of these items end up in the Bill of Rights. Others are addressed by form of the government established, first by the Articles of Confederation, and ultimately by the Constitution.
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.