The Volokh Conspiracy
July 4 , 2017
What the Declaration of Independence Said and Meant
By Randy 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.
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. It was much relied upon by Abraham Lincoln. It had to be explained away 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.”
- “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.
“
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.
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):
- 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.
According to historian Pauline Meier, by changing “are born equally free” to “are by nature equally free,” and “inherent natural rights” to “inherent rights,” and then by adding “when they enter into a state of society,” defenders of slavery in the Virginia convention could contend that slaves were not covered because they “had never entered Virginia’s society, which was confined to whites.” Yet it was the language of Mason’s radical draftrather than either Virginia’s final wording or Jefferson’s more succinct formulationthat became the canonical statement of first principles. Massachusetts, Pennsylvania, and Vermont adopted Mason’s original references to “born equally free” and to “natural rights” into their declarations of rights while omitting the phrase “when they enter into a state of society.” Indeed, it is remarkable that these states would have had Mason’s draft language, rather than the version actually adopted by Virginia, from which to copy. Here is Massachusetts’ version:
- All men are born free and equal, and have certain natural, essential,
and unalienable rights; among which may be reckoned the right of enjoying
and defending their lives and liberties; that of acquiring, possessing,
and protecting property; in fine, that of seeking and obtaining their
safety and happiness.
Justice Washington’s opinion in Corfield (to which we will return), with Mason’s language at its core, was then repeatedly quoted by Republicans in the Thirty-Ninth Congress when they explained the meaning of the Privileges or Immunities Clause of the Fourteenth Amendment, which reads: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” It was this constitutional language that Republicans aimed at the discriminatory Black Codes by which Southerners were seeking to perpetuate the subordination of blacks, even after slavery had been abolished.
- “That to secure these rights, Governments are instituted among Men.…
“
- “…deriving their just powers from the consent of the
governed.”
But read carefully, one sees that in this passage the Declaration speaks of “just powers,” suggesting that only some powers are “justly” held by government, while others are beyond its proper authority. And notice also that “the consent of the governed” assumes that the people do not themselves rule or govern, but are “governed” by those individual persons who make up the “governments” that “are instituted among men.”
The Declaration stipulates that those who govern the people are supposed “to secure” their preexisting rights, not impose the will of a majority of the people on the minority. And, as the Virginia Declaration of Rights made explicit, these inalienable rights cannot be surrendered “by any compact.” Therefore, the “consent of the governed,” to which the second half of this sentence refers, cannot be used to override the inalienable rights of the sovereign people that are reaffirmed by the first half.
In modern political discourse, people tend to favor one of these concepts over the othereither preexistent natural rights or popular consentwhich leads them to stress one part of this sentence in the Declaration over the other. The fact that rights can be uncertain and disputed leads some to emphasize the consent part of this sentence and the legitimacy of popularly enacted legislation. But the fact that there is never unanimous consent to any particular law, or even to the government itself, leads others to emphasize the rights part of this sentence and the legitimacy of judges protecting the “fundamental” or “human” rights of individuals and minorities.
If we take both parts of this sentence seriously, however, this apparent tension can be reconciled by distinguishing between (a) the ultimate end or purpose of legitimate governance and (b) how any particular government gains jurisdiction to rule. So, while the protection of natural rights or justice is the ultimate end of governance, particular governments only gain jurisdiction to achieve this end by the consent of those who are governed. In other words, the “consent of the governed” tells us which government gets to undertake the mission of “securing” the natural rights that are retained by the people. After all, justifying the independence of Americans from the British government was the whole purpose of the Declaration of Independence.
- “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.”
- “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.”
- “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.”
- “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
IIIEds.] 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.”
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 rightsor its systematic violation of rightscan 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.
At the Founding, these ideas were considered so true as to be self-evident. However, today the idea of natural rights is obscure and controversial. Oftentimes, when the idea comes up, it is deemed to be archaic. Moreover, the discussion by many of natural rights, as reflected in the Declaration’s claim that such rights “are endowed by their Creator,” leads many to characterize natural rights as religiously based rather than secular. As I explain in The Structure of Liberty: Justice and the Rule of Law, I believe his is a mistake.
Happy Independence Day!
https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/07/04/what-the-declaration-of-independence-said-and-meant/?tid=ss_fb&utm_term=.b1acdfac2104
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