Reconciling “Inalienable Rights” and Government by Consent

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An article in the New York Times yesterday discussed a new controversy about the Declaration of Independence—whether there is period after “life, liberty, and pursuit of happiness.” Any controversy that encourages more people to focus on the Declaration and recall our past is most welcome. Nevertheless, I do not believe that the resolution of this debate would fundamentally change the Declaration’s important understanding of the relation between liberty and government. However the document is punctuated, I see three important propositions of political theory implicit in its majestic words:

1. Government is limited to securing “inalienable rights.” Thus, government while necessary is limited by reference to the rights it protects.  It is a servant, not a master of citizens.

2. These inalienable rights are largely negative rights and the procedural mechanisms of justice to assure them. That is clear not only from the understanding of rights at the time but from the rest of the document. The Declaration complains of violations of negative rights, like the right to trade  freely, and the failure of procedures, such as trials,  to provide justice.  What the signers of this document do not demand is positive rights from government—benefits and handouts.  Indeed, their concern is focused on the “swarms of officers”—the big government of the day—who “eat our substance” and pose a threat to liberty. Thus, the Declaration is inconsistent with the Progressive notion that it is up to the collective to define rights.

3.The best way to keep government within its “just” bounds is to establish government by consent. Thus, the Declaration embraces democracy, even as it legitimizes government by reference to rights, not voting. This aspect of the Declaration creates a tension with which we continue to live. Protecting rights through justice is the end of government. Government by consent is but the means of realizing that justice.

As we have found throughout our history, democracy is an imperfect means of realizing justice.  Creating a Constitution—a higher law—through a supermajoritarian, albeit still democratic process, helped reconcile democracy with rights, but did not create an permanent accommodation.  Indeed, the ability of special interests and majorities to use the mechanisms of democracy to violate the liberties of others remains our most pressing danger.  As we celebrate this July 4,  we would do well to consider mechanisms appropriate to the our day better to  resolve this fundamental tension in our first Founding document.

Happy Independence Day to our readers!