The Declaration of Independence famously affirms inalienable rights to life, liberty, and the pursuit of happiness. As I discussed last week, the heavy lifting of the adjective “unalienable” means that people cannot give or otherwise transfer these rights away. Inalienability is a restriction on rights’ holders. This immediately changes implications of the terms. To wit, today Americans often think of liberty as “autonomy.” Indeed, in the Supreme Court notably defines the Fourteenth Amendment liberty guarantee as a protection of individual autonomy. According to the Declaration, however, inalienable rights to life and the pursuit of happiness exist in tandem with liberty. In the philosophy of the Declaration, “liberty” cannot mean, say, a right to alienate one’s life by committing suicide, assisted or otherwise. So the inalienability of the rights to life and to the pursuit of happiness necessarily structure the meaning of liberty in the Declaration.
James R. Rogers contended in his piece, “Americans No Longer Believe in the ‘Consent of the Governed,’” that as a people we no longer believe in the consent of the governed, nor in the foundations of government noted in the Declaration of Independence.
The last general election seem to contradict those claims.
I posted earlier this week regarding whether Americans still believe the Declaration of Independence’s affirmation that they “consent” to laws and taxes through their legislative representatives. There may be good reasons Americans no longer believe they really consent to the laws their representatives enact, but it is a striking change from the beliefs articulated during the founding era.
In considering whether Americans still believe the Declaration of Independence, we next consider the most-well known section in the Declaration, “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, that to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.”
There are, of course, entire books devoted to these few lines. A few observations, however. First, what is the link between there being a creator and persons being endowed with “unalienable” (or inalienable) rights?
Way back at the founding era, Americans took seriously the idea of the “consent of the governed.” As Greg Weiner noted recently, and as I’ve discussed elsewhere, this consent is exercised collectively, either in aggregating individuals’ votes or through voter representatives. But Americans at the Founding took seriously the idea that their consent could be conferred by their representatives. This belief has changed in the intervening couple of hundred years. On both left and right, Americans now talk about taxes being forced on them to pay for things for which they disapprove, even though their respective legislatures adopted the taxes. I doubt many Americans today seriously believe that they’ve consented to most of the laws and taxes that their legislatures adopt. What changed?
Last week, I had the pleasure of participating in the Tradition Project run by Mark Movsesian and Marc DeGirolami of St. John’s Law School. The subject of this year’s conference was tradition in law and politics. One of the high points for me was the opportunity to read Harry Jaffa. He turned out to be a very interesting thinker. But I found that his famous claim that the Declaration of Independence has a constitutional status weakly defended. In particular, he fails to distinguish between positive constitutional law and constitutive traditions—a distinction that I think central to political life in a constitutional republic.
The Declaration of Independence is not positive law. It is instead a declaration of the reasons that the colonies were breaking with Great Britain. Courts do not enforce it as law. While other officials reference the Declaration on occasion, they do not generally do so in a way that suggests that it represents a binding legal obligation. It would be hard to make it so, because while the Declaration announces general truths of politics, it does not impose specific legal norms. And, unlike the Constitution, it was not ratified by the people and is not the product of a process that Mike Rappaport and I have described elsewhere as conducive to good constitutions.
While it does not create positive law, the Declaration of Independence is an important source—the most importance source— of our constitutive traditions.
In his neglected mid-century essay “The Direct Glance” Whittaker Chambers sought to understand the smugness of the West and America regarding Soviet Communism. The struggle against it was marked, Chambers thought, by a “boundless complacency” rooted in the West’s belief in its material superiority. And this failure of understanding left the West, Chambers argued, listless and without appeal.
About the middle of the morning on Monday, the sixth of May 1776, 45 men assembled at the Capitol in Williamsburg, Virginia. They were members of the House of Burgesses, elected back in the summer of 1774. Having entered the chamber of the House, they sat, silent. Elsewhere in the Capitol there were no signs of the royal governor or his council. Soon the Burgesses got up and went back outside. There they met others who, joining them, reentered the chamber, this time as delegates to the fifth and final Virginia revolutionary convention; this time carrying instructions from the people in their home counties calling on them to instruct Virginia’s delegates in the Continental Congress to declare American independence and to draft a constitution for Virginia.
While such a launching, this little-remembered ritual, may not seem so much to many in the thrall of the apotheosis of the 1787 Constitution, it remains a bright metaphor to illustrate the seamlessness of the transition from colony to country in America generally and in Virginia. This vivid drama of a departure joined with that of a prospect shows how far these Virginians had come since April 1774, even as it puts in relief just how significant the next two months, May and June of 1776, would be, culminating as they did with Virginia declaring its independence, establishing a bill of rights, and, two weeks later, completing a written constitution.