The Declaration and Our Rights

The Declaration of Independence announced the birth of a new nation, but its lasting significance lies in the fact that it articulated a governing philosophy that was to guide that nation — at least for a century and a half. Alas, recent decades and recent (ahem) Supreme Court decisions have not kind to “life, liberty and the pursuit of happiness.” But it’s time to dust ourselves off, and renew the fight for liberty.

The Declaration is a good place to start. Don’t let people tell you that the Declaration is a mere historical relic with no legal import. The first two paragraphs of the Declaration are freighted with big, radical ideas that were later codified in the state and federal constitutions. To unpack the language, you can’t do better than Randy Barnett’s Annotated Declaration, over at the Volokh Conspiracy. I urge you to read the whole thing (it’s not very long), but here’s his summary:

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.

Powerful indeed. And these concepts worked their way in to the post-1776 constitutions that the states drew up in the early years of the war. In the original federal constitution, the panoply of natural rights were protected by the Privileges & Immunities Clause. In the 1823 case of Corfield v Coryell, Justice Bushrod Washington (nephew of George) summarized privileges and immunities as including “the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety.” But even with the P & I clause, the States insisted on a Bill of Rights enumerating certain liberties, and adding the 9th Amendment, which formally recognizes the existence of unenumerated (natural) rights.

When the 14th Amendment was ratified in 1868, the “Privileges or Immunities” Clause of that amendment was also understood to codify the natural rights expressed in the Declaration. Unfortunately, that clause is now a dead-letter, thanks to a number of activist Supreme Court decisions, starting with the “Slaughter House Cases.” As recently as the 2010 decision in McDonald v. Chicago, the Supreme Court refused an invitation to revive the Privileges or Immunities Clause — only Justice Thomas had the guts to admit that the time had come to correct the Court’s past mistakes.

As we fight for liberty, remember our fundamental law, properly understood, is on our side. The Constitution was originally understood to preserve our pre-existing natural rights to the maximum extent consistent with public order. What’s the harm of the government being able to compel individuals to enter commerce? The harm is that it represents the triumph of brute force over the rule of law: and every such victory for brute force brings us that much closer to tyranny.

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