Constitution 101: The Meaning and History of the Constitution – Lecture 2

The Declaration of Independence

American colonists had an uneasy relationship with Britain from the late seventeenth century. The colonists wished to govern themselves through their elected legislatures. However, the King appointed the colonial governors, and those governors often interfered with legislative prerogatives. The end of the French and Indian Wars in 1763 precipitated more open conflict between the colonies and the Crown. Americans were far less concerned with military threats. At the same time, the British government believed it was no longer necessary to “coddle” us, that they could collect through taxes money for governance that we believed was no longer needed. In 1769, Parliament openly asserted that colonists have no right to govern themselves, a position that guaranteed colonial resistance.

Our Declaration of Independence consists of three distinct but related parts. First, it establishes the principles of unalienable rights and the position of government in the context of those rights. Second, it lists our grievances, violations of rights, against the King. Third, it proclaims our independence as a consequence of the many violations. Taken together, it serves as an argument and an explanation.

This document was the soul of the American founding. It states universal political principles, and it helps us understand the provisions of our Constitution. Conservatives are sometimes uncomfortable with the rights based language of the Declaration. This is because liberals have been busily redefining terms such as “liberty,” “equality,” and “rights.” Contemporary liberals do not talk of political equality, but of equality of resources. And to them liberty means that government must provide an unending list of so-called “positive” rights– economic, social, and cultural benefits– to those who otherwise could not access or afford them. This is far from the understandings of our founders. While the founders recognized that governments would assist the destitute with no means or family to help them, this was viewed as what we would now consider a minimal safety net to prevent starvation and exposure for those who really could not help themselves.

The unalienable rights of the Declaration are every person’s right to life, liberty, and the pursuit of happiness. The Virginia Declaration of Rights, drafted by George Mason and enacted just a month prior to Jefferson’s Declaration, also specifies the right to acquire and possess property and the right to free exercise of religion—items that Jefferson considered a part of “pursuit of happiness.” In any event, these five natural rights are possessed equally by everyone. They are not a construct of government, but rather a recognition of the human condition endowed by “the laws of nature and of nature’s God.” These rights are a moral claim we have against others who would violate them, and we may take measures to protect these rights.

So what exactly is a natural right? It is a just claim against someone who would deprive a person of what is naturally his own, or what is acquired by his own labor without harm to others, or through voluntary transactions with others. This is a far distance from contemporary rights claims to quality housing, or health care, or recreation, or a minimum wage. Instead, as the Virginia Declaration proclaims, “all men are by nature equally free and independent,” or as stated in Jefferson’s Declaration, “all men are created equal.”

There was an understanding among the founders that “all men” was inclusive of women. No one in the founding era believed that women lacked rights. Only children were limited in their endowment. They were ruled by their parents until attaining adulthood, at which time they came into full possession of their natural rights. Slavery was the stain on the founding. It had been inherited from the British colonial period. The founders knew it was wrong. They understood that no man had a right to enslave another in natural law. You can find many founders’ documents that express that knowledge. In 1776, every colony recognized slavery as a legal institution. By the early 1800’s, eight states had banned it. Awareness did not lead to a full solution. But the principles of the Declaration served as justification for the eventual eradication of slavery in America.

Since each man has the same rights as all other men, individually and collectively, this implies that no nation can dominate or rule another. Both individually and collectively we take measures to protect against the unjust coercive acts of other men and other nations. We create government not to define our rights, but to secure them. When Thomas Paine wrote Common Sense, the pamphlet that many say launched our Revolution, he said in its pages: “For were the impulses of conscience clear, uniform, and irresistibly obeyed, man would need no other law giver; but that not being the case, he finds it necessary to surrender up a part of his property to furnish means for the protection of the rest…”

The founders believed that government, to secure our rights, must attend to three necessities. First, a system of criminal law would protect against force and fraud violations. Second, civil law would adjudicate rights involved with contracts, property titles, torts, and family relations. Marriage and divorce were parts of this because the founders understood the need to nurture and protect children within the family units. Third, we would require a national defense against foreign attacks. The founders would not have extended this principle to the spreading of democracy in foreign lands by force of arms.

There was a fourth item of importance to the founders, and it is expressed beautifully in the Virginia Declaration: “That no free government, or the blessing of liberty, can be preserved to any people but by a firm adherence to justice, moderation, temperance, frugality, and virtue, and by frequent recurrence to fundamental principles.” A self governing people must maintain this kind of Aristotelian morality in the pursuit of happiness, and the government should encourage the means to ensure this. In the pre-Constitution period, Congress passed the Northwest Ordinance, establishing the governing principles for this territory. You will find this in that document: “Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.” Congress set aside a parcel of land in each new community to assist with the expenses of a basic education. Also, we may note that at a time requiring unanimity among the states to pass laws, the Northwest Ordinance outlawed slavery in the new states that would be carved out of this new land (although fugitive slaves were subject to return).

Government employs a legitimate coercive power that takes away a person’s liberty only as a matter of the enforcement of natural rights. And the exercise of that power must be by the consent of the governed. It is essential that government be structured on a right foundation. The founders were not starry eyed idealists. They understood that over time people might allow government power that goes beyond securing rights and, instead, violates them. Government must be built in such a way as to ensure maximum consistency with natural rights principles. The separated and divided powers of the Constitution and the protections of individuals in the Bill of Rights arose from the founders’ attempt to support the unalienable rights described in the Declaration.

It is often observed that the Declaration was not necessarily anti-monarchical. The complaints were directed at a specific rights-infringing monarch, not monarchy per se. However, the Declaration made it clear that any monarch would have to recognize rights, and that any rule must be by the consent of the governed. Few, if any, monarchies would meet those republican principles.

The underlying vision of the founders was a people living in peace and harmony, self governing within their family, private, and public institutions. People would associate freely, and adults would have maximum freedom to structure their own lives. We would honor our contracts, acquire our property in voluntary transactions, refrain from predations, worship God in our own ways, and freely build our communities and our nation.

Today’s liberal no longer bases human rights in our human nature and autonomy. Rights are not derived from what we have in common, but rather in establishing victims with needs to be met at the expense of others. For example, liberal philosopher John Rawls believes that those who have less have the right to take from those who have more. In a message to Congress in 1944, President Roosevelt recommended a second Bill of Rights, among these “rights” a good job, a decent home, adequate medical care, a good education, and protection from the fears of old age. The failure to pass such an economic Bill of Rights would mean yielding “to the spirit of fascism here at home. … True individual freedom cannot exist without economic security and independence.” How much independence is there with reliance on Santa Claus government? How much freedom to live your life? The founders’ conception of rights was a common equality that did not rely on the funding by others. Not a grab bag of ill-defined goodies.

It is sometimes argued that the principles of the founding were an amalgam, a mix of colonial practices, British legal traditions, and Christianity that often contradicted the Declaration’s natural rights philosophy. This misses the founders’ process of picking and choosing what parts of past traditions were appropriate to a standard of natural rights. For instance, primogeniture and special rights assigned persons by law, both a large part of the British law, were rejected. Dr. West sees the situation as that of the guidance of the horse by the rider. We were fortunate to have a people that were steeped in natural rights philosophy and American individualist tradition, and to have a rider dedicated to securing our liberties. In the history of man, it is rare to find a government that actually protects rights. The Revolution couldn’t have succeeded without the wide acceptance of natural rights theory. In the Declaration and our ensuing struggle, the horse and rider found their match.

Stephen Zierak, CPCU/ARM, graduated from Boston University with a BA in Political Science in 1969. After a forty year career in property casualty insurance underwriting, Mr. Zierak retired as a Vice President of Swiss Re America in 2010. At that time, he relocated to Hawaii, a move he had always wanted to make, but had delayed due to lack of appropriate professional opportunities here. Mr. Zierak plans to continue his studies in Political Science, never really abandoned even during his professional career, and to write on matters of public policy. Recently, he produced for Grassroot Institute summaries of Hillsdale’s 10-part internet course on our Constitution. Stephen Zierak is married to the love his life, Teodora, and they reside in Honolulu.

This lesson is taught by Dr. Thomas West, Professor of Politics at Hillsdale College. For nearly thirty years, Dr. West has studied and taught the Constitution, civil rights, and the political thought of our founding. He has been a Visiting Scholar at Heritage Foundation and is currently a Senior Fellow at Claremont Institute. This lecture was posted on the internet February 27, and those interested may register at Constitution.Hillsdale.edu. There is no fee. There will be eight more lessons available weekly on Mondays.

The next lecture in this series is The Problem of Majority Tyranny, taught by Dr. David Bobb. It will be available on the internet Monday, March 6.

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