The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty Hardcover
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Contrary to what is often claimed, the argument for individual liberty does not require one to adopt an optimistic view of human nature—on the contrary, if one believes that people are too ignorant, careless, or corrupt to make good decisions in their own lives, that is all the more reason not to trust them with power over others.10 Due to what social scientists call the “principal-agent problem,” whenever one person purports to act on another’s behalf, that person—subject to normal human frailties and temptations—is liable to make mistakes, or to abuse that trust. Yielding our self-responsibility to another is therefore a dangerous proposition. Whether one has an optimistic or pessimistic view of human nature, the conclusion is the same. Each of us is rightly entitled to run his own life. No other person is better suited than oneself to know one’s needs and priorities, and nobody else can be trusted to run our lives for us. (This is not entirely true of, say, parents and children: parents are the obvious rulers of minor children because parents have the experience, knowledge, and skills that children lack, and upon which children must depend for survival. But even that rule is a limited one—parents do not own, and thus are not free to abuse, their children.11)
It is unfortunate that by using the plural word “rights,” the Declaration leads some readers to imagine freedom as broken up into discrete acts, each of which a person may have the particular right to undertake: the right to speak, the right to own property, and so forth. But the Declaration goes on to describe human rights as including “life, liberty, and the pursuit of happiness”—that is, an indefinite range of freedom, rather than a list of specific liberties.
Liberty does not come in discrete quanta; it is a general absence of interference. It is, in Jefferson’s words, “unobstructed action according to our will, within the limits drawn around us by the equal rights of others.”12 If no person is entitled to rule another, then those who would impose rules on others must justify their doing so; they cannot appeal to “divine right” or to any inherent right to command. They must obtain some kind of consent from the governed, as the Declaration says—perhaps not actual consent in each instance, but something like it. So long as the government follows the predetermined rules, and respects the people’s right to change their government, and so long as the people actually do choose to abide by its rule, then the government can claim to be justified by this tacit consent. This idea is problematic, and people have debated it for centuries.13 But such discussions tend to obscure the most important reasons for the consent requirement. First, by likening the people’s acceptance of the ruler’s authority to an agreement, the classical liberal argument is meant to draw attention to the people’s right not to consent—that is, the analogy of government to a contract is designed to emphasize that people are fundamentally free, and that rulers possess only delegated authority as servants, not masters. If the relationship between the ruler and the ruled is something like a consensual agreement or contract, then the ruler cannot enforce his mere whims. Instead, he must give, or at least be able to give, reasonable justifications for his actions, reasons sufficient to convince a citizen that the ruler is acting within his delegated authority.
Second, if government is justified by something like consent, then it is simultaneously justified and limited. Just as an employer cannot rightfully command an employee to commit a crime, so the citizen cannot delegate to the ruler the power to commit an injustice. The principle of consent inherently restricts government: the ruler can tell the citizen, “I did this because in some sense you told me I could,” but the citizen can answer, “I didn’t tell you to do that,” or even “I could not have told you to do that, because I had no right to do it myself, and hence no right to ask you.” In descriptions of classical liberalism, consent is often treated as some etiological myth intended to rationalize the state. But the consent analogy is far richer: instead of seeing government and individual rights as wholly distinct realms, it accounts for government’s existence and legitimacy in the moral vocabulary of the rights of individuals. The same arguments by which we know that we have the right to create a government also erect a fence around government that protects us from it. As Jefferson said, “the people in mass . . . are inherently independent of all but moral law.”14 Or, in the words of the Declaration, government may do “all other Acts and Things which Independent States may of right do”—not everything, but only those things that states may do of right. Political authority is justified only within the realm of legitimacy established by justice.15
The Constitution reflects the same understanding. Nowhere does it take the wolf’s view that the majority has a preeminent right to govern. Rather, its language consistently reflects the primacy of liberty and the government’s obligation to explain and justify any limits on individual freedom. The Constitution promises to “secure” liberty—not create it. It provides that no laws shall be passed “impairing” contractual agreements, that Congress shall have no power to “abridge” the freedom of speech or to “violate” the people’s “right” against unreasonable searches, and so forth. Most important of all, the Ninth Amendment provides that the mere fact that some rights are specified in the Constitution must not be interpreted as meaning that people have no other rights. As Professor Randy Barnett, the nation’s leading authority on the Ninth Amendment, has observed, this idea would make no sense to one who assumes that government has a fundamental entitlement to rule; on the contrary, the fact that individual rights are not, and cannot be, exhaustively listed indicates that freedom is the general rule, and government restrictions are the exceptions to that rule that must be justified.16 To presume that government has a primary right to command would mean that a person must articulate and justify the existence of his right to engage in every specific act he proposes to undertake. “Enumerate all the rights of men!” said James Wilson during a debate over ratifying the Constitution. “I am sure, sir, that no gentleman in the late Convention would have attempted such a thing.”17 On the contrary, the Framers expected government, and not the individual, to account for its acts. Even the requirement that a bill must receive a majority vote in both houses before it can become law makes sense only if the Constitution’s authors intended a presumption in favor of liberty, with restrictions only permitted for good reasons.
The Innovation of the Declaration
The Declaration of Independence marked an important innovation in how Americans thought about their freedom. Until the Continental Congress issued the document in July 1776, arguments about British policies in North America had focused primarily on the colonists’ traditional rights as Englishmen, rights derived from the British constitution and English common law. But with the Declaration, the colonists announced that they were no longer Englishmen. While American lawyers, judges, and politicians would continue to cherish the heritage of the common law and rely on its precedents, the Declaration cut Americans loose and forfeited claims to “the rights of Englishmen” in exchange for arguments based on the rights of all mankind.
Nowhere is that innovation clearer than in the Founders’ transition from a belief in religious toleration to a belief in religious liberty. Religious toleration had long been a feature of British institutions; in the 1689 Act of Toleration, for instance, Parliament allowed religious freedom to Protestants who refused to join the Church of England so long as they pledged oaths to the crown and rejected the Catholic doctrine of transubstantiation. Later laws even made Protestants who refused to join the Church of England eligible to hold public office. The jurist Sir William Blackstone, whose four-volume Commentaries on the Laws of England had a profound influence on American law, admired his country’s “just and christian [sic] indulgence” toward nonconformists, and even hoped that someday the proscriptions against Catholics would be lifted.18 But as Americans came to reject allegiance to the British constitution, they also questioned the basis of this toleration.
Toleration is a privilege accorded to an inferior. It is, wrote Thomas Paine, only a “counterfeit” of fr
eedom, not the opposite of intolerance. Both tolerance and intolerance “are despotisms,” he argued. “The one assumes to itself the right of withholding liberty of conscience, and the other of granting it.”19 James Madison and Thomas Jefferson, too, saw freedom of religion not as a mere matter of government favor but as a natural right to which all people are entitled. In 1775, when Virginia was preparing a bill of rights, the brash 24-year-old Madison served on the drafting committee alongside the patriarch George Mason, and he successfully urged the older man to eliminate the word “toleration” from the draft and replace it with “the free exercise of religion, according to the dictates of conscience.” This substitution, Madison later wrote, was significant because it “declared the freedom of conscience to be a natural and absolute right.”20 Jefferson, too, rejected the argument that government merely tolerated religious diversity, and, only months after completing the Declaration, drafted a Statute for Religious Freedom for his home state that overthrew the toleration principle. As he explained in his book Notes on the State of Virginia, religious liberty was not a matter of government indulging differences that it could not extinguish. Rather, religious freedom is a natural right over which government has no legitimate claim in the first place. “[O]ur rulers can have authority over such natural rights only as we have submitted to them,” he wrote, but “[t]he rights of conscience we never submitted, we could not submit.”21
Patrick Henry and other conservatives opposed Jefferson’s efforts, believing that government must superintend the people’s religious views in order to “correct the morals of men, restrain their vices, and preserve the peace of society.”22 But in Jefferson’s view, the role of government was not to restrain vice, but simply to protect individual rights and allow people to run their own lives. “The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbour to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg.”23 Obviously, anyone who did break another person’s leg or steal his money should be prosecuted—but there was no crime in merely believing or disbelieving a religious creed. If one’s beliefs are false, one will suffer for that mistake without any need for government intercession. Moreover, officials entrusted with the power to combat vice were more likely to abuse that power than to succeed in making people good. Already the church was being corrupted by political manipulators, Jefferson wrote, and if the state were to prohibit religious differences, these corruptions would be “protected, and new ones encouraged.” Government had performed poorly when overseeing other areas of life, often enforcing foolish restrictions and refusing to permit healthy innovations. “Galileo was sent to the inquisition for affirming that the earth was a sphere: the government had declared it to be as flat as a trencher, and Galileo was obliged to abjure his error. This error however at length prevailed, [and] the earth became a globe.”24
Finally, in 1786, Jefferson and Madison overcame Henry’s obstructions, and Virginia adopted the Statute for Religious Freedom. It rejected the toleration model entirely and enacted instead the clear pronouncements of natural rights. “Almighty God hath created the mind free,” it began. While the government may “interfere” when necessary to preserve “peace and good order” against “overt acts” of lawbreaking, it could have no legitimate power to intrude into private decisions “on supposition of their ill tendency.” That would obliterate “all religious liberty” because government officials would “make [their] own opinions the rule of judgment.”25 Government existed to protect individual rights, not to police private behavior and beliefs, and allowing it power over the latter would endanger the liberty it was supposed to secure.
The overthrow of toleration and its replacement with religious liberty signaled a crucial change in how Americans viewed their rights.26 Although government establishments of religion would linger in the United States for decades afterwards, Americans came to agree that each person has a basic right to form his own religious beliefs and to practice according to his conscience without being dictated to by political leaders. This victory was only one manifestation of a more profound departure from the monarchical idea that rights are privileges given out by rulers. Like John Locke, the Founders saw that government exists to protect the rights of individuals, not to oversee society in general, or to extend and withdraw privileges to the people as it sees fit. “In Europe,” wrote Madison, “charters of liberty have been granted by power. America has set the example . . . of charters of power granted by liberty.”27
Why the Declaration Is Law
Are the Declaration’s philosophical pronouncements about natural rights and human nature still relevant? This may seem a strange question, since the Declaration plays such a prominent role in American life. Yet it is frequently treated with disrespect in certain intellectual circles today. On the left, it is seen as an exercise in hypocritical, self-righteous fraud. Some, including even Supreme Court Justice Thurgood Marshall,28 have agreed with Chief Justice Roger Taney’s dreadful assertion in Dred Scott v. Sandford29 that the Declaration really only meant that white men are entitled to liberty. “[E]ven by its own language,” wrote the fashionable radical Howard Zinn, the Declaration “was limited to life, liberty, and happiness for white males.”30 The Founders’ references to self-evident truths, he claimed, were only a ruse to manipulate the working classes into joining a struggle that was really about protecting the privileges of elites.31 (One might have thought the Founders would have avoided the inflammatory language of equality and liberty if this was their goal, but since Zinn built his class-warfare interpretation on the blueprint of a conspiracy theory, he had a ready answer: the Founders were just clever enough to create a foolproof disguise.)
Meanwhile, on the right, conservatives regard the Declaration with suspicion because natural rights provide a warrant for radical efforts to reform or overthrow traditional social structures. If conservatism is an “anti-ideology” that prizes traditional hierarchy and social stability,32 it is little wonder that the Declaration’s doctrines of universal law and the right to rebel even against longstanding institutions would make conservatives squirm. Prominent figures such as Russell Kirk and Irving Kristol downplayed or denounced the Declaration, calling it an empty rhetorical exercise or a ploy to lure the French into supporting the American army.33 (In reality, the Revolutionary generation took the Declaration’s abstractions quite seriously, and notwithstanding their compromises over slavery and women’s rights, made enormous strides in abolishing class hierarchy and privilege.34)
Contempt for the Declaration would be less shocking if it were only an advertising poster, or a campaign speech, or the manifesto of a defunct political party. But the Declaration is more than that. It appears at the front of our law books, at volume one, page one, of the United States Statutes at Large, and at the head of the United States Code.35 As a resolution approved unanimously by the Continental Congress, a body whose other resolutions have never been regarded as anything less than law,36 the Declaration obviously had legal consequences, separating the United States’ legal system from that of Great Britain. American law still takes July 4, 1776, as the starting point of the nation’s political autonomy. Lawyers of the Founding Era, such as Thomas Jefferson, James Wilson, and others regarded the Declaration as law—“the fundamental act of union of these States,” Jefferson called it37—as did later lawyers and government officials, including Abraham Lincoln. In fact, beginning with Nevada in 1864—the first state admitted after the Southern states seceded—every new state has been required, as a condition of admission into the union, to draw up a constitution consistent not only with the federal Constitution but also with the Declaration of Independence.38 It is hard to understand why we would deny the Declaration standing as law.
Nevertheless, modern leaders of political and legal opinion, including such professed constitutional “originalists” as Justice Antonin Scalia, regard it as something less. Indeed, Scalia has said that the Declar
ation “is not part of our law” at all, only a political statement, not particularly relevant when interpreting the Constitution.39 In a 2000 case challenging a state law that forced unwilling parents to allow grandparents and others visitation rights with their children, the Supreme Court declared that the parents’ right to direct the upbringing of their children is one of the fundamental rights that the Constitution protects; Justice Scalia disagreed, declaring that while that right may be among those the Declaration calls inalienable, “the Declaration of Independence . . . is not a legal prescription conferring powers upon the courts.” Judges must not “deny legal effect to laws that (in my view) infringe upon what is (in my view) [an] unenumerated right.”40