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What Americans Miss about the Declaration of Independence

In a short video posted on The Atlantic’s website, political theorist Danielle Allen argues “America Misunderstands the Declaration of Independence Because of a Typo.” While I am unsure of the role of the typo in the misunderstanding, Allen’s larger point is correct. Americans tend to read the Declaration individualistically. But a good portion of the Declaration’s argument concerns collective action, particularly the notion of consent given through one’s legislative representatives.

Modern readers of the Declaration often jump too quickly to unalienable rights as rights that cannot be taken away by governments. That is true, of course, but moving to the conclusion too rapidly means readers often give short shrift to two precedent claims in the Declaration’s argument. First, the Declaration’s inalienable rights as pre-political rights. As such they not only limit government, they also justify government. As the line reads, “to secure these rights, governments are instituted among men.” Government exists first to protect these inalienable rights. Rights to life, liberty and happiness’s pursuit can be imperiled by too little government as by too much government. Indeed, a central claim in the Declaration’s list of indictments asserted Great Britain provided too little government to the American colonies.

A second precedent claim regards the inalienability of rights. This, to be sure, means government can’t take away these rights. But the bite of “inalienability” is not that it prohibits others from taking these rights away from us, it bites in that it prohibits us from giving away those rights.

For example, if we own a chair, our property rights in that chair are alienable. That means we can sell or transfer that chair—we can alienate it—any time we wish. Despite our rights over the chair being alienable, if someone takes the chair away from us without our consent, it’s still theft. People cannot take what is ours whether our rights over those things are alienable or inalienable. Where inalienability bites is against the owner of something. It means the owner cannot give the thing away or transfer it. The problem in Jane Austen’s Pride and Prejudice is that Mr. Bennett has only a life estate in Longbourne. He cannot alienate the estate beyond the term of his life. Its inalienability means he cannot give or transfer it to his wife and daughters, and he cannot sell it absolutely.

This, incidentally, is the importance of the Declaration’s affirmation that people are “created” by God. As John Locke points out explicitly, people cannot justly commit suicide because humans do not own themselves, rather God owns them. Because our lives belong to God, and so are his to dispose rather than ours, the right we have to life is “inalienable.” We cannot give away our lives. Indeed, that a government ostensibly recognizes a right to kill oneself means it holds the right to life to be an alienable rather than an inalienable right. Doing so is not merely a policy decision in the world of the Declaration. Governments that recognize a right to commit suicide have conceded a postulate of despotism.

The Declaration’s affirmation of inalienable rights limits individual autonomy, albeit, in the service of liberty.

So, too, the particular indictments listed in the Declaration complain of colonial legislation impeded by the King. That is, the colonists wanted more laws than the King was allowing. The very first complaint the colonists assert against the King is “He has refused his assent to laws, the most wholesome and necessary for the public good.” Colonial legislatures enacted laws which the King refused to ratify.

In modern America we think laws necessarily restrict liberty. And they can and often do. But the colonists took the idea of “consent” seriously. A contract between two people restricts future actions once entered. But freely entering into a contract that binds future choices is the epitome of liberty. Colonists took seriously the idea they consented to laws through their representatives. As with the creation of a contract between two people through their consent, colonists held laws consented to through the representatives they selected reflected their liberty rather than took it away.

We see this in the Declaration’s complaint about taxation as well. The complaint isn’t about high taxes. The complaint is “for imposing taxes on us without our consent.” Even very low taxes imposed without consent are objectionable; even high taxes imposed with consent are unobjectionable.

Similarly, the second indictment listed by the Declaration complains about too few laws rather than too many. “He has forbidden his governors to pass laws of immediate and pressing importance, unless suspended in their operation till his assent should be obtained . . .”

At issue was the principle of 1688, and whether the right to parliamentary representation traveled with British citizens to British colonies, or remained limited to the homeland. Significantly, the American colonists did not perceive a zero-sum connection between their rights and government action, where more government action perforce meant fewer individual rights. That was certainly possible, and their complaints included actions of that sort as well. But the colonists unproblematically affirmed that rights protection required vigorous government activity. They affirmed that individuals provide their consent to legislative enactments when their legislative representatives vote for legislation. Like individuals agreeing to be bound by the terms of a contract, for the colonists, legislation could instantiate their liberty rather than merely restrict it.

Reader Discussion

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on November 16, 2018 at 06:58:56 am

What James Rogers Misses About the Declaration of Independence:

The phrase is “the consent of the governed” not “the consent of the government.” To say “the governed” is to separate the people from their representatives in government. It is the individuals who must consent to the government not the so called representatives who consent on behalf of the people. If that were the case then Parliament could have consented for the colonies (and even if the American colonists were given seats, the majority of Parliament could still have voted them down). The majority cannot force the minority to consent.

Inalianability does prohibit the person from giving up their rights. For instance, by selling themselves into slavery. But I wouldn’t’ say that suicide is an example of giving up your right to life. For instance, in your example of a chair, you can destroy that chair you own with a sledgehammer without giving up your rights of ownership.

It is true that individual rights justify government, the purpose of government is to protect our individual rights. And so, it is true that too little protection by government of our rights can put those rights in danger. Think for instance of the movie “The Purge” where government stops protecting people one day a year. It’s a lot scarier to have only yourself to protect your own rights.

But I wouldn’t say that properly understood government restricts liberty when it acts correctly. Liberty is your right to do all those things which do not harm others. A prohibition on harming others (or enforcement of that prohibition) is not a limitation on liberty (for anyone) but a protection of it.

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Devin Watkins
on November 16, 2018 at 07:56:18 am

Devjn,

As usual, you make excellent points; but for one in this instance: "But I wouldn’t’ say that suicide is an example of giving up your right to life." - Roger's makes the better argument and characterization as to DOI's assertion, by letter and spirit, when he says:

"Because our lives belong to God, and so are his to dispose rather than ours, the right we have to life is “inalienable.” We cannot give away our lives." I would only add, "Nor can we destroy, our life, held only as alienable property.

We, (humans) to use his "Pride and Prejudice" example, hold only a life estate in our lives. Life estates, rarely, if ever, include the right to destroy the held property. Quite to the contrary, they usually contain stipulation requiring the holder to maintain the property in good useful manner during their holding. Not only maintain, but to not diminish its value, including value potential - therein, lies a very good argument against abortion (which I won't expand or make here).

By your assertion, (while you are certainly entitled to hold this position) you are not interpreting the DOI with an originalist eye.

My quibble with Roger's characterization, is not that GEOIII was giving the American Colonist too little government, but too much tyrannical government and too little self-(representative)-government; too little subsidiarity government, if you will.

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Paul Binotto
on November 16, 2018 at 08:01:05 am

Of course, I meant to write: “Nor can we destroy, our life, held only as INalienable property."

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Paul Binotto
on November 16, 2018 at 11:19:20 am

The general assertion represented by the DOI was qualified by the Constitution, which was designed deliberately as a limited government, unlike the UK parliament. Our most significant political battles are waged over that boundary line. The DOI represents, per Constant's famous distinction, a classical view of liberty, whereas by the time of the Constitution the focus was more on the modern concept of liberty as the freedom to pursue commerce in civil society. That, and also the fact that the States represented the proper fora for the exercise of classical/DOI liberty, and the Constitutional boundaries were as much about protecting their sovereignty as individual liberty. Today, with the States having been long since overwhelmed by the federal supremacy, and the individual increasingly at the mercy of a large, central, absolutist (in tendency) administrative state, the DOI cannot reliably inform our current political understanding or practice.

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QET
on November 16, 2018 at 15:18:45 pm

The argument is compelling that individuals express their consent through the action of their chosen representatives, and thereby individuals are bound by those laws made by their representatives. What is the case, though, with regard to bureaucracies that act on fiat outside of the law?

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Wayne Abernathy
on November 16, 2018 at 15:56:20 pm

Our Progressive friends would argue that only THEIR consent is necessary and they not only consent to Federal Agencies, they DEMAND them.

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gabe
on November 16, 2018 at 17:06:53 pm

The problem with this interpretation is that it groups the concepts of individual consent and a collective consent together, classifying them both as “consent”. There is, however, a case to be made against collective consent in the context of the interaction between people and the government being an actual consent.

Individual consent assumes an explicit agreement from the individual. Collective consent assumes an explicit agreement from the collective; however, the representative of the collective giving consent on its behalf, in turn, must have had consent from all the members of the group in order for representation of them to be consensual.

Is this what happens when citizens vote for the members of the government? Obviously not. None of us has ever signed a document stating that we give consent to our politicians to do whatever they want, to take any property from us they desire. When we vote, we vote for the representatives we want to represent us; in a way, a vote cast towards Trump on the presidential election gives Trump inexplicit consent to represent that individual - but those who did not vote for Trump have not given consent on him representing them. As a consequence, a person who has not voted for anyone on the election has not given anyone consent to represent them and, hence, should not have to abide by the laws instituted by th government claiming to act on their behalf.

There are certain freedoms each of us has to give up; with everyone having all possible freedoms, we would live inan anarchy, and it is not clear whether such a model can work in the modern society. However, in my opinion, surrendering those freedoms is justified by the practical necessity; consent does not play a role here.

Finally, I disagree with the logic declaring suicide unjust due to life being inalienable. Our bodies. our lives are our property, and our property alone. We can do as we see fit with our property, including its destruction. Claiming that our lives belong to some other being called “god” is a totalitarianism at its finest, and even if the Founding Fathers did not see the problem with it, we in the 21st century should.

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MayCaesar
on November 16, 2018 at 18:41:39 pm

Interesting perception and points;

"As a consequence, a person who has not voted for anyone on the election has not given anyone consent to represent them and, hence, should not have to abide by the laws instituted by the government claiming to act on their behalf.:

I wonder, have we consented (individually) to a form of government (Democratic Republic) where our individual consent, via the victor of our cast vote, (i.e. to use your example, Trump for a Trump voter) is alternatively direct and indirect, as contained in the compromises achieved (or blocked) by our directly consented (i.e. party affiliated/voted for) agent/representative?

Individuals may always decide to withdraw consent to a form of government, and if they are able to convince enough other individuals to join in them, the government form may change, by bullet or ballot.

But by consenting to the form of government, the individual is by implication, consenting to alternating direct and indirectly consented leadership, under each of the three branches. An individual that hasn’t voted [for anyone], may in some sense be in breach of contract with his country, and perhaps not entitled to dispute his lack of direct representation, (but that is beside the point). An individual does not become "unbound" simply because they a have not given direct consent (i.e. didn't vote for Trump). When someone says, "Not my President" they are renouncing their consent, not of Trump, but of the United States form of Government. And, this is a great tragedy and injustice.

Of course, I disagree, but respect your last point. I can only respond, in my view, having approximately 42 Million (or whatever the current U.S. population is) mini-totalitarians is far more dangerous to society than having One who you have complete 100% free-will to believe in or not, or listen to, or not…

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Paul Binotto
on November 16, 2018 at 18:53:11 pm

In modern America today we don't have any "rights" just privileges. Privileges that can be taken away by the whims of bureaucrats and politicians. Most of us have signed away our "rights" and delivered ourselves up to the Administrative State. We sign away our rights by obtaining Social Security numbers,driver's licenses,incorporation,occupational licenses,permits and other licenses on many levels. The list is endless. All of this takes place by people volunteering,whether they realize it or not,to give up their rights to obtain permission to do something that they have a right to do. As long as what they do is not a clear and present danger to other citizens or their property why should people ask the government's permission? The main reason is because the Political Class,that is those citizens who live off of the wealth created by the Economic Class,has grown to such an extent that it now constitutes over half of the voting population. What America has become is a tax farm for the Political Class. In the end, the best way to control the sheep on a tax farm is to make them subject to the Administrative State by creating a system of permission and privileges that can be taken away at anytime. Thus holding a gun to the heads of the productive population. Whether one calls it socialism or fascism the end result is a nullification of the Declaration of Independence and Constitution by making them meaningless.

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libertarian jerry
on November 20, 2018 at 21:02:18 pm

I agree wholeheartedly with the last paragraph: no cogent arguments can be made by reference to mysticism, supernatural thought, or religious dogma. The harm done by such "thought" has been incalculable.

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Joel Sanders
on November 21, 2018 at 09:57:05 am

Mr Sanders, Such a definitive conclusion surely begs an enumeration and explanation of harms you've observed.

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Paul Binotto

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