Considering two Roman legal maxims may help us navigate the crisis which has resulted from the coronavirus pandemic.
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.