What the Declaration Doesn’t Say

This July 4, like countless prior, will witness paeans to the Declaration of Independence, celebration of its unalienable rights, laments of their demise amid spreading statism and the shrinking space left for the individual in American civic life—all of which might be compelling if the Declaration said any such thing.  A more suitable tribute on the document’s 237th birthday would be to recover its actual meaning and proper context. (That context, I should indicate before proceeding further, I learned from George W. Carey, to whom the bulk of the ensuing insights—like most of those I claim for myself—are hereby attributed.)

The typical understanding of the Declaration’s unalienable rights is that they are the immutable and unregulable property of the individual, who is thereby rendered immune from the jurisdiction of the community with respect to his or her life, liberty and pursuit of happiness.  But a moment’s inspection renders this individualist understanding absurd. Life, liberty and happiness are obviously regulable and necessarily alienable.  No grownup seriously believes he or she has the liberty to do whatever, whenever he or she pleases while occupying political society with other adults.  Meanwhile, to alienate, in lawyers’ parlance—and such was Jefferson’s profession, so it is safe to assume he knew of what he wrote—means to surrender in exchange for an equivalent.  On the Lockean bargain implicit in the rhetorical structure of the Declaration’s preamble, the very basis of civil society is the surrender of natural rights to life, liberty and property in exchange for political equivalents—i.e., their alienation.  If these unalienable rights are held by individuals, the preamble is reduced to nonsense.  If, by contrast, they are held by the American people vis-à-vis the British, its logic is clear.

But if they are held by the people, presumably those boundaries all grownups can perceive are regulable by the people too.  This is plain if, contra the practice of most civic educators in America, we actually read the entire document rather than simply the rhetorical stanzas with which it opens.  The bulk of the complaints against King George—this is generally shunted aside as the boring stuff, but it is actually where the Declaration gets most interesting—accuse him not of violating the rights of individuals but of impeding corporate self-government.  He imposes taxes “without our Consent”; maintains standing armies “without the Consent of our legislatures”; “suspend[s] our own legislatures”; and so on.

The Declaration, in other words, does not guarantee individual rights as reservations from the jurisdiction of the community.  It is meant to secure the community’s capacity to govern itself. This is what makes it ultimately compatible with the Constitution, which some commentators have wrongly seen as a derailment from the high-toned themes of the Declaration.

In either case, the Declaration must be properly contextualized.  It is a founding document but not a framing document, which is to say it does not have legal standing in the same way the Constitution does.  When Justice Brennan, for example, grounded his activist jurisprudence partly in the ideals of the Declaration, he imported a document into constitutional law that simply has no place there.  But this is not a liberal trope alone.  As Ralph Rossum has shown, the Declaration plays a prominent role in Justice Thomas’ jurisprudence as well: the Constitution, in his understanding, was meant to fulfill the aspirations of the Declaration.

The ensuing temptation, depending on whether one views the Declaration from the right or left, is to read guarantees of either equality or individual rights into the Constitution that, like it or not, are not there.  Both forces—egalitarianism and individualism—corrode political community, fueled in part by the casual, almost lazy manner in which the Declaration is rhetorically invoked.  This July 4 would be a fitting time to celebrate the document by starting to grapple with its meaning more seriously.

Reader Discussion

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on July 04, 2013 at 11:26:39 am

How many lawyers may pass...?

While one can concede that much of the intellectual thrust of the Declaration was indeed aimed at preserving the pursuit of life, liberty and happiness vs the British and their unwillingness to show deference to the Legislature(s) of the colonies, to insist upon this as the sole "declaratory" basis of the document is simply unsupported. It is, I believe, the result of getting things "bass-ackwards" by asserting that "This is what makes it (the Declaration" ultimately compatible with the Constitution." Such an assertion is improper for two reasons: first chronologically, as the one precedes the other by a number of years, and secondly, the creed / first principle precedes and determines the elaboration of said creed in a body of law.
Rather, it is for the Constitution to be made compatible with the Declaration. (Also see James Ceaser's piece in the July 3rd First things blog) Can anyone deny that the Framers of the Constitution had the Declaration in mind during their deliberations?
All too often we lose sight of what is the guiding light of the American Republic. We see ourselves interpreting events / controversies via the prism of an imperfect construct, predicated upon necessary (and perhaps some unnecessary) compromises made at the time of the Founding, when in fact we should use our core document, The Declaration, as the prism through which we understand ourselves and our regime which in the words of Calvin Coolidge are eternal (see Power Line July 4th).

Failure to do so may lead us to consider (apologies to Medieval scholars) "How many lawyers may pass through a loophole or ambiguous constitutional construction (deconstruction, perhaps).
Additionally, I would suggest that the limitation you place upon the individuals' right to pursue happiness is not so clearly limited / alienable. Lincoln in his Temperance Address certainly appears to grant the individual far greater latitude in an individual pursuit of happiness but implies that civic, not legal sanctions are warranted. In short, Tolerance is the appropriate response; but does this not imply that the individual is, indeed, free as an individual to pursue his or her own folly.
By extension, individual rights are enshrined in the constitution. And yes, the founders, Washington, Jefferson, etc. were keenly aware of the tension between the individual and the community but placed their bets on a virtuous people. Regrettably, we have not always been so!

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gabe immordino
on July 04, 2013 at 13:52:06 pm

I agree with Gabe.

Professor Weiner;s statement that

The Declaration, in other words, does not guarantee individual rights as reservations from the jurisdiction of the community. It is meant to secure the community’s capacity to govern itself.

is a non-sequitur. The Declaration does not state that individual rights are insulated from the jurisdiction of the community, it quite plainly states that governments derive "their just powers" from the consent of the governed. Furthermore, :the community's capacity to govern itself " is not an end in itself; it is a favorable condition for guaranteeing individual rights. These individual rights are the in fact the ultimate rationale for the Declaration.

The beginning of that document is not merely rhetorical throat-clearing. Its mention of "life, liberty and the pursuit of happiness" is substantive, not aesthetic. Jefferson's original draft read "we hold these truths to be sacred and undeniable, that all men are created equal..." Franklin changed this to "We hold these truths to be self-evident..." Jefferson's formulation suggested that individual liberties were a natural law-type endowment (regardless of his personal views on the matter) and Franklin's edit reflected more of an Enlightenment, reason-derived basis for individual liberty. Whatever the case, natural law or reason, individual liberties are the rationale for the Declaration. The Declaration explicitly states that
governments are instituted among men to secure the rights of the governed, and this apples to the "community's capacity to self-govern" as much as it does the King's divine right to push people around.

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on July 06, 2013 at 21:00:52 pm

I tend to think that the Declaration was talking about individual rights rather than just group or corporate or community rights in its lofty first phrases.

But Professor Weiner has a good point about the word "inalienable". It is not, and never was, a word commonly spoken. It is unusual. And we should not skip right over it. The word "inalienable" does not mean "undeniable" and does not mean "absolute" and does not mean "inviolable". The word "inalienable" means "able to be transferred to new ownership." So the statement in the Declaration seems to boil down to this "We are not slaves of the British". Of course, Jefferson was not quite in a position to say that, in those words.

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Andrew Hyman
on July 09, 2013 at 10:38:34 am

I must disagree with a key assertion of your argument. In particular:

"Life, liberty and happiness are obviously regulable and necessarily alienable. No grownup seriously believes he or she has the liberty to do whatever, whenever he or she pleases while occupying political society with other adults."

The mistake, in my view, is in the belief that the "right to liberty" implies the "liberty to do whatever, whenever he or she pleases". This is a surprisingly simplistic view from the author who, otherwise, has shown refreshing depth of analysis. Liberty, as understood in the Lockean context in which Jefferson wrote of it, is more correctly understood as "the right to do whatever, whenever you like -- so long as those actions do not infringe upon their proper rights of others to life, liberty, or property" (noting here that Jefferson exchanged Locke's right to property for a right to 'the pursuit of happiness'). This interpretation is hardly "absurd", and is perfectly realistic. In this context the notion that these rights must, of necessity, be viewed from a communal, rather than an individual perspective, becomes untenable. I do not mean to argue that the historical evidence grants either perspective -- individualist or egalitarian -- with clarity, merely that the supposition upon which this argument favors the egalitarian perspective is invalid.

One final point -- the use of the term 'inalienable' is very much of note, and indeed for the reason stated, though I believe the author does not explore this point sufficiently, and indeed I believe its use points to precisely the opposite interpretation of the basic Rights than the author concludes. An 'inalienable' right, by the legal definition, is one which no contract or exchange can deprive you of your claim to. Given the understanding of the contemporary political philosophers, Jefferson included, that government properly is a group of people to whom the body politic (implicitly or explicitly) contractually entrusts various aspects of public life, defense, etc. by common consent, it is important to realize that Jefferson's use of the word 'inalienable' implies that no matter what that contract is, it is the Founders' view that these basic enumerated rights cannot, under any circumstances, be revoked or withheld from any person by a legitimate government. This lends itself to the individualist perspective in contrast to the author's view.

Regardless of the above, I have enjoyed your articles greatly. Keep writing.

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Bryce Eakin
on July 10, 2013 at 04:41:57 am

I wish I had read this before; it would have made following your Creed versus Conservation essay much simpler.

It more or less verified that you are contrasting the functionality of government with the purpose of government. Gabe mentioned that people tend to lose sight of America's "guiding light"; but, as far as I can tell, you believe these principles should be scrutinized and compared to what actually happened.

Sorry for the informal style; as you've probably guess, I'm not a scholar.

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Jason Khan
on August 31, 2018 at 09:39:57 am

Written like true slave owner or dictator. Notice the condescension, such as "No grownup seriously believes ". Typical of one that believes he holds a superior knowledge and anyone that disagrees is stupid. Reminds me of Alexander Stephens telling us how blacks are inferior and need to be enslaved by the white man for their own good. Statist always find ways to claim ownership over other humans. The dictators claim a right to humans, but many of them have been convicted of human rights violations. Violation of rights does not mean the rights do not exist, it means there are people out there that are willing to violate them. The principle is quite clear. As Jefferson said,

"but rightful liberty is unobstructed action according to our will, within the limits drawn around us by the equal rights of others."

I don't know how anyone can claim otherwise. If these rights are not unalienable, then no man is safe. It is exactly the idea the our rights are alienable that has led to the plunder our current governments live by. Jefferson continued to say,

"I do not add ‘within the limits of the law’; because law is often but the tyrant’s will, and always so when it violates the right of an individual. "

These principles are no different now then the were in the past. This is why Coolidge said,

"About the Declaration there is a finality that is exceedingly restful. It is often asserted that the world has made a great deal of progress since 1776, that we have had new thoughts and new experiences which have given us a great advance over the people of that day, and that we may therefore very well discard their conclusions for something more modern. But that reasoning can not be applied to this great charter. If all men are created equal, that is final. If they are endowed with inalienable rights, that is final. If governments derive their just powers from the consent of the governed, that is final. No advance, no progress can be made beyond these propositions. If anyone wishes to deny their truth or their soundness, the only direction in which he can proceed historically is not forward, but backward toward the time when there was no equality, no rights of the individual, no rule of the people. Those who wish to proceed in that direction can not lay claim to progress. They are reactionary. Their ideas are not more modern, but more ancient, than those of the Revolutionary fathers. "

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on August 15, 2019 at 06:16:10 am

[…] The confusion apparently distills to this: Choice—total personal autonomy without regard to the fact of social life—has become the new, and only, universal right. But to live in society is to limit choice, which the Declaration of Independence’s use of “unalienable” to describe rights recognizes.  […]

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The Inspired Mary Ann Glendon and Her Dismal Critics

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