Read Professor Randy Barnett's analysis of the document and watch the videos below.
July 4, 2014
[Here is an excerpt from my constitutional law casebook (Links to an external site.) that I have previously posted on Independence Day:]
When reading the Declaration, it is worth keeping in mind two very important facts. The Declaration constituted high treason against the Crown and every person who signed it would be executed as traitors should they be caught by the British. Second, the Declaration was considered to be a legal document by which the revolutionaries justified their actions, and explained why they were not truly traitors. It represented, as it were, a literal indictment of the Crown and Parliament, in the very same way that criminals are now publicly indicted for their alleged crimes by grand juries representing “the People.”
But to justify a revolution, it was not thought to be enough that officials of the government of England, the Parliament, or even the sovereign himself had violated the rights of the people. No government is perfect; all governments violate rights. This was well known. So the Americans had to allege more than mere violations of rights. They had to allege nothing short of a criminal conspiracy to violate their rights systematically. Hence, the famous reference to “a long train of abuses and usurpations” and the list that follows. In some cases, these specific complaints account for provisions eventually included in the Constitution and Bill of Rights.
The Declaration of Independence used to be read aloud at public gathering every Fourth of July. Today, while all Americans have heard of it, all too few have read more than its second sentence. Yet the Declaration shows the natural rights foundation of the American Revolution, and provides important information about what makes a constitution or government legitimate. It also raises the question of how these fundamental rights are reconciled with the idea of “the consent of the governed” for which the Declaration is also famous.
Later, the Declaration also assumes increasing importance in the struggle to abolish slavery. It is a foundational document of the Nineteenth Century abolitionists and was much relied upon by Abraham Lincoln. It had to be explained away by the Supreme Court in Dred Scott. Eventually, it was repudiated by some defenders of slavery in the South because of its inconsistency with that institution.
To appreciate all that is packed into these two paragraphs, it is useful to break down the Declaration into some of its key claims.
What are “unalienable,” or more commonly, “inalienable rights”? Inalienable rights are those you cannot give up even if you want to and consent. Unlike other alienable rights that you can consent to transfer or waive. Why inalienable rights? The Founders want to counter England’s claim that by accepting the colonial governance, the colonists had alienated their rights. The Framers claimed that with inalienable rights, you always retain the ability to take back any right that has been given up.
The standard trilogy throughout this period was “life, liberty, and property.” For example, the Declaration and Resolves of the First Continental Congress (1774) read: “That the inhabitants of the English colonies in North-America, by the immutable laws of nature, the principles of the English constitution, and the several charters or compacts, have the following RIGHTS: Resolved, 1. That they are entitled to life, liberty and property: and they have never ceded to any foreign power whatever, a right to dispose of either without their consent.” Or, as John Locke wrote, “no one ought to harm another in his life, health, liberty, or possessions.”
Perhaps the most commonly repeated formulation was found in the Virginia Declaration of Rights of May 15, 1776 drafted by George Mason: “That all men are by nature equally free and independent and have certain inherent rights, . . . namely the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.” The switch from property to “pursuit of happiness” came at the last minute of the drafting process.
“>One way this tension was later resolved was with the concept of presumed consent. The people can only be presumed to have consented to what was actually expressed in the written constitution; conversely, absent a clear statement to the contrary, they cannot be presumed to have consented to surrender any of their natural rights. So to interpret the meaning of what must be an amorphous “popular” consent, we must know what natural rights the people have. (For more on this see my recent article in the Yale Law Journal (Links to an external site.).)
The assumption of natural rights expressed in the Declaration of Independence can be summed up by the following proposition: “first comes rights, then comes government.” According to this view: (1) the rights of individuals do not originate with any government, but preexist its formation; (2) The protection of these rights is the first duty of government; and (3) Even after government is formed, these rights provide a standard by which its performance is measured and, in extreme cases, its systemic failure to protect rights — or its systematic violation of rights — can justify its alteration or abolition; (4) At least some of these rights are so fundamental that they are “inalienable,” meaning they are so intimately connected to one’s nature as a human being that they cannot be transferred to another even if one consents to do so. This is powerful stuff.
Heimler (below) will take you on a step by step analysis of the Declaration of Independence
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