The Declaration of Independence Annotated

Some more thoughts for Independence Day:

 “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” The most famous line of the Declaration.  On the one hand, this will become a great embarrassment to a people who permitted slavery.  On the other hand making public claims like this has consequences—that’s why people make them publicly.  To be held for account.    And this promise will provide the heart of the abolitionists case in the Nineteenth Century, which is why late defenders of slavery eventually came to reject the Declaration.

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.  The exact reason for change is not clear.

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 systematice 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.

 

Powerful stuff indeed. Read the whole thing here: The Volokh Conspiracy.

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