Law, Rebellion, and Natural Rights

Rights or Government?

The American Declaration of Independence is a towering monument to the ancient ideals of liberty and democracy. It marks the advent of republican democracy as we know it and serves a beacon of wisdom and inspiration for the generations that followed. Within its few short paragraphs, the Founders managed not only to justify their split from Great Britain but also to condense and distill an entire moral philosophy which came to define our era – the philosophy of political liberty. As a masterfully-crafted document of extraordinary foresight and of enduring significance, its elements and principles continue to guide and inform us all. To mark its 250th anniversary, I would like to consider the Declaration’s lasting lessons on constitutionalism – for the United States and for the free world.

The Declaration is often seen in relation to its natural counterpart: The United States Constitution. Abraham Lincoln had described the Declaration as “the apple of gold” around which the Constitution (and the Union) were subsequently framed as the “picture of silver”. Many consider the Declaration to be a preamble of sorts to the Constitution, a microcosm of its aspirations, a wellspring from which the Constitution ultimately flowed. 

Yet equally familiar are the disparities and incongruities between these two momentous documents. The Declaration is an appeal of justification, explaining the causes and rationales for its claim of independence; the Constitution describes a mechanism, defining a system and method of popular self-rule. The Declaration was the spirit of the new American republic while the Constitution was its letter. Put simply, the Declaration answers “Why?”, while the Constitution answers “How?”. 

Perhaps of greater consequence, the Declaration is often viewed as a universal assertion of supreme individual rights, while the Constitution (especially prior to the Bill of Rights) is a statement of democratic government. The Declaration is concerned with Life, Liberty and the Pursuit of Happiness, and most associated with the idea of individual rights which pre-exist and supersede all forms of government; while the Constitution primarily establishes the power and authority of the different branches of government, speaking the language of institutions, votes and majorities (though of course, both Declaration and Constitution draw heavily on the constitutional history and tradition of England). Some might say that these two differences indeed overlap: America’s justification (the “why”) is grounded in the ideology of “unalienable” natural rights; while its constitutional order (the “how”) is firmly one of majoritarian popular sovereignty. Some go further to view this discrepancy as inconsistent, perhaps even contradictory, with American constitutional government perpetuating a betrayal – or at least an erosion – of the Declaration’s ideals. These distinctions between Declaration and Constitution reflect, for some, the ever-present potential friction between rights and government, between individual and republic, between liberty and democracy. 

I would like to contribute to this debate by offering an alternative view. In its genius and sophistication, the Declaration of Independence incorporates these competing ideals and their inherent tensions, presenting them within a single unified philosophy which challenges any dichotomy between the Declaration and the Constitution. 

A Right to Govern

The Declaration of Independence famously holds a series of four “truths” to be “self-evident.” Natural law, and especially natural rights, are undoubtedly the beating heart and gravitational center of the Declaration. Two truths directly involve such individual rights: First, that every person possesses what are essentially pre-government, unalienable (or inalienable in modern parlance) rights, rights which are part of our natural humanity and which cannot be entirely and irrevocably waived or forfeited. Chief among these rights are Life, Liberty and the pursuit of Happiness. Second, that governments are instituted to “secure” these rights, to uphold, respect and protect them. As Randy Barnett has explained here and elsewhere, “first come rights, then comes government” – not merely as a historical chain of events, but as a profound philosophical hierarchy.

Another critical truth is that “all men are created equal” – this is not at all a “right” (and not portrayed as such) but rather more of an empirical observation, a point to which we will return momentarily.

Yet perhaps the most oft-neglected self-evident truth listed in the Declaration is the “Right of the People” – not only to alter or reject their government, and not only to establish a new one, but also a People’s right “laying [their government’s] foundation on such principles and organizing its powers in such form” as they see fit. This (capitalized) Right of the People is not among the prior “unalienable rights” typical of natural law discourse, which are plural and are possessed by individuals. It is rather a singular and collective right possessed by the political community at large. It is, in short, a claim to a system of democratic self-government. We thus find that alongside its emphasis on individual natural rights, the Declaration includes a parallel emphasis on a collective right to govern.

The term “the People” is inexorably linked to the democratic notion of popular sovereignty, especially during America’s founding (a point elaborated by Akhil Reed Amar, among others). Indeed, even Alexander Hamilton in Federalist 78 – defending judicial review and hard checks on majoritarian power – describes the “fundamental principle of republican government, which admits the right of the people to alter or abolish the established Constitution.” One might even argue that the Declaration at its core asserts a collective Right of the People more than anything else – the collective separation from Great Britain is performed by a coherent, distinct, unified polity; the “independence” being declared is primarily a communal act, by the same “one people” (not only individuals) who have no choice but to “dissolve political bands.” More so, many of the charges against the King which the Declaration lays out involve transgressions which are inherently collective in nature: above all, the King constantly frustrated the People’s efforts and institutions of self-government. It is no coincidence that so many of the Declaration’s complaints against the King directly regard the People’s ability to make their own laws and to govern their own affairs through legislatures and Representative Houses.

Similarly, the self-evident truth invoked (that is, the Right of the People to self-government) is pointedly not about personal autonomy or about freedom from governmental constraint, but rather about a right of instituting and controlling government itself – “laying its foundations on such principles and organizing its powers in such form, as to them [e.g., the People] shall seem most likely to effect their Safety and Happiness.” The political community can, and must, define the system under which it is governed according to its best understanding and ability, and must maintain ultimate control over any such system. Thus the Declaration makes the case, in the clearest terms, for popular self-rule, better known in our age as democracy.

Other self-evident truths easily lend themselves to this conclusion. Government exists to secure unalienable rights, but its “just powers” are “derived” from “the consent of the governed.” The fact that “just powers” denotes inherent limits – powers which are only legitimate when advancing Government’s core purposes in a moral fashion – does not diminish the claim that any government power (even if employed to “secure” rights) must stem from the “consent of the governed.” In just a few penetrating words the Declaration thus rejects the notion of benevolent dictatorship. The object of governmental power might be securing rights, but its source is the People’s collective consent, will and autonomy.

The empirical observation and moral statement that “all men are created equal” can be interpreted as related to unalienable rights – in the sense that no person’s right to Liberty (for example) is superior to that of another. But its much more direct and plausible application is in the sense of political equality and in support of democratic government. The underlying (and often unstated) rationale for all democratic thought is that humans are inherently equal, not only in some moral or abstract sense, but rather in their basic qualification to partake in collective decision-making. In his “Moscow Discourse” Robert A. Dahl explains:

“The justification for the democratic process rests on a fundamental assumption: that the citizens are all about equally qualified to decide on the laws, policies and principles that will be binding on the members of the polity, and none are so clearly superior in their qualifications as to justify their ruling over the rest.”

Dahl calls this “the assumption of equal qualification.” It simply means that as a general observation, humans do not vary in their innate, inborn, categorical faculties and abilities, such that they are all equally qualified for membership in the political community. Or, in other words, “that all men are created equal”. Per Dahl, this assumption of equal creation/qualification yields a series of conclusions which we consider to be the foundation of the democratic process: equality in voting, ultimate control by the demos, majority rule and much else. Simply put, being “created equal” leads directly to a democratic system built on equally shared political power.

In this sense the Declaration’s self-evident truth of fundamental equality strongly supports the Right of the People to collective self-government, at least as much as it supports individual unalienable rights.

The United States Constitution faithfully fulfills the Declaration’s vision. A clear line runs between “Right of the People” and “We the People.” By defining the structure and system of democratic government, the Constitution easily realizes the Declaration’s description of the People laying Government’s foundations and “organizing its powers,” and does so in a manner that (at least in the Constitution of 1789) prevents the ready abuses of military and political authority outlined in the Declaration’s central passages. Life, Liberty and pursuit of Happiness are unalienable, but it is the People who ultimately design the “form” which “to them shall seem most likely to effect their Safety and Happiness.” 

Critically, both for the Declaration and for the Constitution, unalienable rights and collective self-government are inseparable. The Declaration elegantly weaves these together in a single paragraph reflecting an intertwined conception of political liberty. Freedom from government and freedom to govern are two sides of the same coin. The Constitution in turn incorporates both democratic rule and protected rights; the latter not only through its amendments, but also through its framework of government. As Randy Barnett and others have argued, the Constitution’s structural arrangements are themselves geared towards limiting government, preventing (or mitigating) abuse, and guaranteeing individual liberties. 

The two parallel themes within political liberty do not coexist in blissful harmony. They are in constant, inherent, permanent tension. The Declaration recognizes and embraces this tension by avoiding any clear hierarchy between them, placing them on parallel footing.

Conflating the Why and the How

Modern constitutional theory – especially outside the United States – too often loses sight of this foundational wisdom. Legal scholars and constitutional courts increasingly turn to “fundamental rights” and “core principles” in lieu of the constitutional text while undermining the popular authority from which all democratic political power is derived. This approach invariably prioritizes individual rights (as conceived primarily by jurists) over the will of the electorate and the (constitutionally sanctioned) democratic process. One can understand the temptation: if we can identify the why of Government, the how can at times seem a nuisance, an impediment to achieving the lofty goals for which Government was designed in the first place. If Government exists to “secure rights” then perhaps we can dispense with “consent of the governed.” Yet this trend is woefully misguided, patently destructive, and profoundly upsets the delicate constitutional balance of liberty and democracy.

Martin Loughlin describes the emergence of prevailing “constitutionalism” (distinguished from the original notion of “constitutional democracy”), an approach which “upholds an ‘invisible constitution’ of abstract principles.” This process has (quoting Ran Herschel) “transferred an unprecedented amount of power from representative institutions to judiciaries”, with the result that “the guardian of the constitution becomes its master, and arguably undermines rather than safeguards the democratic foundation of constitutional democracy.” A major element of this modern phenomenon is the privileging and prioritization of vague “rights” as a legal question to be resolved by judges. “The problem,” Loughlin explains, “is that democracy is a contested political concept, and lawyers, conditioned to think through the prism of rights, invariably privilege a particular conception.” Indeed, “once a political regime is conceptualized in the language of rights, lawyers too readily assume that it contains an overarching framework to be attended to by the judiciary, with legislative and administrative activity being reduced to mere regulative action that can be trumped by a claim of right.” Far beyond the label of “rights”, under modern constitutionalism “issues that go to the core meaning of a constitutional democracy now occupy the attention of constitutional courts.”

Constitutionalism throughout the world is gradually abandoning both constitutional text and its democratic source of authority, in favor of “a type of super-legality that is depersonalized, abstract and ahistorical… a set of abstract principles, an ‘invisible constitution’ that articulates the values of the social order.” Loughlin explains that under such a system, crucially, “the constitution no longer derives its authority from the constituent power of the people who adopted the text” but is rather treated as “an order of values that evolves as social conditions change.” Perhaps needless to say, such values are ultimately defined and enforced by judges. Indeed, a changing “order of values” which is adapted by judges to match current “social conditions” captures much of the essence of “living constitutionalism,” an approach that until recently dominated American jurisprudence.

The most tangible result of the new constitutionalism is a constant escalation and elevation of judicial supremacy. The democratic process and Right of the People are sidelined in the (often admirable) pursuit of alleged rights and eternal societal values, an exercise conducted primarily by courts and judges. Collective self-government is eroded (both in principle and in practice) by judicial assertion of final-say authority in all contentious issues of public disagreement. Such judicial supremacy relies on varying notions of abstract universal morality, not remotely grounded in the local, particular democratic process or in the constitutional text produced by it. The electorate and demos become gradually powerless to effect significant change through the political process – unable to “lay the foundations” or “organize the powers and form” of their own Government. Put simply, the modern idea of constitutionalism increasingly seems to mean for many, quite deliberately, a system of judges imposing a moral ideology on everyone else.

Yet the point of any constitutional framework – as succinctly captured by the Declaration of Independence – is to contain and sustain both pillars of political liberty simultaneously, without granting absolute primacy to either. Loughlin writes: “The regime retains its democratic character only when, far from achieving reconciliation between basic principles, it holds them in a condition of indeterminacy… Democracy persists through continuous political negotiation through democratically constituted and democratically accountable processes.” More specifically, Loughlin argues that “constitutional democracy’s key feature is to maintain the tension between two basic concepts of freedom: freedom as collective self-rule and freedom as individual autonomy.” This reflects the permanent conflict inherent in any free society: that between public autonomy and private autonomy (as conceptualized by Jürgen Habermas).

Any attempt to “resolve” such tension in favor of one side or another must therefore be regarded with the utmost suspicion. Judicial supremacists and core-value constitutionalists regularly do so by undercutting, circumventing and ultimately negating the Right of the People to rule themselves, ostensibly to protect us all from the vagaries and evils of collective government. In doing so, by seemingly enforcing the why and relegating the how to irrelevance, they upend the balance between “securing rights” and “consent of the governed”; in turn, they imperil political liberty itself. To paraphrase Ayn Rand’s warning in Atlas Shrugged: Run for your life from any man who tells you that popular democracy is evil. That sentence is the leper’s bell of an approaching tyrant.

One enduring lesson from the Declaration of Independence, 250 years on, is its insightful portrayal of political liberty, comprised of unalienable individual Rights alongside the collective Right of the People. The Founders and Framers correctly identified the interplay between these two and their delicate balancing to be the core challenge of all republican government. May all freedom-loving people continue to heed their counsel.

Long-held interpretations of history die hard and none seems harder to displace than the view that Americans were fundamentally confused about the nature of the British Imperial constitution from the early 1760s until the Declaration of Independence. 

From this “traditional” view of most present-day historians, the king’s power had been absorbed into Parliament at the conclusion of the Glorious Revolution, and with the ascent of William and Mary to the throne, Parliament is usually said to have become supreme over all imperial dominions and not just within the realm uniting the original kingdoms.

In his work, Evaluating Empire and Confronting Colonialism (2013), the historian Jack Greene began his long push against this predominant interpretation. Despite steady repetition by historians, the accuracy of the idea that Parliamentary ascendancy over the king at the close of the 17th century represented a consensus within British society of Parliaments’ supremacy throughout the empire is simply not so. 

Indeed, that idea, Greene argues, was the innovation in the mid-18th century of Lord Grenville and other members of the imperial administration in their efforts to “tidy up” the lines of authority as well as of revenue. Anticipating that his policies would be widely controversial, Grenville even commissioned pieces to make the constitutional case for these innovations. The pamphlets presented each month at A Call to Liberty represent a selection of the most articulate pieces of a wide swath of the debates that ensued. 

The vibrancy of the wider response, setting aside what members of Parliament were saying, demonstrates just how agitated the minds of the literate public were beyond the halls of Westminster. Of these 400 plus pamphlets, the two before us this month represent a particularly excellent illustration of Greene’s essential points. 

In The Constitutional Right of the Legislature of Great Britain to Tax the British Colonies which first appeared in November of 1768, discussion of virtual representation (a small part of Thomas Whately’s pamphlet of January 1765) was made more marginal still. Instead, the new tack was to boldly assert the need for the reorganization of colonial governments along lines of greater administrative efficiency starkly rooted in a utilitarian articulation of the definition and purpose of a colony.

In the initial contention over the Stamp Act, our anonymous author writes, the colonists had frightened the mercantile interests and had played into the hands of William Pitt, then “out of power,” and “storming, with impetuous violence, all the avenues to the throne, in order to seat himself, again, at the head of affairs” (v-vi). It was this, supposedly, that had initially taken Parliament by surprise and gained the momentary success of repeal, but the more recent efforts against the duties of Lord Townshend (enacted 1767) supposedly demonstrated that another motive was at work in the minds of colonials. 

The Americans, our author contends, wanted to overturn the very idea of a colony to “now lay claim to independency upon national principles, and for this purpose have adopted, as unanswerable, all the arguments of Sydney, Locke, and other venerable names” (vii).

But this was to counteract the very purpose of a colony, our author asserts, denying “the essential distinction in the science of politics; namely, the difference between national, and provincial government.” To serve the true interest of Britain, this ministerial proponent of administration contended, the colonies must continue as “provinces” and “must remain, and be kept obedient to the laws, the legislature of Great Britain” (6). And only in this way, he went on, “can they [the colonies] be of the highest utility, and service to the commerce, power, and grandeur of Great Britain,” for it would be entirely insufficient to share only the same king, which is “but a slight tye,” (7) easily opposed.

What was required then, our author insists, was something new: a more effective reorganization of colonial government and to that end, “I have mentioned the distinction between national and provincial government.” The idea was to “Fix the nature, power, and extent of the colony assemblies, so, that they may never be mistaken, hereafter, for parliaments: but known and universally acknowledged as corporate bodies, only.” (13) 

What followed was an innovative plan for establishing and ensuring just such subservience: the granting of advisory representatives for obtaining information only; the consolidation of the colonies into regional groupings or “circles,” each containing three of the older colonies; the frequent rotation of royal governors to ensure fidelity to colonial administration; and, finally, the permanent stationing of troops with continual circulation of officers and soldiers. (12-17)

And just to make clear the purely instrumental goal of such colonial reorganization, the pamphlet concluded:

 “I consider America as a field of adventure belonging to Great Britain, fitted to the genius, industry, and enterprize, of her people; and left open to their choice, to labour there, or not; and to remain there, or return from their pursuits after wealth and riches, at their pleasure. —These terms of free election, are infinitely removed from slavery. While they remain there, they must in everything be kept subject and obedient to the Lords of the field, that is, to the legislature of Great Britain. For otherwise, the field, and all the advantages arising from it, will be lost.” (58-59)

The following spring of 1769, however, another anonymous writer replied, addressing an open letter to that well-known and outspoken critic of the American cause of long standing, the Secretary of State for the Colonies. Contesting against the idea that the colonies were merely “provinces,” the author of A Letter to the Right Honourable, The Earl of Hilsborough, explicitly rejected the utilitarian instrumentalism of the first writer as unsuitable to the colonies of a free country.

Britain is not Rome, this author asserts. As a land of liberty, English colonies must necessarily differ in character from all despotic states and the general interest of the British empire can not be simply the fiscal and economic interest of Great Britain alone, but the general interest of all his majesty’s subjects in freedom. 

The common interest of the British Empire was, from this perspective, “the Palladium of our common liberty, which has been confirmed to Britons and Americans, by royal charters equally valid; These your system of provincial government must destroy, and is therefore unnatural and unjust” (89).

And it was this, the relationship of despotic subservience, that was new, not the long held rights found in colonial charters. Defending Pitt’s championing of the American cause, the writer insists, “you have introduced a new and visionary distinction ‘between national and provincial government’” (90). Such an innovation stood in stark contrast to the long accepted rights and charters of the colonies: 

“I shall only observe that your presumption in attempting to subvert an original and equitable constitution, and prescribe a new government for three millions of people, which violates their charters, and holy cancels the very conditions on which their ancestors settled the country they inhabit, and enlarged his majesty’s dominions with much toil and blood, at their sole expense, and which destroys that constitutional equality which ought ever to subsist among all his majesties subjects, deserves only my contempt.” (97)

The usual case argued by most historians today, is that Parliament’s imperial supremacy was simply accepted in Britain after the 17th century. This interpretation makes considerable use of the virtual representation argument. But in this exchange it appears only obliquely and very briefly, and our critic raises the opposition in Parliament only to ridicule it. Historians have generally gone along with this to emphasize the opposition’s minority status within Parliament.

Pitt’s opposition to direct taxes, however, ought to be placed in a context that goes beyond Parliament itself, to embrace the many controversies going on within British society. These included domestic internal discontent with taxes on cider and the assertion of what were called general warrants in England. Neither was “popular,” and both called forth widely reverberating calls for government reform. Both Pitt (alluded to in the first pamphlet at page v) and others such as Edmund Burke, were certainly a minority voice on the floor of Parliament, but they were nonetheless giving voice to these wider and increasingly more popular discontents, one of which was a call for better and more inclusive representation within Parliament itself. 

From this more expansive view, then, the American question was another component of dissatisfaction with Parliament. Considering such aspects, it is little wonder that “virtual representation” takes only a minimal role in the advocacy for Parliamentary supremacy in the pro-ministry pamphlet before us here. It would tend to draw further attention to the defects of the constitution within England and might well have potentially added to popular agitation. What remains of virtual representation for our ministerial defender is simply that subjects must remain “subjects of the same supreme legislature, at the time they left their country” (10). 

And this point was not lost on our critic. Noting the colonies long-standing chartered rights, “many of which still retained their validity,” the author went on to note that “when it was likewise determined that final appeals from the colonies should lie not with the house of lords, but the king in council, it was certainly believed that they were not within the realm, and that the peers of England were not peers of America” (110). 

The real utility of the colonies, our writer continues, was not that they ever were or should be ruled by Parliament, but rather that the English rights they enjoyed made them prosperous and free and thus added to the wealth of the whole, for “the advantages, derived from their commerce have more especially contributed to raise this Kingdom to its present Meridian of wealth and power.” 

Here indeed was the original basis of English colonization. This was the older established practice. As one reads through these works, it makes sense to consider where the points of emphasis are placed. The first pamphlet is arresting in its innovative utilitarian and instrumentalist view of a colony. The second counters with a dramatic challenge: English colonies are not Roman provinces; they are settlements of Englishmen who possess the same rights as all other subjects wherever they might reside. 

By examining these texts for their different points of emphasis, we can best avoid reading our own present-day biases back into the past. The pamphlets before us this month offer a fantastic opportunity to do just this.