Charles on the Declaration of Independence

May 12th, 2011

Patrick Charles has posted an article he has been working on for some time about the Declaration of Independence, titled Restoring “Life, Liberty, and the Pursuit of Happiness” in Our Constitutional Jurisprudence: An Exercise in Legal History. His research looks quite impressive. I look forward to reading it.

Here is the abstract:

On July 6, 1776, John Hancock sent letters to each of the colonial assemblies announcing the adoption of the Declaration of Independence. In doing so, Hancock stated that the Declaration had two significant legal effects. The first was that “all connection between Great Britain and the American Colonies” had been dissolved as to “declare them free and independent States” by which each colony should proclaim this “in the way [it] shall think most proper.” The second effect was a structural alteration to the colonial governments, for each colony’s charter was expressly tied to England’s system of government. Therefore, Hancock requested that “the people may be universally informed” of this change, and that the Declaration be “considered as the ground and foundation of a future Government,” both at the State and national level.

Hancock’s instructions are significant because they portray that the very essence of American government was the guarantees embodied in the Declaration of Independence. However, as insightful as Hancock’s instructions are, it does not end the historical inquiry as to the constitutional importance of the Declaration. It leaves many questions unanswered, such as did the founding generation agree with Hancock’s assessment? Did the newly independent State governments have to embody the principles in the Declaration or was this merely an exercise in political rhetoric? What effect if any did the subsequent Articles of Confederation and superseding Constitution have on the guarantees and grievances within the Declaration?

As a matter of originalism, answering these questions has proven difficult with the Declaration gaining acceptance as part of our social and international identity. Nevertheless, working through these questions is essential if the United States Supreme Court is ever to truly acknowledge the Declaration’s preservation of “life, liberty, and the pursuit of happiness” in the pantheons of our constitutional jurisprudence. Perhaps providing the answer to these questions is difficult because the Declaration is mistaken as embodying actionable natural rights or some form of judicial presumption of liberty. For instance, many associate the Declaration’s reference to the “life, liberty, and the pursuit of happiness” as the embodiment of a libertarian ideal. They view the phrase as embodying protections for economic liberties and supporting the political belief of limited governmental intrusion. At the same time, many people view “life, liberty, and the pursuit of happiness” as protecting broad natural rights in addition to the enumerated rights guaranteed by the Bill of Rights, and the respective State constitutions. Take for example an interview that I took part in predicting the outcome of the landmark Second Amendment case McDonald v. City of Chicago. In response to my answers, it was asserted that I was wrong because I did not understand the Declaration’s guarantee of natural rights; an ideal, no doubt, many Americans identify with the sacred text.

It should not be surprising that the use of the Declaration as a vehicle to assert natural or individual rights is not a modern invention. During the ratification of the Constitution, the Declaration’s grievance “depriving…the benefit of Trial by Jury” was used by at least one anonymous editorial to assert the need for a similar protection in a Bill or Rights. Perhaps the greatest advancement of the Declaration as a constitutional vehicle to assert rights was through the events of the Civil War. From the outset of South Carolina’s succession, the Declaration was used as constitutional support for the South’s separation from the Union. This view of the Declaration as embodying constitutional guarantees would continue through the ratification of the Thirteenth, Fourteenth, and Fifteenth Amendments. In fact, it is well documented that members of the Reconstruction Congress used the Declaration’s language as the embodiment of the Founders’ Constitution. Partially motivated by the Supreme Court’s decision in Dred Scott v. Sanford, members of the Reconstruction Congress sought to ensure, once and for all, that “all men are created equal” as a matter of law by removing the color barriers placed in the federalist system.

However, before one can ever reconcile what the preservation of “life, liberty, and the pursuit of happiness” provides us as a working constitutional doctrine, the Declaration’s contents and purpose must be reconciled within the constraints of historical context. Thus, Part I of this article sets forth to examine the different views of the Declaration as a legal document from its adoption through the Early Republic. It is from this talking point that Part II will address the historiography of interpreting “life, liberty, and the pursuit of happiness” from the turn of the twentieth-century to modern day. Part III then addresses the problems of the modern legal interpretation as a matter of historical context, and provides an originalist understanding of preserving “life, liberty, and the pursuit of happiness” in the constraints of eighteenth century constitutionalism. Lastly, Part IV briefly discusses the true legal purpose of preserving “life, liberty, and the pursuit of happiness,” and whether it is consistent with our modern constitutional jurisprudence.

I get a couple cites to Original Citizenship and the Constitutionality of Social Cost, so win! This note in particular compares my thinking to Randy Barnett.

Most recently, Josh Blackman has sought to examine the Second Amendment through what he calls ―social costs.‖120 Similar to Barnett‘s line of constitutional interpretation, Blackman argues that all constitutional rights should be interpreted equally with the caveat that the judiciary should presume impediments on the ―right to keep and bear arms‖ are unconstitutional.121

121 To be more precise, Blackman is for putting the burden on the government to show the constitutionality of legislation. Id. at 15, 16, 34. This line of thinking is consistent with Barnett‘s thesis, see BARNETT, THE STRUCTURE OF at, supra note __, at 73 (―At a minimum, this suggests that freedom of action is to be presumed rightful and that any constraints on this freedom require justification.‖).

Patrick doesn’t quite agree with this presumption of libety, premised on his reading of “pursuit of happiness.”

Unfortunately, constitutional paradigms such as these are built on false assumptions on what constitutes the Declaration‘s ―pursuit of happiness‖ and its interrelationship with ―liberty.‖ It is the textual crux that continues to hinder modern legal scholarship on the theory of government embodied by the Declaration.122 To correct this misconception, one must place the Declaration‘s text and meaning in the constraints of eighteenth century legal thought, and remove all modern biases and political leanings. Perhaps the easiest argument to dismiss the viewpoint that ―life, liberty, and the pursuit of happiness‖ guaranteed individualized natural rights or offers a presumption of liberty is to point out the Declaration was an international document among nations, not individuals.