In response to my earlier post on the President’s take on the Declaration of Independence, my friend Garrett Epps wrote an eloquent response (I reprint it with his permission):
As a longtime student of Jefferson, I think it is perfectly legitimate for libertarians to relate to the parts of his philosophy that they find congenial,. But that isn’t Jefferson; it’s a version of this mercurial, self-contradictory man who was, in so many areas, a radical reformer and not always in the direction of less government as we would understand it. So proclaiming one contemporary side’s version of the Declaration legitimate, and the other’s illegitimate, is profoundly ahistorical. The words were written at a different time; they do not speak perspicuously to our time. And throughout our history, Americans of many stripes have taken inspiration from the Declaration, a common treasure that is the property of none.
I wrote in response: And this Garrett, is why you are one of my favorite legal writers. I agree with everything you said. I don’t think Obama’s view is any more or less legitimate than that of Lysander Spooner who looked to the Declaration as proof that slavery was unconstitutional, or that of Susan B. Anthony who looked to the Declaration as proof that women could not be treated differently. I also agree that Jefferson was mercurial, if not schizophrenic with his views. Many of his views on agrarian property law would feel much more at home with Marx than Madison. Likewise, Christians cite the views of a atheist/agnostic person far too often as proof of a Christian ethos in our Republic (it said Creator, not God). Far too many people have adopted his views to fit various regimes. No one has a monopoly on Jefferson. My point focused on the “life, liberty, and pursuit of happiness” phrase, a bit I have studied for some time. It is not coincidence that Jefferson omitted Property from Locke’s trio. I have seen varying explanations, though my favorite is that Property is not inalienable (in fact, property is quite alienable). That being said, “life, liberty, and happiness” had a certain meaning in 1776, deriving from the liberal enlightenment tradition. George Mason used similar phrasing in the Virginia Declaration of Rights. To the extent that we take the words for what they meant when written, the progressive approach takes it in a different direction. To the extent that we take the words as broad principles that are aspirational (and that is a perfectly reasonable thing to do), the progressive approach is just fine.