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. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
— The Declaration of Independence —
At any time of great political or social controversy in American history, one side or the other will inevitably rush to the Constitution of the United States to support their position. Sometimes both sides will claim the Founding Fathers’ mandates, whether the issue is civil rights, privacy, marriage or the role of government. Yet for all its deep and complex content, the Constitution is actually a quite sparse document, especially when it comes to the many social issues which have arisen since the 18th century. Conservatives will claim that this was part of the Founders’ plan, that the states should be “laboratories of experimentation” on social policy; liberals will counter that this was because the Founders wished the Constitution to be a “living document” which evolves with the passage of time. Today, I would like to take a broader view of constitutional interpretation that embraces elements of both sides and present to the audience a philosophy of government which is both traditional and progressive.
In order to truly understand the Constitution of the United States, one must first understand the Declaration of Independence. This masterful document is the philosophical foundation for American society, while the Constitution is its roadmap for political discourse and governing the nation. When Thomas Jefferson wrote the Declaration, he opened first with a justification for why the Thirteen Colonies were breaking away from the British Empire. Drawing on the writings of the English political philosopher John Locke, he declared a number of self-evident truths which are the five governing principles of American society:
That all men are created equal before God
That God has given all men a number of rights which cannot be taken away by any government
That these included the rights to life, liberty and the pursuit of happiness
That government existed to protect these rights
And that if any government began to infringe upon these rights, the people had the right to change or remove it and then to create a new government which would protect their rights
This last governing principle is what justified the American rebellion against the British Crown and the creation of a new government in the Thirteen Colonies. The first government was organized under the Articles of Confederation, ratified in 1781, but it failed to protect the natural rights of the American people. It was thus abolished in 1788 when the US Constitution was ratified—a textbook example of Jefferson’s five principles in action. This new government still reigns in America today and is the most successful democratic system of government in world history.
Before going any further, it is important to make a number of distinctions. As with any argument or discussion, both sides must agree to the same definitions of terms, or else no progress can be made. We must distinguish between three types of rights: natural, civil, and political. Natural rights are those possessed by all human beings and given to them, in the words of Thomas Jefferson, by “nature and nature’s god.” Civil rights are granted to the citizens of a specific country by its government, whether by the democratic process or by edict of a monarch or dictator. Political rights—specifically voting rights—also come from government but only to those citizens who have reached adulthood and who can fully exercise their rights and responsibilities as citizens. Just as important, one must understand the difference between a liberty and a freedom. The Founders wrote in the Declaration that all men possess the natural right to liberty, defined as the ability to live according to one’s wishes consistent with good order and public safety. Thus, all humans have the right to live and to work as they wish, but not to harm or take anything from another person. A freedom is the exercise of a civil or a political right—this is born out in the Bill of Rights which grants the freedoms of speech, the press, religion, etc.
These distinctions are important because we are dealing with the nature of revolution and the overthrow of governments. If the source of natural rights is nature, only nature can remove those rights; the same is true of civil and political rights—since they flow from government, only government can remove them. This principle also applies to freedoms and liberties; government can remove freedoms (by the same legislative or executive manner in which they were first granted), but only nature can impinge upon our liberties.
The Roots of the Declaration of Independence
To more fully understand the relationship between the Declaration of Independence and the Constitution, it is helpful to examine the historical and philosophical roots of both documents. From the rise of the Roman Empire to the Age of the Enlightenment, rule by the people had almost completely died out in the West. There were some small free cities in central Europe during the Middle Ages and localized rule in Italy at the time of the Renaissance, but no large nation had ever been democratically governed in Western Europe or the New World. The Enlightenment, also known as the Age of Reason, brought about numerous changes in political and religious thought. Three Enlightenment philosophers gave the Western world what has been the foundation of modern political science: Thomas Hobbes and John Locke of England and Charles de Montesquieu of France.
Thomas Hobbes was born in 1588 while Queen Elizabeth I was on England’s throne. He lived through some of the most tumultuous times in English history, culminating in the civil war which saw King Charles I murdered by Parliament and the Puritan dictatorship of Oliver Cromwell in which thousands of his countrymen perished. In 1651, Hobbes published Leviathan, one of the first modern works of political theory, in which he argued that to escape a life which was “solitary, poor, nasty, brutish and short,” men came together to form a government and surrendered certain liberties (most importantly property rights) in exchange for protection from outside threats. He also wrote that this “leviathan” of an absolute monarchy must control and restrain the powers and passions of the mob; if it failed in this basic task of governance, anarchy and terror would be the result. Hobbes’ experiences watching his country tear itself apart over religious and political questions soured his view of human nature, and Leviathan is a very pessimistic work.
As England emerged from the chaos of the civil war and saw the creation of a constitutional monarchy, the writer John Locke penned his seminal political work, Two Treatises of Government, in 1689. Building upon the foundation laid by Hobbes, he wrote that mankind possesses three natural rights: life, liberty and property. (This last right, which Locke defined as the right to own all which they had gained through work or gift, was altered by Jefferson in the Declaration of Independence at the insistence of slaveowners, but the definitions of “property” and “pursuit of happiness” are the same.) No government could ever trample these natural rights, which came to men from nature and nature’s God. Locke used Hobbes’ idea of the social contract to explain the relationship between governments and citizens, stating that natural rights could only be voluntarily surrendered. (In a democratic system this is done by the ballot and choosing elected leaders.) He then went further to declare that citizens possessed a “right to revolution,” the right to throw off any government which infringed on their natural rights—an idea seen almost word-for-word in the Declaration.
Locke’s ideas were embraced by King William III of Great Britain in his English Bill of Rights, and other thinkers soon began to build upon them, as he had not given much thought to how to avoid a bloody revolution. The most important of this new generation of political theorists was Charles de Montesquieu, a French philosopher. In The Spirit of the Laws, published in 1748, Montesquieu wrote of two systems which could prevent government from becoming tyrannical. The first was to divide the powers of government among three equal branches—the executive, legislative and judicial—and the second was to institute various “checks” by one branch on the other two. Montesquieu believed (and history has shown) that governments inevitably desire more power, and their branches will compete with each other to assume more power over the others. Having both separation of powers and checks and balances allowed the people to live in peace while the politicians grappled with each other for power.
Students of the American political system will immediately recognize the influence of each of these writers, and a full explanation of how they were implemented in the Constitution would take far more time than we have today. It is sufficient to say that the Founding Fathers integrated the principles of Locke, Hobbes and Montesquieu into our system of government, and this is inarguably one of the reasons why it has been so successful.
The Declaration and Society
We now come to the heart of the matter and our central question: what do we do if the Constitution is silent on a political or social question facing the country? Throughout American history we have grappled with issues from slavery and civil rights to privacy and the powers of government. We have a Congress which passes laws under the Constitution and a Supreme Court that interprets these laws and strikes down those which violate its precepts. Some laws have been passed and upheld which exceed the limits placed on government by the Constitution and others which have been struck down despite being clearly within those boundaries. If our leaders look to the Declaration of Independence for guidance, I believe that they will create a society which both respects the traditions of American law and custom while also allowing our nation to progress beyond the limits of eighteenth-century life.
Of course, applying the relatively-abstract principles found in the Declaration to constitutional law and acts of Congress requires a great deal of scholarship, and a discussion of these ideas is not possible in just fifteen minutes. Briefly, though, it is important to remember three key points which, if ignored, could undermine or even threaten the republic created by our Founders.
First, the Constitution sets out the mechanism for change in the amendment process, which has been used 27 times in our history. Amendments have been used to grant civil freedoms and political rights, to clarify the intentions of the Founding Fathers, and to adapt the structure of American politics to an ever-changing world. Whenever the Constitution is amended, it must be within the framework of the Declaration of Independence—it must not destroy or trample upon natural rights, as these are not granted by government and thus may not be infringed upon by the Constitution. Just as important, if the Constitution is modified by unelected judges or bureaucrats, these measures could threaten the safety and happiness guaranteed by the Declaration, which would have dangerous consequences for the American people.
Second, we must understand that our country has always faced enormous challenges in ensuring the prosperity and general welfare of our citizens. Some of these challenges have been dealt with historically at the national level—like slavery and civil rights—but we must remember that the Constitution also provides a second remedy for issues which cannot be solved by the country as a whole. The Tenth Amendment permits states to set down their own laws which, though they cannot contradict the Constitution or remove federally-guaranteed freedoms, can lead to solutions on issues—for example education and housing—that a national program might not be suitable to fix. Again, this is in complete agreement with the foundations in the Declaration of Independence, and to assume that every national problem has a national solution, and to implement them in violation of the Constitution, could create more problems than it solves.
Finally, we must return to where we began: with the Declaration of Independence. The principle of natural rights enshrined in that document are the very core of what it means to be an American. No law, be it national, state or local, and no act of any judge or justice, can threaten or eliminate a natural right from an individual or class of American citizen. If we remove the idea of natural rights from our society, the Constitution cannot provide safety and happiness to the American people. The system falls apart, and revolution could be the result. Before we close today, if this podcast has sparked interest in these ideas and you wish to discuss them with your friends and colleagues, allow me to offer you some guidance. In any argument, both sides must first lay out the “ground rules.” A discussion like this rests on four basic rules:
First, that two people can disagree on policy but agree on principles, in this case that the founding documents should be the standard by which all laws are judged. If your audience believes in a different standard for judging laws, that’s a whole different argument.
Second, that a right is defined as “that which may be obtained legally and without force exerted upon another.” If your audience believes that a service provided without compensation (like education, or healthcare, or a marriage ceremony) is a right, this discussion will break down.
Third, as I mentioned before, that not every problem has a national solution. If your audience believes that the federal government is the source of every remedy to every issue facing our country, a different conversation will need to take place.
Finally, both sides should be guided by reason and science rather than emotion and reaction. If your audience dismisses you as a fascist or a communist, if they throw changing principles of morality at you and insist that you follow them or else face divine or civil punishment, it will be difficult for you to proceed further.
I hope that you enjoyed and learned from this podcast, and from all the podcasts in this first season of Fifteen Minute History. If you are interested in contacting me directly with questions or comments, you can find me or Joe on Twitter at @jondstreeter and @josephpkr. I look forward to chatting with you and to returning to this microphone soon and to walking with you in history’s footsteps.