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What the Declaration of Independence Said and Meant

It formally identified the political theory of the United States: securing the individual rights of We the People

The Declaration of Independence used to be read aloud at public gatherings every Fourth of July. Today, while all Americans have heard of it, all too few have read more than its second sentence. Yet the Declaration shows the natural rights foundation of the American Revolution, and provides important information about what the founders believed makes a constitution or government legitimate. It also raises the question of how these fundamental rights are reconciled with the idea of "the consent of the governed," another idea for which the Declaration is famous.

Later, the Declaration also assumed increasing importance in the struggle to abolish slavery. It became a lynchpin of the moral and constitutional arguments of the nineteenth-century abolitionists. It was much relied upon by Abraham Lincoln. It had to be explained away by the Supreme Court in Dred Scott. And eventually it was repudiated by some defenders of slavery in the South because of its inconsistency with that institution.

When reading the Declaration, it is worth keeping in mind two very important facts. The Declaration constituted high treason against the Crown. Every person who signed it would be executed as traitors should they be caught by the British. Second, the Declaration was considered to be a legal document by which the revolutionaries justified their actions and explained why they were not truly traitors. It represented, as it were, a literal indictment of the Crown and Parliament, in the very same way that criminals are now publicly indicted for their alleged crimes by grand juries representing "the People."

But to justify a revolution, it was not thought to be enough that officials of the government of England, the Parliament, or even the sovereign himself had violated the rights of the people. No government is perfect; all governments violate rights. This was well known. So the Americans had to allege more than mere violations of rights. They had to allege nothing short of a criminal conspiracy to violate their rights systematically. Hence, the famous reference to "a long train of abuses and usurpations" and the list that follows the first two paragraphs. In some cases, these specific complaints account for provisions eventually included in the Constitution and Bill of Rights.

In Our Republican Constitution: Securing the Liberty and Sovereignty of We the People, I explain how the Declaration encapsulated the political theory that lead the Constitution some eleven years later. To appreciate all that is packed into the two paragraphs that comprise the preamble to the list of grievances, it is useful to break down the Declaration into some of its key claims.

"When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation."

This first sentence is often forgotten. It asserts that Americans as a whole (and not as members of their respective colonies) are a distinct "people." To "dissolve the political bands" revokes the "social compact" that existed between the Americans and the rest of "the People" of the British commonwealth, reinstates the "state of nature" between Americans and the government of Great Britain, and makes "the Laws of Nature" the standard by which this dissolution and whatever government is to follow are judged. "Declare the causes" indicates they are publicly stating the reasons and justifying their actions rather than acting as thieves in the night. The Declaration is like the indictment of a criminal that states the basis of his criminality. But the ultimate judge of the rightness of their cause will be God, which is why the revolutionaries spoke of an "appeal to heaven"—an expression commonly found on revolutionary banners and flags. As British political theorist John Locke wrote: "The people have no other remedy in this, as in all other cases where they have no judge on earth, but to appeal to heaven." The reference to a "decent respect to the opinions of mankind" might be viewed as a kind of an international public opinion test. Or perhaps the emphasis is on the word "respect," recognizing the obligation to provide the rest of the world with an explanation they can evaluate for themselves.

"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 to account. This promise will provide the heart of the abolitionist case in the nineteenth century, which is why late defenders of slavery eventually came to reject the Declaration. And it forms the basis for Martin Luther King's metaphor of the civil rights movement as a promissory note that a later generation has come to collect.

Notice that the rights of "life," "liberty" and "the pursuit of happiness" are individual, not collective or group rights. They belong to "We the People"—each and every one. This is not to say that government may not create collective, positive rights; but only that the rights that the next sentence tells us are to be secured by government belong to us as individuals.

What are "unalienable," or more commonly, "inalienable rights"? Inalienable rights are those you cannot give up even if you want to and consent to do so, unlike other rights that you can agree to transfer or waive. Why the claim that they are inalienable rights? The Founders want to counter England's claim that, by accepting the colonial governance, the colonists had waived or 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.

A 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."

When drafting the Declaration in June of 1776, Jefferson based his formulation on a preliminary version of the Virginia Declaration of Rights that had been drafted by George Mason at the end of May for Virginia's provincial convention. Here is how Mason's draft read:

THAT all men are born equally free and independent, and have certain inherent natural rights, of which they cannot, by any compact, deprive or divest their posterity; among which are, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.

Notice how George Mason's oft-repeated formulation combines the right of property with the pursuit of happiness. And, in his draft, not only do all persons have "certain . . . natural rights" of life, liberty, and property, but these rights cannot be taken away "by any compact." Again, these rights each belong to individuals. And these inherent individual natural rights, of which the people—whether acting collectively or as individuals—cannot divest their posterity, are therefore retained by them, which is helpful in understanding the Ninth Amendment's reference to the "rights…retained by the people."

Interestingly, Mason's draft was slightly altered by the Virginia Convention in Williamsburg on June 11, 1776. After an extensive debate, the officially adopted version read (with the modifications in italics):

That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.

This version is still in effect today.

According to historian Pauline Meier, by changing "are born equally free" to "are by nature equally free," and "inherent natural rights" to "inherent rights," and then by adding "when they enter into a state of society," defenders of slavery in the Virginia convention could contend that slaves were not covered because they "had never entered Virginia's society, which was confined to whites." Yet it was the language of Mason's radical draft—rather than either Virginia's final wording or Jefferson's more succinct formulation—that became the canonical statement of first principles. Massachusetts, Pennsylvania, and Vermont adopted Mason's original references to "born equally free" and to "natural rights" into their declarations of rights while omitting the phrase "when they enter into a state of society." Indeed, it is remarkable that these states would have had Mason's draft language, rather than the version actually adopted by Virginia, from which to copy. Here is Massachusetts' version:

All men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness.

Virginia slaveholders' concerns about Mason's formulation proved to be warranted. In 1783, the Massachusetts Supreme Judicial Court relied upon this more radical language to invalidate slavery in that state. And its influence continued. In 1823, it was incorporated into an influential circuit court opinion by Justice Bushrod Washington defining the "privileges and immunities" of citizens in the several states as "protection by the Government, the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety."

Justice Washington's opinion in Corfield (to which we will return), with Mason's language at its core, was then repeatedly quoted by Republicans in the Thirty-Ninth Congress when they explained the meaning of the Privileges or Immunities Clause of the Fourteenth Amendment, which reads: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." It was this constitutional language that Republicans aimed at the discriminatory Black Codes by which Southerners were seeking to perpetuate the subordination of blacks, even after slavery had been abolished.

"That to secure these rights, Governments are instituted among Men.… "

Another overlooked line, which is of greatest relevance to our discussion of the first underlying assumption of the Constitution: the assumption of natural rights. Here, even more clearly than in Mason's draft, the Declaration stipulates that the ultimate end or purpose of republican governments is "to secure these" preexisting natural rights that the previous sentence affirmed were the measure against which all government—whether of Great Britain or the United States—will be judged. This language identifies what is perhaps the central underlying "republican" assumption of the Constitution: that governments are instituted to secure the preexisting natural rights that are retained by the people. In short, that first come rights and then comes government.

"…deriving their just powers from the consent of the governed."

Today, there is a tendency to focus entirely on the second half of this sentence, referencing "the consent of the governed," to the exclusion of the first part, which refers to securing our natural rights. Then, by reading "the consent of the governed" as equivalent to "the will of the people," the second part of the sentence seems to support majoritarian rule by the people's "representatives." In this way, "consent of the governed" is read to mean "consent to majoritarian rule." Put another way, the people can consent to anything, including rule by a majority in the legislature who will then decide the scope of their rights as individuals.

But read carefully, one sees that in this passage the Declaration speaks of "just powers," suggesting that only some powers are "justly" held by government, while others are beyond its proper authority. And notice also that "the consent of the governed" assumes that the people do not themselves rule or govern, but are "governed" by those individual persons who make up the "governments" that "are instituted among men."

The Declaration stipulates that those who govern the people are supposed "to secure" their preexisting rights, not impose the will of a majority of the people on the minority. And, as the Virginia Declaration of Rights made explicit, these inalienable rights cannot be surrendered "by any compact." Therefore, the "consent of the governed," to which the second half of this sentence refers, cannot be used to override the inalienable rights of the sovereign people that are reaffirmed by the first half.

In modern political discourse, people tend to favor one of these concepts over the other—either preexistent natural rights or popular consent—which leads them to stress one part of this sentence in the Declaration over the other. The fact that rights can be uncertain and disputed leads some to emphasize the consent part of this sentence and the legitimacy of popularly enacted legislation. But the fact that there is never unanimous consent to any particular law, or even to the government itself, leads others to emphasize the rights part of this sentence and the legitimacy of judges protecting the "fundamental" or "human" rights of individuals and minorities.

If we take both parts of this sentence seriously, however, this apparent tension can be reconciled by distinguishing between (a) the ultimate end or purpose of legitimate governance and (b) how any particular government gains jurisdiction to rule. So, while the protection of natural rights or justice is the ultimate end of governance, particular governments only gain jurisdiction to achieve this end by the consent of those who are governed. In other words, the "consent of the governed" tells us which government gets to undertake the mission of "securing" the natural rights that are retained by the people. After all, justifying the independence of Americans from the British government was the whole purpose of the Declaration of Independence.

"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."

People have the right to take back power from the government. Restates the end—human safety and happiness—and connects the principles and forms of government as means to this end.

"Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed."

Affirms at least two propositions: On the one hand, long-established government should not be changed for just any reason. The mere fact that rights are violated is not enough to justify revolution. All governments on earth will sometimes violate rights. But things have to become very bad before anyone is going to organize a resistance. Therefore, the very existence of this Declaration is evidence that things are very bad indeed.

"But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security."

Revolution is justified only if there "is a long train of abuses and usurpations, pursuing invariably the same Object"—evidence of what amounts to an actual criminal conspiracy by the government against the rights of the people. The opposite of "light and transient causes," that is, the more ordinary violations of rights by government.

"Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain [George III—Eds.] is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world."

What follows is a bill of indictment. Several of these items end up in the Bill of Rights. Others are addressed by the form of the government established—first by the Articles of Confederation, and ultimately by the Constitution.

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 systematic 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.

At the Founding, these ideas were considered so true as to be self-evident. However, today the idea of natural rights is obscure and controversial. Oftentimes, when the idea comes up, it is deemed to be archaic. Moreover, the discussion by many of natural rights, as reflected in the Declaration's claim that such rights "are endowed by their Creator," leads many to characterize natural rights as religiously based rather than secular. As I explain in The Structure of Liberty: Justice and the Rule of Law, I believe this is a mistake.

Happy Independence Day!

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  • arclements||

    A minor quibble:

    "The Declaration is like the indictment of a criminal that states the basis of his criminality."

    I would assert that the Declaration is more akin to a plea of justification by a citizen accused, which of course involves an admission of the underlying conduct that would ordinarily give rise to criminal sanction, but with the additional assertion of facts which explain why the only reasonable course of conduct for the citizen is to do what is normally proscribed, and thus not ultimately criminal ... with the reviewing court in this case being the court of world opinion.

  • CE||

    And world opinion not making much difference, just George Washington's ability to avoid losing the war.

  • regexp||

    The Declaration of Independence used to be read aloud at public gatherings every Fourth of July.

    Citation please. Do you have a record of all public gatherings on every Fourth of July since 1776? As a kid in small town America (what some might call Real Murica (tm) ) - I never heard it read out loud. It was the day that we all got out our illegal fireworks, emptied out the onsale/offsale liquor place, grandpa would dig out his WWII uniform, and we frightened farm animals.

    It wasn't until we relocated to the city (what some might call Fake Murica (tm)) which I heard it on Fourth of July. And I was at a gathering in California (SOCIALISM!) just a few years ago when they broadcasted out of loud speaker and hour or so before the fireworks. I would also like to remind the author that its also tweeted every year - which is a modern day version of "reading aloud" (which has some awesome responses from right wingers accusing the twitter account of being a traitor to the good old US of A).

    So please don't start your essay with a sentence based on only your anecdotal experience. I didn't bother reading the rest because of it.

    Happy 4th.

  • loveconstitution1789||

  • Eddy||

    "Senator, did you say 'honor' or 'on her'?"

  • Smooth Like a Rhapsody||

    Or was it: "I am a jelly doughnut."

  • Absaroka||

    Here's an excerpt from the 1886 Keokuk Weekly Constitution, memorialized because Samuel Clemens was in town.

    "...was followed by music by the Second Regiment band-an overture, "Rivals"--followed by the reading of the Declaration of Independence..."

    "It was the day that we all got out our illegal fireworks, emptied out the onsale/offsale liquor place, ..."

    Everyone has their own traditions.

  • Jim Dunning||

    A few minutes of googling turned up one place where it's been read annually at public gatherings — for at least 243 years.

    "The Fourth of July is a busy time at the Old State House! As we gear up for our Harborfest events, including a reading of the Declaration of Independence from our balcony, we look back on how the Fourth of July has been celebrated at the Old State House over the years."

    https://goo.gl/Tn6pZQ

    Happy 4th!

  • Scarecrow Repair & Chippering||

    Do you have a record of all public gatherings on every Fourth of July since 1776?

    Good grief. Quibble much?

    So please don't start your essay with a sentence based on only your anecdotal experience. I didn't bother reading the rest because of it.

    So you complain that something wasn't done, yet didn't read the rest of it and so couldn't possibly know if it was done.

    Butthurt in the 3rd degree, it seems.

  • Careless||

    Citation please. Do you have a record of all public gatherings on every Fourth of July since 1776?

    Do you not realize he didn't claim that it was read at every public gathering on every 4th? How could your reading comprehension be that bad?

  • Michael Hihn||

    Citation please. Do you have a record of all public gatherings on every Fourth of July since 1776?

    Do you have any evidence that he said (or meant) such nonsense?

    Liberty is also freedom from low-level nit-picking

  • loveconstitution1789||

    Good piece. Something to think about.

    Happy Independence Day!

  • WJack||

    "First comes rights, then comes government." Nails it in six words!

  • Joe_JP||

    And, government is required to secure said rights.

  • Stephen Lathrop||

    WJack, here are six more for you, "First goes government, then go rights."

    Compared to the first six, that second one has the advantage of being demonstrable by experience.

  • WJack||

    Some here need to take another look at history , or the tv news.

  • CE||

    First comes rights, then comes government to take them away.

  • Stephen Lathrop||

    Notice that the rights of "life," "liberty" and "the pursuit of happiness" are individual, not collective or group rights.

    Actually, among the founders, "liberty," was more likely to refer to a right of self-government than to anything else. It's curious, even peculiar, to celebrate the Declaration of Independence without putting the notion of collective self-government front and center.

  • jph12||

    No it wasn't.

  • Michael Hihn||

    Yes it was.

  • ||

    No it wasn't.

  • Careless||

    In this post: SL uses "self-government" to mean "to control the actions of others"

    Again.

  • Careless||

    there are people around here with whom I disagree more about policy, but I don't think there's anyone I'd want to prevent from actually having power more than him

  • Michael Hihn||

    Self-government means control of others!!! Your near-total lack of literacy is kinda scary.
    Or perhaps just careless?

  • Careless||

    Learn to read, Hihn. I was telling you what SL thinks. FFS, man, even by your very low standards, that's bad

  • Michael Hihn||

    In this post: SL uses "self-government" to mean "to control the actions of others"
    Again.

    And you mean "it's crackers to slip a rozzer, the dropsy in snide."
    That's true, except on rainy Thursdays in odd-numbered months, and on rainy Wednesdays in even-numbered months. Got it?

  • Stephen Lathrop||

    I explain this a bit more below, but try to take note. "Control the actions of others," is, most emphatically, a principle ambition of libertarians—as it ought to be—when those others are people in government. A difference between my customary take on the American system, and your fascinating libertarian novelty, is that the customary American scheme offers power for that purpose, but libertarianism does not.

  • Michael Hihn||

    "Control the actions of others," is, most emphatically, a principle ambition of libertarians—as it ought to be—when those others are people in government.

    Even Ayn Rand ridiculed your nonsense.

  • Stephen Lathrop||

    jph12, here it is for you, explicitly put, from the First Continental Congress:

    Resolved, 4. That the foundation of English liberty, and of all free government, is a right in the people to participate in their legislative council: and as the English colonists are not represented, and from their local and other circumstances, cannot properly be represented in the British parliament, they are entitled to a free and exclusive power of legislation in their several provincial legislatures, where their right of representation can alone be preserved . . .

    Of course, to know whether that use was more likely than others, you would have had to read a bit among founding era historical records. It may help you to understand that when I mention some conclusion about the founding era, I may be mistaken, but at the very least, I almost always have in mind some quotation from the record that supports what I say (the exceptions tend to be patterns of events which clearly support the conclusion, without need of quotation). Perhaps you have some comparably relevant citation in support of your denial. Care to share it? Then we could have a discussion.

  • jph12||

    That doesn't say what you think it does. And you ignore all of the other references to liberty and liberties is that same Declaration.

  • Stephen Lathrop||

    Please cite a specific instance (or many specific instances) to show a different meaning for founding era "liberty." I can tell you that there are some out there. The notion of civil liberties enjoyed by individuals was also part of the founding era dialogue. It just doesn't show up as often as the notion of "liberty" as the collective right of self-government—which meaning that citation demonstrated with clarity exceptional for a historical source.

    Your problem, however, is that you (and Barnett) don't want "liberty" to mean collective self-government at all. So even if it weren't the most common usage—as I suggest it is—just that one example I cited is an embarrassment to the usual libertarian take on the founders.

    You have an ideology. You suppose you can reason backward from the axioms of that ideology to discover facts—apparently supposing you can even thus conjure the facts of history. That is foolishness. You only make it more foolish by asserting, "That doesn't say what you think it does."

  • Careless||

    So you want something like a Founding Father using the term "tyranny of the majority", but are too ignorant to know about its quite famous use

  • Stephen Lathrop||

    The notion of "tyranny of the majority," was used in the founders' context to explain the need for a declaration by the sovereign People of specific rights—to enable individuals to invoke the sovereign's power against the hand of government, and thus keep government in bounds. Those rights the People decreed on the basis of their pleasure, their wisdom, and their estimation of need.

    Doing that in no way diminished the People's liberty of self-government. Nor could it, as a matter of practical reality, reduce in the slightest the People's sovereign constitutive power, which continues plenary and unabated.

    Thus, so long as the People remain sovereign, the safety of your rights is founded on the same ground as it was at the outset—on the basis of the People's pleasure, wisdom, and estimation of need. But also on the basis of one other thing—America's scheme to base liberty on a dual role for the people, who are at once subjects individually, but sovereigns jointly. That notably encourages sovereign wisdom. Harm the sovereign inflicts on its subjects, it necessarily inflicts on itself as well.

    That last bit turned out to be pure genius. Experience has shown it works better than any previous scheme for managing government, and also for controlling the otherwise fearsome power which defines sovereignty.

  • Stephen Lathrop||

    By contrast, libertarianism offers no mechanism to control sovereign power, nor any power sufficient to limit government. The peculiar flaw in libertarian imaginings is that they contemplate national government without sovereignty—something which experience has never previously beheld—without showing the slightest awareness of the difficulties and dangers that implies.

    For that reason, libertarian government, if it could exist at all, must be limited to nothing more ambitious than tribal self-sufficiency. Arguably, some American Indian tribes in the 19th century governed themselves in libertarian-like fashion. If that is your ambition for this nation, then say so. Otherwise, please explain where in libertarianism will be found the force necessary to limit a powerful government.

  • Michael Hihn||

    You're talking about the bat-shit crazy libertarians.
    And seem totally ignorant of Jefferson's take on a "perpetual" constitution, which he called being governed by the consent of the dead -- by force, not by consent.

    And a libertarian society is NOT a free society, Ayn Rand said you are nuts, and how DARE you deny the people any right to form whatever government they choose. You are decidedly authoritarian, NOT libertarian, also per even Ayn Rand

  • lulz farmer||

    AKSHUALLY, here's why the declaration of independence supports turning America into a carbon copy of Brazil with worse weather.

  • Michael Hihn||

    Notice how George Mason's oft-repeated formulation combines the right of property with the pursuit of happiness. And, in his draft, not only do all persons have "certain . . . natural rights" of life, liberty, and property, but these rights cannot be taken away "by any compact." Again, these rights each belong to individuals. And these inherent individual natural rights,

    Explain that to the asshole pro-lifers who have been brainwashed to believe that the right to Life is superior to all other rights ... rejecting the elementary definition of unalienable. Same with the Second Amendment goobers. How crazy is it when a simple dictionary exposes their obvious wackiness?

    Libertarianism was founded to reject the moral hypocrisies of both liberals and conservatives. Until Ron Paul fucked that up also.

    I see this has pissed off all the goobers in the commentariat. As liberty always has.

  • CE||

    Without life, what good are the other rights?

  • ||

    Not sure what you mean- the part you quoted clearly show that life is superior to all others. You just reject the elementary definition of unalienable, which is why you are wrong on 2A grounds.

  • CE||

    How long before the Declaration is outlawed? It states the case for a natural human right to secession; it has to go.

  • NashTiger||

    It also calls the wise peaceful eco-friendly Native Americans "merciless S-words"

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