The Declaration of Independence and the American Theory of Government: "First Come Rights, and Then Comes Government"

By Barnett, Randy E. | Harvard Journal of Law & Public Policy, Winter 2019 | Go to article overview

The Declaration of Independence and the American Theory of Government: "First Come Rights, and Then Comes Government"


Barnett, Randy E., Harvard Journal of Law & Public Policy


The topic of this panel is the Declaration of Independence, to which I devoted a chapter of my recent book, Our Republican Constitution. (1) I want to draw on that book to make five points.

First, the Constitution is not our founding document--the Declaration is. In its words, it was "[t]he unanimous Declaration of the thirteen United States of America," (2) in Congress. After the founding, the Framers took two cracks at forming a national government. We began with the Articles of Confederation in 1776, before changing to the Constitution in 1789. And one might consider the Reconstruction Amendments in 1868 to be a third try at forming a government. But the Declaration remained the political fountainhead of them all.

Second, the Declaration served as a bill of indictment, "submitted to a candid world." (3) To legally justify armed resistance to the crown as something other than treason, it presented a "long train of abuses" that the British Crown in Parliament had committed against the rights of the people of the United States. By this declaration, the colonists "dissolve[d] the political bands which have connected them with another," and "assume[d], among the powers of the earth, the separate and equal station to which the Laws of Nature and Nature's God entitle them." (4) In sum, the Declaration was viewed as abolishing the social contract with Great Britain and establishing a state of nature between two independent polities.

Third, the Declaration then officially identified the political theory on which the United States was founded. I stressed "officially" because this theory was drafted by a committee, edited by the Congress as a whole, and unanimously adopted by representatives of the thirteen states. And it was only after this official act that what the Declaration refers to as the "Form of Government" was established, first by the Articles and later by the Constitution. (5) These constitutional structures were simply the means to the ends that were announced in the Declaration.

Fourth, the end for which these different governments were established is described in the Declaration's two most famous sentences, which everyone knows:

   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. (6)

While this passage is familiar, its component parts must be separated out.

(a) "[A]ll men are created equal...." (7) This is an affirmation of the fundamental equality of each individual person. It speaks not of groups, but of individuals. Indeed, as the original draft read before it was edited, "all men are created equal and independent; that from that equal creation they derive rights inherent and inalienable." (8)

(b) The Declaration refers to "certain unalienable Rights." (9) What does it mean to say a right is inalienable or unalienable? It means it cannot be surrendered up to the general government. (10) In the canonical words of George Mason's draft of the Virginia Declaration of Rights, which he wrote just weeks before the Declaration and which Jefferson had before him when he wrote the Declaration (11): "[a]ll 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." (12) This means that such rights are not and cannot be alienated by the adoption of a compact or a constitution. (13)

(c) Next, "among these are the unalienable rights of Life, Liberty, and the pursuit of Happiness." (14) Once again, this succinctly echoes Mason's draft Declaration of Rights, which referred to "the Enjoyment of Life and Liberty, with the Means of acquiring and possessing Property, and pursuing and obtaining Happiness and Safety. …

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