Friday, October 16, 2015

The Political Philosophy of the Declaration of Independence in the Constitution

Was Abraham Lincoln right in arguing that the political philosophy of the Declaration of Independence is implicit in the Constitution, and thus the Declaration can help us interpret the Constitution? 

Of course, the Constitution never explicitly refers to the Declaration.  And yet much of the Constitution does seem to implicitly assume the political philosophy of the Declaration.  Moreover, if one looks at the first page of the first volume of the United States Code,  one will see the Declaration of Independence along with the Articles of Confederation, the Northwest Ordinance, and the Constitution printed as the four documents that constitute the "Organic Laws of the United States of America."

Among the justices of the current Supreme Court, Justice Clarence Thomas has been a leader in appealing to the Declaration of Independence as fundamental law for the United States and as a guide for interpreting the Constitution.  Although Justice Antonin Scalia often agrees with Thomas in their decisions, Scalia disagrees with him about this.  For example, in Grutter v. Bollinger (2003), in which the majority upheld the affirmative action admissions process at the University of Michigan Law School, Thomas and Scalia dissented, because they argued that this violated the Equal Protection Clause of the 14th Amendment.  Scalia signed on to almost all of Thomas's opinion, but Scalia refused to accept the last paragraph of Thomas's opinion, in which Thomas declared that the majority was weakening "the principle of equality embodied in the Declaration of Independence and the Equal Protection Clause" (539 U.S. 306, 378 [2003]).  Unlike Thomas, Scalia refused to see the Equal Protection Clause as an expression of the Declaration's principle of equality.

In Troxel v. Granville (2000), the Supreme Court struck down as unconstitutional a Washington state law authorizing courts to give visitation rights to any person who argued that this was in the best interests of the children, even when this was contrary to the wishes of the parents.  The Court declared that this law violated the fundamental right of parents to rear their children.  Although Justice Scalia agreed that this was one of the unalienable rights that would be recognized by the Declaration of Independence and the Ninth Amendment of the Constitution, he dissented in this case, because he denied that judges had the authority to secure this right.

The Declaration of Independence affirms as self-evident that all human beings are naturally endowed with "certain unalienable rights," and "that among these are life, liberty, and the pursuit of happiness."  The phrase "among these" suggests that there are other natural rights that are not being enumerated here, and that "life, liberty, and the pursuit of happiness" are prominent illustrations.  Similarly, after enumerating certain rights, including "life, liberty, and property" in the first eight amendments, the Constitution in the Ninth Amendment declares: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."

In Troxel v. Granville, Justice Scalia argued:
"In my view, a right of parents to direct the upbringing of their children is among the 'unalienable Rights' with which the Declaration of Independence proclaims 'all men . . . are endowed by their Creator.'  And in my view that right is also among the 'othe[r] [rights] retained by the people' which the Ninth Amendment says the Constitution's enumeration of rights 'shall not be construed to deny or disparage.'  The Declaration of Independence, however, is not a legal prescription conferring powers upon the courts; and the Constitution's refusal to 'deny or disparage' other rights is far removed from affirming any one of them, and even further removed from authorizing judges to identify what they might be, and to enforce the judges' list against laws duly enacted by the people.  Consequently, while I would think it entirely compatible with the commitment to representative democracy set forth in the founding documents to argue, in legislative chambers or in electoral campaigns, that the State has no power to interfere with parents' authority over the rearing of their children.  I do not believe that the power which the Constitution confers upon me as a judge entitles me to deny legal effect to laws that (in my view) infringe upon what is (in my view) that unenumerated right" (530 U.S. 57, 91-92 [2000]).
It is hard to see the logic of Scalia's claim that in refusing to affirm "unalienable rights" that are protected by the Constitution, he is not thereby denying or disparaging them.  He asserts that the Constitution confers upon judges the authority to secure those unalienable rights specifically enumerated in the Constitution but not those unalienable rights that are protected by the Constitution but not enumerated.  He does not support this assertion with any citation of the constitutional text or any evidence that this was the original meaning of the text.

Scalia asserts that the protection of the unalienable rights affirmed in the Declaration of Independence and the Ninth Amendment must depend upon debates "in legislative chambers or in election campaigns," without any interference by judges.  This ignores the argument by the Framers of the Constitution that the greatest threat to the rights of the people is the legislative power and the power of the majority to infringe on the rights of the minority.

In James Madison's speech to the House of Representatives in the First Congress, on June 8, 1789, in which he proposed a bill of rights as amendments to the Constitution, he stated that the purpose was to protect these rights "sometimes against the abuse of the executive power, sometimes against the legislative, and in some cases, against the community itself; or, in other words, against the majority in favor of the minority."  A declaration of rights would be "one means to control the majority from those acts to which they might be otherwise inclined."

To explain the need for what become the Ninth Amendment, Madison observed:
"It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow, by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure.  This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into his system; but, I conceive, that it may be guarded against.  I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution [the Ninth Amendment]."
The effectiveness of such a bill of rights would depend upon the judiciary: "If they are incorporated into the constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the constitution by the declaration of rights."

Scalia might assert that "rights expressly stipulated" indicates that judges can be guardians of those rights that have been enumerated in the Bill of Rights but not the unenumerated rights of the Ninth Amendment.  But Madison did not say that "expressly stipulated" meant "enumerated," because this would have nullified the whole point of the Ninth Amendment.  The constitutional protection of "those rights which were not singled out" was "expressly stipulated" by the Ninth Amendment.

Moreover, as Madison indicated in his speech, the rights to be protected by the Bill of Rights were not just the rights of Englishmen or the rights of Americans but "the great rights of mankind," which echoes the language of the Declaration of Independence in affirming the natural rights of all human beings.

If one lays the text of the Declaration of Independence alongside the text of the Constitution, one can easily see many points of contact between them. 

This begins with the Preamble to the Constitution.  "WE THE PEOPLE of the United States, in order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this CONSTITUTION for the United States of America." 

This assumes the self-evident truths of the Declaration of Independence, including the truth that it is the right of the people to institute governments by consent of the governed to secure their natural rights, and that it is also their right to alter or abolish any government that has become destructive of these ends, and to institute new government that is most likely to effect their safety and happiness.

The Constitution's Preamble and Article 7 (on how the Constitution is to be ratified) implicitly invoke the natural right of the people to revolution.  The delegates to the Constitutional Convention in Philadelphia in 1787 were originally supposed to propose revisions to the Articles of Confederation.  But instead of that, they wrote a totally new constitution.  In Article 13 of the Articles of Confederation, it was prescribed that any "alteration" of the Articles would have to be approved by the Congress of the United States and by the legislature of each state.  But Article 7 of the Constitution prescribed that its ratification would require only the ratification of state conventions in nine states.  Thus, the ratification of the Constitution was an unconstitutional overthrow of the Articles of Confederation!

In The Federalist (Number 43), Madison explained that justifying the revolutionary overthrow of the Articles of Confederation and the ratification of the Constitution required an appeal to the principles of the Declaration of Independence--"to the great principle of self-preservation; to the transcendent law of nature and of nature's God, which declares that the safety and happiness of society are the objects at which all political institutions aim, and to which all such institutions must be sacrificed."  Thus, the legitimacy of the Constitution as ordained and established by the people depends on affirming the laws of nature and of nature's God as recognized in the Declaration of Independence and as superior to the positive laws of the Articles of Confederation.

The first and longest article of the Constitution is the legislative article.  This primacy given to the legislative power reflects the primacy in the Declaration of Independence of "the right of representation in the legislature, a right inestimable to them [the people] and formidable to tyrants only."

The constitutional qualifications for the two houses of the national Congress are restricted to age, residency, and citizenship, which reflects the Declaration's principle of equality, because there are no requirements of wealth, birth, education, sex, or race.  Unlike the British House of Lords, the United States Senate is not based on noble birth.  Moreover, both the national government and the States are prohibited from granting titles of nobility (Article I, sections 9-10).  This must be so in a government based on the self-evident truth that all men are created equal.

The Constitution does provide some accommodations to the existence of slavery in the South, and this has been said by some people as evidence that the Constitution denies human equality, because slavery is obviously the most unjust denial of equality.  But, remarkably, the Constitution never refers to "slaves" or "slavery."  Instead, the Constitution speaks of the slaves as "persons" (see Article I, Sections 2 and 9; Article 4, Section 2). 

As Madison observed in The Federalist (Number 54), "slaves are considered as property, not as persons," and thus slavery requires seeing some human beings "in the unnatural light of property."  In identifying slaves as "persons," therefore, the Constitution implicitly suggests the natural injustice of treating them as property. 

Those who wrote the Confederate Constitution of 1861 understood this, because while most of the language of the United States Constitution is preserved in this constitution, the framers of the Confederate Constitution repeatedly use the word "slaves," and they never refer to slaves as "persons."  Furthermore, they depart from the United States Constitution in explicitly protecting "the right of property in negro slaves" (see Article I, section 9, of the Confederate Constitution).

The taxing power belongs to Congress, and all bills for raising revenue must originate in the House of Representatives (Article I, sections 7-8).  This confirms the Declaration's condemnation of the King for "imposing taxes on us without our consent."

The Congress also has the power to declare war and to provide for the military.  This confirms the Declaration's condemnation of the King for leading "standing armies without the consent of our legislature."

The second and second longest article of the Constitution is on the executive power.  While the President has some of the powers of the British King (such as being Commander in Chief in time of war), the President does not have those monarchic powers that were often abused by the King (such as the arbitrary power to declare war).  In The Federalist (Number 69), Alexander Hamilton emphasized how different the President was from the British King.  This conforms to the teaching of the Declaration of Independence, because over half of that document was an indictment of the King of England for being "a prince" who acts as a "tyrant" and is thus "unfit to be the ruler of a free people."

The third and third longest article of the Constitution establishes the judicial power of the United States.  While judges are appointed through the nomination of the President and the approval of the Senate, judges have the independence that comes from serving a life-time term "during good behavior."  This responds to the complaint of the Declaration of Independence that the King had "made judges dependent on his will alone."

In the fourth and fourth longest article, the Constitution declares that "the citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."  This can be read as affirming the Declaration's principle of equality in that national citizenship confers equality to all the rights of citizenship to all citizens.  And while the Articles of Confederation had recognized the equal entitlement of citizens to "all privileges and immunities" as restricted to "free citizens" (Article 4), the Constitution removes this restriction, which leaves the implication that slaves can be citizens and thus have "all privileges and immunities" of citizens.  This was reiterated in the Fourteenth Amendment: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."

The amendments adopted after the Civil War--Amendments 13-15--can be seen as a reaffirmation of the political philosophy of the Declaration of Independence.  The authors of the Fourteenth Amendment often identified "privileges or immunities" as the sort of natural rights that had been identified by Supreme Court Justice Bushrod Washington in 1823 in Corfield v. Coryell as the "fundamental" rights, "which belong, of right, to the citizens of all free governments."  According to Justice Washington, privileges and immunities included "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; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole" (Corfield v. Coryell, 6 F. Cas. 546, 551-52 [C.C.E.D. Pa 1823]).  (See also Timothy Sandefur, The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty [Cato Institute, 2014], 33-70.)

The most common objection to the argument that judges have a constitutional duty to enforce the unenumerated unalienable rights affirmed in the Declaration of Independence, the Ninth Amendment, and the Fourteenth Amendment is that this would turn unelected judges into super-legislators, which would deny the right of the people to rule through a majoritarian representative democracy.

This objection is evident in the opinions of the dissenters in Obergefell v. Hodges (2015).  Chief Justice Roberts describes the vigorous political debate over same-sex marriage and then declares: "That ends today.  Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law" (2).  According to the majority decision in this case, Justice Scalia complains, "the Ruler of 320 million Americans coast-to-coast is a majority of the nine lawyers on the Supreme Court."

This objection is mistaken in its assumption that once a majority of the Supreme Court has made a decision, the Constitution provides no means for citizens and politicians to challenge and eventually overturn the decision.  This is false, because, as Hamilton indicated in The Federalist (Number 78), any careful reading of the Constitution shows that the judiciary is "the weakest of the three departments of power," and that it has "neither FORCE nor WILL, but merely judgment."  That is to say, the Court can exercise its judgment and try to persuade citizens and politicians that its judgment is correct; but it cannot prevail against the hostile opinions of a persistent majority working its will through the political process set up by the Constitution.

If Obergefell is a deeply unpopular Supreme Court opinion, as the dissenters in the case suggest, then it can be overturned constitutionally in many ways.  The Senate can impeach Justice Kennedy.  Or the President and the Senate can look for the first opportunity to appoint new justices pledged to overturn Obergefell. Or the Congress can deny the appellate jurisdiction of the Supreme Court in cases involving same-sex marriage.  Or the Constitution can be amended to state that same-sex marriage is not a constitutional right.  Or the other branches of government can refuse to enforce the Court's decision.  If none of these means are employed to overturn the Court's opinion, that will show that the great majority of the people are not intensely and persistently opposed to the opinion.  In fact, the majority in Obergefell waited until this year to issue this decision, because they were waiting for public opinion to shift in the direction of supporting same-sex marriage.

What this shows is that the Constitution did not set up a pure democracy.  Indeed, the word "democracy" does not appear anywhere in the Constitution.  Rather, the Constitution set up a constitutional republic (see Article 4, Section 4 ["a Republican Form of Government"], in which the majority of the people cannot get whatever they want whenever they want it, because the Constitution forces delay and deliberation. 

Alexander Hamilton in The Federalist (Number 78) argued that it would be important for "the independence of the judges . . . to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community."  The judges must do their duty "as faithful guardians of the Constitution, where legislative invasions of it had been instigated by the major voice of the community."

But if the majority is very intense and persistent in their demands, it can eventually work its will, even against the Supreme Court. As a result, the Constitution does not make it impossible for a powerful majority to deprive individuals of their natural rights, but it does make this less likely to happen than would be the case if the Constitution had not been written to secure the natural rights of all citizens.

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