>There are many well-intentioned people that invoke the Constitution of the United States when looking for the solutions to what they believe (or are led to believe) are “dilemmas” confronting America today. This results in spirited debates about what the framers of the Constitution might have intended when writing it, in spite of the fact that there are hundreds of essays by our founders that explain what they intended beyond any reasonable doubt.[1] However, establishing the specific meaning of each article or phrase in the Constitution cannot supply the answers to the questions confronting us now. The Constitution is not a philosophical document. It is a legal one. As such, it does not express the philosophy upon which our nation was founded. In other words, it does not answer the question, “What will our government attempt to do?” but rather, “How will our government attempt to do it?”[2]
The answer to the former question, “What will our government do?” or, more precisely, “What should our government do?” is answered by the other of our founding documents, The Declaration of Independence. Some mistakenly dismiss the Declaration because “it does not have the force of law,” which it does not. This completely misses the point. The law is merely the attempt to codify the underlying principles of justice – to put the philosophy into practice. However, it is the Declaration that articulates that philosophy. Like the Constitution, the statements made in this document are clear and unambiguous. While often mistaken for platitudes that are left open to subjective interpretation, each statement in the Declaration of Independence actually has a specific, objective meaning that must be known in order for the whole to be understood.
The very first sentence of the Declaration contains one of its most important philosophical concepts: the laws of nature and of nature’s God. Before one proceeds any farther, it is vital to determine exactly what the law of nature is, for it is the foundation for all that follows. The law of nature is clearly defined in John Locke’s Essay Concerning the True Original Extent and End of Civil Government.
“The state of nature has a law of nature to govern it, which obliges every one: and reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions…”[3]
Reason is the law of nature that the Declaration refers to. It was reason that allowed Locke and our founders to observe the self-evident fact that all men are created equal, to conclude based upon that observation that they are endowed with certain unalienable rights, and to further conclude that the sole purpose of government is to secure these rights. These were not articles of faith, but reasoned conclusions based upon empirical evidence.
That it was Locke’s philosophy that our founders adopted is also clear. They did not conclude, as Hobbes did, that man should give up his natural rights upon entering society in return for the security that an absolute monarch could provide. Neither did they conclude that man must subordinate his rights to the “general will,” as Rousseau thought necessary for civil society. Rather, they clearly stated, as Locke did, that the purpose of government was to secure our rights.
There are further conclusions that proceed directly from this. First, we do not have “Constitutional rights.” Our rights are neither granted by the U.S. Constitution nor by its first ten amendments, commonly referred to as the “Bill of Rights.” Our natural rights precede the government and the Constitution. The so-called Bill of Rights does not grant rights but rather prohibits certain violations of our rights by the government.[4] The Constitution is a means toward an end: the end of securing our rights. To the extent that it does so it is a useful instrument. To the extent that it fails to do so it is not.
Similarly, we must also conclude that we cannot lose our inalienable rights. The very meaning of the word “inalienable” means that they cannot be taken away, not even by majority vote. Regardless of any Supreme Court decision or new legislation, our rights will not and cannot ever change. No Constitutional Amendment can revoke our rights or grant us new ones. Those rights may be violated by unjust laws, rulings, or Constitutional amendments, but they remain our rights nevertheless. It is appropriate for us to demand that they be respected and it is our duty to defend them, for the exercise of our natural rights is the essence of being human.
Finally, our Declaration answers the question that is ultimately asked whenever our present difficulties are truly understood. “What can I do?”
Our Declaration also answers this question.
“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.”
This also comes from Locke, who wrote,
“…whenever the legislators endeavour to take away, and destroy the property of the people, or to reduce them to slavery under arbitrary power, they put themselves into a state of war with the people, who are thereupon absolved from any farther obedience, and are left to the common refuge, which God hath provided for all men, against force and violence. Whensoever therefore the legislative shall transgress this fundamental rule of society; and either by ambition, fear, folly or corruption, endeavour to grasp themselves, or put into the hands of any other, an absolute power over the lives, liberties, and estates of the people; by this breach of trust they forfeit the power the people had put into their hands for quite contrary ends, and it devolves to the people, who have a right to resume their original liberty, and, by the establishment of a new legislative, (such as they shall think fit) provide for their own safety and security, which is the end for which they are in society.”[5]
Based upon these passages, one might be tempted to conclude that we have no alternative but armed rebellion. To be sure, it is the right of every individual to defend himself by force when his natural rights are violated, for violation of those rights is the definition of the state of war. However, before loading our weapons, we should stop to consider whether our government has truly acted against the will of the people or not. Has it truly acted against our will in establishing massive redistribution programs that violate each individual’s right to property and bankrupts us as a whole? If so, then what of the tens of thousands cheering President Obama as he promised universal health care and the tens of millions who voted him into office? Has our government truly acted against our will in creating and expanding our military empire and tyrannical security/police state? If so, then what of the tens of thousands cheering President Bush and the tens of millions who voted him into office?
In truth, reason should force us to recognize that our government has not become the monster that it is by acting contrary to our will, but by giving us exactly what we have asked it for. As a people, we now openly refer to government as a “provider of services” rather than a “securer of rights.” We have elevated Democracy to an ideal, allowing the majority to grant the government power to violate the very rights that it exists to protect, most consistently property, which is the means of both life and liberty. This was anticipated by our founders, who warned us specifically against the dangers of democracy.
“Wherever the real power in a Government lies, there is the danger of oppression. In our Government, the real power lies in the majority of the Community, and the invasion of private rights is chiefly to be apprehended, not from acts of government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of Constituents.”[6]
We have forgotten that the “checks and balances” written into our Constitution were put there to protect us from democracy. We no longer have any concept of what our natural rights are, much less how best to secure them or even that we should be trying to secure them. If anything, we have come to believe that man in civil society has what Hobbes mistakenly believed he possessed in the state of nature – a right to everything, which is why he equated the state of nature with the state of war. Our society now exists in that state of war of “everyone against everyone” that Hobbes described in his state of nature, for most of us believe that we have a right to everything and that we can bring the force of government to bear against our neighbors to secure that right. To engage in armed defense of what we think are our rights amidst such confusion would result in a bloodbath of unprecedented proportions, which is no small statement considering the wars of the last century. As important as rediscovering our true natural rights is the understanding of what we do not have a right to – namely the life, liberty, or property of any other human being.
It is not the majority that determines what our rights are, but it is the majority that makes the laws that are supposed to protect them. We must rediscover our founding philosophy and persuade our fellow Americans to again accept it as our creed, with a written Constitution as its supporting code.[7] For any one of us to regain our freedom, we must “educate and inform the whole mass of the people.[8]” While they are ignorant of the law of nature, they are a force of tyranny that cannot be overcome, no matter how just the cause or how committed the patriot. Once reacquainted with this most fundamental of laws, they are equally irresistible as the “only sure reliance for the preservation of our liberty.[9]” When the inhabitants of America are again guided by reason to reclaim their natural rights and to defend those rights for everyone, we can institute new Government without firing a shot. What could be more progressive than that?
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[1] These are, of course, the Federalist Papers and the rebuttals to them called the Anti-Federalist Papers.
[2] Even the preamble, which states “in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense…,” is really a list of objectives, rather than a statement of the ultimate goal.
[3] John Locke Second Treatise on Civil Government Ch. 2 Sec. 6
[4] Neither are the rights specifically protected in those amendments an exhaustive list of our rights. To ensure that there would be no confusion on this matter, the Ninth Amendment clearly states that the “enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
[5] Locke, Second Treatise Ch. 19 Sec. 222
[6] Madison, James to Thomas Jefferson October 17, 1788
[7] This wonderful characterization of the Declaration of Independence as our American Creed and the Constitution as its corresponding Code was suggested to me by my friend and respected colleague, David R. Gillie.
[8] Jefferson, Thomas Letter to James Madison December 20, 1787 Memoirs, Correspondence, and Private Papers of Thomas Jefferson: Late President of the United States Vol. 2 edited by Thomas Jefferson Randolph Henry Colburn and Richard Bentley New Burlington Street London 1829 Pg. 277
[9] Ibid.
© Thomas Mullen 2009
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