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

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The Declaration of Independence and the American Theory of The Declaration of Independence and the American Theory of

Government: “First Come Rights, and Then Comes Government” Government: “First Come Rights, and Then Comes Government”

Randy E. Barnett

Georgetown University Law Center

, rb325@law.georgetown.edu

This paper can be downloaded free of charge from:

https://scholarship.law.georgetown.edu/facpub/2150

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Harvard Journal of Law & Public Policy, Vol. 42, Issue 1, 23-28.

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THE DECLARATION OF INDEPENDENCE AND THE

AMERICAN THEORY OF GOVERNMENT: “FIRST

COME RIGHTS, AND THEN COMES GOVERNMENT”

RANDY E. BARNETT

The topic of this panel is the Declaration of Independence, to

which I devoted a chapter of my recent book, Our Republican

Constitution.

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 Declara-

tion of the thirteen United States of America,”

in Congress.

After the founding, the Framers took two cracks at forming a

national government. We began with the Articles of Confedera-

tion 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 re-

mained the political fountainhead of them all.

Second, the Declaration served as a bill of indictment, “sub-

mitted to a candid world.”

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 “as-

sume[d], among the powers of the earth, the separate and

equal station to which the Laws of Nature and Nature’s God

entitle them.”

In sum, the Declaration was viewed as abolish-

* Carmack Waterhouse Professor of Legal Theory, Georgetown University Law

Center; Director, Georgetown Center for the Constitution. Permission to distribute

for educational purposes is hereby granted.

1. R

ANDY E. BARNETT, OUR REPUBLICAN CONSTITUTION: SECURING THE LIBERTY

AND

SOVEREIGNTY OF WE THE PEOPLE (2016).

2. T

HE DECLARATION OF INDEPENDENCE pmbl. (U.S. 1776).

3. Id. para. 2.

4. Id. para. 1.

24 Harvard Journal of Law & Public Policy [Vol. 42

ing 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 “of-

ficially” because this theory was drafted by a committee, edited

by the Congress as a whole, and unanimously adopted by rep-

resentatives of the thirteen states. And it was only after this of-

ficial act that what the Declaration refers to as the “Form of

Government” was established, first by the Articles and later by

the Constitution.

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 cre-

ated equal; that they are endowed, by their Creator, with

certain unalienable Rights; that among these are Life, Liber-

ty, 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.

While this passage is familiar, its component parts must be

separated out.

(a) “[A]ll men are created equal . . . .”

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 in-

herent and inalienable.”

(b) The Declaration refers to “certain unalienable Rights.”

What does it mean to say a right is inalienable or unalienable?

It means it cannot be surrendered up to the general govern-

ment.

In the canonical words of George Mason’s draft of the

5. Id. para. 2.

6. Id.

7. Id.

8. T

HOMAS JEFFERSON, DRAFT OF THE DECLARATION OF INDEPENDENCE (1776),

reprinted in T

HE LIFE OF THOMAS JEFFERSON 172–73 (Henry S. Randall ed., 1858)

(emphasis added).

9. T

HE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776).

10. B

ARNETT, supra note 1, at 38–41.

No. 1] The American Theory of Government 25

Virginia Declaration of Rights, which he wrote just weeks be-

fore the Declaration and which Jefferson had before him when

he wrote the Declaration

: “[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.”

This

means that such rights are not and cannot be alienated by the

adoption of a compact or a constitution.

erty, and the pursuit of Happiness.”

Once again, this succinct-

ly echoes Mason’s draft Declaration of Rights, which referred

to “the Enjoyment of Life and Liberty, with the Means of ac-

quiring and possessing Property, and pursuing and obtaining

Happiness and Safety.”

Notice that each of these rights be-

longs to the people as individuals. They are not group rights.

They are not collective rights. They are the individual rights of

We the People, each and every one.

(d) We now arrive at what may be the most important sen-

tence identifying the American theory of Government, “[t]hat

to secure these rights, Governments are instituted among Men,

deriving their just powers from the consent of the governed.”

The expressly stated end of government is to “secure” the indi-

vidual natural “rights” named in the preceding sentence. In

short, governments are instituted among men as a means of

securing the individual rights of each and every person, and

the effective protection of these rights is the end against which

such governments are to be judged.

Because of the failure of

the British government to fulfill the political function of secur-

ing the individual rights of each one of us, the Declaration con-

cludes that “these united Colonies are, and of Right ought to

be, Free and Independent States . . . and that all political con-

11. See PAULINE MAIER, AMERICAN SCRIPTURE: MAKING THE DECLARATION OF

INDEPENDENCE 125–26 (1998).

12. V

A. DECLARATION OF RIGHTS § 1 (1776) (emphasis added).

13. B

ARNETT, supra note 1, at 38–41.

14. T

HE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776) (emphasis added).

15. V

A. DECLARATION OF RIGHTS § 1 (1776).

16. T

HE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776) (emphasis added).

17. B

ARNETT, supra note 1, at 41, 44.

26 Harvard Journal of Law & Public Policy [Vol. 42

nection between them and the State of Great Britain, is and

ought to be totally dissolved.”

The political theory announced in the Declaration of Inde-

pendence can be summed up in a single sentence: First come

rights, and then comes government.

This proposition is not, as

some would say, a libertarian theory of government.

The Dec-

laration of Independence shows it to be the officially adopted

American Theory of Government.

 According to the American Theory of Government, the

rights of individuals do not originate with any government

but pre-exist its formation;

 According to the American Theory of Government, the

protection of these rights is both the purpose and first duty of

government;

 According to the American Theory of Government, at

least some of these rights are so fundamental that they are in-

alienable, meaning that they are so intimately connected to

one’s nature as a human being that they cannot be trans-

ferred to another even if one consents to do so;

 According to the American Theory of Government, be-

cause these rights are inalienable, even after a government is

formed, they provide a standard by which its performance is

measured; in extreme cases, a government’s systemic viola-

tion of these rights or failure to protect them can justify its al-

teration and abolition. In the words of the Declaration,

“whenever any Form of Government becomes destructive of

these ends,” that is the securing of these rights, “it is the

Right of the People to alter or 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.”

18. THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776).

19. See B

ARNETT, supra note 1, at 41. For an extended explanation and defense of

these natural rights, see R

ANDY E. BARNETT, STRUCTURE OF LIBERTY: JUSTICE AND

THE

RULE OF LAW 171, 354 (2d ed. 2014). For a summary of the argument present-

ed there, see B

ARNETT, supra note 1, at 44–51 (explaining “why the Declaration was

right”).

20. See, e.g. Ed Whelan, Randy Barnett’s Our Republican Constitution—Part 2,

AT’L REV. (Aug. 12, 2016, 7:58 PM), https://www.nationalreview.com/bench-

memos/barnett-republican-constitution-2/ [https://perma.cc/N7FH-FPG7].

21. T

HE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776).

No. 1] The American Theory of Government 27

My fifth and final point concerns the passage “deriving their

just powers from the consent of the governed.”

Does this en-

tail that the inalienable rights of We the People, as individuals,

can be altered or abolished by popularly elected legislators rep-

resenting the consent of the governed? Hardly.

Representative government is merely one means among sev-

eral to the ends of protecting what the Ninth Amendment re-

fers to as the “rights . . . retained by the people.”

Neither by

acts of legislation nor by the Constitution itself may the people

“divest their posterity”

of these inalienable rights to “life, lib-

erty, and the pursuit of happiness.”

According to this passage, governments may exercise not all

powers, not unlimited powers, but only their “just powers.”

just power is one that is within the competence of a legitimate

government, which the Declaration defines as one that secures

the inalienable natural rights of We the People, each and every

one.

So, the “consent of the governed” is not about popular gov-

ernance by a representative assembly superseding (rather than

securing) pre-existing individual rights. This passage is about

which government is to govern the polity that the declaration is

establishing: the American people.

Will the American people

be governed by Crown and Parliament of Great Britain or by

the governments of the United States? Will it be governed by

separate state governments, a consolidated national govern-

ment, or some combination of state and national governments?

It is the matter of “who governs” that the Declaration says is to

be decided by “the consent of the governed.”

22. Id.

23. U.S.

CONST. amend. IX.

24. V

A. DECLARATION OF RIGHTS § 1 (1776) (emphasis added).

25. T

HE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776).

26. Id. (emphasis added).

27. See Randy E. Barnett & Evan D. Bernick, No Arbitrary Power: An Originalist

Theory of the Due Process of Law 49 (March 26, 2018) (unpublished manuscript),

https://ssrn.com/abstract=3149590 [https://perma.cc/73JP-NYBQ] (explaining the

concept of legislative “competence”).

28. See B

ARNETT, supra note 1, at 41–43, 73–78.

29. T

HE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776) (“That to secure

these rights, Governments are instituted among Men, deriving their just powers

from the consent of the governed”).

28 Harvard Journal of Law & Public Policy [Vol. 42

The original public meaning of the text of the Declaration of

Independence is distinct from the original public meaning of

the U.S. Constitution.

The Constitution, however it is properly

interpreted, does not justify itself. To be legitimate, it must be

consistent with political principles that are capable of justifying

it.

Moreover, these same publicly identified original princi-

ples are needed inform how the original public meaning of the

Constitution is to be faithfully to be applied when the text of

the Constitution is not alone specific enough to decide a case or

controversy.

The original principles that the Founders thought underlie

and justify the Constitution were neither shrouded in mystery

nor to be found by parsing the writings of Locke, Montesquieu,

or Machiavelli.

The American Theory of Government was officially articu-

lated and adopted in the Declaration of Independence.

30. See Lee J. Strang, The Declaration of Independence: No Special Role in Constitu-

tional Interpretation, 42 H

ARV. J.L. & PUB. POL’Y 43, 46–47 (2019); see also Lee J.

Strang, Originalism’s Subject Matter: Why the Declaration of Independence Is Not Part

of the Constitution, 89 S.

CAL. L. REV. 637, 670 (2016) (“Therefore, the natural law

tradition’s conception of law supports my earlier claim that the written Constitu-

tion is the sole subject of constitutional interpretation, and the Declaration is not

part of the Constitution”).

31. See R

ANDY E. BARNETT, RESTORING THE LOST CONSTITUTION 7–86 (2d. ed.

2014) (discussing the concept of “constitutional legitimacy”).

32. See Randy E. Barnett & Evan D. Bernick, The Letter and the Spirit: An Unified

Theory of Originalism, 107 G

EO. L.J. 1, 32 (2018) (“The Constitution’s provisions,

like the Constitution as a whole, are calculated to perform particular functions,

and they would be without value if they did not do so. Truly understanding and

applying the text may require an understanding of those functions.”).