On this day, in 1776, a group of Caucasian, property- and slave-owning businessmen and gentlemen farmers sitting in congress declared the thirteen colonies here on the North American continent to be independent of the British empire and its monarch, mad King George III. This Declaration of Independence set forth a number of grievances with King George—principally having to do with the right of the British Parliament to levy taxes on the colonies and the king having set a German mercenary army on us—and a number of rights they felt, in high-blown rhetoric, had been trampled:
"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." (caps in the original)These are some of the most famous words in the English language. Technically, the Declaration of Independence doesn't really have the status of law here. It cannot be cited as a precedent in a legal case. It is inspirational, a philosophical justification of our existence as a nation. The Constitution of the United States sets forth the roles and, more importantly, the limitations of our form of government and its major institutions, the Judiciary, the Legislature, and the Executive. The Declaration merely affirmed, officially, what many already believed:
"That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do."Most, if not all, of my American readers will be aware of these things. I'm not telling them anything they don't already know. I simply want to point out two things about the language of these two quotations: First, the word 'unalienable': To alienate, in the parlance of their time, meant essentially 'to sell' or 'to transfer to another' by means of a formal process. The law speaks about the alienation of property—the removal, for example, of any liens or encumbrances against it. 'Men', according to what is referred to as the "Founding Fathers" may not sell or transfer to another their rights to 'life, liberty, and the pursuit of happiness.' Fine. Just note that, at the time, the term 'men' did not apply to slaves whose liberty, at a minimum, had been either seized or purchased by these same declarers. They were not 'men'—and neither were women, for that matter. Mostly, the term 'men' here referred to property-owning males. This glaring hypocrisy has been called the 'original sin' of our country.
[N.B.: By 'happiness', by the way, the Founding Fathers did not mean a feeling of pleasure or contentment. It's not a narcissistic or hedonistic concept. Happiness, here, has to do with the utilitarian notion of fulfilling expectations, that is to say of using one's properties, resources, and means of production (including slaves, women, children, etc.) to achieve one's (often mercantile or commercial or political) goals in society with and against others.]
Second, the word 'States': The same word is used to refer to the 'State of Great Britain'. The founders believed and, in fact, explicitly stated that each of the thirteen colonies, though united in rebellion against King George and his empire, was a separate State, a separate nation or country. It took our American Civil War to completely unpack this notion. Today, we've diminished the meaning of this term to refer to things like Rhode Island or Wyoming. This is a classic example of the old adage: Be careful what you wish for, you just might get it.
One more thing to pay attention to this weekend has to do with that 'endowed by their Creator' concept in the Declaration. What the Founders seem to be saying is that certain basic human rights are not granted to people by laws or governments. Rather, these rights flow from our basic human dignity as creatures in the likeness and image of the creator god. If a government can grant rights (e.g., habeas corpus), it can take them away.
Certain jurists, primarily conservative ones such as, for instance, Antonin Scalia, seem to take the view that if a right is not enumerated in the Bill of Rights (that is, the first ten amendments to the U.S. Constitution) it doesn't exist. That is to say, there are really no natural rights. This view, on a philosophical level, finds human beings essentially evil—or, in their term, fallen. It declares that people have no essential dignity and are entitled to no innate, natural rights. Human beings are in no wise perfectible. Their behavior must be checked. Their hubris must not be allowed to take root. They can only have the rights that their government—albeit a government by their own consent—allows them to have.
For example, American conservatives believe there is no fundamental human right to privacy. This is a big issue here in the United States. The existence of a right of privacy was the explicit basis of, among others, the monumental Roe v. Wade decision of the United States Supreme Court recognizing a woman's right to terminate her pregnancy legally and safely in the United States:
The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251 (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment, Stanley v. Georgia, 394 U.S. 557, 564 (1969); in the Fourth and Fifth Amendments, Terry v. Ohio, 392 U.S. 1, 8-9 (1968), Katz v. United States, 389 U.S. 347, 350 (1967), Boyd v. United States, 116 U.S. 616 (1886), see Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting); in the penumbras of the Bill of Rights, Griswold v. Connecticut, 381 U.S., at 484-485; in the Ninth Amendment, id., at 486 (Goldberg, J., concurring); or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment, see Meyer v. Nebraska, 262 U.S. 390, 399 (1923). These decisions make it clear that only personal rights that can be deemed "fundamental" or "implicit in the concept of ordered liberty," Palko v. Connecticut, 302 U.S. 319, 325 (1937), are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage, Loving v. Virginia, 388 U.S. 1, 12 (1967); procreation, Skinner v. Oklahoma, 316 U.S. 535, 541-542 (1942); contraception, Eisenstadt v. Baird, 405 U.S., at 453-454; id., at 460, 463-465 (WHITE, J., concurring in result); family relationships, Prince v. Massachusetts, 321 U.S. 158, 166 (1944); and child rearing and education, Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925), Meyer v. Nebraska, supra.Even here, the Court seems to want to ground the notion of a right to privacy in the Constitution, albeit in the Constitution's recognition of a the concept of personal liberty or its reservation of rights to the people.
This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.
American conservatives, however, hold the more extreme view that that right of privacy—and, by implication, all such inalienable rights—are not natural human rights 'endowed by their Creator' but rights that may or may not granted by the government, and, in fact, on a strict construction of the Bill of Rights, they believe that the right of privacy has never been granted to the American people. They believe Roe v. Wade and all the other cases cited therein recognized a right that simply does not exist on a strict reading of the Constitution. (Our former president, the conservative George W. Bush, also held this view with respect to the right of privacy, and he used every means at his disposable to secretively eavesdrop and even spy on Americans, and this was the true litmus test he used for selecting the judges and Justices he nominated to our judiciary's benches.)
The point here on this weekend as we celebrate the anniversary of our independence: If you believe in fundamental human dignity (whether as a religionist or a humanist) and, in the spirit of the Declaration of Independence, in certain inalienable human rights, be wary of conservative jurists and politicians who clamor for a "strict construction" of the Constitution. They are, in effect, arguing that human beings are essentially evil and fallen, that human beings (particularly citizens of the U.S.) have no innate or natural rights as a consequence either of their essential dignity or as creatures of God. According to them, the people have no rights unless the government says so, or unless some document grants it to them (and, by implication, can take it away). This is diametrically opposed to the philosophical premise on which our independence, indeed our country, was founded and, to my mind, is the first step toward true tyranny.