Part 2 of 3: Rediscovering the Unadulterated Constitution and its Natural Rights’ Pedigree

§1:11. Fundamental political principles and basic individual rights protected by the Declaration (and the Constitution)

Coroner: Mr. Jefferson, would you lay out the fundamental principles expressed in the Declaration?

Mr. Jefferson: [Yes, I have them memorized.] “When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident . . . .”

Coroner: Stop there please. Professor Russell Kirk, would you tell us what was meant by “self-evident”?

Professor Kirk: By “self-evident” (or, in the earlier draft, “sacred and undeniable”), it was meant that these truths flowed from the nature of things; that they were reasonable, in the sense of according with right reason; that they were bound up inseparably with the nature of man; that they came from the Creator. They are premises taken for granted, and every political order must be founded upon some such unquestioned premises. All men ardently desire life, liberty, and happiness; therefore those blessings are natural, and whoever deprives man of them acts in contempt of human nature. There is something Stoic in this conviction.[lxii]

§1:110. Equality—‘All men are created equal’

Coroner: Pray continue with your recitation, Mr. Jefferson.

Mr. Jefferson: “All men are created equal”.

Coroner: Stop. Let’s take up the fundamental principles, as they are listed in the Declaration. Mr. Locke, is equality a natural right?

Mr. Locke: [Yes.] A State [of nature is] also of Equality, wherein all the Power and Jurisdiction is reciprocal, no one having more than another, there being nothing more evident, than that Creatures of the same species and rank promiscuously born to all the same advantages of Nature, and the use of the same faculties, should also be equal one amongst another without Subordination or Subjection, unless the Lord and Master of them all, should by any manifest Declaration of his Will set one above another, and confer on him by an evident and clear appointment an undoubted Right to Dominion and Sovereignty.[lxiii]

Coroner: Is equality a self-evident right?

Mr. Locke: [Yes.] This equality of Men by Nature, the judicious Hooker looks upon as so evident in it self, and beyond all question, that he makes it the Foundation of that Obligation to mutual Love amongst Men, on which he Builds the Duties they owe one another, and from whence he derives the great Maxims of Justice and Charity. His words are:

“The like natural inducement, hath brought Men to know that it is no less their Duty, to Love others than themselves, for seeing those things which are equal, must needs all have one measure. If I cannot but wish to receive good, even as much at every Man’s hands, as any Man can wish unto his own Soul, how should I look to have any part of my desire herein satisfied, unless my self be careful to satisfie the like desire, which is undoubtedly in other Men, being of one and the same nature? to have any thing offered them repugnant to this desire, must needs in all respects grieve them as much as me, so that if I do harm, I must look to suffer, there being no reason that others should shew greater measure of love to me, than they have by me, shewed unto them; my desire therefore to be lov’d of my equals in nature, as much as possible may be, imposeth upon me a natural Duty of bearing to themward, fully the like affection; From which relation of equality between our selves and them, that are as our selves, what several Rules and Canons, natural reason hath drawn for direction of Life, no Man is ignorant.”[lxiv]

Coroner: Professor Kirk, what was meant by “all men are created equal”?

Professor Kirk: [Not as much as some think.] As for equality in strength, swiftness, and beauty, those obviously are not articles in the Laws of Nature. John Adams, after Jefferson the committee-member with the largest hand in the Declaration, was given throughout his life to noting the inequality of human beings in many respects. If taken literally, the Declaration’s equality clause would fly in the face of common sense.

Yet Jefferson did write “created equal”, and the congress did not strike out the phrase. Jefferson, though not necessarily most delegates to the congress, may have been swayed here by John Locke’s notion of the baby’s blank tablet of the mind, the tabula rasa.[lxv]

Coroner: Might not the unscrupulous use “created equal” as a spread-the-wealth sort of rallying cry?

Professor Kirk: The demagogue may find “created equal” a slogan useful to him; in Mark Twain’s witticism, “One man is as good as another, or maybe a little better.[lxvi]

The men of the Continental Congress, however, did not take Jefferson’s equality clause as an affirmation of literal equality in body and mind. (In one early draft of the Declaration, the phrase is “equal & independent”; in another rough draft, “& independent” is crossed out, presumably because Dr. Franklin or some other realist thought that assertion difficult to defend: a baby, as Senator Randolph suggested, is absolutely dependent.) Rightly, they did not look upon the average American, let alone the average man everywhere, as their literal equals. They did subscribe to two venerable concepts of human equality: equality before the law, and equality in the judgment of God.[lxvii]

Coroner: What is the origin and meaning of “equality before the law”?

Professor Kirk: In English law, no persons were privileged when brought before the bar of justice (though noblemen must be tried for serious crimes by the House of Lords, “a jury of their peers”): the law being no respecter of persons, justice must be administered regardless of the rank and wealth of a litigant. In that sense, all Americans, too, were born equal. It was not so in positive law then in all nations; but the Patriots believed that equality before the law was true according to the laws of nature.[lxviii]

Coroner: What about equality in the judgment of God?

Professor Kirk: In Christian teaching, as in Jewish, there exists moral equality among all men: that is, God judges men not according to their station in life, but according to their deserts as persons; Dives and Lazarus are punished or rewarded in the divine knowledge of how well or badly they have obeyed God’s commandments, not with regard to their worldly success. Some are weighed in the balance, and found wanting, but not because of their rank here below. To this doctrine, too, the members of the Continental Congress assented: it was a pillar of the Laws of Nature’s God. * * *

So the natural-right and natural-law beliefs of 1776 were a blending of Hebraic, Christian, classical, and seventeenth- and eighteenth-century theories. That life, liberty, and the pursuit of happiness were natural rights (or at least ordained through the laws of Nature’s God ) was a conviction as general in Britain, in that age, as in America; it would be carried to extravagant lengths, under a secularized version of natural-rights theory, in France within a few years. Few men of the time would have denied that governments are instituted to secure these rights.[lxix]

Coroner: Do you agree, Mr. Jefferson? Is equality a natural right?

Mr. Jefferson: [Yes. The highly-authoritative Virginia Declaration of Rights says so in its very first section:]

“A DECLARATION OF RIGHTS made by the Representatives of the good people of VIRGINIA, assembled in full and free Convention, which rights do pertain to them and their posterity, as the basis and foundation of Government.

1. That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.”[lxx]

Coroner: But where did the Virginia Declaration derive the right of equality and other inherent rights?

Mr. Jefferson: [The right of equality is enshrined in natural law. Let me state a few applicable principles of equality that have come from natural law:]

1. No man has a natural right to commit aggression on the equal rights of another; and this is all from which the laws ought to restrain him.[lxxi]

2. The foundation on which all [our constitutions] are built is the natural equality of man, the denial of every preeminence but that annexed to legal office, and particularly the denial of a preeminence by birth.[lxxii]

3. The true foundation of republican government is in the equal right of every citizen, in his person and property and in their management.[lxxiii]

4. The equal rights of man and the happiness of every individual are now acknowledged to be the only legitimate objects of government. Modern times have the signal advantage, too, of having discovered the only device by which these rights can be secured, to wit, government by the people, acting not in person but by representatives chosen by themselves, that is to say, by every man of ripe years and sane mind who either contributes by his purse or person to the support of his country.[lxxiv]

5. To special legislation we are generally averse, lest a principle of favoritism should creep in and pervert that of equal rights. It has, however, been done on some occasions where a special national advantage has been expected to overweigh that of adherence to the general rule.[lxxv]

6. In America, no other distinction between man and man had ever been known but that of persons in office, exercising powers by authority of the laws, and private individuals. Among these last, the poorest laborer stood on equal ground with the wealthiest millionaire, and generally on a more favored one whenever their rights seemed to jar. It has been seen that a shoemaker or other artisan, removed by the voice of his country from his workbench into a chair of office, has instantly commanded all the respect and obedience which the laws ascribe to his office. But of distinction by birth or badge, they had no more idea than they had of the mode of existence in the moon or planets. They had heard only that there were such, and knew that they must be wrong.[lxxvi]

Coroner: Mr. Madison? What say you on equality?

Mr. Madison: [I agree with the Sage. In speaking on a bill in the Virginia legislature that promoted religious discrimination, I wrote:] Because the Bill violates that equality which ought to be the basis of every law, and which is more indispensable in proportion as the validity or expediency of any law is more liable to be impeached. “If all men are by nature equally free and independent,” all men are to be considered as entering into Society on equal conditions; as relinquishing no more, and therefore retaining no less, one than another, of their natural rights, above all, are they to be considered as retaining an “equal title to the free exercise of Religion according to the dictates of conscience.” Whilst we assert for ourselves a freedom to embrace, to profess, and to observe, the Religion which we believe to be of divine origin, we cannot deny an equal freedom to them whose minds have not yet yielded to the evidence which has convinced us. If this freedom be abused, it is an offence against God, not against man. To God, therefore, not to man, must an account of it be rendered. As the bill violates equality by subjecting some to peculiar burdens, so it violates the same principle by granting to others peculiar exemptions. Are the Quakers and Menonists the only Sects who think a compulsive support of their Religious unnecessary and unwarrantable? Can their piety alone be entrusted with the care of public worship? Ought their Religions to be endowed above all others with extraordinary privileges, by which proselytes may be enticed from all others? We think too favourably of the justice and good sense of these denominations to believe that they either covet pre-eminences over their fellow-citizens, or that they will be seduced by them from the common opposition to the measure.[lxxvii]

[Another time, I answered a Jewish correspondent:] Among the features peculiar to the political system of the United States, is the perfect equality of rights which it secures to every religious sect. And it is particularly pleasing to observe in the good citizenship of such as have been most distrusted and oppressed elsewhere a happy illustration of the safety and success of this experiment of a just and benignant policy. Equal laws, protecting equal rights, are found, as they ought to be presumed, the best guarantee of loyalty and love of country; as well as best calculated to cherish that mutual respect and good will among citizens of every religious denomination which are necessary to social harmony, and most favorable to the advancement of truth. The account you give of the Jews of your congregation brings them fully within the scope of these observations.[lxxviii]

Coroner: Is an equality of property required?

Mr. Madison: [Certainly not.] A rage for paper money, for an abolition of debts, for an equal division of property, [is an] improper or wicked project . . . .”[lxxix]

Coroner: Mr. Hamilton, is there a right to equality before the law?

Mr. Hamilton: [Yes.] It may be esteemed the basis of the Union that “the citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States.”[lxxx] And if it be a just principle that every government ought to possess the means of executing its own provisions by its own authority it will follow that in order to the inviolable maintenance of that equality of privileges and immunities to which the citizens of the Union will be entitled, the national judiciary ought to preside in all cases in which one State or its citizens are opposed to another State or its citizens. To secure the full effect of so fundamental a provision against all evasion and subterfuge, it is necessary that its construction should be committed to that tribunal which, having no local attachments, will be likely to be impartial between the different States and their citizens and which, owing its official existence to the Union, will never be likely to feel any bias inauspicious to the principles on which it is founded.[lxxxi]

Coroner: Mr. Locke, is equality before the law a natural right?

Mr. Locke: [Yes, of course. Nature is a] state of perfect equality, where naturally there is no superiority or jurisdiction of one over another . . . .[lxxxii]

Coroner: Do you agree, Mr. Justice Blackstone?

Mr. Justice Blackstone: [Aye.][lxxxiii]

Coroner: And you Mr. Justice Story?

Mr. Justice Story: In such a government, all the citizens are equal, and ought to have the same security of a trial by jury, for all crimes and offences laid to their charge, when not holding any official character. They might, otherwise, be subject to gross political oppressions, and prosecutions, which might ruin their fortunes, or subject them to unjustifiable odium.[lxxxiv]

There is an additional consideration, which is entitled to great weight. The Constitution of the United States was designed for the common and equal benefit of all the people of the United States. The judicial power was granted for the same benign and salutary purposes. It was not to be exercised exclusively for the benefit of parties, who might be plaintiffs, and would elect the national forum; but also for the protection of defendants, who might be entitled to try their rights, or assert their privileges, before the same forum. Yet, if the construction contended for be correct, it will follow, that, as the plaintiff may always elect the state courts, the defendant may be deprived of all the security, which the Constitution intended in aid of his rights. Such a state of things can, in no respect, be considered, as giving equal rights. To obviate this difficulty, we are referred to the power, which it is admitted, congress possess to remove suits from state courts, to the national courts; and this forms the second ground, upon which the argument, we are considering, has been attempted to be sustained.[lxxxv]

[Also there is further textual evidence.] * * * “No title of nobility shall be granted by the United States; and no person, holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.” A perfect equality of rights, privileges, and rank, being contemplated by the Constitution among all citizens, there is a manifest propriety in prohibiting congress from creating any titles of nobility.[lxxxvi]

Coroner: Mr. Jefferson, what is the next part of the Declaration?

§1:111. Natural rights may not be given up or taken away—‘[Men] are endowed by their Creator with certain unalienable rights’

Mr. Jefferson: “[T]hey are endowed by their Creator with certain unalienable Rights.”

Coroner: Professor Kirk, why are the rights “unalienable”?

Professor Kirk: These rights are “unalienable” because they are man’s birthright: whoever violates them deprives man of his manhood, and with justice man may reclaim what has been snatched from him.[lxxxvii]

Coroner: Mr. Locke, may natural rights be given away?

Mr. Locke: [No.] [A C]ompact [cannot] convey [natural rights].[lxxxviii]

§1:112. Basic rights endowed—‘among these are Life, Liberty and the Pursuit of Happiness’

Coroner: What are the natural rights, Mr. Jefferson?

Mr. Jefferson: “[A]mong these are Life, Liberty and the pursuit of Happiness.”

§1:1120. Right to life

Coroner: Mr. Locke, what is meant by the right to life?

Mr. Locke: [One aspect is the right of self-defense or self-preservation.] THE state of war is a state of enmity and destruction; and therefore declaring by word or action, not a passionate and hasty, but a sedate settled design upon another man’s life, puts him in a state of war with him against whom he has declared such an intention, and so has exposed his life to the other’s power to be taken away by him, or any one that joins with him in his defence, and espouses his quarrel; it being reasonable and just, I should have a right to destroy that which threatens me with destruction; for, by the fundamental law of nature, man being to be preserved as much as possible, when all cannot be preserved, the safety of the innocent is to be preferred; and one may destroy a man who makes war upon him, or has discovered an enmity to his being, for the same reason that he may kill a wolf or a lion; because such men are not under the ties of the common law of reason, have no other rule, but that of force and violence, and so may be treated as beasts of prey, those dangerous and noxious creatures, that will be sure to destroy him whenever he falls into their power.[lxxxix]

Coroner: When you say, “state of war”, are you talking about threats of violence or an attempt at conquest?

Mr. Locke: [Both.] And hence it is, that he who attempts to get another man into his absolute power, does thereby put himself into a state of war with him; it being to be understood as a declaration of a design upon his life; for I have reason to conclude, that he who would get me into his power without my consent, would use me as he pleased when he had got me there, and destroy me too when he had a fancy to it; for no body can desire to have me in his absolute power, unless it be to compel me by force to that which is against the right of my freedom, i.e. make me a slave. To be free from such force is the only security of my preservation; and reason bids me look on him, as an enemy to my preservation, who would take away that freedom which is the fence to it; so that he who makes an attempt to enslave me, thereby puts himself into a state of war with me. He that in the state of Nature would take away the freedom that belongs to any one in that state must necessarily be supposed to have a design to take away everything else, that freedom being the foundation of all the rest; as he that in the state of society would take away the freedom belonging to those of that society or commonwealth must be supposed to design to take away from them everything else, and so be looked on as in a state of war.[xc]

Coroner: Is it legitimate self-defense to kill a thief?

Mr. Locke: [Yes. It is] lawful for a man to kill a thief, who has not in the least hurt him, nor declared any design upon his life, any farther than, by the use of force, so to get him in his power, as to take away his money, or what he pleases, from him; because using force, where he has no right, to get me into his power, let his pretence be what it will, I have no reason to suppose, that he, who would take away my liberty, would not, when he had me in his power, take away every thing else. And therefore it is lawful for me to treat him as one who has put himself into a state of war with me, i.e. kill him if I can; for to that hazard does he justly expose himself, whoever introduces a state of war, and is aggressor in it.[xci]

Coroner: Professor Kirk, is the right to life absolute?

Professor Kirk: [No.] The right to life, after all, must be limited by the necessities of society: a man who tries to deprive others of life must not expect to be spared himself, and in 1776 no one proposed to abolish capital punishment.[xcii]

Coroner: Perhaps I should have rephrased that question to have posited “innocent life”, the murderer probably having forfeited his right to life by virtue of his crime. But I see Pope Benedict XVI has now joined us from Vatican City via satellite. Your Eminence, is capital punishment a violation of natural law or church law?

His Eminence: [Yes; both types and in almost all cases. The Catechism says:]

“Assuming that the guilty party’s identity and responsibility have been fully determined, the traditional teaching of the Church does not exclude recourse to the death penalty, if this is the only possible way of effectively defending human lives against the unjust aggressor.

If, however, non-lethal means are sufficient to defend and protect people’s safety from the aggressor, authority will limit itself to such means, as these are more in keeping with the concrete conditions of the common good and more in conformity with the dignity of the human person.
Today, in fact, as a consequence of the possibilities which the state has for effectively preventing crime, by rendering one who has committed an offense incapable of doing harm—without definitively taking away from him the possibility of redeeming himself—the cases in which the execution of the offender is an absolute necessity “are very rare, if not practically non-existent.”[xciii]

Coroner: There you have it. We knew that there was worldwide interest in this Inquest. Now we have demonstrated that there is even divine, or at least apostolic interest.

§1:1121. Right to liberty

Coroner: Let’s take up the right to liberty. Mr. Locke, what is liberty?

Mr. Locke: The natural liberty of man is to be free from any superior power on earth, and not to be under the will or legislative authority of man, but to have only the law of nature for his rule. The liberty of man, in society, is to be under no other legislative power, but that established, by consent, in the commonwealth; nor under the dominion of any will, or restraint of any law, but what that legislative shall enact, according to the trust put in it. Freedom then is not what Sir Robert Filmer tells us . . . [xciv] a liberty for every one to do what he lists, to live as he pleases, and not to be tied by any laws; but freedom of men under government is, to have a standing rule to live by, common to every one of that society, and made by the legislative power erected in it; a liberty to follow my own will in all things, where the rule prescribes not; and not to be subject to the inconstant, uncertain, unknown, arbitrary will of another man; as freedom of nature is, to be under no other restraint but the law of nature.[xcv]

Coroner: How far does “liberty” extend?

Mr. Locke: But though this be a state of liberty, yet it is not a state of licence; though man in that state have an uncontroulable liberty to dispose of his person or possessions, yet he has not liberty to destroy himself, or so much as any creature in his possession, but where some nobler use than its bare preservation calls for it. 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; for men being all the workmanship of one omnipotent, and infinitely wise maker; all the servants of one sovereign master, sent into the world by his order, and about his business; they are his property, whose workmanship they are, made to last during his, not one another’s pleasure; and being furnished with like faculties, sharing all in one community of nature, there cannot be supposed any such subordination among us, that may authorize us to destroy one another, as if we were made for one another’s uses, as the inferior ranks of creatures are for our’s. Every one, as he is bound to preserve himself, and not to quit his station wilfully, so by the like reason, when his own preservation comes not in competition, ought he, as much as he can, to preserve the rest of mankind, and may not, unless it be to do justice on an offender, take away, or impair the life, or what tends to the preservation of the life, the liberty, health, limb, or goods of another.[xcvi]

Coroner: Capital punishment is proper in both the state of nature and in civil society?

Mr. Locke: [Yes.]

Coroner: My own view is utilitarian, I suppose. I have no confidence in the “justice system”. The proof of guilt would have to be certain and conclusive; and I don’t know how to establish rules for establishing that certainty.

Mr. Locke, in the state of nature, who metes out punishment for crimes?

Mr. Locke: [Everyone.] And that all men may be restrained from invading others rights, and from doing hurt to one another, and the law of nature be observed, which willeth the peace and preservation of all mankind, the execution of the law of nature is, in that state, put into every man’s hands, whereby every one has a right to punish the transgressors of that law to such a degree, as may hinder its violation; for the law of nature would, as all other laws that concern men in this world be in vain, if there were no body that in the state of nature had a power to execute that law, and thereby preserve the innocent and restrain offenders.[xcvii]

Coroner: Professor Kirk, is the right to liberty an absolute?

Professor Kirk: [Again, no.] The right to liberty, too, must depend in some degree upon circumstances: no one stands at liberty to treat his neighbors and their property however he likes; “liberty under law” was the understanding of the American leaders. As for happiness, no government can guarantee the attainment of that: all government can do is to refrain from malign or bumbling interference, or to remove large general obstacles to the “pursuit of happiness”.[xcviii]

§1:1122. Right of pursuit of happiness

Coroner: Professor Kirk, on the subject of “pursuit of happiness”, you asked, “Why “happiness” instead of Locke’s and Blackstone’s “property”? How did you answer yourself?

Professor Kirk: Presumably because it is possible to be happy without possessing property—and because the protection of property alone, tacitly excluding other benefits of a good civil social order beyond life and liberty, was not a notion especially attractive to those supporters of the Revolutionary cause who were poor in the world’s goods.[xcix]

Coroner: Mr. Locke, what rights does a man in the state of nature have in property?

Mr. Locke: Man being born, as has been proved, with a title to perfect freedom, and an uncontrouled enjoyment of all the rights and privileges of the law of nature, equally with any other man, or number of men in the world, hath by nature a power, not only to preserve his property, that is, his life, liberty and estate, against the injuries and attempts of other men; but to judge of, and punish the breaches of that law in others, as he is persuaded the offence deserves, even with death itself, in crimes where the heinousness of the fact, in his opinion, requires it.[c]

Coroner: Mr. Jefferson, does the “pursuit of happiness” include choice of vocation?

Mr. Jefferson: [Yes.] Everyone has a natural right to choose that [vocation in life] which he thinks most likely to give him comfortable subsistence.[ci]

Coroner: Let’s discuss the next part of the Declaration, which is what, Mr. Jefferson?

§1:113. Purpose of government—‘to secure these rights, Governments are instituted among men’

Mr. Jefferson: “[T]o secure these rights [of life, liberty and the pursuit of happiness], Governments are instituted among Men”.

Coroner: We’ve already touched on that subject, so let’s go on. Mr. Jefferson, please continue with the next segment of the Declaration.

§1:114. Government powers originate from consent—deriving their just powers from the consent of the governed

Mr. Jefferson: [Governments] deriv[e] their just powers from the consent of the governed”.

Coroner: Explain that clause please, Mr. Jefferson.

Mr. Jefferson: Every man, and every body of men on earth, possesses the right of self-government. They receive it with their being from the hand of nature. Individuals exercise it by their single will, collections of men by that of their majority; for the law of the majority is the natural law of every society of men. When a certain description of men are to transact together a particular business, the times and places of their meeting and separating depend on their own will; they make a part of the natural right of self-government. This, like all other natural rights, may be abridged or modified in its exercise by their own consent, or by the law of those who depute them if they meet in the right of others; but as far as it is not abridged or modified they retain it as a natural right, and may exercise them in what form they please, either exclusively by themselves, or in association with others, or by others altogether, as they shall agree.[cii]

Coroner: Professor Kirk, what is the significance of the Declarations consent language?

Professor Kirk: By “consent of the governed,” the delegates to the congress were affirming not so much a political philosopher’s theory as an experienced institutional reality. That consent, after all, obtained in England, George III notwithstanding (the Patriots holding only that the King intended to make himself a tyrant, not that he was despotic already). Through Parliament, the consent of the governed was realized; divine-right theories of kingship virtually had been abandoned, even among the High Tories, by 1776. And as for America, from the first, in corporate colonies, proprietary colonies, and royal colonies alike, colonial assemblies had fulfilled the right of the governed to be represented in government. “Consent of the governed”, therefore, did not necessarily imply firm belief in some primitive social compact, whether the type of Locke or the type of Hobbes. The image which that phrase summoned to most Americans’ minds was representative government on existing British and American models.[ciii]

With Montesquieu, the Americans thought of this form of “consent of the governed” as natural to the human condition. (For Montesquieu, either a monarchy or a republic might exist with the consent of the governed; it was a despotism that defied the principle.) Accordingly, “consent of the governed” was taken to be a part of the laws of nature, the many existing unnatural governments not withstanding.[civ]

Coroner: Thomas Hobbes has materialized in our hearing. Did you have something to add?

Mr. Hobbes: [Yes indeed. You have all these nature lovers here. I’ll say this:] Whatsoever therefore is consequent to a time of war, where every man is enemy to every man, the same consequent to the time wherein men live without other security than what their own strength and their own invention shall furnish them withal. In such condition there is no place for industry, because the fruit thereof is uncertain; and consequently no culture of the earth; no navigation, nor use of the commodities that may be imported by sea; no commodious building; no instruments of moving and removing such things as require much force; no knowledge of the face of the earth; no account of time; no arts; no letters; no society; and which is worst of all, continual fear, and danger of violent death; and the life of man, solitary, poor, nasty, brutish, and short.[cv]

Mr. Justice Blackstone: [Solitary, Poor, Nasty, Brutish & Short, LLC, Ltd. & Chartered—“Your misfortune is our delight concern.”™ They are the able and respectable, caring and sensitive solicitors for The American Spectator, I believe.]

Mr. Locke: [They may be good solicitors, Willy, but Hobbes’s absolute authoritarianism is deplorable. No sovereign is above the law.]

Coroner: Mr. Locke, is the “consent of the governed” a natural right?

Mr. Locke: [Yes.] ‘Tis true, Governments cannot be supported without great Charge, and ‘tis fit every one who enjoys his share of the Protection, should pay out of his Estate his proportion for the maintenance of it. But still it must be with his own Consent, i.e. the Consent of the Majority, giving it either by themselves, or their Representatives chosen by them. For if any one shall claim a Power to lay and levy Taxes on the People, by his own Authority, and without such consent of the People, he thereby invades the Fundamental Law of Property, and subverts the end of Government. For what property have I in that which another may by right take, when he pleases to himself?[cvi]

Coroner: Mr. Locke presages the Revolutionary War cry of “No taxation without representation.” Mr. Locke, how does a man express his consent to being governed.

Mr. Locke: Every man being, as has been shewed, naturally free, and nothing being able to put him into subjection to any earthly power, but only his own consent; it is to be considered, what shall be understood to be a sufficient declaration of a man’s consent, to make him subject to the laws of any government. There is a common distinction of an express and a tacit consent, which will concern our present case. No body doubts but an express consent, of any man entering into any society, makes him a perfect member of that society, a subject of that government. The difficulty is, what ought to be looked upon as a tacit consent, and how far it binds, i.e., how far any one shall be looked on to have consented, and thereby submitted to any government, where he has made no expressions of it at all. And to this I say, that every man, that hath any possessions, or enjoyment, of any part of the dominions of any government, doth thereby give his tacit consent, and is as far forth obliged to obedience to the laws of that government, during such enjoyment, as any one under it; whether this his possession be of land, to him and his heirs for ever, or a lodging only for a week; or whether it be barely travelling freely on the highway; and in effect, it reaches as far as the very being of any one within the territories of that government.[cvii]

Coroner: Mr. Jefferson, does the Declaration recognize the right to abolish a government?

§1:115. Right of revolution

Mr. Jefferson: [Yes, in certain circumstances as:] That whenever any Form of Government becomes destructive of these ends [viz: equality, inalienable rights of life, liberty, pursuit of happiness, consent of the governed ] 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.

Coroner: When does the right to alter or abolish arise?

Mr. Jefferson: Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shown, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.―Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States.

Coroner: Do you agree, Mr. Hamilton?

Mr. Hamilton: [Yes.] If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defence, which is paramount to all positive forms of government . . . .[cviii]

Coroner: Professor Kirk, is there any significance in the use of the word “Government” in the phrase “to throw off such Government”?

Professor Kirk: [Yes.] One needs to note . . . that the Declarations word is “government”—not “state.” Eighteenth-century writers made a clear distinction between the two. “Government” implied the temporary possessors of power and their current political policies: whenever the king dismissed his ministers and chose new ones, a new “government” was formed. “State,” on the other hand, meant what today we tend to call “society”—the established civil social order, permanent in character, with some sort of enduring constitution. The Declaration spoke of instituting “new Government,” not of overthrowing the state itself, or the social order. That is another aspect of the moderation of the American “revolutionaries”: they argued that governments might be altered or abolished, but contemplated no pulling down of fundamental institutions and ways of life. If in effect they declared a right of revolution, it was a right only to change a people’s government for the better, and not a right to hack through the roots of the permanent things in a nation.[cix]

Coroner: The right of revolution is a qualified right?

Professor Kirk: [Yes, one of prudential judgement.] The Declaration recognizes the gravity of the decision: [As Mr. Jefferson just said:] “Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shown, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed.” The tone of Hooker and Blackstone and Burke is in that sentence.[cx]

[62] Roots, p. 405 @ AFL.

[65] Roots, p. 406 @ AFL. “Tabula rasa” means “blank slate”. See

[66] Roots, p. 407 @ AFL.

[67] Id. at 408.

[68] Id.

[69] Id. at 408-409.

[71] Bergh 15:24 (1816); Real Jefferson, p. 419 @ AFL.

[72] To George Washington, Ford 3:466 (1784), Real Jefferson, p. 419 @ AFL.

[73] Ford 10:39 (1816), Real Jefferson, p. 419 @ AFL.

[74] Bergh 15:482 (1823), Real Jefferson, p. 419 @ AFL.

[75] Bergh 15:139 (1817), Real Jefferson, p. 419 @ AFL.

[76] Bergh 17:88 (1786), Real Jefferson, p. 419-20 @ AFL.

[77] Writings of Madison, Vol.. 1, 1769-1793, p. 164 @ AFL.

[78] Writings of Madison, Vol.. 3, 1816-1828, p. 179 @ AFL.

[80] U.S. Const., Art. 4, §2.

[84] Familiar Exposition §119 @ AFL.

[86] Familiar Exposition §228 @ AFL.

[87] Roots, p. 405 @ AFL.

[88] Of Civil Government §172 @

[89] Of Civil Government §16 @

[90] Of Civil Government §17 @

[91] Of Civil Government §18 @

[92] Roots, p. 405, @ AFL.

[93] Catechism of the Catholic Church, 2nd Ed., USCC Publishing Services: Washington, D.C. (2000) ¶2267 @

[94] Filmer, Sir Robert, Observations Concerning the Original of Governments (1652).

[95] Of Civil Government §22 @

[98] Roots, p. 405 @ AFL.

[99] Roots, pp. 404-405 @ AFL.

[101] Bergh 17:456 (1826), Real Jefferson, p. 560 @ AFL.

[102] Ford 5:205 (1790), Real Jefferson, p. 559-560 @ AFL.

[103] Roots, p. 409-10 @ AFL.

[104] Roots, p. 410 @ AFL.

[106] Of Civil Government §140 @

[107] Of Civil Government §119 @

[109] Roots, p.411 @ AFL.

[110] Roots, p.402 @ AFL.

Go to Part 3.

Published in: on August 20, 2013 at 3:46 pm  Leave a Comment  

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