Rediscovering the Unadulterated Constitution and its Natural Rights’ Pedigree & Related Topics

Note: For whatever reason a large portion of this has blotted out. However readers can see the whole version by going to Parts 1, 2, and 3 which are shown in the blog table of contents.

[An extract of portions of the treatise, The Kiss of Judice: The Constitution Betrayed—A Coroner’s Inquest & Report. Extract covers the relationship of the Constitution and the Declaration of Independence, the meaning of the rights specified in the Declaration, and some related matters.]

[The work is a dialogue between the Coroner and his jury on the various parts of the Constitution covered. The jury members answer the Coroner’s questions, for the most part in their own words, drawn from a variety of their written works. Occasionally (as just below with Madison) the Coroner puts words in their mouths; those “inventions” are shown in brackets in the jurors’ answers.]

Table of Contents

Section 1. Rediscovering the Unadulterated Constitution and its Natural Rights’ Pedigree

§1:10. The relationship between the Declaration of Independence and the Constitution

§1:100. ‘Need for frequent recurrence to fundamental principles . . . as a necessary safeguard to liberty’―Mr. Madison

§1:101. The Declaration is an integral part of the Constitution

§1:102. ‘[The Declaration is the] holy bond of our Union’—Mr. Jefferson

§1:103. Even the Constitution itself is subject to higher law

§1:104. The Declaration overrides the rest of the Constitution in cases of inconsistency

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

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

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

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

§1:1120. Right to life

§1:1121. Right to liberty

§1:1122. Right of pursuit of happiness

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

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

§1:115. Right of revolution

§1:116. Right of representation

Section 2: The Preamble: ‘Better recognition of popular rights than volumes of aphorisms’

§2:0. Why the Preamble? What it reveals about the Constitution

§2:00. Preamble: ‘a seamless weld’ between the Declaration and the Constitution—Dr. Eaton

§2:01. Preamble: ‘key to open the mind of the makers’―Mr. Justice Story

§2:02. The meaning of the Constitution is furnished by the evils to be cured or benefits to be obtained—Mr. Madison

§2:03. Preamble: not to be used to augment constitutional powers―Mr. Justice Story

Section 1. Rediscovering the Unadulterated Constitution and its Natural Rights’ Pedigree

* * *

§1:10. The relationship between the Declaration of Independence and the Constitution

§1:100. ‘Need for frequent recurrence to fundamental principles . . . as a necessary safeguard to liberty’―Mr. Madison

Coroner: Our next subject seems more controversial, however: “Is there any relation between the Declaration and the Constitution?” (We will get to that in a minute.) Today’s crowd of what are known as “legal positivists” would say the there is no relationship, because the Declaration is not positive law; and because the Constitution stands on its own. Let’s start with you, Mr. Madison, the Father of the Constitution. Are the positivists wrong?

Mr. Madison: [Completely dodo. The positivists disdain the higher law or natural law which is the foundation of both the Declaration and the Constitution. Justice Holmes, perhaps the father of legal positivism wrote, “The first requirement of a sound body of law,” wrote Holmes, “is that it should correspond with the actual feelings and demands of the community, whether right or wrong.”[1] As Professor Glennon wrote recently, “This insight will be anathema to continuing believers in natural law . . . .” He was right. It is anathema to all of us here, I think, though Professor Glennon calls believers in natural law, “the armchair philosophers who ‘know’ what principles must control states, whether states accept those principles or not.”[2] I certainly take issue with the rejection of natural law he advocates in the article.]

Coroner: I should like to welcome Professor Albert Alschuler to our proceedings. Professor, in a magazine article, you spoke of Oliver Wendell Holmes. What was the question and answer?

Professor Alschuler: These:

Q. In his new book, Law Without Values: The Life, Work, and Legacy of Justice Holmes,[3] Albert Alschuler, the Wilson-Dickinson Professor in the Law School, offers a fresh and controversial view of the legendary Supreme Court Justice Oliver Wendell Holmes Jr., who served on the high court from 1902 to 1932. Alschuler, one of the preeminent criminal law scholars in the United States, takes issue with the prevailing view of Holmes as a wise and benevolent giant of American jurisprudence. Alschuler grants Holmes’ extraordinary influence but argues that his legacy was mostly pernicious.

Q. What was the genesis of your negative view of Holmes?

A. When Provost Geoff Stone was Dean of the Law School he encouraged me to develop a course on 20th-century American legal theory. The more I looked into Holmes’ work and his influence on later American thinkers, the more I became convinced that his impact on law was unfortunate. There have been many recent studies of Holmes, nearly all of them adulatory. Law students are taught that Holmes led a revolt against formalism at the beginning of the 20th century. I agree that there was an intellectual revolution at that time, but it was not a revolt against formalism. It was a revolt against natural law―the long-held belief that some things could be truly right or wrong and that law was about more than satisfying the tastes and interests of particular individuals and particular groups. The older way of thinking about things has all but disappeared. Holmes and other American jurists of the late 19th and early 20th centuries, though often painted as adversaries, actually were all committed to this remarkable transformation of legal philosophy.[4]

Coroner: Thank you, Professor. Mr. Madison, is the existence of natural or higher law why so many state constitutions, including Virginia’s,[5] speak of the need for “frequent recurrence to fundamental principles”?

Mr. Madison: [Yes. Frequent recurrence ] is . . . a necessary safeguard against the danger of degeneracy, to which Republics are liable as well as other Governments, though in a less degree than others.[6]

Coroner: Disraeli said, “A precedent embalms a principle.”[7] As we shall see ahead, the Declaration was the precursor or precedent for the Constitution; thus it is embalmed in the Constitution. And frequent recurrence requires that in interpreting the Constitution, we ought recur to the Declaration.  Mr. Jefferson, what say you on “frequent recurrence?

Mr. Jefferson: [Frequent recurrence to fundamental principles is necessary to remind us and our rulers that] our rulers can have no authority over [our] natural rights, only as we have submitted to them.[8] [And t]he idea is quite unfounded that on entering into society we give up any natural right.[9]

Coroner: Mr. Jefferson, you were an educator and founder of the University of Virginia. What written works did you recommend for law students at the University?

Mr. Jefferson: [Except for The Kiss of Judice,] I think there does not exist a good elementary work on the organization of society into civil government; I mean a work which presents in one full and comprehensive view the system of principles on which such an organization should be founded, according to the rights of nature. For want of a single work of that character, I should recommend [John] Locke on government,[10] [Algernon] Sidney,[11] [Joseph] Priestley’s Essay on the First Principles of Government,[12] Chipman’s Principles of Government,[13] and The Federalist; adding, perhaps, [Cesare] Beccaria on Crimes and Punishments[14], because of the demonstrative manner in which he has treated that branch of the subject. If your views of political inquiry go further to the subjects of money and commerce, [Adam] Smith’s Wealth of Nations[15] is the best book to be read, unless [Jean Baptiste] Say’s Political Economy[16] can be had, which treats the same subjects on the same principles, but in a shorter compass and more lucid manner.[17]

Coroner: Is that a good list, Mr. Madison?

Mr. Madison: [Excellent.] It is certainly very material that the true doctrines of liberty, as exemplified in our political system, should be inculcated on those who are to sustain and may administer it. It is, at the same time, not easy to find standard books that will be both guides and guards for the purpose. Sidney and Locke are admirably calculated to impress on young minds the right of nations to establish their own Governments, and to inspire a love of free ones . . . .[18] [I would add to the list:] And on the distinctive principles of the Government of our own State, and of that of the United States, the best guides are to be found in—1. the Declaration of Independence, as the fundamental act of Union of these States. 2. The book known by the title of the Federalist, being an authority to which appeal is habitually made by all, and rarely declined or denied by any, as evidence of the general opinion of those who framed and those who accepted the Constitution of the United States on questions as to its genuine meaning. 3. The Resolutions of the General Assembly of Virginia in 1799, on the subject of the Alien and Sedition laws, which appeared to accord with the predominant sense of the people of the United States. 4. The Inaugural Speech and Farewell Address of President Washington, as conveying political lessons of peculiar value; and that in the branch of the school of law, which is to treat on the subject of Government, these shall be used as the text and documents of the school.[19] [I would, of course, also add The Kiss of Judice, as probably the most complete work on the Constitution, ever completed by an author from Ely, Minnesota, at any time after the year 2010.]

§1:101. The Declaration is an integral part of the Constitution

Coroner: Thank you. Mr. Madison, what is the relationship of the Declaration to the Constitution?

Mr. Madison: [The Declaration forms the basis of our Constitution.] What is a portion of the Declaration of Independence but a series of simple and undeniable truths or truisms? what but the same composed a great part of the declarations of rights prefixed to the State constitutions? * * *

[To expand on what I started to say earlier:] It will be remembered that a frequent recurrence to fundamental principles is solemnly enjoined by most of the State constitutions, and particularly by our own, as a necessary safeguard against the danger of degeneracy, to which Republics are liable as well as other Governments, though in a less degree than others. And a fair comparison of the political doctrines, not unfrequent at the present day, with those which characterized the epoch of our Revolution, and which form the basis of our Republican constitutions, will best determine whether the declaratory recurrence here made to those principles ought to be viewed as unreasonable and improper, or as a vigilant discharge of an important duty. The authority of constitutions over governments, and of the sovereignty of the people over constitutions, are truths which are at all times necessary to be kept in mind; and at no time, perhaps, more necessary than at present.[20]

§1:102. ‘[The Declaration is the] holy bond of our Union’—Mr. Jefferson

Coroner: Mr. Jefferson, there are “some who have attempted to criticize the text of the Declaration on the basis that its ideas were borrowed from other writers. But [you] never claimed otherwise; [you] readily acknowledged the influence on his own thinking of the many theorists he had studied up to that time.”[21]

Mr. Jefferson: [Yes.] With respect to our rights, and the acts of the British government contravening those rights, there was but one opinion on this side of the water. All American Whigs thought alike on these subjects. When forced, therefore, to resort to arms for redress, an appeal to the tribunal of the world was deemed proper for our justification. This was the object of the Declaration of Independence. Not to find out new principles or new arguments never before thought of, not merely to say things which had never been said before; but to place before mankind the common sense of the subject, in terms so plain and firm as to command their assent, and to justify ourselves in the independent stand we [were] compelled to take. Neither aiming at originality of principle or sentiment, nor yet copied from any particular and previous writing, it was intended to be an expression of the American mind, and to give to that expression the proper tone and spirit called for by the occasion. All its authority rests, then, on the harmonizing sentiments of the day, whether expressed in conversation, in letters, printed essays, or in the elementary books of public right, as Aristotle, Cicero, Locke, Sidney, etc.[22]

Coroner: How would you describe the importance of the Declaration?

Mr. Jefferson: [As I put it another time: the Declaration of Independence, is the] “holy bond of our Union.”[23]

Coroner: And as reported elsewhere: “Nearly half a century after 1776, [you] expressed to [your] old friend James Madison the hope that Americans would always remember the Declaration and cherish its ideals, ‘and it is a heavenly comfort to see that these principles are yet so strongly felt . . . . I pray God that these principles may be eternal.’”[24]

Mr. Jefferson: [Yes. That must have been shortly before my death. Did you know that John Adams also died on July 4, 1826, the 50th Anniversary of the Declaration?]

Mr. Adams: [When I was dying, I was reported to have said, “Jefferson still lives.”]

Mr. Jefferson: [Well, you were wrong; I had by then crossed the bar. And how do you know what you were reported to have said, since you died almost immediately after reportedly uttering those noble words?]

Mr. Adams: [Well, how would you know when I said what I was reported to have said moments before I died, if you were already dead?]

Mr. Jefferson: [In Heaven, we get reports. How come I haven’t seen you around?]

Mr. Adams: [Well, I’m in the Congregationalist Complex, playing shuffleboard almost every day. What part of Heaven are you in?]

Mr. Hamilton: [Jefferson’s in atheist “heaven”, which is a far different and warmer place.]

Mr. Jefferson: [Idiot. I’m located in the Deist Dormitory next to the Unitarian Valhalla. Hamilton, I’m certain, went due South, and ended up in the Eighth Circle, 10th pouch, set aside for false moneyers. There he is not too far away from his dueling opponent, Burr, who resides [P:6]↑ fixed in ice in the Ninth Circle, 2nd ring, the permanent home of traitors, the home of Ugolino who passes away eternity gnawing on the head of Ruggieri.[25]

Hamilton ended up there, mainly because his] financial system . . . had two objects. First, as a puzzle to exclude popular understanding and   inquiry. Second, as a machine for the corruption of the [congress] . . . .[26] In the bill for funding and paying these, Hamilton made no [distinction] between the original holders and the fraudulent purchasers of this paper.[27]

Mr. Hamilton: Mr. Jefferson, with very little reserve, manifests his dislike of [my] funding system generally; calling in question the expediency of funding a debt at all. Some expressions which he has dropped in my own presence (sometimes without sufficient attention to delicacy) will not permit me to doubt, on this point, representations which I have had from various respectable quarters. I do not mean that he advocates directly the undoing of what has been done; but he censures the whole, on principles, which, if they should become general, could not but end in the subversion of the system.[28]

Coroner: Mr. Jefferson, does the Declaration embody the ideas of liberty and property here expressed by you, Mr. Madison, and Mr. Locke?

Mr. Jefferson: [Yes. As I just said,] All [of the Declarations] authority rests, then, on the harmonizing sentiments of the day, whether expressed in conversation, in letters, printed essays, or in the elementary books of public right, as Aristotle, Cicero, Locke, Sidney, etc.[29]

Coroner: Mr. Hamilton, what’s your view of whether the Constitution embodies the Declaration?

Mr. Hamilton: [It does. As I said in response to The Federal Farmer’s objection to the Constitution,] the fundamental source of all your errors, sophisms, and false reasonings, is a total ignorance of the natural rights of mankind. Were you once to become acquainted with these, you could never entertain a thought, that all men are not, by nature, entitled to a parity of privileges. You would be convinced, that natural liberty is a gift of the beneficent Creator, to the whole human race; and that civil liberty is founded in that; and cannot be wrested from any people, without the most manifest violation of justice. Civil liberty is only natural liberty, modified and secured by the sanctions of civil society. It is not a thing, in its own nature, precarious and dependent on human will and caprice; but it is conformable to the constitution of man, as well as necessary to the well-being of society.[30] Here, sir, the people govern; here they act by their immediate representatives.[31] [Let me further add:] The sacred rights of mankind are not to be rummaged for among old parchments or musty records. They are written, as with a sunbeam, in the whole volume of human nature, by the hand of divinity itself, and can never be erased or obscured by mortal power.[32]

“We, the people of the United States, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.” Here is a better recognition of popular rights than volumes of those aphorisms which make the principal figure in several of our State bills of rights and which would sound much better in a treatise of ethics than in a Constitution of government.[33]

§1:103. Even the Constitution itself is subject to higher law

§1:104. The Declaration overrides the rest of the Constitution in cases of inconsistency

 Coroner: Mr. Madison, does the Declaration ever override the Constitution?

Mr. Madison: [Yes. You ask fundamentally the same question as was asked about the Federal Constitutional Convention exceeding its authority granted by the Confederation. The question was:] On what principle the Confederation, which stands in the solemn form of a compact among the States, can be superseded without the unanimous consent of the parties to it? The * * * question is answered at once by recurring to the absolute necessity of the case; 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.[34]

Coroner: At this juncture, I should like to welcome to our studio (I mean hearing), Professor Harry V. Jaffa. Harry is the Henry Salvatori Research Professor of Political Philosophy Emeritus at Claremont McKenna College and Claremont Graduate School. He is widely known for his writings on Aristotle, Shakespeare, the American Founding Fathers, Abraham Lincoln, Mark Twain, and Winston Churchill. He was the author of Barry Goldwater’s acceptance speech at the 1964 Republican National Convention.

As Lewis Lehrman once said in introducing Professor Jaffa:

“If it should be said that Abraham Lincoln was one of the framers of the post-Civil War Constitution, then it may also be said that Professor Harry V. Jaffa is Lincoln’s John Marshall. For in Jaffa’s evangelization of Lincoln one discovers not the temperament of a lawyer but of a lawgiver, not the profession of a judge, but of a prophet of first principles of jurisprudence. One need not agree with Jaffa, the philosopher and apologist of Lincoln, to declare him indispensable to the American republic. Indeed, if Harry Jaffa did not exist, I would want to invent him, if only to recover for conservatives the first principles of the American Founding—the true meaning of the Declaration of Independence. This I would do because the future of the world depends in no small measure upon the future of America—and, therefore, upon American constitutional principles.“[35]

In that introduction, Mr. Lehrman added:

“The principles laid down at the birth of the republic on July 4, 1776, are manifestly what the Framers meant to implement, since Madison himself, the Father of the Constitution, held that the Declaration was “the fundamental act of union” of the States. That is to say, it was the first lawful instrument by which to illuminate the constitutional principles of the American union. The implications of the fundamental law of the union are too often ignored by constitutional scholars who, nevertheless, cannot deny that the Declaration is placed at the head of the statutes-at-large of the United States Code, and is described therein as one of the “organic” laws of the United States.[36] Therefore, I would argue that, just as the 14th Amendment may have incorporated certain of the first ten amendments into the state constitutions, so too has the original intent of the Founders and the United States Code incorporated the Declaration of Independence into the Constitution of the United States.”[37]

Coroner: I might say that Mr. Lehrman’s remarks about incorporation of the Bill of Rights into the 14th Amendment are not presented as the last word on that subject. Ahead, we will address the issue. Professor Jaffa, we’re awfully glad to have you here.

Professor Jaffa: [Thanks, my pleasure, though what I have to say is probably redundant given that you have here—live—all my authorities: Messrs. Madison, Jefferson, and Hamilton. So having me is, as Shakespeare said “to gild refined gold, to paint the lily, to throw a perfume on the violet.”[38]]

Coroner: Professor, is the Declaration incorporated in the Constitution?

Professor Jaffa: [Yes.] Madison is explicit in the 43rd Federalist that the Convention was justified by [the Declarations] right of revolution in transcending its instructions from the congress of the Confederation. It was to be the purpose of the new government better “to secure [the Declaration’s listed] rights.” And these rights were the unalienable rights with which all men had been equally “endowed by their Creator”under “the laws of nature and of nature’s God.”[39]

Coroner: So you really go much further than “merely” saying the Declaration is part of the Constitution―you say that the Declaration even overrides the Constitution in cases of inconsistency!

Professor Jaffa: [Not my conclusion alone, but, as you just heard, that of Mr. Madison, Mr. Jefferson, as well as the Federalist.]

Coroner: Let’s hear the basis and reasoning for your assertion.

Professor Jaffa: [Their own writings and common sense. T]hese two ex-presidents and Founding Fathers concluded—and recommended to the Board of Visitors [of the University of Virginia] of which both were members and Jefferson was president—that, of the “best guides” to the principles of the constitutions, of Virginia, and of the United States, the first was the Declaration of Independence as the fundamental act of Union of these States. Let it be noted that Jefferson and Madison here refer to the Declaration, not only as the instrument by which the thirteen colonies separated themselves from Great Britain, but as the instrument by which they combined with each other to become one Union—thirteen states indeed, but thirteen states united. As the “fundamental act of Union” the Declaration was and remains the fundamental legal instrument attesting to the existence of the United States. From it all subsequent acts of the people of the United States, including the Constitution, are dated and authorized. It defines at once the legal and the moral personality of that “one People” (who are also said to be a “good people”) who separated themselves from Great Britain and became free and independent.[40]

Coroner: Does the Declaration establish the organic law of the Constitution?

Professor Jaffa: [Precisely. the Declaration] thereby also defines the source and nature of that authority which is invoked when “We, the people of the United States” ordained and established the Constitution. For the same principle of authority—that of the people—that made the independence of the states lawful, made lawful all the acts and things done subsequently in their name. This tells us why the Constitution ought to be obeyed, why we have a duty to obey it, why and in what sense it may be truly said that the voice of the people is the voice of God. For these reasons the Declaration remains the most fundamental dimension of the law of the Constitution. It is the Declaration that tells us why and in what sense the government of the people is a government of right and not merely of force. It is by virtue of the principles of the Declaration that the Constitution must be said to reject the thesis that justice is nothing but the interest of the stronger. It is by virtue of the principles of the Declaration that, in the words of Leo Strauss, “The United States of America may be said to be the only country in the world which was founded in explicit opposition to Machiavellian principles.”[41]

Coroner: I find it more that a bit peculiar that no modern authority has embraced the Federalist-Madison-Jefferson point that the Constitution is intended to fulfill the Declaration.

Professor Jaffa: [You’re not The Lone Ranger, Bucko.] One would have thought that the fact that the author of the Declaration and the Father of the Constitution—who were also the third and fourth presidents of the United States—had agreed upon the Declaration of Independence, both as the fundamental act of Union, and as guide to the principles of the Constitution, would have made this opinion canonical. Yet in all the discussion of “original intent” it has apparently not occurred to any of the luminaries of present day conservative (or of course liberal) jurisprudence even to consider it. Even in the attorney general’s Constitution Day speech of 1985, in which he declared the principles of the Declaration to be those of the Constitution, this assertion of Madison and Jefferson, which could have greatly strengthened his argument, is ignored. In truth, however, the denial of what Jefferson and Madison affirmed has been at the very core of constitutional theorizing in contemporary American conservatism. The source of this denial is not difficult to discover. It is to be found in the slavery controversy that began not long after Jefferson and Madison had passed from the scene. It is to be found in the fact that, far more prominent in shaping American conservatism—and indeed American legal thought generally—than Jefferson or Madison, has been John C. Calhoun.[42]

Coroner: What was wrong with Calhoun’s position?

Professor Jaffa: At the center of Calhoun’s constitutionalism was his doctrine of state sovereignty and state’s rights. The essence of the doctrine of state sovereignty was not more an affirmation of the legal rights and powers of the states, vis-a-vis the federal government, than a denial of “the fundamental principles of the Revolution” as Madison called them in the 39th Federalist—the doctrine of the natural rights of individuals, as the source of the authority of the state, and of civil society as such. Calhoun’s conception of sovereignty as set forth in his Disquisition on Government[43] of a right that belonged to the collective entity called the state (technically, government representing society). State sovereignty was sui generis,[44] not derived from any antecedent principle or right. Sovereignty, however, as understood in the Declaration of Independence —and in all the great documents of the Revolution—was originally, and by nature, the equal and unalienable possession of individual human beings. The original equality of all human beings was an equality of sovereignty—no man had more right to rule another than the other had to rule him. The exercise of the natural right to rule one’s self is transferred voluntarily to civil society, by virtue of that social contract by which civil society is originally constituted. In the words of the Massachusetts Bill of Rights, “The body politic is formed by a voluntary association of individuals; it is a social compact by which the whole people covenants with each citizen and each citizen with the whole people that all shall be governed by certain laws for the common good.”[45]

As noted above, James Madison repeated over and over again, that “compact is the basis of all free government,”[46] implying that the ground of all legitimate authority is a social contract based upon natural equality. The ground of all positive legal rights in civil society—above all the right to property—is the antecedent natural right, grounded in natural equality, which every human person possesses in himself. And this right is a fortiori[47] the right of each human person to possess the fruit of his labor. The aforesaid natural right or rights—to life, liberty, and property—are the ground of all authority, all sovereignty, in civil society.[48]

Coroner: Please sum up, Professor.

Professor Jaffa: Without exception the Fathers held—as the Declaration of Independence asserts—that the only legitimate purpose of government was to secure rights whose origin is antecedent to all charters or human or positive laws. These rights are grounded in “the laws of nature and of nature’s God”, and as such belong equally to all members of the human race. These rights may have been recognized in good traditions. But it is not in tradition as such that the ground of such rights is to be found.[49]

Coroner: Thank you for being here. Now I . . .

[High-pitched, Side-stage voice] [Objection. Rights are not so abstract—they arise from prescription and tradition.]

Lower, Side-stage voice: [Quite rightly, John.]

Coroner: Those voices, I think, came from two of our surprise guests, the two Johns, yelling from a dressing room. We’ll hear from them later. For now I should like to ask our next guest, Dr. William Eaton, the author of Who Killed the Constitution: The Judges v. the Law, for his thoughts on the relationship between the Declaration and the Constitution? The link seems to be most evident in the Preamble of the Constitution or the 9th Amendment.

Dr. Eaton: [Yes.] The framers of the American Constitution . . . did not repudiate the great cry of equality, or the other idealistic sentiments expressed in the Declaration of Independence. Rather, in the Preamble to the Constitution, they expressed a purpose “to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessing of Liberty to ourselves and our Posterity . . . .” Phrases such as “Justice,” “domestic Tranquility,” “general Welfare,” or “the Blessing of Liberty” can be read to express an idealism nearly as universal, and thus as imprecise, as any in the Declaration of Independence. Surely the two documents share more in spirit than many have supposed, and are not truly incompatible. They also share in practicality.[50]

Coroner: How so?

Dr. Eaton: The Declaration had emphasized ideals, but had also meticulously listed specific grievances in justifying the rupture with the mother country. The Constitution took note of ideals in its Preamble, but emphasized specifics, and the workability of institutions, in the provisions it made for government. The Preamble of the Constitution seems, in this view, to serve as a bridge between revolution and government, forging a seamless weld between the two great documents of the American Revolution.[51]

Coroner: The framers followed Mr. Locke.

Dr. Eaton: [Right.] In rejecting the prescription of Hobbes and Rousseau that all power be lodged in a sovereign lawmaking body, the framers found themselves in agreement with the thinking of the other English philosopher who had given consideration to the qualities of the social contract, John Locke. Like Rousseau and Hobbes, Locke also presupposes a state of nature, from which he proceeds to construct his social contract. Locke’s nature is characterized by “peace, good will, mutual assistance, and preservation,” in which all valuable human attributes are already possessed by the “free, sovereign” individual. This hardly describes the bloody meat eaters which our ancestors in all probability actually were.[52]

Mr. Locke: [I object. Mischaracterization of my views; I don’t believe I ever claimed that a state of nature was all goodness and light, sea shells and balloons, as the late Marquette basketball coach Al McGuire would say.]

Dr. Eaton: Nevertheless, there is an element in Locke’s view essential to the kind of government which the founders wished to create. Locke, holding that the individual derives his rights from nature, necessarily regards government as not being the source of those rights, but as fiduciary in character. The task of government is to make secure rights which already exist, not to be the bountiful dispenser of the goods of life. Government is therefore to be limited.[53]

Coroner: Mr. Justice Blackstone, what’s the source of individual rights?

Mr. Justice Blackstone: For the principal aim of society is to protect individuals in the enjoyment of those absolute rights, which were vested in them by the immutable laws of nature, but which could not be preserved in peace without that mutual assistance and intercourse, which is gained by the institution of friendly and social communities. Hence it follows, that the first and primary end of human laws is to maintain and regulate these absolute rights of individuals. Such rights as are social and relative result from, and are posterior to, the formation of states and societies; so that to maintain and regulate these, is clearly a subsequent consideration. And therefore the principal view of human laws is, or ought always to be, to explain, protect, and enforce such rights as are absolute, which in themselves are few and simple; and, then, such rights as are relative, which arising from a variety of connexions, will be far more numerous and more complicated.[54]

Mr. Jefferson: [Though I am troubled by the idea of “regulating absolute rights”, had Mr. Justice Blackstone’s views, as expressed here, prevailed in his government, we might yet be attached to England.]

Coroner: You have at times been critical of Mr. Justice Blackstone?

Mr. Jefferson: [Who, me? Not often. I did say once:] The exclusion from the courts of the malign influence of all authorities after the Georgium Sidus [King George III’s star later named Uranus] became ascendant would uncanonize Blackstone, whose book, although the most elegant and best digested of our law catalogue, has been perverted, more than all others, to the degeneracy of legal science.[55] [That was not a criticism of Justice Blackstone, as much as it was of those who misused his useful guide.]

Coroner: However, according to author Greg Bailey, you had sort of a love-hate relationship with the Justice. Here’s what Bailey says:

“Jefferson said that Blackstone and David Hume’s History of England “have done more towards the suppression of the liberties of man, than all the millions of men in arms of Bonaparte,” because both books glorified the systems Jefferson had devoted his life to fighting. Yet on two occasions Jefferson listed the Commentaries as required reading for law students.

Jefferson’s animosity toward Blackstone grew in part out of his disdain for the superficial treatment of the law. Jefferson learned law by reading Coke upon Littleton, a tedious book that lead Jefferson to write to a friend, “I do wish the Devil has old Cooke, (sic) for I am sure I never was so tired of an old dull scoundrel in my life.”

Coke, a heroic figure who as a judge defied the king in a face to face confrontation and supported Parliament over royalty, improved with age in Jefferson’s eyes. Coke was “uncouth but cunning learning” but more comprehensive than Blackstone. “A student finds there” Jefferson wrote of Blackstone, “a smattering of everything, and his indolence easily persuades him that if he understands that book, he is master of the whole body of law. The distinction between these, and those who have drawn their stores from the rich and deep mines of Coke on Littleton, (sic) seems well understood even by the unlettered common people, who apply the appellation of Blackstone lawyer to these ephemeral insects of the law.”[56]

Mr. Jefferson: [I’m truly sorry for that remark, but again you will see that I wasn’t criticizing the Justice himself, but the students.]

Mr. Justice Blackstone: [“Ephemeral insects of the law”, eh? Worse than Bonaparte? I say, what’s the meaning of this outrage? Harrumph! Arg! Brack. Fap. Kaff. Awp. Egad. Drat.]

Mr. Hamilton: [See what I mean. Jefferson can’t be trusted. He’s a four-flushing, Pecksniffian, Jacobin pontificator. He only made life miserable. And his running mate was Aaron Burr, whom you may know, did me in for good, probably at Jefferson’s direction, and almost certainly to his fondest hopes.]

Coroner: “He that wrestles with us strengthens our nerves and sharpens our skill. Our antagonist is our helper”, said Edmund Burke.[57]

Side-stage voice: [What was that?]

Mr. Hamilton: [If the Jacobin is my “helper”, then please present me a thwarter.]

Coroner: I wanted to finish with Mr. Bailey’s remarks. He says:

“Jefferson’s core disagreement with Blackstone, however, was Jefferson’s opposition to adopting English common law in America. He was not alone in this view. Many advocated adopting a civil code along ancient Roman and contemporary European lines, and saw it as a final break away from England. In the early 1800s New Jersey, Pennsylvania and Kentucky passed ‘noncitation’ statutes barring the adoption of English common law.

However, both common law and Blackstone were too pervasive to be suppressed, and the centuries of precedents embodied in the Commentaries still influence American law today. A typical example is the Illinois statute adopting common law “prior to the fourth year of James the First,” or 1607, with certain exceptions from the reigns of Elizabeth I and Henry VIII. Common law precedents can at times create problems in modern law that states have to correct by statute. The leading example is the widespread abolition by statute of the Rule in Shelley’s Case, an obscenely obscure point of law on the transfer of property originating in the 1300’s. “It is revolting,” wrote Oliver Wendell Holmes in 1897 of ancient precedents in general “to have no better reason for a rule of law than that so it was laid down in the time of Henry IV.” Revolting or not this feature remains a central part of the law and Blackstone is still the guide.

Jefferson gave up the practice of law to the Blackstone lawyers and despaired of the profession in words as true today as they were in 1810. Writing to a friend who asked his advice on his son’s career, Jefferson said “Law is quite overdone. It is fallen to the ground, and a man must have great powers to raise himself in it to either honor or profit. The mob of the profession get as little money and less respect, than they would by digging the earth.” * * *

American lawyers in the early republic relied on Blackstone as the primary and often only source of the common law. American commentaries on the Commentaries appeared, such as 1814’s Law Miscellanies by Hugh Brackenridge, called the Pennsylvania Blackstone. The Americanized versions never supplanted the original. One Commentaries trained lawyer James Kent, later a Chancellor in New York, between 1826-1830 wrote his Commentaries on American Law critical of Blackstone and substituting much Roman law and civil code in place of the traditional common law. Edward [Joseph] Story, who also learned law through reading Blackstone, became the youngest Supreme Court Justice and author of many influential law books. Blackstone was the unseen teacher for uncounted numbers of American lawyers, first among them Abraham Lincoln.”[58]

Coroner: Mr. Jefferson, you go hard on the old boy by connecting him sort of as the common denominator of all manner of legal evil. After all, according to Bailey,[59] the language of the Declaration probably came from Mr. Justice Blackstone:

“The philosophy of the Declaration of Independence asserting the “self-evident” “unalienable Rights” of people granted by “the Laws of Nature and of Nature’s God” could have come, and probably did, from Blackstone’s description of the rights of Englishmen under the British Constitution. The indictment against the Crown, the bulk of the Declaration, recites many of the absolute rights of individuals covered by Blackstone including the prohibition of taxation without consent.”[60]

Mr. Jefferson: [As I said earlier, N]either aiming at originality of principle or sentiment, nor yet copied from any particular and previous writing, [the Declaration of Independence] was intended to be an expression of the American mind, and to give to that expression the proper tone and spirit called for by the occasion. All its authority rests, then, on the harmonizing sentiments of the day, whether expressed in conversation, in letters, printed essays, or in the elementary books of public right . . . .[61]

§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.[62]

§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.[63]

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.”[64]

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.[65]

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.[66]

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.[67]

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.[68]

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.[69]

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.”[70]

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.[71]

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.[72]

3. The true foundation of republican government is in the equal right of every citizen, in his person and property and in their management.[73]

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.[74]

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.[75]

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.[76]

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.[77]

[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.[78]

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 . . . .”[79]

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.”[80] 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.[81]

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 . . . .[82]

Coroner: Do you agree, Mr. Justice Blackstone?

Mr. Justice Blackstone: [Aye.][83]

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.[84]

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.[85]

[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.[86]

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.[87]

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

Mr. Locke: [No.] [A C]ompact [cannot] convey [natural rights].[88]

§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.[89]

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.[90]

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.[91]

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.[92]

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.”[93]

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 . . . [94] 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.[95]

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.[96]

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.[97]

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”.[98]

§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.[99]

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.[100]

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.[101]

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.[102]

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.[103]

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.[104]

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.[105]

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?[106]

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.[107]

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 . . . .[108]

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.[109]

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.[110]

Coroner: Is the exercise of the right then a prudential question?

Mr. Jefferson: [Yes.]

Professor Kirk: [Yes.]

Mr. Locke: Revolutions happen not upon every little mismanagement in publick affairs. Great mistakes in the ruling part, many wrong and inconvenient Laws, and all the slips of humane frailty will be born by the People, without mutiny or murmur. But if a long train of Abuses, Prevarications, and Artifices, all tending the same way, make the design visible to the People, and they cannot but feel, what they lie under, and see, whither they are going; ’tis not to be wonder’d, that they should then rouze themselves, and endeavour to put the rule into such hands, which may secure to them the ends for which Government was at first erected; and without which, ancient Names, and specious Forms, are so far from being better, that they are much worse, than the state of Nature, or pure Anarchy; the inconveniencies being all as great and as near, but the remedy farther off and more difficult.[111]

Coroner: Mr. Hamilton, does the Constitution recognize natural rights?

Mr. Hamilton: [Yes.] Here, in strictness, the people surrender nothing, and as they retain every thing, they have no need of particular reservations. “We the people of the United States, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.” Here is a better recognition of popular rights than volumes of those aphorisms which make the principal figure in several of our state bills of rights, and which would sound much better in a treatise of ethics in a constitution of government.[112]

Mr. Jefferson: [He doesn’t really believe a word of what he just said.]

Mr. Madison: [Sage it doesn’t matter whether he believes it or not—he said it in the Federalist, which, as you remember, was a collection of written representations and assurances made to the states to induce them to ratify. The Royalist’s personal opinions are therefore irrelevant.]

Mr. Hamilton: [I’m awfully tired of having THEM around.]

In various conversations with foreigners, as well as citizens, [Jefferson] has thrown censure on my principles of government, and on my measures of administration. He has predicted that the people would not long tolerate my proceedings; and that I should not long maintain my ground. Some of those, whom he immediately and notoriously moves, have even whispered suspicions of the rectitude of my motives and conduct. In the question concerning the [National] Bank, he not only delivered an opinion in writing against its constitutionality and expediency, but he did it in a style and manner which I felt as partaking of asperity and ill humor towards me. As one of the trustees of the Sinking Fund, I have experienced, in almost every leading question, opposition from him. When any turn of things in the community has threatened either odium or embarrassment to me, he has not been able to suppress the satisfaction, which it gave him . . . .

I find a strong confirmation in the following circumstances. Freneau, the . . . printer of the “National Gazette,” who was a journeyman, with Childs & Swain, at New York, was a known Anti-Federalist. It is reduced to a certainty, that he was brought to Philadelphia by Mr. Jefferson to be the conductor of a newspaper. It is notorious that, contemporarily with the commencement of his paper, he was a clerk in the Department of State, for foreign languages. Hence a clear inference that his paper has been set on foot and is conducted, under the patronage and not against the views of Mr. Jefferson. What then is the complexion of this paper? Let any impartial man peruse all the numbers down to the present day; and I never was more mistaken if he does not pronounce that it is a paper devoted to the subversion of me and the measures in which I have had an agency; and I am little less mistaken if he do not pronounce, that it is a paper of a tendency generally unfriendly to the government of the United States.

* * * In almost all the questions, great and small, which have arisen since the first session of congress, Mr. Jefferson and Mr. Madison have been found among those who are disposed to narrow the Federal authority . . . .

In respect to our foreign politics, the views of these gentlemen are, in my judgment, equally unsound, and dangerous. They have a womanish attachment to France, and a womanish resentment against Great Britain. They would draw us into the closest embrace of the former, and involve us in all the consequences of her politics; and they would risk the peace of the country, in their endeavors to keep us at the greatest possible distance from the latter. This disposition goes to a length, particularly in Mr. Jefferson, of which, till lately, I had no adequate idea. Various circumstances prove to me that, if these gentlemen were left to pursue their own course, there would be, in less than six months, an open war between the United States and Great Britain . . . .[113]

Coroner: That’s enough. Let’s be good chums and stick to the issues, not the personalities. Mr. Justice Blackstone, do the people have the right to overthrow a government which disregards or abridges their natural liberties?

Mr. Justice Blackstone: [No.] It must be owned that Mr. Locke, and other theoretical writers, have held, that “there remains still inherent in the people a supreme power to remove or alter the legislative, when they find the legislative act contrary to the trust reposed in them; for when such trust is abused, it is thereby forfeited, and devolves to those who gave it.”[114]

But however just this conclusion may be in theory, we cannot practically adopt it, nor take any legal steps for carrying it into execution, under any dispensation of government at present actually existing. For this devolution of power, to the people at large, includes in it a dissolution of the whole form of government established by that people, reduces all the members to their original state of equality, and by annihilating the sovereign power repeals all positive laws whatsoever before enacted. No human laws will therefore suppose a case, which at once must destroy all law, and compel men to build afresh upon a new foundation; nor will they make provision for so desperate an event, as must render all legal provisions ineffectual. So long therefore as the English Constitution lasts, we may venture to affirm, that the power of parliament is absolute and without control.[115]

Mr. Locke: [Why do you call me “theoretical”? The right of revolution is very practical. Even if not exercised, the threat of it looms large in the hearts of would-be tyrants. You would leave the oppressors in power with no remedy?]

Mr. Justice Blackstone: [No. A]s to cases of ordinary public oppression, where the vitals of the Constitution are not attacked, the law hath also assigned a remedy. For, as a king cannot misuse his power, without the advice of evil counsellors, and the assistance of wicked ministers, these men may be examined and punished. The constitution has therefore provided, by means of indictments, and parliamentary impeachments, that no man shall dare to assist the crown in contradiction to the laws of the land. But it is at the same time a maxim in those laws, that the king himself can do no wrong; since it would be a great weakness and absurdity in any system of positive law, to define any possible wrong, without any possible redress.[116]

Coroner: What about when the constitution is attacked?

Mr. Locke: [(Whispering to Mr. Jefferson:) I can’t wait to hear this.]

Mr. Justice Blackstone: Indeed, it is found by experience, that whenever the unconstitutional oppressions, even of the sovereign power, advance with gigantic strides and threaten desolation to a state, mankind will not be reasoned out of the feelings of humanity; nor will sacrifice their liberty by a scrupulous adherence to those political maxims, which were originally established to preserve it. And therefore, though the positive laws are silent, experience will furnish us with a very remarkable case, wherein nature and reason prevailed.[117]

Coroner: What was that case?

Mr. Justice Blackstone: When King James the second invaded the fundamental Constitution of the realm, the convention declared an abdication, whereby the throne was rendered vacant, which induced a new settlement of the crown. And so far as this precedent leads, and no farther, we may now be allowed to lay down the law of redress against public oppression. If therefore any future prince should endeavour to subvert the constitution by breaking the original contract between king and people, should violate the fundamental laws, and should withdraw himself out of the kingdom; we are now authorized to declare that this conjunction of circumstances would amount to an situation, and the throne would be thereby vacant. But it is not for us to say, that any one, or two, of these ingredients would amount to such a situation; for there our precedent would fail us. In these therefore, or other circumstances, which a fertile imagination may furnish, since both law and history are silent, it becomes us to be silent too; leaving to future generations, whenever necessity and the safety of the whole shall require it, the exertion of those inherent (though latent) powers of society, which no climate, no time, no constitution no contract, can ever destroy or diminish.[118]

Mr. Locke: [Aha, just as I said, “no remedy.”]

Coroner: Mr. Madison, how, if at all, does the Constitution deal with the tension between stability in government and protecting individual rights?

Mr. Madison: Stability in Government is essential to national character, and to the advantages annexed to it, as well as to that repose and confidence in the minds of the people, which are among the chief blessings of civil society. An irregular and mutable legislation, is not more an evil in itself, than it is odious to the people; and it may be pronounced with assurance, that the people of this country, enlightened as they are, with regard to the nature, and interested, as the great body of them are, in the effects of good Government, will never be satisfied, till some remedy be applied to the vicissitudes and uncertainties, which characterize the State administrations.

On comparing, however, these valuable ingredients with the vital principles of liberty, we must perceive at once, the difficulty of mingling them together in their due proportions. The genius of Republican liberty, seems to demand on one side, not only that all power should be derived from the people; but, that those entrusted with it should be kept in dependence on the people, by a short duration of their appointments; and, that, even during this short period, the trust should be placed not in a few, but in a number of hands. Stability, on the contrary, requires, that the hands, in which power is lodged, should continue for a length of time, the same. A frequent change of men will result from a frequent return of electors, and a frequent change of measures, from a frequent change of men; whilst energy in Government requires not only a certain duration of power, but the execution of it by a single hand.[119]

Coroner: So the Constitution promotes kind of a “stabil-iberty”.

Mr. Madison: [Quite so, my man. Very cleaver word.]

§1:116. Right of representation

Coroner: Thank you. The last explicit right I discern in the Declaration is the right of representation, though I suppose that is in a way part of the “consent of the governed”. Mr. Jefferson, is the right of representation recognized in the Declaration?

Mr. Jefferson: [Yes. The Declaration refers to it in the body of that document.]

Coroner: I should like to introduce someone, who is a great American hero, but is not widely-recognized in the United States. Ladies and Gentlemen, I present Edmund Burke, Englishman, who in Parliament supported the colonies during their revolution from his native country. He appears along with an American Statesman, a disciple of his, John Randolph of Roanoke.

Mr. Burke: [Thank you for having me here. My heart holds great fondness for you, my former countrymen.]

Coroner: Mr. Burke’s was the voice crying out in his dressing room earlier today.

Mr. Randolph of Roanoke: Mr. Burke is “the Newton of political philosophy”.[120]

Coroner: Mr. Randolph, a Virginia congressman and senator in the early 19th Century and an “aristocratic libertarian”,[121] formed a coalition of old Republicans called the “tertium quids, meaning “a third something.”[122] The tiny group was not very influential in Mr. Randolph’s later years . . .

Mr. Randolph of Roanoke: “The little dogs and all . . . see, they bark at me.”[123]

Coroner: . . . but had a great deal of influence on later Southerners, especially John C. Calhoun. Mr. Randolph was a strict constructionist with little faith in the Constitution.

Mr. Randolph of Roanoke: I have no faith in parchment, sir, no faith in the abracadabra of the Constitution. * * * If under a power to regulate trade, you draw the last drop of blood from our veins . . . the last shilling from our pockets, what are the checks of the Constitution to us? A fig for the Constitution! When the scorpion’s sting is probing us to the quick, shall we pause to chop logic?[124]

Coroner: We’re speaking on the right of representation. Here we have the House of Representatives who derive their offices directly from the voters; and who are therefore thought to be the most representative branch of government. In England, the parallel seems to be the House of Commons? What is the purpose or role of that body, Mr. Burke?

Mr. Randolph of Roanoke: I would not live under King Numbers [meaning under a system where there were no voting qualifications]. I would not be his steward . . . .[125]

Mr. Burke: [Kind sir, the question was directed to me.] The House of Commons was supposed originally to be no part of the standing government of this country [England]. It was considered as a control, issuing immediately from the people, and speedily to be resolved into the mass from whence it arose. In this respect it was in the higher part of government what juries are in the lower. The capacity of a magistrate being transitory, and that of a citizen permanent, the [citizen] capacity it was hoped would of course preponderate in all discussions, not only between the people and the standing authority of the crown, but between the people and the fleeting authority of the House of Commons itself. It was hoped that, being of a middle nature between subject and government, they would feel with a more tender and a nearer interest everything that concerned the people, than the other remoter and more permanent parts of legislature.

Whatever alterations time and the necessary accommodation of business may have introduced, this [citizen-based characteristic] can never be sustained, unless the House of Commons shall be made to bear some stamp of the actual disposition of the people at large. It would (among public misfortunes) be an evil more natural and tolerable, that the House of Commons should be infected with every epidemical phrensy of the people, as this would indicate some consanguinity, some sympathy of nature with their constituents, than that they should in all cases be wholly untouched by the opinions and feelings of the people out of doors. By this want of sympathy they would cease to be a House of Commons. For it is not the derivation of the power of that House from the people, which makes it in a distinct sense their representative. The king is the representative of the people; so are the lords; so are the judges. They all are trustees for the people, as well as the Commons; because no power is given for the sole sake of the holder; and although government certainly is an institution of Divine authority, yet its forms, and the persons who administer it, all originate from the people.

A popular origin cannot therefore be the characteristical distinction of a popular representative. This belongs equally to all parts of government, and in all forms.

Coroner: Pray continue, Mr. Burke, with your discussion of the role of your House of Commons. I believe you described it “as a control for the people.”

Mr. Burke: The virtue, spirit, and essence of a House of Commons consists in its being the express image of the feelings of the nation. It was not instituted to be a control upon the people, as of late it has been taught, by a doctrine of the most pernicious tendency. It was designed as a control for the people. Other institutions have been formed for the purpose of checking popular excesses; and they are, I apprehend, fully adequate to their object. If not, they ought to be made so. The House of Commons, as it was never intended for the support of peace and subordination, is miserably appointed for that service; having no stronger weapon than its mace, and no better officer than its sergeant at arms, which it can command of its own proper authority. A vigilant and jealous eye over executory and judicial magistracy; an anxious care of public money; an openness, approaching towards facility, to public complaint; these seem to be the true characteristics of a House of Commons. But an addressing House of Commons, and a petitioning nation; a House of Commons full of confidence, when the nation is plunged in despair; in the utmost harmony with ministers, whom the people regard with the utmost abhorrence; who vote thanks, when the public opinion calls upon them for impeachments; who are eager to grant, when the general voice demands account; who, in all disputes between the people and administration, presume against the people; who punish their disorders, but refuse even to inquire into the provocations to them; this is an unnatural, a monstrous state of things in this constitution. Such an assembly may be a great, wise, awful senate; but it is not, to any popular purpose, a House of Commons. This change from an immediate state of procuration and delegation to a course of acting as from original power, is the way in which all the popular magistracies in the world have been perverted from their purposes. It is indeed their greatest, and sometimes their incurable, corruption. For there is a material distinction between that corruption by which particular points are carried against reason, (this is a thing which cannot be prevented by human wisdom, and is of less consequence,) and the corruption of the principle itself. For then the evil is not accidental, but settled. The distemper becomes the natural habit.[126]

Coroner: Mr. Burke, what are the duties of a political representative? I am thinking, in particular, of the practice of issuing instructions to representatives. Are those binding?

Mr. Burke: [No.] [True i]t ought to be the happiness and glory of a representative to live in the strictest union, the closest correspondence, and the most unreserved communication with his constituents. Their wishes ought to have great weight with him; their opinion, high respect; their business, unremitted attention. It is his duty to sacrifice his repose, his pleasures, his satisfactions, to theirs; and above all, ever, and in all cases, to prefer their interest to his own. But his unbiassed opinion, his mature judgment, his enlightened conscience, he ought not to sacrifice to you, to any man, or to any set of men living. These he does not derive from your pleasure; no, nor from the law and the constitution. They are a trust from Providence, for the abuse of which he is deeply answerable. Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion.

My worthy colleague says, his will ought to be subservient to yours. If that be all, the thing is innocent. If government were a matter of will upon any side, yours, without question, ought to be superior. But government and legislation are matters of reason and judgment, and not of inclination; and what sort of reason is that, in which the determination precedes the discussion; in which one set of men deliberate, and another decide; and where those who form the conclusion are perhaps three hundred miles distant from those who hear the arguments?

To deliver an opinion, is the right of all men; that of constituents is a weighty and respectable opinion, which a representative ought always to rejoice to hear; and which he ought always most seriously to consider. But authoritative instructions; mandates issued, which the member is bound blindly and implicitly to obey, to vote, and to argue for, though contrary to the clearest conviction of his judgment and conscience,―these are things utterly unknown to the laws of this land, and which arise from a fundamental mistake of the whole order and tenor of our Constitution.

Parliament is not a congress of ambassadors from different and hostile interests; which interests each must maintain, as an agent and advocate, against other agents and advocates; but parliament is a deliberative assembly of one nation, with one interest, that of the whole; where, not local purposes, not local prejudices, ought to guide, but the general good, resulting from the general reason of the whole. You choose a member indeed; but when you have chosen him, he is not member of Bristol, but he is a member of parliament. If the local constituent should have an interest, or should form an hasty opinion, evidently opposite to the real good of the rest of the community, the member for that place ought to be as far, as any other, from any endeavour to give it effect. I beg pardon for saying so much on this subject. I have been unwillingly drawn into it; but I shall ever use a respectful frankness of communication with you. Your faithful friend, your devoted servant, I shall be to the end of my life, a flatterer you do not wish for.[127]

* * *

Coroner: Thank you. Changing the subject a bit, Mr. Jefferson, what does the Declaration have to say on the matter of government power?

Mr. Jefferson: [The Declaration recognized that governments necessarily must have powers:] [A]s 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.

Coroner: Doesn’t that give rather a plenary type of authority?

Mr. Madison: [No. It says:] “to do all other Acts and Things which Independent States may of right do.”

Coroner: Meaning that all the powers granted are limited by natural law?

Mr. Madison: [Aye.]

Mr. Jefferson: [Aye.]

Mr. Hamilton: [Aye.]

Mr. Locke: [Indubitably.]

Coroner: Justice Blackstone?

Mr. Justice Blackstone: [Ex concesso.] Coroner: Agreement on all hands, Justice Story?

Mr. Justice Story: [So let it be. Unâ voce.]

Section 2: The Preamble: ‘Better recognition of popular rights than volumes of aphorisms’—Mr. Hamilton

Coroner: Now let’s move forward to our discussion of the Constitution proper, beginning with the Preamble, the preface of the Constitution that links it to the Declaration:

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.”

§2:0. Why the Preamble? What it reveals about the Constitution

§2:00. Preamble: ‘a seamless weld’ between the Declaration and the Constitution—Dr. Eaton

Coroner: In the preceding section, Professor Jaffa, relying on the authority of Messrs. Madison and Jefferson, said “[T]he Declaration remains the most fundamental dimension of the law of the Constitution.” And Dr. Eaton added, the Preamble forges “a seamless weld” between the Declaration and the Constitution. By the end of the last section, we had unanimous agreement that the Constitution embraces the great truths of the Declaration. And we even had Mr. Hamilton, the arch-Monarchist, with this strong concurrence speaking on the Preamble:

Mr. Hamilton: Here, in strictness, the people surrender nothing, and as they retain every thing, they have no need of particular reservations. “We, the people of the United States, to . . . secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.” Here is a better recognition of popular rights than volumes of those aphorisms which make the principal figure in several of our state bills of rights, and which would sound much better in a treatise of ethics in a Constitution of government.[128]

§2:01. Preamble: ‘key to open the mind of the makers’―Mr. Justice Story

Coroner: Are there other reasons why, Mr. Justice Story, it is important to understand the Preamble?

Mr. Justice Story: The importance of examining the Preamble, for the purpose of expounding the language of a statute, has been long felt, and universally conceded in all juridical discussions. It is an admitted maxim in the ordinary course of the administration of justice, that the Preamble of a statute is a key to open the mind of the makers, as to the mischiefs, which are to be remedied, and the objects, which are to be accomplished by the provisions of the statute. We find it laid down in some of our earliest authorities in the common law; and civilians are accustomed to a similar expression, cessante legis praemio, cessat et ipsa lex.[129] Probably it has a foundation in the exposition of every code of written law, from the universal principle of interpretation, that the will and intention of the legislature is to be regarded and followed. It is properly resorted to, where doubts or ambiguities arise upon the words of the enacting part; for if they are clear and unambiguous, there seems little room for interpretation, except in cases leading to an obvious absurdity, or to a direct overthrow of the intention expressed in the Preamble.[130]

Coroner: Do you agree, Mr. Madison?

§2:02. The meaning of the Constitution is furnished by the evils to be cured or benefits to be obtained—Mr. Madison

Mr. Madison: [Yes. T]he surest and most recognised evidence of the meaning of the Constitution, as of a law, is furnished by the evils which were to be cured or the benefits to be obtained; and by the immediate and long-continued application of the meaning to these ends.[131] [Those ends are recited in the Preamble.]

§2:03. Preamble: not to be used to augment constitutional powers—Mr. Justice Story

Coroner: Does the Preamble itself grant any power?

Mr. Justice Story: [No.] The Preamble never can be resorted to, to enlarge the powers confided to the general government, or any of its departments. It cannot confer any power per se; it can never amount, by implication, to an enlargement of any power expressly given. It can never be the legitimate source of any implied power, when otherwise withdrawn from the Constitution. Its true office is to expound the nature, and extent, and application of the powers actually conferred by the Constitution, and not substantively to create them.[132]

Coroner: The Preamble is an interpretive tool?

Mr. Justice Story: [Yes.] This Preamble is very important, not only as explanatory of the motives and objects of framing the Constitution; but, as affording the best key to the true interpretation thereof. For it may well be presumed, that the language used will be in conformity to the motives, which govern the parties, and the objects to be attained by the Instrument. Every provision in the instrument may therefore fairly be presumed to have reference to one or more of these objects. And consequently, if any provision is susceptible of two interpretations, that ought to be adopted, and adhered to, which best that ought to be adopted, and adhered to, which best harmonizes with the avowed intentions and objects of the authors, as gathered from their declarations in the instrument itself.[133]


[1] The Common Law (1881): “The first requirement of a sound body of law is that it should correspond with the actual feelings and demands of the community, whether right or wrong” (1938 ed., p. 41), cited at http://www.answers.com/topic/capital-punishment.

[2] Glennon, Michael J., Professor of International Law, “A Fractured Planet Needs Pragmatism”, April 23, 2003, Reprinted from International Herald Tribune @ http://dc.indymedia.org/newswire/display/66581/www.imcmalta.org.

[3] University of Chicago Press, December 2000.

[4] The University of Chicago Chronicle, March 15, 2001, Vol.. 20 No. 12 @ http://chronicle.uchicago.edu/010315/alschuler-holmes.shtml.

[5] Section 15 @ http://legis.state.va.us/laws/search/constitution.htm.

[6] Writings of Madison, Vol. 4, 1829-1836, p. 403 @ AFL.

[7] Speech, House of Commons, 22 Feb. 1848 @ http://www.bartleby.com/100/424.6.html.

[8] “Notes on Virginia ”, Bergh 2:221 (1782), Real Jefferson, p. 602 @ AFL.

[9] Bergh 15:24 (1816), Real Jefferson, p. 560 @ AFL.

[10] Of Civil Government @ http://www.constitution.org/jl/2ndtreat.htm.

[11] Discourses Concerning Government (1698) @ http://www.constitution.org/as/dcg_000.htm.

[12] See http://oll.libertyfund.org/index.php?option=com_staticxt&staticfile=show.php%3Ftitle=1767&Itemid=28.

[13] Chipman, Nathaniel, Principles of Government: A Treatise on Free Institutions Including the Constitution of the United States, http://www.amazon.com/gp/product/1146887701/ref=pd_lpo_k2_dp_sr_1?pf_rd_p=486539851&pf_rd_s=lpo-top-stripe-1&pf_rd_t=201&pf_rd_i=0807822922&pf_rd_m=ATVPDKIKX0DER&pf_rd_r=1E1E60YG7N4AZP7C6YWC.

[14] Of Crimes and Punishments (1764) @ http://www.constitution.org/cb/crim_pun.htm.

[15] An Inquiry into the Nature and Causes of the Wealth of Nations @ http://oll.libertyfund.org/index.php?option=com_staticxt&staticfile=show.php%3Ftitle=171&Itemid=28.

[16] Say, Jean-Baptiste, A Treatise On Political Economy (1803) Philadelphia, Lippincott, Grambo & Co. (1855), trans. C. R. Prinsep, ed. Clement C. Biddle, Sixth edition @ http://www.econlib.org/library/Say/sayT.html.

[17] Ford 9:71 (1807), Real Jefferson, p. 463 @ AFL.

[18] To Thomas Jefferson, Feby 8, 1825, Writings of Madison, p. 481 @ AFL.

[19] Id. at 482.

[20] Writings of Madison, Vol. 4, 1829-1836, p. 403 @ AFL.

[21] Real Jefferson, pp. 70-71 @ AFL.

[22] Bergh 16:118 (1825), Real Jefferson, p. 401 @ AFL.

[23] To Dr. James Mease (Sept. 26, 1825), Bergh 16:123, Real Jefferson, p. 72 @ AFL.

[24] To James Madison (30 Aug. 1823), Bergh 15:464, Real Jefferson, p. 72 @ AFL.

[25] HIS jaws uplifting from their fell repast,
That sinner wip’d them on the hairs o’ th’ head,
Which he behind had mangled, then began:
“Thy will obeying, I call up afresh
Sorrow past cure, which but to think of wrings
My heart, or ere I tell on’t. But if words,
That I may utter, shall prove seed to bear
Fruit of eternal infamy to him,
The traitor whom I gnaw at, thou at once
Shalt see me speak and weep. Who thou mayst be
I know not, nor how here below art come:
But Florentine thou seemest of a truth,
When I do hear thee. Know I was on earth
Count Ugolino, and th’ Archbishop he Ruggieri.

The Vision of Hell, Part 10, Canto 33. By Dante Alighieri, Illustrated by Dore, Translated By The Rev. H. F. Cary, M.A. @ http://www.gutenberg.org/dirs/8/7/8/8788/8788-h/8788-h.htm.

[26] The Anas, Bergh 1:271 (1818), Real Jefferson, p. 469 @ AFL.

[27] Id.

[28] Hamilton, Alexander, “Hamilton’s Estimate Of Jefferson ”, America, Vol. 4, p. 273 @ AFL.

[29] To Henry Lee (8 May 1825), Bergh 16:118 (1825), Real Jefferson, p. 71 @ AFL.

[30] “The Farmer Refuted,” The Revolutionary Writings of Alexander Hamilton (1775) (Indianapolis: Liberty Fund, 2008) @ http://oll.libertyfund.org/index.php?option=com_staticxt&staticfile=advanced_search.php.

[31] Remarks at the New York convention on the adoption of the federal constitution, Poughkeepsie, New York, June 27, 1788, Elliot, Jonathan, The Debates in the Several State Conventions on the Adoption of the Federal Constitution, Vol. 2, p. 348 (1836, reprinted 1937) @ AFL and @ http://www.bartleby.com/73/762.html.

[32] The Papers of Alexander Hamilton, Vol. 1, p. 12, quoted by Harry V. Jaffa, Original Intent and the Framers of the Constitution, p.35 @ AFL and at http://press-pubs.uchicago.edu/founders/documents/v1ch3s5.html.

[33] Federalist № 84 @ http://www.constitution.org/fed/federa84.htm.

[34] Federalist 43 @ http://www.constitution.org/fed/federa43.htm.

[35] “On Jaffa, Lincoln, Marshall, and Original Intent”, Forward to Original Intent and the Framers of the Constitution, p. 3 @ AFL.

[36] See http://memory.loc.gov/cgi-bin/ampage?collId=llsl&fileName=001/llsl001.db&recNum=124

[37] Id. at 4-5.

[38] From http://en.wiktionary.org/wiki/excess.

[39] Original Intent and the Framers of the Constitution, p. 16 @ AFL.

[40] Id. at 22-23, citing Writings of ]ames Madison, Hunt, ed., Vol. IX. p. 221, Jefferson’s resolutions, incorporating Madison’s suggestions, are in The Complete Jefferson, Padover, ed., p. 1112.

[41] Id. at 23, citing Leo Strauss, Thoughts on Machiavelli (1958), Midway Reprint, University of Chicago Press (1984), p. 13.

[42] Id. at 23-24 (fn. omitted).

† “Of its own kind or class”. BLD at 1286.

†† “With stronger reason”. BLD at 56.

[43] Original Intent and the Framers of the Constitution, p. 24-25 @ AFL, citing Union and Liberty: The Political Philosophy of John C. Calhoun, Liberty Classics edition, Ross M. Lence, ed., Indianapolis, Liberty Fund (1992) @ http://oll.libertyfund.org/index.php?option=com_staticxt&staticfile=show.php%3Ftitle=683&Itemid=27

[44] “Of its own kind or class”. BLD at 1286.

[45] Harry V. Jaffa, Original Intent and the Framers of the Constitution, p.24 @ AFL.

[46] Harry V. Jaffa, Original Intent and the Framers of the Constitution, p.24 @ AFL.

[47] “With stronger reason”. BLD at 56.

[48] Original Intent and the Framers of The Constitution, p. 24-25 @ AFL.

[49] Id. at 35.

[50] Who Killed The Constitution: the Judges v. the Law, p. 204 @ AFL.

[51] Id.

[52] Id. at 205.

[53] Id.

[54] Bl. Commentaries @ http://www.constitution.org/tb/tb2.htm.

[55] Bergh 13:166 (1812), Real Jefferson, p. 358 @ AFL.

[56] From http://www.earlyamerica.com/review/spring97/blackstone.html.

[57] Bartlett Familiar Quotations, 10th ed. (1919) from Reflections on the Revolution in France Vol. iii. p. 453 @ http://www.bartleby.com/100/276.34.html.

[58] http://earlyamerica.com/review/spring97/blackstone.html, “Blackstone In America: Lectures by An English Lawyer Become The Blueprint for a New Nation’s Laws and Leaders”.

[59] Id.

[60] From http://www.bigg-wither.com/content/view/16/2/.

[61] To Henry Lee (8 May 1825), Bergh 16:118-19, Real Jefferson, p. 71 @ AFL.

[62] Roots, p. 405 @ AFL.

[63] Of Civil Government §4 @ http://www.constitution.org/jl/2ndtr02.htm.

[64] Of Civil Government §5 @ http://www.constitution.org/jl/2ndtr02.htm.

[65] Roots, p. 406 @ AFL. “Tabula rasa” means “blank slate”. See http://www.bartleby.com/59/5/tabularasa.html.

[66] Roots, p. 407 @ AFL.

[67] Id. at 408.

[68] Id.

[69] Id. at 408-409.

[70] Founders’ Constitution @ http://press-pubs.uchicago.edu/founders/documents/v1ch1s3.html.

[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.

[79] Federalist 10 @ http://www.constitution.org/fed/federa10.htm.

[80] U.S. Const., Art. 4, §2.

[81] Federalist 80 @ http://www.constitution.org/fed/federa80.htm.

[82] Of Civil Government §7 @ http://www.constitution.org/jl/2ndtr02.htm.

[83] Bl. Commentaries @ http://www.constitution.org/tb/tb2.htm.

[84] Familiar Exposition §119 @ AFL.

[85] St. Commentaries §1738 @ http://www.constitution.org/js/js_33810.htm.

[86] Familiar Exposition §228 @ AFL.

[87] Roots, p. 405 @ AFL.

[88] Of Civil Government §172 @ http://www.constitution.org/jl/2ndtr15.htm.

[89] Of Civil Government §16 @ http://www.constitution.org/jl/2ndtr03.htm.

[90] Of Civil Government §17 @ http://www.constitution.org/jl/2ndtr03.htm.

[91] Of Civil Government §18 @ http://www.constitution.org/jl/2ndtr03.htm.

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

[93] Catechism of the Catholic Church, 2nd Ed., USCC Publishing Services: Washington, D.C. (2000) ¶2267 @ http://www.usccb.org/catechism/text/pt3sect2chpt2art5.shtml.

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

[95] Of Civil Government §22 @ http://www.constitution.org/jl/2ndtr04.htm.

[96] Of Civil Government §6 @ http://www.constitution.org/jl/2ndtr02.htm.

[97] Of Civil Government §7 @ http://www.constitution.org/jl/2ndtr02.htm.

[98] Roots, p. 405 @ AFL.

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

[100] Of Civil Government §87 @ http://www.constitution.org/jl/2ndtr07.htm.

[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.

[105] Leviathan, Chapter XIII @ http://www.constitution.org/th/leviatha.txt.

[106] Of Civil Government §140 @ http://www.constitution.org/jl/2ndtr11.htm.

[107] Of Civil Government §119 @ http://www.constitution.org/jl/2ndtr08.htm.

[108] Federalist 28 @ http://www.constitution.org/fed/federa28.htm.

[109] Roots, p.411 @ AFL.

[110] Roots, p.402 @ AFL.

[111] Of Civil Government §225 @ http://press-pubs.uchicago.edu/founders/documents/v1ch3s2.html.

[112] Federalist 84 @ http://www.constitution.org/fed/federa84.htm.

[113] Hamilton’s Estimate of Jefferson, Source: America, Vol. 4, p. 272. Taken from a letter dated May 26, 1792, to Colonel Edward Carrington. http://www.lexrex.com/enlightened/writings /gazette/hamjeff.htm.

[114] Bl. Commentaries @ http://www.constitution.org/tb/tb2.htm.

[115] Bl. Commentaries @ http://www.constitution.org/tb/tb2.htm.

[116] Bl. Commentaries, Founders’ Constitution @ http://press-pubs.uchicago.edu/founders/documents/v1ch3s3.html.

[117] Bl. Commentaries Founders’ Constitution @ http://press-pubs.uchicago.edu/founders/documents/v1ch3s3.htm.

[118] Bl. Commentaries, Founders’ Constitution @ http://press-pubs.uchicago.edu/founders/documents/v1ch3s3.html.

[119] Federalist 37 @ http://www.constitution.org/fed/federa37.htm.

[120] Kirk, Russell, John Randolph of Roanoke: A Study in American Politics, 4th Ed., Liberty Fund, Indianapolis (1997), JR to Haramanus Blecker, April 14, 1814, p. 35.

[121] Id. at 45, quoting Gregory, Horace, “Our Writers and the Democratic Myth”, Bookman, LXXV, 377-82.

[122] From http://en.wikipedia.org/wiki/Tertium_quids.

[123] Kirk, Russell, John Randolph of Roanoke: A Study in American Politics, 4th Ed., Liberty Fund, Indianapolis (1997) p.37, from Act III. Scene VI. King Lear. Craig, W.J., ed. (1914). The Oxford Shakespeare  @ http://www.bartleby.com/cgi-bin/texis/webinator/sitesearch?FILTER=colShakespe&query=%22The+little+dogs+and+all%22&x=10&y=7

[124] Id. at 61.

[125] Kirk, Russell, John Randolph of Roanoke: A Study in American Politics, Liberty Fund, Indianapolis (1997) p.14., spoken at the Virginia Convention, 1829.

[126] The Works of the Right Honourable Edmund Burke, London, Henry G. Bohn (1854-56), Founders’ Constitution @ http://press-pubs.uchicago.edu/founders/documents/v1ch13s6.html.

[127] Id. @ http:/press-pubs.uchicago.edu/founders/documents/v1ch13s7.html.

[128] Federalist 84 @ http://www.constitution.org/fed/federa84.htm.

[129] Cessante legis praemio, cessat et ipsa lex. The more common way of saying this seems to be Cessante ratione legis, cessat et ipsa lex = Where the reason for a law ceases, the law itself also ceases. See BLD at 207. However, that translation seems not to fit what Justice Story is saying here.

[130] St. Commentaries §459 @ http://www.constitution.org/js/js_306.htm.

[131] To Joseph C. Cabell, October 30, 1828, Writings of Madison, Vol. 3, 1816-1828, p. 655 @ AFL. Though certainly not true of the Preamble, caution is always important in any legislation for often the result of the legislation brings on a greater evil than the evil that existed before. For example, as Herbert Spenser said, “The evils of competition have all along been the stock cry of the Socialists; and the council of the Democratic Federation denounces the carrying on of exchange under ‘the control of individual greed and profit.’ My second reply is that interferences with the law of supply and demand, which a generation ago were admitted to be habitually mischievous, are now being daily made by Acts of Parliament in new fields; and that, as I shall presently show, they are in these fields increasing the evils to be cured and producing fresh ones, as of old they did in fields no longer intruded upon.” The Man versus the State (1884) @ http://www.constitution.org/hs/manvssta.htm.

[132] St. Commentaries §462 @ http://www.constitution.org/js/js_306.htm.

[133] Familiar Exposition §45 @ AFL.

[An extract of portions of the treatise, The Kiss of Judice: The Constitution Betrayed—A Coroner’s Inquest & Report. Extract covers the relationship of the Constitution and the Declaration of Independence, the meaning of the rights specified in the Declaration, and some related matters.]

[The work is a dialogue between the Coroner and his jury on the various parts of the Constitution covered. The jury members answer the Coroner’s questions, for the most part in their own words, drawn from a variety of their written works. Occasionally (as just below with Madison) the Coroner puts words in their mouths; those “inventions” are shown in brackets in the jurors’ answers.]

Table of Contents

Section 1. Rediscovering the Unadulterated Constitution and its Natural Rights’ Pedigree

§1:10. The relationship between the Declaration of Independence and the Constitution

§1:100. ‘Need for frequent recurrence to fundamental principles . . . as a necessary safeguard to liberty’―Mr. Madison

§1:101. The Declaration is an integral part of the Constitution

§1:102. ‘[The Declaration is the] holy bond of our Union’—Mr. Jefferson

§1:103. Even the Constitution itself is subject to higher law

§1:104. The Declaration overrides the rest of the Constitution in cases of inconsistency

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

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

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

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

§1:1120. Right to life

§1:1121. Right to liberty

§1:1122. Right of pursuit of happiness

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

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

§1:115. Right of revolution

§1:116. Right of representation

Section 2: The Preamble: ‘Better recognition of popular rights than volumes of aphorisms’

§2:0. Why the Preamble? What it reveals about the Constitution

§2:00. Preamble: ‘a seamless weld’ between the Declaration and the Constitution—Dr. Eaton

§2:01. Preamble: ‘key to open the mind of the makers’―Mr. Justice Story

§2:02. The meaning of the Constitution is furnished by the evils to be cured or benefits to be obtained—Mr. Madison

§2:03. Preamble: not to be used to augment constitutional powers―Mr. Justice Story

Section 1. Rediscovering the Unadulterated Constitution and its Natural Rights’ Pedigree

* * *

§1:10. The relationship between the Declaration of Independence and the Constitution

§1:100. ‘Need for frequent recurrence to fundamental principles . . . as a necessary safeguard to liberty’―Mr. Madison

Coroner: Our next subject seems more controversial, however: “Is there any relation between the Declaration and the Constitution?” (We will get to that in a minute.) Today’s crowd of what are known as “legal positivists” would say the there is no relationship, because the Declaration is not positive law; and because the Constitution stands on its own. Let’s start with you, Mr. Madison, the Father of the Constitution. Are the positivists wrong?

Mr. Madison: [Completely dodo. The positivists disdain the higher law or natural law which is the foundation of both the Declaration and the Constitution. Justice Holmes, perhaps the father of legal positivism wrote, “The first requirement of a sound body of law,” wrote Holmes, “is that it should correspond with the actual feelings and demands of the community, whether right or wrong.”[1] As Professor Glennon wrote recently, “This insight will be anathema to continuing believers in natural law . . . .” He was right. It is anathema to all of us here, I think, though Professor Glennon calls believers in natural law, “the armchair philosophers who ‘know’ what principles must control states, whether states accept those principles or not.”[2] I certainly take issue with the rejection of natural law he advocates in the article.]

Coroner: I should like to welcome Professor Albert Alschuler to our proceedings. Professor, in a magazine article, you spoke of Oliver Wendell Holmes. What was the question and answer?

Professor Alschuler: These:

Q. In his new book, Law Without Values: The Life, Work, and Legacy of Justice Holmes,[3] Albert Alschuler, the Wilson-Dickinson Professor in the Law School, offers a fresh and controversial view of the legendary Supreme Court Justice Oliver Wendell Holmes Jr., who served on the high court from 1902 to 1932. Alschuler, one of the preeminent criminal law scholars in the United States, takes issue with the prevailing view of Holmes as a wise and benevolent giant of American jurisprudence. Alschuler grants Holmes’ extraordinary influence but argues that his legacy was mostly pernicious.

Q. What was the genesis of your negative view of Holmes?

A. When Provost Geoff Stone was Dean of the Law School he encouraged me to develop a course on 20th-century American legal theory. The more I looked into Holmes’ work and his influence on later American thinkers, the more I became convinced that his impact on law was unfortunate. There have been many recent studies of Holmes, nearly all of them adulatory. Law students are taught that Holmes led a revolt against formalism at the beginning of the 20th century. I agree that there was an intellectual revolution at that time, but it was not a revolt against formalism. It was a revolt against natural law―the long-held belief that some things could be truly right or wrong and that law was about more than satisfying the tastes and interests of particular individuals and particular groups. The older way of thinking about things has all but disappeared. Holmes and other American jurists of the late 19th and early 20th centuries, though often painted as adversaries, actually were all committed to this remarkable transformation of legal philosophy.[4]

Coroner: Thank you, Professor. Mr. Madison, is the existence of natural or higher law why so many state constitutions, including Virginia’s,[5] speak of the need for “frequent recurrence to fundamental principles”?

Mr. Madison: [Yes. Frequent recurrence ] is . . . a necessary safeguard against the danger of degeneracy, to which Republics are liable as well as other Governments, though in a less degree than others.[6]

Coroner: Disraeli said, “A precedent embalms a principle.”[7] As we shall see ahead, the Declaration was the precursor or precedent for the Constitution; thus it is embalmed in the Constitution. And frequent recurrence requires that in interpreting the Constitution, we ought recur to the Declaration.  Mr. Jefferson, what say you on “frequent recurrence?

Mr. Jefferson: [Frequent recurrence to fundamental principles is necessary to remind us and our rulers that] our rulers can have no authority over [our] natural rights, only as we have submitted to them.[8] [And t]he idea is quite unfounded that on entering into society we give up any natural right.[9]

Coroner: Mr. Jefferson, you were an educator and founder of the University of Virginia. What written works did you recommend for law students at the University?

Mr. Jefferson: [Except for The Kiss of Judice,] I think there does not exist a good elementary work on the organization of society into civil government; I mean a work which presents in one full and comprehensive view the system of principles on which such an organization should be founded, according to the rights of nature. For want of a single work of that character, I should recommend [John] Locke on government,[10] [Algernon] Sidney,[11] [Joseph] Priestley’s Essay on the First Principles of Government,[12] Chipman’s Principles of Government,[13] and The Federalist; adding, perhaps, [Cesare] Beccaria on Crimes and Punishments[14], because of the demonstrative manner in which he has treated that branch of the subject. If your views of political inquiry go further to the subjects of money and commerce, [Adam] Smith’s Wealth of Nations[15] is the best book to be read, unless [Jean Baptiste] Say’s Political Economy[16] can be had, which treats the same subjects on the same principles, but in a shorter compass and more lucid manner.[17]

Coroner: Is that a good list, Mr. Madison?

Mr. Madison: [Excellent.] It is certainly very material that the true doctrines of liberty, as exemplified in our political system, should be inculcated on those who are to sustain and may administer it. It is, at the same time, not easy to find standard books that will be both guides and guards for the purpose. Sidney and Locke are admirably calculated to impress on young minds the right of nations to establish their own Governments, and to inspire a love of free ones . . . .[18] [I would add to the list:] And on the distinctive principles of the Government of our own State, and of that of the United States, the best guides are to be found in—1. the Declaration of Independence, as the fundamental act of Union of these States. 2. The book known by the title of the Federalist, being an authority to which appeal is habitually made by all, and rarely declined or denied by any, as evidence of the general opinion of those who framed and those who accepted the Constitution of the United States on questions as to its genuine meaning. 3. The Resolutions of the General Assembly of Virginia in 1799, on the subject of the Alien and Sedition laws, which appeared to accord with the predominant sense of the people of the United States. 4. The Inaugural Speech and Farewell Address of President Washington, as conveying political lessons of peculiar value; and that in the branch of the school of law, which is to treat on the subject of Government, these shall be used as the text and documents of the school.[19] [I would, of course, also add The Kiss of Judice, as probably the most complete work on the Constitution, ever completed by an author from Ely, Minnesota, at any time after the year 2010.]

§1:101. The Declaration is an integral part of the Constitution

Coroner: Thank you. Mr. Madison, what is the relationship of the Declaration to the Constitution?

Mr. Madison: [The Declaration forms the basis of our Constitution.] What is a portion of the Declaration of Independence but a series of simple and undeniable truths or truisms? what but the same composed a great part of the declarations of rights prefixed to the State constitutions? * * *

[To expand on what I started to say earlier:] It will be remembered that a frequent recurrence to fundamental principles is solemnly enjoined by most of the State constitutions, and particularly by our own, as a necessary safeguard against the danger of degeneracy, to which Republics are liable as well as other Governments, though in a less degree than others. And a fair comparison of the political doctrines, not unfrequent at the present day, with those which characterized the epoch of our Revolution, and which form the basis of our Republican constitutions, will best determine whether the declaratory recurrence here made to those principles ought to be viewed as unreasonable and improper, or as a vigilant discharge of an important duty. The authority of constitutions over governments, and of the sovereignty of the people over constitutions, are truths which are at all times necessary to be kept in mind; and at no time, perhaps, more necessary than at present.[20]

§1:102. ‘[The Declaration is the] holy bond of our Union’—Mr. Jefferson

Coroner: Mr. Jefferson, there are “some who have attempted to criticize the text of the Declaration on the basis that its ideas were borrowed from other writers. But [you] never claimed otherwise; [you] readily acknowledged the influence on his own thinking of the many theorists he had studied up to that time.”[21]

Mr. Jefferson: [Yes.] With respect to our rights, and the acts of the British government contravening those rights, there was but one opinion on this side of the water. All American Whigs thought alike on these subjects. When forced, therefore, to resort to arms for redress, an appeal to the tribunal of the world was deemed proper for our justification. This was the object of the Declaration of Independence. Not to find out new principles or new arguments never before thought of, not merely to say things which had never been said before; but to place before mankind the common sense of the subject, in terms so plain and firm as to command their assent, and to justify ourselves in the independent stand we [were] compelled to take. Neither aiming at originality of principle or sentiment, nor yet copied from any particular and previous writing, it was intended to be an expression of the American mind, and to give to that expression the proper tone and spirit called for by the occasion. All its authority rests, then, on the harmonizing sentiments of the day, whether expressed in conversation, in letters, printed essays, or in the elementary books of public right, as Aristotle, Cicero, Locke, Sidney, etc.[22]

Coroner: How would you describe the importance of the Declaration?

Mr. Jefferson: [As I put it another time: the Declaration of Independence, is the] “holy bond of our Union.”[23]

Coroner: And as reported elsewhere: “Nearly half a century after 1776, [you] expressed to [your] old friend James Madison the hope that Americans would always remember the Declaration and cherish its ideals, ‘and it is a heavenly comfort to see that these principles are yet so strongly felt . . . . I pray God that these principles may be eternal.’”[24]

Mr. Jefferson: [Yes. That must have been shortly before my death. Did you know that John Adams also died on July 4, 1826, the 50th Anniversary of the Declaration?]

Mr. Adams: [When I was dying, I was reported to have said, “Jefferson still lives.”]

Mr. Jefferson: [Well, you were wrong; I had by then crossed the bar. And how do you know what you were reported to have said, since you died almost immediately after reportedly uttering those noble words?]

Mr. Adams: [Well, how would you know when I said what I was reported to have said moments before I died, if you were already dead?]

Mr. Jefferson: [In Heaven, we get reports. How come I haven’t seen you around?]

Mr. Adams: [Well, I’m in the Congregationalist Complex, playing shuffleboard almost every day. What part of Heaven are you in?]

Mr. Hamilton: [Jefferson’s in atheist “heaven”, which is a far different and warmer place.]

Mr. Jefferson: [Idiot. I’m located in the Deist Dormitory next to the Unitarian Valhalla. Hamilton, I’m certain, went due South, and ended up in the Eighth Circle, 10th pouch, set aside for false moneyers. There he is not too far away from his dueling opponent, Burr, who resides [P:6]↑ fixed in ice in the Ninth Circle, 2nd ring, the permanent home of traitors, the home of Ugolino who passes away eternity gnawing on the head of Ruggieri.[25]

Hamilton ended up there, mainly because his] financial system . . . had two objects. First, as a puzzle to exclude popular understanding and   inquiry. Second, as a machine for the corruption of the [congress] . . . .[26] In the bill for funding and paying these, Hamilton made no [distinction] between the original holders and the fraudulent purchasers of this paper.[27]

Mr. Hamilton: Mr. Jefferson, with very little reserve, manifests his dislike of [my] funding system generally; calling in question the expediency of funding a debt at all. Some expressions which he has dropped in my own presence (sometimes without sufficient attention to delicacy) will not permit me to doubt, on this point, representations which I have had from various respectable quarters. I do not mean that he advocates directly the undoing of what has been done; but he censures the whole, on principles, which, if they should become general, could not but end in the subversion of the system.[28]

Coroner: Mr. Jefferson, does the Declaration embody the ideas of liberty and property here expressed by you, Mr. Madison, and Mr. Locke?

Mr. Jefferson: [Yes. As I just said,] All [of the Declarations] authority rests, then, on the harmonizing sentiments of the day, whether expressed in conversation, in letters, printed essays, or in the elementary books of public right, as Aristotle, Cicero, Locke, Sidney, etc.[29]

Coroner: Mr. Hamilton, what’s your view of whether the Constitution embodies the Declaration?

Mr. Hamilton: [It does. As I said in response to The Federal Farmer’s objection to the Constitution,] the fundamental source of all your errors, sophisms, and false reasonings, is a total ignorance of the natural rights of mankind. Were you once to become acquainted with these, you could never entertain a thought, that all men are not, by nature, entitled to a parity of privileges. You would be convinced, that natural liberty is a gift of the beneficent Creator, to the whole human race; and that civil liberty is founded in that; and cannot be wrested from any people, without the most manifest violation of justice. Civil liberty is only natural liberty, modified and secured by the sanctions of civil society. It is not a thing, in its own nature, precarious and dependent on human will and caprice; but it is conformable to the constitution of man, as well as necessary to the well-being of society.[30] Here, sir, the people govern; here they act by their immediate representatives.[31] [Let me further add:] The sacred rights of mankind are not to be rummaged for among old parchments or musty records. They are written, as with a sunbeam, in the whole volume of human nature, by the hand of divinity itself, and can never be erased or obscured by mortal power.[32]

“We, the people of the United States, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.” Here is a better recognition of popular rights than volumes of those aphorisms which make the principal figure in several of our State bills of rights and which would sound much better in a treatise of ethics than in a Constitution of government.[33]

§1:103. Even the Constitution itself is subject to higher law

§1:104. The Declaration overrides the rest of the Constitution in cases of inconsistency

 Coroner: Mr. Madison, does the Declaration ever override the Constitution?

Mr. Madison: [Yes. You ask fundamentally the same question as was asked about the Federal Constitutional Convention exceeding its authority granted by the Confederation. The question was:] On what principle the Confederation, which stands in the solemn form of a compact among the States, can be superseded without the unanimous consent of the parties to it? The * * * question is answered at once by recurring to the absolute necessity of the case; 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.[34]

Coroner: At this juncture, I should like to welcome to our studio (I mean hearing), Professor Harry V. Jaffa. Harry is the Henry Salvatori Research Professor of Political Philosophy Emeritus at Claremont McKenna College and Claremont Graduate School. He is widely known for his writings on Aristotle, Shakespeare, the American Founding Fathers, Abraham Lincoln, Mark Twain, and Winston Churchill. He was the author of Barry Goldwater’s acceptance speech at the 1964 Republican National Convention.

As Lewis Lehrman once said in introducing Professor Jaffa:

“If it should be said that Abraham Lincoln was one of the framers of the post-Civil War Constitution, then it may also be said that Professor Harry V. Jaffa is Lincoln’s John Marshall. For in Jaffa’s evangelization of Lincoln one discovers not the temperament of a lawyer but of a lawgiver, not the profession of a judge, but of a prophet of first principles of jurisprudence. One need not agree with Jaffa, the philosopher and apologist of Lincoln, to declare him indispensable to the American republic. Indeed, if Harry Jaffa did not exist, I would want to invent him, if only to recover for conservatives the first principles of the American Founding—the true meaning of the Declaration of Independence. This I would do because the future of the world depends in no small measure upon the future of America—and, therefore, upon American constitutional principles.“[35]

In that introduction, Mr. Lehrman added:

“The principles laid down at the birth of the republic on July 4, 1776, are manifestly what the Framers meant to implement, since Madison himself, the Father of the Constitution, held that the Declaration was “the fundamental act of union” of the States. That is to say, it was the first lawful instrument by which to illuminate the constitutional principles of the American union. The implications of the fundamental law of the union are too often ignored by constitutional scholars who, nevertheless, cannot deny that the Declaration is placed at the head of the statutes-at-large of the United States Code, and is described therein as one of the “organic” laws of the United States.[36] Therefore, I would argue that, just as the 14th Amendment may have incorporated certain of the first ten amendments into the state constitutions, so too has the original intent of the Founders and the United States Code incorporated the Declaration of Independence into the Constitution of the United States.”[37]

Coroner: I might say that Mr. Lehrman’s remarks about incorporation of the Bill of Rights into the 14th Amendment are not presented as the last word on that subject. Ahead, we will address the issue. Professor Jaffa, we’re awfully glad to have you here.

Professor Jaffa: [Thanks, my pleasure, though what I have to say is probably redundant given that you have here—live—all my authorities: Messrs. Madison, Jefferson, and Hamilton. So having me is, as Shakespeare said “to gild refined gold, to paint the lily, to throw a perfume on the violet.”[38]]

Coroner: Professor, is the Declaration incorporated in the Constitution?

Professor Jaffa: [Yes.] Madison is explicit in the 43rd Federalist that the Convention was justified by [the Declarations] right of revolution in transcending its instructions from the congress of the Confederation. It was to be the purpose of the new government better “to secure [the Declaration’s listed] rights.” And these rights were the unalienable rights with which all men had been equally “endowed by their Creator”under “the laws of nature and of nature’s God.”[39]

Coroner: So you really go much further than “merely” saying the Declaration is part of the Constitution―you say that the Declaration even overrides the Constitution in cases of inconsistency!

Professor Jaffa: [Not my conclusion alone, but, as you just heard, that of Mr. Madison, Mr. Jefferson, as well as the Federalist.]

Coroner: Let’s hear the basis and reasoning for your assertion.

Professor Jaffa: [Their own writings and common sense. T]hese two ex-presidents and Founding Fathers concluded—and recommended to the Board of Visitors [of the University of Virginia] of which both were members and Jefferson was president—that, of the “best guides” to the principles of the constitutions, of Virginia, and of the United States, the first was the Declaration of Independence as the fundamental act of Union of these States. Let it be noted that Jefferson and Madison here refer to the Declaration, not only as the instrument by which the thirteen colonies separated themselves from Great Britain, but as the instrument by which they combined with each other to become one Union—thirteen states indeed, but thirteen states united. As the “fundamental act of Union” the Declaration was and remains the fundamental legal instrument attesting to the existence of the United States. From it all subsequent acts of the people of the United States, including the Constitution, are dated and authorized. It defines at once the legal and the moral personality of that “one People” (who are also said to be a “good people”) who separated themselves from Great Britain and became free and independent.[40]

Coroner: Does the Declaration establish the organic law of the Constitution?

Professor Jaffa: [Precisely. the Declaration] thereby also defines the source and nature of that authority which is invoked when “We, the people of the United States” ordained and established the Constitution. For the same principle of authority—that of the people—that made the independence of the states lawful, made lawful all the acts and things done subsequently in their name. This tells us why the Constitution ought to be obeyed, why we have a duty to obey it, why and in what sense it may be truly said that the voice of the people is the voice of God. For these reasons the Declaration remains the most fundamental dimension of the law of the Constitution. It is the Declaration that tells us why and in what sense the government of the people is a government of right and not merely of force. It is by virtue of the principles of the Declaration that the Constitution must be said to reject the thesis that justice is nothing but the interest of the stronger. It is by virtue of the principles of the Declaration that, in the words of Leo Strauss, “The United States of America may be said to be the only country in the world which was founded in explicit opposition to Machiavellian principles.”[41]

Coroner: I find it more that a bit peculiar that no modern authority has embraced the Federalist-Madison-Jefferson point that the Constitution is intended to fulfill the Declaration.

Professor Jaffa: [You’re not The Lone Ranger, Bucko.] One would have thought that the fact that the author of the Declaration and the Father of the Constitution—who were also the third and fourth presidents of the United States—had agreed upon the Declaration of Independence, both as the fundamental act of Union, and as guide to the principles of the Constitution, would have made this opinion canonical. Yet in all the discussion of “original intent” it has apparently not occurred to any of the luminaries of present day conservative (or of course liberal) jurisprudence even to consider it. Even in the attorney general’s Constitution Day speech of 1985, in which he declared the principles of the Declaration to be those of the Constitution, this assertion of Madison and Jefferson, which could have greatly strengthened his argument, is ignored. In truth, however, the denial of what Jefferson and Madison affirmed has been at the very core of constitutional theorizing in contemporary American conservatism. The source of this denial is not difficult to discover. It is to be found in the slavery controversy that began not long after Jefferson and Madison had passed from the scene. It is to be found in the fact that, far more prominent in shaping American conservatism—and indeed American legal thought generally—than Jefferson or Madison, has been John C. Calhoun.[42]

Coroner: What was wrong with Calhoun’s position?

Professor Jaffa: At the center of Calhoun’s constitutionalism was his doctrine of state sovereignty and state’s rights. The essence of the doctrine of state sovereignty was not more an affirmation of the legal rights and powers of the states, vis-a-vis the federal government, than a denial of “the fundamental principles of the Revolution” as Madison called them in the 39th Federalist—the doctrine of the natural rights of individuals, as the source of the authority of the state, and of civil society as such. Calhoun’s conception of sovereignty as set forth in his Disquisition on Government[43] of a right that belonged to the collective entity called the state (technically, government representing society). State sovereignty was sui generis,[44] not derived from any antecedent principle or right. Sovereignty, however, as understood in the Declaration of Independence —and in all the great documents of the Revolution—was originally, and by nature, the equal and unalienable possession of individual human beings. The original equality of all human beings was an equality of sovereignty—no man had more right to rule another than the other had to rule him. The exercise of the natural right to rule one’s self is transferred voluntarily to civil society, by virtue of that social contract by which civil society is originally constituted. In the words of the Massachusetts Bill of Rights, “The body politic is formed by a voluntary association of individuals; it is a social compact by which the whole people covenants with each citizen and each citizen with the whole people that all shall be governed by certain laws for the common good.”[45]

As noted above, James Madison repeated over and over again, that “compact is the basis of all free government,”[46] implying that the ground of all legitimate authority is a social contract based upon natural equality. The ground of all positive legal rights in civil society—above all the right to property—is the antecedent natural right, grounded in natural equality, which every human person possesses in himself. And this right is a fortiori[47] the right of each human person to possess the fruit of his labor. The aforesaid natural right or rights—to life, liberty, and property—are the ground of all authority, all sovereignty, in civil society.[48]

Coroner: Please sum up, Professor.

Professor Jaffa: Without exception the Fathers held—as the Declaration of Independence asserts—that the only legitimate purpose of government was to secure rights whose origin is antecedent to all charters or human or positive laws. These rights are grounded in “the laws of nature and of nature’s God”, and as such belong equally to all members of the human race. These rights may have been recognized in good traditions. But it is not in tradition as such that the ground of such rights is to be found.[49]

Coroner: Thank you for being here. Now I . . .

[High-pitched, Side-stage voice] [Objection. Rights are not so abstract—they arise from prescription and tradition.]

Lower, Side-stage voice: [Quite rightly, John.]

Coroner: Those voices, I think, came from two of our surprise guests, the two Johns, yelling from a dressing room. We’ll hear from them later. For now I should like to ask our next guest, Dr. William Eaton, the author of Who Killed the Constitution: The Judges v. the Law, for his thoughts on the relationship between the Declaration and the Constitution? The link seems to be most evident in the Preamble of the Constitution or the 9th Amendment.

Dr. Eaton: [Yes.] The framers of the American Constitution . . . did not repudiate the great cry of equality, or the other idealistic sentiments expressed in the Declaration of Independence. Rather, in the Preamble to the Constitution, they expressed a purpose “to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessing of Liberty to ourselves and our Posterity . . . .” Phrases such as “Justice,” “domestic Tranquility,” “general Welfare,” or “the Blessing of Liberty” can be read to express an idealism nearly as universal, and thus as imprecise, as any in the Declaration of Independence. Surely the two documents share more in spirit than many have supposed, and are not truly incompatible. They also share in practicality.[50]

Coroner: How so?

Dr. Eaton: The Declaration had emphasized ideals, but had also meticulously listed specific grievances in justifying the rupture with the mother country. The Constitution took note of ideals in its Preamble, but emphasized specifics, and the workability of institutions, in the provisions it made for government. The Preamble of the Constitution seems, in this view, to serve as a bridge between revolution and government, forging a seamless weld between the two great documents of the American Revolution.[51]

Coroner: The framers followed Mr. Locke.

Dr. Eaton: [Right.] In rejecting the prescription of Hobbes and Rousseau that all power be lodged in a sovereign lawmaking body, the framers found themselves in agreement with the thinking of the other English philosopher who had given consideration to the qualities of the social contract, John Locke. Like Rousseau and Hobbes, Locke also presupposes a state of nature, from which he proceeds to construct his social contract. Locke’s nature is characterized by “peace, good will, mutual assistance, and preservation,” in which all valuable human attributes are already possessed by the “free, sovereign” individual. This hardly describes the bloody meat eaters which our ancestors in all probability actually were.[52]

Mr. Locke: [I object. Mischaracterization of my views; I don’t believe I ever claimed that a state of nature was all goodness and light, sea shells and balloons, as the late Marquette basketball coach Al McGuire would say.]

Dr. Eaton: Nevertheless, there is an element in Locke’s view essential to the kind of government which the founders wished to create. Locke, holding that the individual derives his rights from nature, necessarily regards government as not being the source of those rights, but as fiduciary in character. The task of government is to make secure rights which already exist, not to be the bountiful dispenser of the goods of life. Government is therefore to be limited.[53]

Coroner: Mr. Justice Blackstone, what’s the source of individual rights?

Mr. Justice Blackstone: For the principal aim of society is to protect individuals in the enjoyment of those absolute rights, which were vested in them by the immutable laws of nature, but which could not be preserved in peace without that mutual assistance and intercourse, which is gained by the institution of friendly and social communities. Hence it follows, that the first and primary end of human laws is to maintain and regulate these absolute rights of individuals. Such rights as are social and relative result from, and are posterior to, the formation of states and societies; so that to maintain and regulate these, is clearly a subsequent consideration. And therefore the principal view of human laws is, or ought always to be, to explain, protect, and enforce such rights as are absolute, which in themselves are few and simple; and, then, such rights as are relative, which arising from a variety of connexions, will be far more numerous and more complicated.[54]

Mr. Jefferson: [Though I am troubled by the idea of “regulating absolute rights”, had Mr. Justice Blackstone’s views, as expressed here, prevailed in his government, we might yet be attached to England.]

Coroner: You have at times been critical of Mr. Justice Blackstone?

Mr. Jefferson: [Who, me? Not often. I did say once:] The exclusion from the courts of the malign influence of all authorities after the Georgium Sidus [King George III’s star later named Uranus] became ascendant would uncanonize Blackstone, whose book, although the most elegant and best digested of our law catalogue, has been perverted, more than all others, to the degeneracy of legal science.[55] [That was not a criticism of Justice Blackstone, as much as it was of those who misused his useful guide.]

Coroner: However, according to author Greg Bailey, you had sort of a love-hate relationship with the Justice. Here’s what Bailey says:

“Jefferson said that Blackstone and David Hume’s History of England “have done more towards the suppression of the liberties of man, than all the millions of men in arms of Bonaparte,” because both books glorified the systems Jefferson had devoted his life to fighting. Yet on two occasions Jefferson listed the Commentaries as required reading for law students.

Jefferson’s animosity toward Blackstone grew in part out of his disdain for the superficial treatment of the law. Jefferson learned law by reading Coke upon Littleton, a tedious book that lead Jefferson to write to a friend, “I do wish the Devil has old Cooke, (sic) for I am sure I never was so tired of an old dull scoundrel in my life.”

Coke, a heroic figure who as a judge defied the king in a face to face confrontation and supported Parliament over royalty, improved with age in Jefferson’s eyes. Coke was “uncouth but cunning learning” but more comprehensive than Blackstone. “A student finds there” Jefferson wrote of Blackstone, “a smattering of everything, and his indolence easily persuades him that if he understands that book, he is master of the whole body of law. The distinction between these, and those who have drawn their stores from the rich and deep mines of Coke on Littleton, (sic) seems well understood even by the unlettered common people, who apply the appellation of Blackstone lawyer to these ephemeral insects of the law.”[56]

Mr. Jefferson: [I’m truly sorry for that remark, but again you will see that I wasn’t criticizing the Justice himself, but the students.]

Mr. Justice Blackstone: [“Ephemeral insects of the law”, eh? Worse than Bonaparte? I say, what’s the meaning of this outrage? Harrumph! Arg! Brack. Fap. Kaff. Awp. Egad. Drat.]

Mr. Hamilton: [See what I mean. Jefferson can’t be trusted. He’s a four-flushing, Pecksniffian, Jacobin pontificator. He only made life miserable. And his running mate was Aaron Burr, whom you may know, did me in for good, probably at Jefferson’s direction, and almost certainly to his fondest hopes.]

Coroner: “He that wrestles with us strengthens our nerves and sharpens our skill. Our antagonist is our helper”, said Edmund Burke.[57]

Side-stage voice: [What was that?]

Mr. Hamilton: [If the Jacobin is my “helper”, then please present me a thwarter.]

Coroner: I wanted to finish with Mr. Bailey’s remarks. He says:

“Jefferson’s core disagreement with Blackstone, however, was Jefferson’s opposition to adopting English common law in America. He was not alone in this view. Many advocated adopting a civil code along ancient Roman and contemporary European lines, and saw it as a final break away from England. In the early 1800s New Jersey, Pennsylvania and Kentucky passed ‘noncitation’ statutes barring the adoption of English common law.

However, both common law and Blackstone were too pervasive to be suppressed, and the centuries of precedents embodied in the Commentaries still influence American law today. A typical example is the Illinois statute adopting common law “prior to the fourth year of James the First,” or 1607, with certain exceptions from the reigns of Elizabeth I and Henry VIII. Common law precedents can at times create problems in modern law that states have to correct by statute. The leading example is the widespread abolition by statute of the Rule in Shelley’s Case, an obscenely obscure point of law on the transfer of property originating in the 1300’s. “It is revolting,” wrote Oliver Wendell Holmes in 1897 of ancient precedents in general “to have no better reason for a rule of law than that so it was laid down in the time of Henry IV.” Revolting or not this feature remains a central part of the law and Blackstone is still the guide.

Jefferson gave up the practice of law to the Blackstone lawyers and despaired of the profession in words as true today as they were in 1810. Writing to a friend who asked his advice on his son’s career, Jefferson said “Law is quite overdone. It is fallen to the ground, and a man must have great powers to raise himself in it to either honor or profit. The mob of the profession get as little money and less respect, than they would by digging the earth.” * * *

American lawyers in the early republic relied on Blackstone as the primary and often only source of the common law. American commentaries on the Commentaries appeared, such as 1814’s Law Miscellanies by Hugh Brackenridge, called the Pennsylvania Blackstone. The Americanized versions never supplanted the original. One Commentaries trained lawyer James Kent, later a Chancellor in New York, between 1826-1830 wrote his Commentaries on American Law critical of Blackstone and substituting much Roman law and civil code in place of the traditional common law. Edward [Joseph] Story, who also learned law through reading Blackstone, became the youngest Supreme Court Justice and author of many influential law books. Blackstone was the unseen teacher for uncounted numbers of American lawyers, first among them Abraham Lincoln.”[58]

Coroner: Mr. Jefferson, you go hard on the old boy by connecting him sort of as the common denominator of all manner of legal evil. After all, according to Bailey,[59] the language of the Declaration probably came from Mr. Justice Blackstone:

“The philosophy of the Declaration of Independence asserting the “self-evident” “unalienable Rights” of people granted by “the Laws of Nature and of Nature’s God” could have come, and probably did, from Blackstone’s description of the rights of Englishmen under the British Constitution. The indictment against the Crown, the bulk of the Declaration, recites many of the absolute rights of individuals covered by Blackstone including the prohibition of taxation without consent.”[60]

Mr. Jefferson: [As I said earlier, N]either aiming at originality of principle or sentiment, nor yet copied from any particular and previous writing, [the Declaration of Independence] was intended to be an expression of the American mind, and to give to that expression the proper tone and spirit called for by the occasion. All its authority rests, then, on the harmonizing sentiments of the day, whether expressed in conversation, in letters, printed essays, or in the elementary books of public right . . . .[61]

§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.[62]

§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.[63]

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.”[64]

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.[65]

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.[66]

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.[67]

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.[68]

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.[69]

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.”[70]

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.[71]

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.[72]

3. The true foundation of republican government is in the equal right of every citizen, in his person and property and in their management.[73]

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.[74]

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.[75]

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.[76]

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.[77]

[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.[78]

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 . . . .”[79]

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.”[80] 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.[81]

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 . . . .[82]

Coroner: Do you agree, Mr. Justice Blackstone?

Mr. Justice Blackstone: [Aye.][83]

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.[84]

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.[85]

[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.[86]

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.[87]

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

Mr. Locke: [No.] [A C]ompact [cannot] convey [natural rights].[88]

§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.[89]

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.[90]

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.[91]

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.[92]

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.”[93]

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 . . . [94] 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.[95]

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.[96]

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.[97]

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”.[98]

§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.[99]

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.[100]

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.[101]

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.[102]

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.[103]

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.[104]

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.[105]

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?[106]

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.[107]

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 . . . .[108]

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.[109]

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.[110]

Coroner: Is the exercise of the right then a prudential question?

Mr. Jefferson: [Yes.]

Professor Kirk: [Yes.]

Mr. Locke: Revolutions happen not upon every little mismanagement in publick affairs. Great mistakes in the ruling part, many wrong and inconvenient Laws, and all the slips of humane frailty will be born by the People, without mutiny or murmur. But if a long train of Abuses, Prevarications, and Artifices, all tending the same way, make the design visible to the People, and they cannot but feel, what they lie under, and see, whither they are going; ’tis not to be wonder’d, that they should then rouze themselves, and endeavour to put the rule into such hands, which may secure to them the ends for which Government was at first erected; and without which, ancient Names, and specious Forms, are so far from being better, that they are much worse, than the state of Nature, or pure Anarchy; the inconveniencies being all as great and as near, but the remedy farther off and more difficult.[111]

Coroner: Mr. Hamilton, does the Constitution recognize natural rights?

Mr. Hamilton: [Yes.] Here, in strictness, the people surrender nothing, and as they retain every thing, they have no need of particular reservations. “We the people of the United States, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.” Here is a better recognition of popular rights than volumes of those aphorisms which make the principal figure in several of our state bills of rights, and which would sound much better in a treatise of ethics in a constitution of government.[112]

Mr. Jefferson: [He doesn’t really believe a word of what he just said.]

Mr. Madison: [Sage it doesn’t matter whether he believes it or not—he said it in the Federalist, which, as you remember, was a collection of written representations and assurances made to the states to induce them to ratify. The Royalist’s personal opinions are therefore irrelevant.]

Mr. Hamilton: [I’m awfully tired of having THEM around.]

In various conversations with foreigners, as well as citizens, [Jefferson] has thrown censure on my principles of government, and on my measures of administration. He has predicted that the people would not long tolerate my proceedings; and that I should not long maintain my ground. Some of those, whom he immediately and notoriously moves, have even whispered suspicions of the rectitude of my motives and conduct. In the question concerning the [National] Bank, he not only delivered an opinion in writing against its constitutionality and expediency, but he did it in a style and manner which I felt as partaking of asperity and ill humor towards me. As one of the trustees of the Sinking Fund, I have experienced, in almost every leading question, opposition from him. When any turn of things in the community has threatened either odium or embarrassment to me, he has not been able to suppress the satisfaction, which it gave him . . . .

I find a strong confirmation in the following circumstances. Freneau, the . . . printer of the “National Gazette,” who was a journeyman, with Childs & Swain, at New York, was a known Anti-Federalist. It is reduced to a certainty, that he was brought to Philadelphia by Mr. Jefferson to be the conductor of a newspaper. It is notorious that, contemporarily with the commencement of his paper, he was a clerk in the Department of State, for foreign languages. Hence a clear inference that his paper has been set on foot and is conducted, under the patronage and not against the views of Mr. Jefferson. What then is the complexion of this paper? Let any impartial man peruse all the numbers down to the present day; and I never was more mistaken if he does not pronounce that it is a paper devoted to the subversion of me and the measures in which I have had an agency; and I am little less mistaken if he do not pronounce, that it is a paper of a tendency generally unfriendly to the government of the United States.

* * * In almost all the questions, great and small, which have arisen since the first session of congress, Mr. Jefferson and Mr. Madison have been found among those who are disposed to narrow the Federal authority . . . .

In respect to our foreign politics, the views of these gentlemen are, in my judgment, equally unsound, and dangerous. They have a womanish attachment to France, and a womanish resentment against Great Britain. They would draw us into the closest embrace of the former, and involve us in all the consequences of her politics; and they would risk the peace of the country, in their endeavors to keep us at the greatest possible distance from the latter. This disposition goes to a length, particularly in Mr. Jefferson, of which, till lately, I had no adequate idea. Various circumstances prove to me that, if these gentlemen were left to pursue their own course, there would be, in less than six months, an open war between the United States and Great Britain . . . .[113]

Coroner: That’s enough. Let’s be good chums and stick to the issues, not the personalities. Mr. Justice Blackstone, do the people have the right to overthrow a government which disregards or abridges their natural liberties?

Mr. Justice Blackstone: [No.] It must be owned that Mr. Locke, and other theoretical writers, have held, that “there remains still inherent in the people a supreme power to remove or alter the legislative, when they find the legislative act contrary to the trust reposed in them; for when such trust is abused, it is thereby forfeited, and devolves to those who gave it.”[114]

But however just this conclusion may be in theory, we cannot practically adopt it, nor take any legal steps for carrying it into execution, under any dispensation of government at present actually existing. For this devolution of power, to the people at large, includes in it a dissolution of the whole form of government established by that people, reduces all the members to their original state of equality, and by annihilating the sovereign power repeals all positive laws whatsoever before enacted. No human laws will therefore suppose a case, which at once must destroy all law, and compel men to build afresh upon a new foundation; nor will they make provision for so desperate an event, as must render all legal provisions ineffectual. So long therefore as the English Constitution lasts, we may venture to affirm, that the power of parliament is absolute and without control.[115]

Mr. Locke: [Why do you call me “theoretical”? The right of revolution is very practical. Even if not exercised, the threat of it looms large in the hearts of would-be tyrants. You would leave the oppressors in power with no remedy?]

Mr. Justice Blackstone: [No. A]s to cases of ordinary public oppression, where the vitals of the Constitution are not attacked, the law hath also assigned a remedy. For, as a king cannot misuse his power, without the advice of evil counsellors, and the assistance of wicked ministers, these men may be examined and punished. The constitution has therefore provided, by means of indictments, and parliamentary impeachments, that no man shall dare to assist the crown in contradiction to the laws of the land. But it is at the same time a maxim in those laws, that the king himself can do no wrong; since it would be a great weakness and absurdity in any system of positive law, to define any possible wrong, without any possible redress.[116]

Coroner: What about when the constitution is attacked?

Mr. Locke: [(Whispering to Mr. Jefferson:) I can’t wait to hear this.]

Mr. Justice Blackstone: Indeed, it is found by experience, that whenever the unconstitutional oppressions, even of the sovereign power, advance with gigantic strides and threaten desolation to a state, mankind will not be reasoned out of the feelings of humanity; nor will sacrifice their liberty by a scrupulous adherence to those political maxims, which were originally established to preserve it. And therefore, though the positive laws are silent, experience will furnish us with a very remarkable case, wherein nature and reason prevailed.[117]

Coroner: What was that case?

Mr. Justice Blackstone: When King James the second invaded the fundamental Constitution of the realm, the convention declared an abdication, whereby the throne was rendered vacant, which induced a new settlement of the crown. And so far as this precedent leads, and no farther, we may now be allowed to lay down the law of redress against public oppression. If therefore any future prince should endeavour to subvert the constitution by breaking the original contract between king and people, should violate the fundamental laws, and should withdraw himself out of the kingdom; we are now authorized to declare that this conjunction of circumstances would amount to an situation, and the throne would be thereby vacant. But it is not for us to say, that any one, or two, of these ingredients would amount to such a situation; for there our precedent would fail us. In these therefore, or other circumstances, which a fertile imagination may furnish, since both law and history are silent, it becomes us to be silent too; leaving to future generations, whenever necessity and the safety of the whole shall require it, the exertion of those inherent (though latent) powers of society, which no climate, no time, no constitution no contract, can ever destroy or diminish.[118]

Mr. Locke: [Aha, just as I said, “no remedy.”]

Coroner: Mr. Madison, how, if at all, does the Constitution deal with the tension between stability in government and protecting individual rights?

Mr. Madison: Stability in Government is essential to national character, and to the advantages annexed to it, as well as to that repose and confidence in the minds of the people, which are among the chief blessings of civil society. An irregular and mutable legislation, is not more an evil in itself, than it is odious to the people; and it may be pronounced with assurance, that the people of this country, enlightened as they are, with regard to the nature, and interested, as the great body of them are, in the effects of good Government, will never be satisfied, till some remedy be applied to the vicissitudes and uncertainties, which characterize the State administrations.

On comparing, however, these valuable ingredients with the vital principles of liberty, we must perceive at once, the difficulty of mingling them together in their due proportions. The genius of Republican liberty, seems to demand on one side, not only that all power should be derived from the people; but, that those entrusted with it should be kept in dependence on the people, by a short duration of their appointments; and, that, even during this short period, the trust should be placed not in a few, but in a number of hands. Stability, on the contrary, requires, that the hands, in which power is lodged, should continue for a length of time, the same. A frequent change of men will result from a frequent return of electors, and a frequent change of measures, from a frequent change of men; whilst energy in Government requires not only a certain duration of power, but the execution of it by a single hand.[119]

Coroner: So the Constitution promotes kind of a “stabil-iberty”.

Mr. Madison: [Quite so, my man. Very cleaver word.]

§1:116. Right of representation

Coroner: Thank you. The last explicit right I discern in the Declaration is the right of representation, though I suppose that is in a way part of the “consent of the governed”. Mr. Jefferson, is the right of representation recognized in the Declaration?

Mr. Jefferson: [Yes. The Declaration refers to it in the body of that document.]

Coroner: I should like to introduce someone, who is a great American hero, but is not widely-recognized in the United States. Ladies and Gentlemen, I present Edmund Burke, Englishman, who in Parliament supported the colonies during their revolution from his native country. He appears along with an American Statesman, a disciple of his, John Randolph of Roanoke.

Mr. Burke: [Thank you for having me here. My heart holds great fondness for you, my former countrymen.]

Coroner: Mr. Burke’s was the voice crying out in his dressing room earlier today.

Mr. Randolph of Roanoke: Mr. Burke is “the Newton of political philosophy”.[120]

Coroner: Mr. Randolph, a Virginia congressman and senator in the early 19th Century and an “aristocratic libertarian”,[121] formed a coalition of old Republicans called the “tertium quids, meaning “a third something.”[122] The tiny group was not very influential in Mr. Randolph’s later years . . .

Mr. Randolph of Roanoke: “The little dogs and all . . . see, they bark at me.”[123]

Coroner: . . . but had a great deal of influence on later Southerners, especially John C. Calhoun. Mr. Randolph was a strict constructionist with little faith in the Constitution.

Mr. Randolph of Roanoke: I have no faith in parchment, sir, no faith in the abracadabra of the Constitution. * * * If under a power to regulate trade, you draw the last drop of blood from our veins . . . the last shilling from our pockets, what are the checks of the Constitution to us? A fig for the Constitution! When the scorpion’s sting is probing us to the quick, shall we pause to chop logic?[124]

Coroner: We’re speaking on the right of representation. Here we have the House of Representatives who derive their offices directly from the voters; and who are therefore thought to be the most representative branch of government. In England, the parallel seems to be the House of Commons? What is the purpose or role of that body, Mr. Burke?

Mr. Randolph of Roanoke: I would not live under King Numbers [meaning under a system where there were no voting qualifications]. I would not be his steward . . . .[125]

Mr. Burke: [Kind sir, the question was directed to me.] The House of Commons was supposed originally to be no part of the standing government of this country [England]. It was considered as a control, issuing immediately from the people, and speedily to be resolved into the mass from whence it arose. In this respect it was in the higher part of government what juries are in the lower. The capacity of a magistrate being transitory, and that of a citizen permanent, the [citizen] capacity it was hoped would of course preponderate in all discussions, not only between the people and the standing authority of the crown, but between the people and the fleeting authority of the House of Commons itself. It was hoped that, being of a middle nature between subject and government, they would feel with a more tender and a nearer interest everything that concerned the people, than the other remoter and more permanent parts of legislature.

Whatever alterations time and the necessary accommodation of business may have introduced, this [citizen-based characteristic] can never be sustained, unless the House of Commons shall be made to bear some stamp of the actual disposition of the people at large. It would (among public misfortunes) be an evil more natural and tolerable, that the House of Commons should be infected with every epidemical phrensy of the people, as this would indicate some consanguinity, some sympathy of nature with their constituents, than that they should in all cases be wholly untouched by the opinions and feelings of the people out of doors. By this want of sympathy they would cease to be a House of Commons. For it is not the derivation of the power of that House from the people, which makes it in a distinct sense their representative. The king is the representative of the people; so are the lords; so are the judges. They all are trustees for the people, as well as the Commons; because no power is given for the sole sake of the holder; and although government certainly is an institution of Divine authority, yet its forms, and the persons who administer it, all originate from the people.

A popular origin cannot therefore be the characteristical distinction of a popular representative. This belongs equally to all parts of government, and in all forms.

Coroner: Pray continue, Mr. Burke, with your discussion of the role of your House of Commons. I believe you described it “as a control for the people.”

Mr. Burke: The virtue, spirit, and essence of a House of Commons consists in its being the express image of the feelings of the nation. It was not instituted to be a control upon the people, as of late it has been taught, by a doctrine of the most pernicious tendency. It was designed as a control for the people. Other institutions have been formed for the purpose of checking popular excesses; and they are, I apprehend, fully adequate to their object. If not, they ought to be made so. The House of Commons, as it was never intended for the support of peace and subordination, is miserably appointed for that service; having no stronger weapon than its mace, and no better officer than its sergeant at arms, which it can command of its own proper authority. A vigilant and jealous eye over executory and judicial magistracy; an anxious care of public money; an openness, approaching towards facility, to public complaint; these seem to be the true characteristics of a House of Commons. But an addressing House of Commons, and a petitioning nation; a House of Commons full of confidence, when the nation is plunged in despair; in the utmost harmony with ministers, whom the people regard with the utmost abhorrence; who vote thanks, when the public opinion calls upon them for impeachments; who are eager to grant, when the general voice demands account; who, in all disputes between the people and administration, presume against the people; who punish their disorders, but refuse even to inquire into the provocations to them; this is an unnatural, a monstrous state of things in this constitution. Such an assembly may be a great, wise, awful senate; but it is not, to any popular purpose, a House of Commons. This change from an immediate state of procuration and delegation to a course of acting as from original power, is the way in which all the popular magistracies in the world have been perverted from their purposes. It is indeed their greatest, and sometimes their incurable, corruption. For there is a material distinction between that corruption by which particular points are carried against reason, (this is a thing which cannot be prevented by human wisdom, and is of less consequence,) and the corruption of the principle itself. For then the evil is not accidental, but settled. The distemper becomes the natural habit.[126]

Coroner: Mr. Burke, what are the duties of a political representative? I am thinking, in particular, of the practice of issuing instructions to representatives. Are those binding?

Mr. Burke: [No.] [True i]t ought to be the happiness and glory of a representative to live in the strictest union, the closest correspondence, and the most unreserved communication with his constituents. Their wishes ought to have great weight with him; their opinion, high respect; their business, unremitted attention. It is his duty to sacrifice his repose, his pleasures, his satisfactions, to theirs; and above all, ever, and in all cases, to prefer their interest to his own. But his unbiassed opinion, his mature judgment, his enlightened conscience, he ought not to sacrifice to you, to any man, or to any set of men living. These he does not derive from your pleasure; no, nor from the law and the constitution. They are a trust from Providence, for the abuse of which he is deeply answerable. Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion.

My worthy colleague says, his will ought to be subservient to yours. If that be all, the thing is innocent. If government were a matter of will upon any side, yours, without question, ought to be superior. But government and legislation are matters of reason and judgment, and not of inclination; and what sort of reason is that, in which the determination precedes the discussion; in which one set of men deliberate, and another decide; and where those who form the conclusion are perhaps three hundred miles distant from those who hear the arguments?

To deliver an opinion, is the right of all men; that of constituents is a weighty and respectable opinion, which a representative ought always to rejoice to hear; and which he ought always most seriously to consider. But authoritative instructions; mandates issued, which the member is bound blindly and implicitly to obey, to vote, and to argue for, though contrary to the clearest conviction of his judgment and conscience,―these are things utterly unknown to the laws of this land, and which arise from a fundamental mistake of the whole order and tenor of our Constitution.

Parliament is not a congress of ambassadors from different and hostile interests; which interests each must maintain, as an agent and advocate, against other agents and advocates; but parliament is a deliberative assembly of one nation, with one interest, that of the whole; where, not local purposes, not local prejudices, ought to guide, but the general good, resulting from the general reason of the whole. You choose a member indeed; but when you have chosen him, he is not member of Bristol, but he is a member of parliament. If the local constituent should have an interest, or should form an hasty opinion, evidently opposite to the real good of the rest of the community, the member for that place ought to be as far, as any other, from any endeavour to give it effect. I beg pardon for saying so much on this subject. I have been unwillingly drawn into it; but I shall ever use a respectful frankness of communication with you. Your faithful friend, your devoted servant, I shall be to the end of my life, a flatterer you do not wish for.[127]

* * *

Coroner: Thank you. Changing the subject a bit, Mr. Jefferson, what does the Declaration have to say on the matter of government power?

Mr. Jefferson: [The Declaration recognized that governments necessarily must have powers:] [A]s 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.

Coroner: Doesn’t that give rather a plenary type of authority?

Mr. Madison: [No. It says:] “to do all other Acts and Things which Independent States may of right do.”

Coroner: Meaning that all the powers granted are limited by natural law?

Mr. Madison: [Aye.]

Mr. Jefferson: [Aye.]

Mr. Hamilton: [Aye.]

Mr. Locke: [Indubitably.]

Coroner: Justice Blackstone?

Mr. Justice Blackstone: [Ex concesso.] Coroner: Agreement on all hands, Justice Story?

Mr. Justice Story: [So let it be. Unâ voce.]

Section 2: The Preamble: ‘Better recognition of popular rights than volumes of aphorisms’—Mr. Hamilton

Coroner: Now let’s move forward to our discussion of the Constitution proper, beginning with the Preamble, the preface of the Constitution that links it to the Declaration:

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.”

§2:0. Why the Preamble? What it reveals about the Constitution

§2:00. Preamble: ‘a seamless weld’ between the Declaration and the Constitution—Dr. Eaton

Coroner: In the preceding section, Professor Jaffa, relying on the authority of Messrs. Madison and Jefferson, said “[T]he Declaration remains the most fundamental dimension of the law of the Constitution.” And Dr. Eaton added, the Preamble forges “a seamless weld” between the Declaration and the Constitution. By the end of the last section, we had unanimous agreement that the Constitution embraces the great truths of the Declaration. And we even had Mr. Hamilton, the arch-Monarchist, with this strong concurrence speaking on the Preamble:

Mr. Hamilton: Here, in strictness, the people surrender nothing, and as they retain every thing, they have no need of particular reservations. “We, the people of the United States, to . . . secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.” Here is a better recognition of popular rights than volumes of those aphorisms which make the principal figure in several of our state bills of rights, and which would sound much better in a treatise of ethics in a Constitution of government.[128]

§2:01. Preamble: ‘key to open the mind of the makers’―Mr. Justice Story

Coroner: Are there other reasons why, Mr. Justice Story, it is important to understand the Preamble?

Mr. Justice Story: The importance of examining the Preamble, for the purpose of expounding the language of a statute, has been long felt, and universally conceded in all juridical discussions. It is an admitted maxim in the ordinary course of the administration of justice, that the Preamble of a statute is a key to open the mind of the makers, as to the mischiefs, which are to be remedied, and the objects, which are to be accomplished by the provisions of the statute. We find it laid down in some of our earliest authorities in the common law; and civilians are accustomed to a similar expression, cessante legis praemio, cessat et ipsa lex.[129] Probably it has a foundation in the exposition of every code of written law, from the universal principle of interpretation, that the will and intention of the legislature is to be regarded and followed. It is properly resorted to, where doubts or ambiguities arise upon the words of the enacting part; for if they are clear and unambiguous, there seems little room for interpretation, except in cases leading to an obvious absurdity, or to a direct overthrow of the intention expressed in the Preamble.[130]

Coroner: Do you agree, Mr. Madison?

§2:02. The meaning of the Constitution is furnished by the evils to be cured or benefits to be obtained—Mr. Madison

Mr. Madison: [Yes. T]he surest and most recognised evidence of the meaning of the Constitution, as of a law, is furnished by the evils which were to be cured or the benefits to be obtained; and by the immediate and long-continued application of the meaning to these ends.[131] [Those ends are recited in the Preamble.]

§2:03. Preamble: not to be used to augment constitutional powers—Mr. Justice Story

Coroner: Does the Preamble itself grant any power?

Mr. Justice Story: [No.] The Preamble never can be resorted to, to enlarge the powers confided to the general government, or any of its departments. It cannot confer any power per se; it can never amount, by implication, to an enlargement of any power expressly given. It can never be the legitimate source of any implied power, when otherwise withdrawn from the Constitution. Its true office is to expound the nature, and extent, and application of the powers actually conferred by the Constitution, and not substantively to create them.[132]

Coroner: The Preamble is an interpretive tool?

Mr. Justice Story: [Yes.] This Preamble is very important, not only as explanatory of the motives and objects of framing the Constitution; but, as affording the best key to the true interpretation thereof. For it may well be presumed, that the language used will be in conformity to the motives, which govern the parties, and the objects to be attained by the Instrument. Every provision in the instrument may therefore fairly be presumed to have reference to one or more of these objects. And consequently, if any provision is susceptible of two interpretations, that ought to be adopted, and adhered to, which best that ought to be adopted, and adhered to, which best harmonizes with the avowed intentions and objects of the authors, as gathered from their declarations in the instrument itself.[133]


[1] The Common Law (1881): “The first requirement of a sound body of law is that it should correspond with the actual feelings and demands of the community, whether right or wrong” (1938 ed., p. 41), cited at http://www.answers.com/topic/capital-punishment.

[2] Glennon, Michael J., Professor of International Law, “A Fractured Planet Needs Pragmatism”, April 23, 2003, Reprinted from International Herald Tribune @ http://dc.indymedia.org/newswire/display/66581/www.imcmalta.org.

[3] University of Chicago Press, December 2000.

[4] The University of Chicago Chronicle, March 15, 2001, Vol.. 20 No. 12 @ http://chronicle.uchicago.edu/010315/alschuler-holmes.shtml.

[5] Section 15 @ http://legis.state.va.us/laws/search/constitution.htm.

[6] Writings of Madison, Vol. 4, 1829-1836, p. 403 @ AFL.

[7] Speech, House of Commons, 22 Feb. 1848 @ http://www.bartleby.com/100/424.6.html.

[8] “Notes on Virginia ”, Bergh 2:221 (1782), Real Jefferson, p. 602 @ AFL.

[9] Bergh 15:24 (1816), Real Jefferson, p. 560 @ AFL.

[10] Of Civil Government @ http://www.constitution.org/jl/2ndtreat.htm.

[11] Discourses Concerning Government (1698) @ http://www.constitution.org/as/dcg_000.htm.

[12] See http://oll.libertyfund.org/index.php?option=com_staticxt&staticfile=show.php%3Ftitle=1767&Itemid=28.

[13] Chipman, Nathaniel, Principles of Government: A Treatise on Free Institutions Including the Constitution of the United States, http://www.amazon.com/gp/product/1146887701/ref=pd_lpo_k2_dp_sr_1?pf_rd_p=486539851&pf_rd_s=lpo-top-stripe-1&pf_rd_t=201&pf_rd_i=0807822922&pf_rd_m=ATVPDKIKX0DER&pf_rd_r=1E1E60YG7N4AZP7C6YWC.

[14] Of Crimes and Punishments (1764) @ http://www.constitution.org/cb/crim_pun.htm.

[15] An Inquiry into the Nature and Causes of the Wealth of Nations @ http://oll.libertyfund.org/index.php?option=com_staticxt&staticfile=show.php%3Ftitle=171&Itemid=28.

[16] Say, Jean-Baptiste, A Treatise On Political Economy (1803) Philadelphia, Lippincott, Grambo & Co. (1855), trans. C. R. Prinsep, ed. Clement C. Biddle, Sixth edition @ http://www.econlib.org/library/Say/sayT.html.

[17] Ford 9:71 (1807), Real Jefferson, p. 463 @ AFL.

[18] To Thomas Jefferson, Feby 8, 1825, Writings of Madison, p. 481 @ AFL.

[19] Id. at 482.

[20] Writings of Madison, Vol. 4, 1829-1836, p. 403 @ AFL.

[21] Real Jefferson, pp. 70-71 @ AFL.

[22] Bergh 16:118 (1825), Real Jefferson, p. 401 @ AFL.

[23] To Dr. James Mease (Sept. 26, 1825), Bergh 16:123, Real Jefferson, p. 72 @ AFL.

[24] To James Madison (30 Aug. 1823), Bergh 15:464, Real Jefferson, p. 72 @ AFL.

[25] HIS jaws uplifting from their fell repast,
That sinner wip’d them on the hairs o’ th’ head,
Which he behind had mangled, then began:
“Thy will obeying, I call up afresh
Sorrow past cure, which but to think of wrings
My heart, or ere I tell on’t. But if words,
That I may utter, shall prove seed to bear
Fruit of eternal infamy to him,
The traitor whom I gnaw at, thou at once
Shalt see me speak and weep. Who thou mayst be
I know not, nor how here below art come:
But Florentine thou seemest of a truth,
When I do hear thee. Know I was on earth
Count Ugolino, and th’ Archbishop he Ruggieri.

The Vision of Hell, Part 10, Canto 33. By Dante Alighieri, Illustrated by Dore, Translated By The Rev. H. F. Cary, M.A. @ http://www.gutenberg.org/dirs/8/7/8/8788/8788-h/8788-h.htm.

[26] The Anas, Bergh 1:271 (1818), Real Jefferson, p. 469 @ AFL.

[27] Id.

[28] Hamilton, Alexander, “Hamilton’s Estimate Of Jefferson ”, America, Vol. 4, p. 273 @ AFL.

[29] To Henry Lee (8 May 1825), Bergh 16:118 (1825), Real Jefferson, p. 71 @ AFL.

[30] “The Farmer Refuted,” The Revolutionary Writings of Alexander Hamilton (1775) (Indianapolis: Liberty Fund, 2008) @ http://oll.libertyfund.org/index.php?option=com_staticxt&staticfile=advanced_search.php.

[31] Remarks at the New York convention on the adoption of the federal constitution, Poughkeepsie, New York, June 27, 1788, Elliot, Jonathan, The Debates in the Several State Conventions on the Adoption of the Federal Constitution, Vol. 2, p. 348 (1836, reprinted 1937) @ AFL and @ http://www.bartleby.com/73/762.html.

[32] The Papers of Alexander Hamilton, Vol. 1, p. 12, quoted by Harry V. Jaffa, Original Intent and the Framers of the Constitution, p.35 @ AFL and at http://press-pubs.uchicago.edu/founders/documents/v1ch3s5.html.

[33] Federalist № 84 @ http://www.constitution.org/fed/federa84.htm.

[34] Federalist 43 @ http://www.constitution.org/fed/federa43.htm.

[35] “On Jaffa, Lincoln, Marshall, and Original Intent”, Forward to Original Intent and the Framers of the Constitution, p. 3 @ AFL.

[36] See http://memory.loc.gov/cgi-bin/ampage?collId=llsl&fileName=001/llsl001.db&recNum=124

[37] Id. at 4-5.

[38] From http://en.wiktionary.org/wiki/excess.

[39] Original Intent and the Framers of the Constitution, p. 16 @ AFL.

[40] Id. at 22-23, citing Writings of ]ames Madison, Hunt, ed., Vol. IX. p. 221, Jefferson’s resolutions, incorporating Madison’s suggestions, are in The Complete Jefferson, Padover, ed., p. 1112.

[41] Id. at 23, citing Leo Strauss, Thoughts on Machiavelli (1958), Midway Reprint, University of Chicago Press (1984), p. 13.

[42] Id. at 23-24 (fn. omitted).

† “Of its own kind or class”. BLD at 1286.

†† “With stronger reason”. BLD at 56.

[43] Original Intent and the Framers of the Constitution, p. 24-25 @ AFL, citing Union and Liberty: The Political Philosophy of John C. Calhoun, Liberty Classics edition, Ross M. Lence, ed., Indianapolis, Liberty Fund (1992) @ http://oll.libertyfund.org/index.php?option=com_staticxt&staticfile=show.php%3Ftitle=683&Itemid=27

[44] “Of its own kind or class”. BLD at 1286.

[45] Harry V. Jaffa, Original Intent and the Framers of the Constitution, p.24 @ AFL.

[46] Harry V. Jaffa, Original Intent and the Framers of the Constitution, p.24 @ AFL.

[47] “With stronger reason”. BLD at 56.

[48] Original Intent and the Framers of The Constitution, p. 24-25 @ AFL.

[49] Id. at 35.

[50] Who Killed The Constitution: the Judges v. the Law, p. 204 @ AFL.

[51] Id.

[52] Id. at 205.

[53] Id.

[54] Bl. Commentaries @ http://www.constitution.org/tb/tb2.htm.

[55] Bergh 13:166 (1812), Real Jefferson, p. 358 @ AFL.

[56] From http://www.earlyamerica.com/review/spring97/blackstone.html.

[57] Bartlett Familiar Quotations, 10th ed. (1919) from Reflections on the Revolution in France Vol. iii. p. 453 @ http://www.bartleby.com/100/276.34.html.

[58] http://earlyamerica.com/review/spring97/blackstone.html, “Blackstone In America: Lectures by An English Lawyer Become The Blueprint for a New Nation’s Laws and Leaders”.

[59] Id.

[60] From http://www.bigg-wither.com/content/view/16/2/.

[61] To Henry Lee (8 May 1825), Bergh 16:118-19, Real Jefferson, p. 71 @ AFL.

[62] Roots, p. 405 @ AFL.

[63] Of Civil Government §4 @ http://www.constitution.org/jl/2ndtr02.htm.

[64] Of Civil Government §5 @ http://www.constitution.org/jl/2ndtr02.htm.

[65] Roots, p. 406 @ AFL. “Tabula rasa” means “blank slate”. See http://www.bartleby.com/59/5/tabularasa.html.

[66] Roots, p. 407 @ AFL.

[67] Id. at 408.

[68] Id.

[69] Id. at 408-409.

[70] Founders’ Constitution @ http://press-pubs.uchicago.edu/founders/documents/v1ch1s3.html.

[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.

[79] Federalist 10 @ http://www.constitution.org/fed/federa10.htm.

[80] U.S. Const., Art. 4, §2.

[81] Federalist 80 @ http://www.constitution.org/fed/federa80.htm.

[82] Of Civil Government §7 @ http://www.constitution.org/jl/2ndtr02.htm.

[83] Bl. Commentaries @ http://www.constitution.org/tb/tb2.htm.

[84] Familiar Exposition §119 @ AFL.

[85] St. Commentaries §1738 @ http://www.constitution.org/js/js_33810.htm.

[86] Familiar Exposition §228 @ AFL.

[87] Roots, p. 405 @ AFL.

[88] Of Civil Government §172 @ http://www.constitution.org/jl/2ndtr15.htm.

[89] Of Civil Government §16 @ http://www.constitution.org/jl/2ndtr03.htm.

[90] Of Civil Government §17 @ http://www.constitution.org/jl/2ndtr03.htm.

[91] Of Civil Government §18 @ http://www.constitution.org/jl/2ndtr03.htm.

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

[93] Catechism of the Catholic Church, 2nd Ed., USCC Publishing Services: Washington, D.C. (2000) ¶2267 @ http://www.usccb.org/catechism/text/pt3sect2chpt2art5.shtml.

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

[95] Of Civil Government §22 @ http://www.constitution.org/jl/2ndtr04.htm.

[96] Of Civil Government §6 @ http://www.constitution.org/jl/2ndtr02.htm.

[97] Of Civil Government §7 @ http://www.constitution.org/jl/2ndtr02.htm.

[98] Roots, p. 405 @ AFL.

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

[100] Of Civil Government §87 @ http://www.constitution.org/jl/2ndtr07.htm.

[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.

[105] Leviathan, Chapter XIII @ http://www.constitution.org/th/leviatha.txt.

[106] Of Civil Government §140 @ http://www.constitution.org/jl/2ndtr11.htm.

[107] Of Civil Government §119 @ http://www.constitution.org/jl/2ndtr08.htm.

[108] Federalist 28 @ http://www.constitution.org/fed/federa28.htm.

[109] Roots, p.411 @ AFL.

[110] Roots, p.402 @ AFL.

[111] Of Civil Government §225 @ http://press-pubs.uchicago.edu/founders/documents/v1ch3s2.html.

[112] Federalist 84 @ http://www.constitution.org/fed/federa84.htm.

[113] Hamilton’s Estimate of Jefferson, Source: America, Vol. 4, p. 272. Taken from a letter dated May 26, 1792, to Colonel Edward Carrington. http://www.lexrex.com/enlightened/writings /gazette/hamjeff.htm.

[114] Bl. Commentaries @ http://www.constitution.org/tb/tb2.htm.

[115] Bl. Commentaries @ http://www.constitution.org/tb/tb2.htm.

[116] Bl. Commentaries, Founders’ Constitution @ http://press-pubs.uchicago.edu/founders/documents/v1ch3s3.html.

[117] Bl. Commentaries Founders’ Constitution @ http://press-pubs.uchicago.edu/founders/documents/v1ch3s3.htm.

[118] Bl. Commentaries, Founders’ Constitution @ http://press-pubs.uchicago.edu/founders/documents/v1ch3s3.html.

[119] Federalist 37 @ http://www.constitution.org/fed/federa37.htm.

[120] Kirk, Russell, John Randolph of Roanoke: A Study in American Politics, 4th Ed., Liberty Fund, Indianapolis (1997), JR to Haramanus Blecker, April 14, 1814, p. 35.

[121] Id. at 45, quoting Gregory, Horace, “Our Writers and the Democratic Myth”, Bookman, LXXV, 377-82.

[122] From http://en.wikipedia.org/wiki/Tertium_quids.

[123] Kirk, Russell, John Randolph of Roanoke: A Study in American Politics, 4th Ed., Liberty Fund, Indianapolis (1997) p.37, from Act III. Scene VI. King Lear. Craig, W.J., ed. (1914). The Oxford Shakespeare  @ http://www.bartleby.com/cgi-bin/texis/webinator/sitesearch?FILTER=colShakespe&query=%22The+little+dogs+and+all%22&x=10&y=7

[124] Id. at 61.

[125] Kirk, Russell, John Randolph of Roanoke: A Study in American Politics, Liberty Fund, Indianapolis (1997) p.14., spoken at the Virginia Convention, 1829.

[126] The Works of the Right Honourable Edmund Burke, London, Henry G. Bohn (1854-56), Founders’ Constitution @ http://press-pubs.uchicago.edu/founders/documents/v1ch13s6.html.

[127] Id. @ http:/press-pubs.uchicago.edu/founders/documents/v1ch13s7.html.

[128] Federalist 84 @ http://www.constitution.org/fed/federa84.htm.

[129] Cessante legis praemio, cessat et ipsa lex. The more common way of saying this seems to be Cessante ratione legis, cessat et ipsa lex = Where the reason for a law ceases, the law itself also ceases. See BLD at 207. However, that translation seems not to fit what Justice Story is saying here.

[130] St. Commentaries §459 @ http://www.constitution.org/js/js_306.htm.

[131] To Joseph C. Cabell, October 30, 1828, Writings of Madison, Vol. 3, 1816-1828, p. 655 @ AFL. Though certainly not true of the Preamble, caution is always important in any legislation for often the result of the legislation brings on a greater evil than the evil that existed before. For example, as Herbert Spenser said, “The evils of competition have all along been the stock cry of the Socialists; and the council of the Democratic Federation denounces the carrying on of exchange under ‘the control of individual greed and profit.’ My second reply is that interferences with the law of supply and demand, which a generation ago were admitted to be habitually mischievous, are now being daily made by Acts of Parliament in new fields; and that, as I shall presently show, they are in these fields increasing the evils to be cured and producing fresh ones, as of old they did in fields no longer intruded upon.” The Man versus the State (1884) @ http://www.constitution.org/hs/manvssta.htm.

[132] St. Commentaries §462 @ http://www.constitution.org/js/js_306.htm.

[133] Familiar Exposition §45 @ AFL.

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