Readers of Law and Liberty have heard—and perhaps even used—the famous phrase about free speech that is often misattributed to Voltaire: “I disapprove of what you say, but I will defend to the death your right to say it.” One wonders, though, whether this formulation actually makes much sense.
Today is Independence Day, which brings to mind this great passage from the Declaration of Independence: We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new…
I posted earlier this week regarding whether Americans still believe the Declaration of Independence’s affirmation that they “consent” to laws and taxes through their legislative representatives. There may be good reasons Americans no longer believe they really consent to the laws their representatives enact, but it is a striking change from the beliefs articulated during the founding era.
In considering whether Americans still believe the Declaration of Independence, we next consider the most-well known section in the Declaration, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness, that to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.”
There are, of course, entire books devoted to these few lines. A few observations, however. First, what is the link between there being a creator and persons being endowed with “unalienable” (or inalienable) rights?
Over at the Law and Religion Forum, we are hosting an online symposium on a very interesting article by Professor Vincent Phillip Muñoz, “Two Concepts of Religious Liberty: The Natural Rights and Moral Autonomy Approaches to the Free Exercise of Religion.” Muñoz’s basic claim is a historical one about the nature of the Founders’ constitutional commitment to religious freedom: They supported a narrow, but powerful, right of religious free exercise that protected fairly absolutely what were thought to be certain core features of religiosity—such as worship—but that did not protect the panoply of religious “interests” that might be dear to any given constituency.
Americans are united in professing respect for the Constitution, but they are deeply divided over what it actually means and how it ought to be interpreted. These disagreements have roiled our public life for decades. Everybody who follows politics knows about the clashes between the liberal proponents of judicial activism and the conservative defenders of judicial deference. These arguments go on and on, with neither side succeeding in persuading the other of the superior merits of its theory. Faced with this ongoing deadlock, we wonder if there is any way to achieve unity on the meaning of the Constitution.
In response to: The Unforgettable Fire: Tradition and the Shape of the Law
Marc DeGirolami’s Liberty Forum essay discusses two contexts in which tradition might influence American law: common law and constitutional law. He suggests that tradition is still robust in the former, less so in the latter. With regard to common law, I think that he’s right that custom underlies a good deal of the law of contracts, torts, property, and more. On the other hand, it strikes me that American common law as interpreted by the judiciary has been far less respectful of precedent (and therefore to some extent, of tradition) than has the common law in other countries. Years ago, I had…
Professor DeGirolami has written an interesting Liberty Forum essay in behalf of paying respectful attention to tradition as a major aspect of our legal order. However, I think there are two major problems with it. The first is theoretical, particularly in relation to the American political and legal experience. The second has to do with…
In the first paragraph of his celebrated 1881 book on the common law, Oliver Wendell Holmes, Jr. wrote: “The life of the law has not been logic; it has been experience.” Nor was that the first such expression in the annals of American jurisprudence. At the Philadelphia Convention of 1787, James Madison recorded John Dickinson’s…
One of the puzzles in constitutional law has been the original meaning of the Ninth Amendment. Some years ago, during his unsuccessful confirmation hearings, Judge Robert Bork analogized our lack of understanding of the Amendment to the situation where the language of a constitutional provision was obscured by an inkblot. He argued that since we don’t understand the provision, we are in no better position to enforce it than if an ink blot covered it.
Over the years, various explanations have been offered for the amendment. Some have argued that it protects enumerated natural rights to the same extent as the enumerated constitutional rights. Others have interpreted it to have a much less significant role.
In my view, the best interpretation of the Amendment is supplied by Michael McConnell in a relatively recent law review article. At the beginning of my scholarly career, I had come upon the same idea, but was persuaded not to write it up. My mistake, although I don’t think I would have done as good a job as McConnell does.