Thursday, June 30, 2011

Independence Day 2011

On March 22, 1775, in his speech to Parliament "on conciliation with the colonies," Edmund Burke declared: "In this character of the Americans, a love of freedom is the predominating feature which marks and distinguishes the whole….This fierce spirit of liberty is stronger in the English colonies probably than in any other people of the earth."

"A love of freedom is the predominating feature..."

The following year – 1776 -- Thomas Jefferson wrote one of the most famous sentences in history: "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."

In penning that sentence in the Declaration of Independence, and referring to "unalienable Rights," Jefferson invoked the natural law tradition which was so influential among many of the Founders. In the face of the impending conflict with England, it is not surprising he would do so. Because in contrast to the natural law position stood the view that acts of Parliament – think the various statutes imposing taxes on the colonies --- were supreme and absolutely binding as law. If this absolutist view of legislative supremacy were accepted, then America's act of declaring independence in order to secure inalienable rights would be essentially lawless.

Of course, Jefferson and his revolutionary compatriots, steeped as they were in English law, had good authority for their natural law view – from Magna Carta, through Bracton and Sir Edward Coke, to Sir William Blackstone. In the decade preceding the Declaration of Independence, some 2500 copies of Blackstone's Commentaries on the Law were purchased in the American colonies. And in the Commentaries, published in four volumes from 1765-1769, Blackstone had said this: "For the principal aim of society is to protect individuals in their 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."

Certainly, when Jefferson, in the Declaration, invoked "the Laws of Nature and of Nature's God" as a source for "unalienable Rights," he knew he was invoking the weight of Blackstone, Coke, and the Magna Carta.

Ever since the Constitution's ratification in 1789, there has been a lively debate concerning whether the Declaration of Independence's principles have any continuing legal import or significance, or whether the Constitution alone now constitutes our fundamental law. If you are getting ready to head off to a Fourth of July picnic or down to the local pool, you'll be relieved to know I am not going to begin a discourse on that subject here. (Maybe next year!)

For my present purposes, it is enough to know the Declaration of Independence is included at the head of the United States Code under the heading of "Organic Laws of the United States of America." And to know Abraham Lincoln's response to Stephen Douglas in 1858 in one of their famous debates: "If the Declaration is not the truth, let us get the statute book, in which we find it, and tear it out!"

No doubt in many ways this Fourth of July holiday carries somber overtones, with very serious challenges confronting America at home and abroad. It would be easy to be pessimistic about America's future. But I think – at least hope desperately -- it would be wrong. For whether or not the Declaration has any legal import is certainly not determinative concerning whether it continues to embody the most fundamental American principles which define us as a nation. And whether its spirit continues to animate us.

With Lincoln, I would say this: If the Declaration is not the truth, then tear it out of the statute book.

With Burke, I would say this: In this character of the Americans, a love of freedom is the predominating feature which marks and distinguishes the whole.

In a letter to Edward Rutledge in 1788, Jefferson wrote: "My confidence is that there will for a long time be virtue and good sense enough in our countrymen to correct abuses."

It is far too easy to take for granted what we have in this country, and too many of us do. But as long as Americans' love of freedom remains strong, I remain optimistic that, for a long time to come, there will be virtue and good sense enough to sustain our ability to maintain our liberties and our prosperity.


On that hopeful note, I wish you a most happy Independence Day. And, as always, all of us at the Free State Foundation are grateful for your support for the work we do promoting free market, limited government, and rule of law principles. Most of all, we are grateful for your friendship.

PS – Here are previous Independence Day blogs: 2010, 2009, 2008, and 2007.