By Nathan Barton
The Bill of Rights, added to the Constitution of 1787, and the various State Constitutions’ Bills of Rights, have a fairly concise list of “rights” which are recognized (NOT “given”) to individuals, with a tad bit of explanation, and a few “rights” (or powers) retained by the States which had joined together to form the united States and then accepted the new form of union and government.
But these, important as they are to list and recognize, are not necessarily (a) fundamental, and (b) anywhere near a complete list.
Since then, many additional rights have been added and assumed to be included in the 9th and 10th Amendments. But again, none of these appear to be fundamental OR inclusive in nature.
For that, can we repair to the venerable Declaration of Independence? Here we find the famous phrase “life, liberty, and the pursuit of happiness,” which are stated to be “among the unalienable rights” which God gave to His creation, humankind.
Morally and ethically, we certainly can. But legally, there is no tie between Constitution and Declaration.
That is because there is a fundamental difference between the foundation of the two documents. A significantly different set of assumptions.
The Declaration of Independence assumes and asserts that every human is a free and independent individual, having those unalienable rights. Rights which cannot be taken away except by the voluntary free choice of the person. These free people may voluntarily choose to associate with others, as in the thirteen colonies (or nations). This involves voluntarily giving up some rights in exchange for certain benefits. In turn, those nations, or states, could voluntarily choose to associate with each other, or with other nations. One example being the British Empire. Another being the confederate United States of America (in Congress assembled). Not just voluntary but revocable association. It assumes that those voluntary associations can be ended by either party, although it assumes that such termination must be for a powerfully-strong reason.
The Constitution, on the other hand, though it speaks of “We, the People,” assumes and acts as though every human being has (or should have) a specified place. And that this place is automatically granted to them by birth or act of naturalization or annexation. At least some of these involuntarily. (We do not choose where we are born, and may vote against our nation (state) being annexed. As do many in Puerto Rico these days.)
Yes, the people have their God-given rights, individual rights, but generally only within the framework of being the resident of a state (or member of a tribe). There is no mention, much less provision, for that association to be ended. There is actually no mention even of individual emigration from the Union, or a state.
The Declaration establishes criteria and levels of actions by government which justify terminating that association. The Constitution does not even address the subject. The Declaration states plainly how that association can and will be terminated; how the rights of the people in their states (and not) will be protected or restored. As many have pointed out, the Constitution has no provisions for enforcing even the Bill of Rights, much less the rest of the limits on governmental power found in it.
Were these omissions intentional or a matter of seeking to roll back “too much liberty?” Opinions differ, but we do need to wonder. Was it just assumed that with the Declaration stating all it did, the Constitution would function within the frame, the understanding of the universe and reality, expressed in the Declaration? If so, it was a bad, bad assumption.
It is almost certainly one reason that many of the rights (and powers) taken for granted for both the people and their respective states (in 1776 and 1787) have vanished. They have been removed through legislation (including constitutional amendments) or by simple actions not authorized but not seriously challenged. In part because the union was viewed as “perpetual” and there were no procedures to take action against those who would steal any of the rights (enumerated or not) of the people (and the states) or who would violate any other provision, except for explicitly political actions.
At best, the procedures for impeachment of officials are vague as to what constituted an offense to be pursued. And the actions to take against Senators and Representatives are really only hinted at; and worse, left solely in the hands of those in those various chambers. There is no provision for states to recall their senators, no method for the persons supposedly represented by a specific member of the House to be recalled or abjured by their constituents. And certainly no standard.
How different our history would be if only a few of these things were present. Or if the Declaration was explicitly referenced.