Unalienable Rights, Equality and the Free Exercise of Religion
by Kerry L. Morgan
The Declaration of Independence, Equality and Unalienable Rights
One of the first principles articulated in the Declaration of Independence is that of equality. The Declaration asserts that “we hold these truths to be self-evident, that all men are created equal.” The rule of equality is tied to the creation of mankind by God. This proposition is not the incantation of a religious establishment. It is a legal fact acknowledged to be “self-evident.” The Declaration is a legal instrument. It is intended for a legal object. It speaks of equality in a legal sense. The Declaration asserts that mankind is created and that as far as the law is concerned, mankind is created equally human by God.9
There are at least two consequences of this proposition. The first is that all human beings are endowed with the right to enjoy equal legal rights, legal opportunity and legal protection.10 The second consequence of the rule of legal equality is that it neither mandates nor permits the civil government to ensure equal social position, economic well-being or political power. The Declaration’s recognition that “all men are created equal” does not mean that the civil government must treat each person the same on the basis of what they do or on the basis of their conduct. Social and economic achievement is a function of behavior or conduct. It is a function of individual labor and enterprise. Political power is a function of political involvement and knowledge of the political system. As long as the law guarantees the right of an individual to participate on an equal basis with other individuals in achieving the desired social position, economic condition or political strength, then differences in outcome or result do not contravene the rule of legal equality.
In essence, the rule of legal equality requires that the law be no respecter of persons. A law is a respecter of persons if it treats persons differently because of their immutable status or belief. The law is not a respecter of persons, however, if it treats persons differently on the basis of their acts or conduct.11 The law looks to what a person does, not who they are. Those who deny the rule of equality or its origins in the law of God, or who argue that equality is subject to changing cultural or social conditions, or who twist the meaning of equality to require government mandated quotas, do so in contravention of the principle of equality.
President Abraham Lincoln, referring to the Declaration of Independence, affirmed that the United States was “conceived in liberty, and dedicated to the proposition that ‘all men are created equal’.”12 Lincoln realized that the rule of equality applied to all men and nations without regard to the age in which they lived, their location on the globe, or the circumstances of history which surrounded them. He spoke of this rule in a speech at Springfield in 1857. He said that through the Declaration, the framers,
meant to set up a standard maxim for free society, which should be familiar to all, and revered by all; constantly looked to, constantly labored for, and even though never perfectly attained, constantly approximated, and thereby constantly spreading and deepening its influence and augmenting the happiness and value of life to all people of all colors everywhere.13
Unfortunately, in many contexts including religious liberty litigation (as will be explored shortly) the principle of equality has been constantly ignored and labored against. The notion of rights conditioned upon status and religious belief has been much more preferred. It is quite common, therefore, that contrary to the rule of equality, litigants seek to diminish the rights of others because of the other’s belief, or expand their own rights because of their own beliefs.
The Declaration of Independence restates a second principle of the laws of nature and of nature’s God. It declares that all men14 are “endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness . . . .” Unalienable (or inalienable) means undeniable or inherent. Unalienable rights are incapable of being lost or sold. Unalienable rights are retained despite government decrees to the contrary because civil government does not grant them in the first case. Moreover, no future generation may be disenfranchised of any unalienable right by the present generation. The protection of unalienable rights is common in many state constitutions.15
The Declaration tells us why these permanent characteristics attach to unalienable rights. It recognizes that unalienable rights are defined by God, not by the civil government.16 Civil recognition of the idea that unalienable rights come from God is a fundamental element of the laws of nature. Whether it is also is a tenet of religion is quite beside the framer’s legal concern. In the legal sense, therefore, the law of unalienable rights is not a religious establishment, but is rather a legal convention from eternity. Lex est ab æterno.17
The Declaration defines other unalienable rights besides life, liberty and the pursuit of happiness.18 It discusses the right of the people to select the form of government that will serve them and protect their rights. It explains that “Governments are instituted among Men, deriving their just powers from the consent of the governed.” President George Washington declared that, “The basis of our political systems is the right of the people to make and to alter their constitutions of government.”19 Abraham Lincoln described the idea in nautical terms declaring government by consent “the leading principle–the sheet anchor of American republicanism.”20
Since the people have an unalienable right to choose their own form of government and define its powers under law, the Declaration also recognized that the people have an unalienable right to alter or abolish that form of government under the law. The Declaration acknowledges the legal preconditions:
That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or 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.
The phrase “destructive of these Ends” refers to destruction of the unalienable rights which civil government is originally instituted to preserve. It was the right to alter or abolish the form of government which the people exercised when independence was declared from Great Britain and the Revolutionary War was subsequently waged.21
Thus, the Declaration established a legal consensus on several principles derived from the laws of nature and of nature’s God. The Declaration translated the common principles of equality and unalienable rights into positive law. Civil government was and is obliged to observe the rule of legal equality. It must recognize that all human beings enjoy certain unalienable rights from God–rights that are not created by the civil government, but which that government is nevertheless obligated to protect to the extent that the people articulate such rights in their constitutions or statutes.
The equal security of unalienable God-given rights defines the backbone of the American legal consensus. The equal security of unalienable God-given rights by the civil government does not constitute a religious establishment. The American legal consensus, however, has always had its detractors. Former President John Quincy Adams lamented in 1839 that “there are still philosophers who deny the principles asserted in the Declaration, as self-evident truths–who deny the natural equality and inalienable rights of man.”22 The modern lament is even more sweeping. Not only are there philosophers who deny these principles, but their proteges are appointed to the judicial bench, they percolate through the state legislature and through Congress, they occupy the state house and the White House, and they teach and are taught in the law schools.
This onslaught of denial was accelerated most notably in the United States, during the generation in which Oliver Wendell Holmes, Jr., published his book The Common Law.23 Holmes’ thesis was that law was subject to an evolutionary framework and methodology. This approach permitted its expositors in the law schools and in the various branches of civil government, to adjust the scope, meaning and basis of law to mirror their own view of what society should be. The adjustments were not limited to those choices available between legitimate competing legal options–options allowed by the laws of nature and of nature’s God, the positive law of the Declaration, or written constitutions based thereon. The radical adjustments focused on altering the American legal consensus itself–on fundamentally altering the nature and source of American law.
The evolutionary approach ultimately rejected the consensus about the laws of nature and of nature’s God. It rejected that law’s legal conceptualization of equality–that all men are created equal. The approach jettisoned the consensus that every human being had certain rights from God that were unalienable. It also rejected the notion that government should secure those rights subsequently defined in a written constitution.
As such, Holmes’ subsequent conservative and liberal philosophical converts rejected the idea that indisputable and perpetual rules exist. Given the passage of time, chance and cultural circumstances, the most universal doctrines of the law, of right and wrong, could be undone or changed. In a now famous reference, Holmes re-conceptualized the life of the law as “power, not logic.” The American legal consensus, however, accepted neither precept. The American legal consensus affirmed in the Declaration that the life of the law is Revelation, both natural and Divine–Revelation with a common Author, God the Creator. When logically understood and applied taking into account past human history and experience, this view of the life of the law remains vibrant and alive, a result not possible with either power or logic alone.
The logical extension, however, of recasting the law in evolutionary terms and public policy terms, produces a jurisprudence that embraces a legal standard of “acceptable and unacceptable conduct” governed by a gimmicky psychological and political frame of reference. No longer able to recognize or quote the law, most legal and judicial discourse has been reduced to squabbling over the uncertain meaning of relative opinions. The Supreme Court’s Constitutional and religious case decisions are no exception to this trend as shall now be considered.
* Copyright © 2004, 2006 Kerry L. Morgan. Used with permission.
9. Virginia’s 1776 Constitution declared that “all men are by nature free and independent, and have certain inherent rights . . . .” R. Perry & J. Cooper, Sources of Our Liberties 311 (1978) (hereinafter R. Perry). Pennsylvania’s 1776 Constitution stated that “all men are born equally free and independent, and have certain natural, inherent and inalienable rights . . . .” Id. at 329. Delaware and North Carolina’s 1776 Declaration of Rights proclaimed that “all men have a natural and unalienable right to worship Almighty God . . . .” Id. at 338, 356.
10. For a digest examining the equality principle as expressed in various state constitutional provisions and guarantees, see The American Bench 2491-2493 (S. Livermore ed. 1985).
11. See Thompson, Legal Equality: No Respecter of Persons, 7 J. Christian Juris. 139 (1987) (hereinafter Legal Equality).
12. Lincoln, Gettysburg Address, in A Documentary History of the American People 409 (A. Craven, W. Johnson and F. Dunn ed. 1951) quoting the Declaration of Independence.
13. A. Lincoln, Speech at Springfield, 1857, in Living Ideas in America 234 (H. Commanger ed. 1964).
14. The reference to “men” is a reference to human beings, not a designation or restriction of gender.
15. For state constitutional provisions referring to unalienable, inalienable, inherent or natural rights see Appendix A. See also infra text accompanying notes 99-110 for additional discussion of the relationship between unalienable rights guarantees in state constitutions and parental rights to direct the education of their children. For a discussion on the unalienable right of property, see Huenefeld, The Challenge to Secure Unalienable Property Rights in the United States (Masters Thesis, Regent Univ., 1989).
16. Federal courts do not have any general jurisdiction to define or construe the “Laws of Nature” and thus the substance of un-enumerated unalienable rights. Federal courts only have jurisdiction to construe those rights which are constitutionally enumerated (including offenses against the law of nations) and are properly before the courts in an article III case or controversy, or come within the court’s jurisdiction as a result of being enumerated in a treaty, or as otherwise defined in article III. Federal courts, do not have jurisdiction to, sua sponte, discover and declare any other rights. That power is rather, reserved to the states or the people as recognized in the tenth amendment. It is the legislature or the people qua people which are empowered to discover and adopt their many rights that God has given. Jus dicere, et non jus dare [The province of a court or judge is to declare the law, not to make it].
This view, however, is not presently a majority position, though it was articulated with clarity in the context of a federal court presuming to void state laws it considered contrary to natural justice. In the case of Loan Association v. Topeka, dissenting Justice Nathan Clifford observed that:
where the Constitution of the State contains no prohibition upon the subject, express or implied, neither the State nor Federal courts can declare a statute of the State void as unwise, unjust, or inexpedient, nor for any other cause, unless it be repugnant to the Federal Constitution. Except where the Constitution has imposed limits upon the legislative power, the rule of law appears to be that the power of legislation must be considered as practically absolute, whether the law operates according to natural justice or not in any particular case, for the reason that courts are not the guardians of the rights of the people of the State, save where those rights are secured by some constitutional provision which comes within judicial cognizance; or, in the language of Marshall, C.J., “The interest, wisdom, and justice of the representative body furnish the only security in a large class of cases not regulated by any constitutional provision.”
87 U.S. (20 Wall.) 655, 667, 668-69 (1874). Justice Clifford warned that disregard of this rule would “make the courts sovereign over both the constitution and the people, and convert the government into a judicial despotism.” Whether a court is politically liberal or conservative does not alter the despotic nature which pertains to the exercise of another’s power. If a court exercises the power of unilateral amendment through its opinions, it is despotic irrespective of its political composition.
See infra notes 111-114 and accompanying text for an additional examination of federal jurisdiction.
17. Law is from everlasting. This is a strong expression to denote the remote antiquity of the law.
18. Neither the Declaration or any constitution could enumerate all the unalienable rights which God has given to all persons. Nor should they. These instruments, however, point to the source of rights–God our Creator. Future generations can look to that source and adopt through constitutional or statutory mechanisms, the particular rights God has granted which that generation considers are most suitable to assuring its own safety and happiness.
Several commentators recognize that the people retain rights not enumerated in the Constitution’s Bill of Rights, but many are reluctant to turn to the laws of nature or the idea that some rights are unalienable, in order to determine the definitive substance of those rights. See generally Berger, The Ninth Amendment, 66 Cornell L. Rev. 1 (1981); Caplan, The History and Meaning of The Ninth Amendment, 69 Va. L. Rev. 223 (1983), and The Rights Retained By The People (R. Barnett ed. 1989). See also Note, On Reading and Using the Tenth Amendment, 93 Yale L.J. 723 (1984). But see, Lumsden, The Ninth Amendment in Light of The Declaration of Independence, (Masters Thesis, Regent Univ., 1990).
19. Farewell Address of George Washington, September 17, 1796 in 1 Compilation of the Messages and Papers of the Presidents, 1789-1897 217 (J. Richardson ed. 1896) (hereinafter Messages and Papers).
20. 2 The Collected Works of Abraham Lincoln 266 (R. Basler ed. 1953). The principle of government by consent also requires that civil government exercise only those powers which are specifically granted. For instance, if the people desire the federal government to engage in an activity or pass some legislation which would require the exercise of a power not Constitutionally enumerated or extended to the Congress, then the people need to proceed through the proper channels and amend the Constitution. This will ensure that there is no mistake as to the nature, extent and type of power given, the proper scope of its exercise, or the branch to which it has been entrusted.
President James Monroe affirmed the supreme importance of trusting the people’s judgment in matters of altering the power or jurisdiction of the civil government. He acknowledged that “it comports with the nature and origin of our institutions, and will contribute much to preserve them, to apply to our constituents for an explicit grant of power. We may confidently rely that if it appears to their satisfaction that the power is necessary, it will always be granted.” First Annual Message of James Monroe, December 7, 1817 in 2 Messages and Papers, supra note 19 at 181. To presume otherwise would allow the civil government to self-expand and define its own powers resulting in a practical attack on the people’s unalienable right of government by consent–a right the civil government was created to protect, not destroy.
21. President Lincoln recognized the right of revolution. He remarked that:
This country, with its institutions, belongs to the people who inhabit it. Whenever they shall grow weary of the existing government, they can exercise their constitutional right of amending it, or their revolutionary right to dismember or overthrow it . . . Why should there not be a patient confidence in the ultimate justice of the people? Is there any better or equal hope in the world?
First Inaugural Address of Abraham Lincoln, March 4, 1861 in 6 Messages and Papers, supra note 19 at 10 (emphasis in original).
The Declaration of Independence discusses the steps of revolution quite closely. It asserted that, “[p]rudence, 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 framers recognized that “[s]uch has been the patient sufferance of these Colonies.” They noted that in “every stage of these Oppressions we have Petitioned for Redress in the most humble terms.” Petitioning, however, was not a sufficient remedy for the people, for “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.”
Lincoln also recognized that God’s laws govern in the affairs of nations. “If the Almighty Ruler of nations, with his eternal truth and justice, be on your side of the North, on yours of the South, that truth, and that justice, will surely prevail, by the judgement of this great tribunal, the American people.” Id. at 11.
22. See J.Q. Adams, supra note 4 at 19.
23. O.W. Holmes, Jr., The Common Law & Other Writings (The Legal Classics Library, 1982) (Boston 1881). An analogy to baseball may illustrate in a limited way, the differences between the American historical consensus and the modern legal usurpers. When two baseball teams play each other they both agree prior to the game that definite rules of the game apply to each other on an equal basis. If Team A claimed its batters get four instead of three strikes before an out is called, but insisted on three strikes for the batters on Team B, we could say that Team A isn’t playing by the rules. It would be also unfair if team A simply changed the rules in the fifth inning because it considered a new baseball methodology had then evolved into being (i.e., they were losing) or that the psychological or political impact of losing should, as a matter of law, prevent the other Team from winning.
If Team B had any sense at all, it would declare: “We will not play Team A if it won’t play by the rules.” The decisive and controlling principle that “three strikes and you’re out,” cannot be ignored if the game is to proceed. Moreover, if the umpire said that “Four strikes for Team A is implied in the ordered concept of baseball liberty or essential to fundamental baseball fairness” we would rightly conclude that the game was ideologically rigged or the umpire was bribed or dishonest. Our remedy would be to “throw the ump out” and get someone else in there to do the job according to the rules.
Likewise, respect for the law and the ensuing Constitutional adjudication of rights, cannot long continue if the decisive and controlling ground rules are ignored, judicially altered in mid-Constitutional regime or crudely politicized. Though we may certainly “throw the judges or justices out” through impeachment, the better long term solution is to discard the defective evolutionary legal monocle through which courts view the law and the Constitution. Revive the law first, then appoint knowledgeable and willing men and women who will not be bribed with self-importance or be a party to the lucre of political approbation.
Now if fixed ground rules for a game are crucial to its continuance, how much more crucial are the common ground rules which govern rights, equality and the Constitution itself? Just as the umpire does not make the rules of the game, but is obligated to secure the rights of the players under the rules, so too the civil government is obligated under the law to secure the unalienable rights of the people to the extent those rights have found a foothold in a constitution or the written statute law. And just as defiance and disregard of the rights of the players by the umpire merits the umpires dismissal, so too civil defiance and disregard of the civil obligation to secure the constitutionally or statutorily enumerated unalienable God-given rights of the people, must eventually warrant the appropriate exercise of the people’s right to alter or abolish that government.