Unalienable Rights, Equality and the Free Exercise of Religion
by Kerry L. Morgan
Part 2 – Declaration of Independence, Equality and Unalienable Rights
II. 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.