The Declaration Of Existence

[ggdwill]

Since the Fourth of July is coming up, I thought I would share this.

Recently, I had a disagreement with someone who misunderstood what the nature of rights really was. In our discussion, he kept pointing out that even though an individual in Florida (where I live) has to pay $165.00 to the government and take a government certification course to get a permit to carry a concealed firearm, they still had the right to bear arms; that somehow these stipulations did not constitute a violation of Constitutionally recognized individual rights because the right was not completely abolished.

Now, there are many ways to shoot down that argument and I doubt that many able to comment on this forum would agree with it, but it prompted an interesting thought in me.

In response to his assertion I created the analogy that if the government required you to pay them every year in order to get a "living license", and if you failed to pay them they would be allowed to prevent you from living, would that constitute a violation of an individual's right to life? Since I had previously realized that this person doesn't understand the connection between one's right to life and the right to the practical implements necessary for it's maintenance and protection (eg: one's money and one's weapons), I didn't expect much in reply. However - and don't ask me why - I at least expected this person to answer yes since that would be the only answer consistent with his reasoning, but instead he replied that my analogy was different because the Constitution, unlike the right to bear arms, does not specifically address the right to life.

So, because he had changed the subject and probably not ever realized it, I went along and my thought was that because only the Declaration of Independence, and not the Constitution itself, recognizes the individual's right to life, do we as Americans legally possess a right to life? After all, is the Declaration a governing document or is it just historical? I thought about it and I believe that it is logically possible, without even needing to appeal to a deeper philosphical justification, to prove that we legally do.

Even if the Declaration of Independence is thought to hold no legal power over The Constitution, it holds superior metaphysical power - which gives it legal authority in the spirit of American jurisprudence (not to mention Aristotelian epistemology). Historically, if it were not for the Declaration there would have never been a Constitution in the first place. It gave birth to the Constitution. Thus, anything that is recognized in the Declaration, even if not specifically articulated in the Constitution, is implicit in it.

In my thinking about this, I have even anticipated a good counter-argument and found it's flaw aswell. I could very well imagine someone, operating on the premise that the Declaration is a mere historical document, saying that it merely a repudiation of the British oppression of rights and not a carte-blanche repudiation of any and all future oppression of Americans. Despite the fact that througout the Declaration there is general theoretical language to the contrary, even if there were not it is still a universal denunciation of the violation of individual American's rights. This is because more than a declaration of independence it was a declaration of existence - the existence of a new country that decided to become a new country for specific reasons (the "self-evident truths") contained therein. The American's declared independence from Britain not because we were sick of tea and bad cooking or because we wanted to become the subjects of someone else but because they were behaving in ways that prevented us from living freely to pursue our happiness. Even deeper than that, we really declared independence because we wanted to live and realized that happiness was necessary for life and freedom was the only way to achieve it.

If you take an optimistic view of human nautre, which I believe is the proper view, everything that the American government did in those early years was for this selfish purpose - including the creation of the Constitution. So, you could say that while the Constitution is our governing document, the Declaration is our identifying document and any deviation from or contradiction of it is, by definition, unAmerican..

So have I hit this on it's head?

- Grant

[softwareNerd]

Remember though:

Amendment X : The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

Edited June 24, 2006 by softwareNerd

[Lathanar]

Making murder illegal is not what the constitution is for, that's what the legislative branch was made for. The constitution was just a framework for how the government was supposed to be set up and run. They specifically left out civic codes from the constitution, they wanted to be sure that such matters would be taken care of in law. They wisely left out right to life, right to property, etc. they have nothing to do with the running of the government and the rules it needs to follow.

[ggdwill]

Softwarenerd,

What am I supposed to remember? I think that the Tenth Amendment, while well intentioned, is one of the Constitution's flaws. I've always found it amazing that even though the Constitution specifically addresses how to amend itself, no one has ever thought that any part of the original Constitution should be amended - as if it's all perfect. I guess this is because people think the Constitution is more important than the Declaration of Independence.

But anyways, here's why I think it's a flaw. As the Declaration of Independence states, individuals have rights; not governments - state governments included. The Federal government can't just shrug off it's responsibility to protect individual rights by saying "It's not our problem - that's a state doing the oppressing!" If anything, I think this type of oppression is specifically why a federal government exists to begin with. If the federal government exists to protect individuals from foreign governments, why can't it exist to protect individuals from state governments? They do this in some respects such as the Supreme Court, but mostly the federal government is thought of only as a way to deal with multi-state problems or foreign countries. Yes, a government closer to home is easier to control (although with technology this is becoming increasingly untrue), but that doesn't automatically make it a proper government.

Constitutuionally, you can't just break up the wording of the Tenth Amendment because it says what it says. It contradicts itself. Which is it? That states or the people? Are they supposed to fight over it? I guess they are, which ironically would explain why most of the gun laws are state laws.

Also, when read literally (which I just painstakingly did), the Tenth Amendment is not recognizing the rights of the people - but rather the supposed rights of the state governments. Spelled out literally it says the following: The powers not delegated to the federal gov't by the Constitution, nor the powers prohibited by the Constitution which are prohibited (and thus possessed) by the state governments, are reserved to the state governments - and if they don't want to exercise them, then they can let the people perform otherwise illegal actions. This is obviously contrary to the wording and spirit of the Declaration of Independence which is all about the people's rights - individual rights.

I think that, by using my analysis of the Declaration of Independence in my original post, there is a pretty good case for amending the Tenth Amendment to make no mention of state governments and to only say "the people".

[FeatherFall]

It (the Declaration) probably holds no legal weight in our courts. But you make a powerful moral argument.

I like how you tied the two concretes (gun control and right to life) together with the principle involved. Strong work.

[raptix]

I've read this thread, but don't understand why the topic is "The Declaration of Existence" -- can somebody explain this to me?

[softwareNerd]

... there is a pretty good case for amending the Tenth Amendment to make no mention of state governments and to only say "the people".

The real case to be made is for a fundamental re-write of the constitution, to clearly lay out the purpose of government.

Within its context, the Federal constitution is simply acknowledging that state governments exist and have some powers. So, anything that the Fed does not have the power to do is someone else's power: either the state government or the individual. The flaw in thinking about "power" and rolling state-governments and individuals into one category is more fundamental than just its presence in this amendment.

[DavidOdden]

The most important thing to understand about The Constitution is that it is solidly grounded in common law tradition. In contrast to the statutory systems of Europe, implicit assumptions carry much weight in our system. The other most important thing to understand is that this is changing over time, which, for the most part is a good thing because we want a system that explicitly says what you may not do, rather than leaving that determination up to subjective judgments of what tradition is. It would seem redundant to require an assertion that every man has a right to his life, and yet, the German Constitution (Art. 2 para 2) states explicitly that "Everyone has the right to life and to inviolability of his person. The freedom of the individual is inviolable". If you keep the legal context of the time, the right to your own life is presupposed, and The Constitution only states the non-obvious, such as organisational stuff and, later, statements of rights which were not presumed in the broader legal context.

So yes, legally we do possess a right to life, as long as you keep context, that is, recognise that the law is not only what is literally stated in The Constitution. The Declaration of Independence is not enforceable, but it is part of the law (but obviously a weak part of the law, serving more as a guide for interpreting what some law must mean -- there is this idea that certain constructions of the law would be so absurd that Congress could not possibly have meant that).

I think the Declaration is a good statement of the identity of American government.

[JMeganSnow]

I remember being told at some point that many of the delegates were opposed to the Bill of Rights amendments because they didn't want anyone thinking that people ONLY had THESE rights: remember that at the time rights were considered self-evident and thus no one had to tell you what you had a right to do! So the failure to include a specific right (X) in the Constitution is no indication whatever that individuals do not, in fact, possess a right to do X.

[raptix]

I don't like the Fifth Amendments Double Jeopardy implications.

[HeroWorshiper]

"They wisely left out right to life, right to property, etc. they have nothing to do with the running of the government and the rules it needs to follow."

Firstly, this is completely incorrect on both fronts: one, the constitution guarantees every person the right to life and property by specifically stating that said rights cannot be deprived without due process of law. Read the 5th amendment. Two, by what stretch of logic do you conclude that the running of government would be possible without the right to life or property? I can concede that it is possible, such as in Soviet Russia, but not in a country such as the United States and certainly not under a document such as the U.S. constitution. Only a fully statist government can exist where the right to life and property do not.

[softwareNerd]

...many of the delegates were opposed to the Bill of Rights amendments because they didn't want anyone thinking that people ONLY had THESE rights:

I've read the same thing. The tenth amendment should be read with that in mind. It's saying: we've listed some important rights (one's that government may be tempted to infringe), but there are many more that we have not listed. Rather it is the government's powers that will be limited to those specifically enumerated.

The inclusion of "states" makes sense from the perspective of saying: states have some powers to do something. Since this is a federal constitution, all the 10th is saying is that they're enumerating the powers of the Federal government. The states have some other powers, and the people have others.

I'd agree with the idea that a good constitution would make it clear that the purpose of all governments at all levels: federal, state and local is to protect individual rights and therefore no level of government has the power to violate such rights.

[ggdwill]

DavidOdden,

I'd agree with you completely and I think JMeganSnow's comment is a perfect example of what you're talking about. However, the only issue I have is that because the Constitution does go ahead and enumerate specific rights, many tend to believe that everything individuals have a right to - or everything that the government cannot do - needs to be made explicit. I tend to think that the Constitution would do better without the Bill of Rights.

The 2nd Amendment is the best example of this. By mentioning a specific - albeit a valid - reason for why people have the right to keep and bear arms, it makes it seem like detering or defending against an overzealous National Guard is the only legitimate reason to keep and bear them. I realize that back then government was properly thought of as only the relations between people and the state (since it is afterall the state's relationships with criminals that bring them to justice), they probably thought it obvious and thus unnecessary to mention carrying to defend against a mugger or to shoot a wild animal; but in doing so they unintentionally lent credence to the idea that the government is allowed to curtail any behavior not specifically forbidden to it by the Amendments. And, as I said, the Tenth Amendment is a half-hearted logical failure to prevent this. So not only does the 2nd's very existence call into question the deeper connection between the right to life and the practical means of protecting it or even maintaining it (keeping and bearing arms), but it also is written in such a way that it can be, and unfortunately has been, grossly misinterpreted.

I think the Constitution, and in it's unamended form despite it's flaws was this way, should only be a frame work for the government - an implicit agreement between the people and their governors about how the government should be set up. The purpose of this oversight being to avoid a concentration of power and over or underrepresentation. I think that anything governing what individuals may not do (eg: murder, steal) can be infered from the Declaration - and specifically from one little phrase: life, liberty, and the pursuit of happiness.

Also, raptix, I decided to title this thread "The Declaration Of Existence" because, like I explained originally, I think the Declaration of Independence is primarily an assertion of the existence of American's individual rights and only secondarily a repudiation of the British violation of those rights. Besides, I knew it would catch your eye!

[Lathanar]

Firstly, this is completely incorrect on both fronts: one, the constitution guarantees every person the right to life and property by specifically stating that said rights cannot be deprived without due process of law. Read the 5th amendment. Two, by what stretch of logic do you conclude that the running of government would be possible without the right to life or property? I can concede that it is possible, such as in Soviet Russia, but not in a country such as the United States and certainly not under a document such as the U.S. constitution. Only a fully statist government can exist where the right to life and property do not.

"nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

Where does this say you have the right to life and property? It merely says the government won't take it away arbitrarily, it must be through laws. You can still be killed by the government (death penalty) as long as a law allows it. You can still have private property seized (emminent domain) as long as the law allows it. Conceivably the constitution would allow nationalization of industries as long as the goverment paid what it considered fair for the seizures. Taxation for welfare programs is totally contrary to right to property.

I also don't agree that the second amendment rights to bear arms has anything to do with right to life or property through self defense. The second amendment was put into place to ensure that the government could not disarm the people in fear of insurrection as the British tried to do by disarming the colony militias before the revolution.

[softwareNerd]

I think that anything governing what individuals may not do (eg: murder, steal) can be infered from the Declaration - and specifically from one little phrase: life, liberty, and the pursuit of happiness.

It's interesting to speculate whether the courts would have allowed more abrigement of rights if they were so open-ended or whether the courts would have given a really broad interpretation. Indeed, it's the same question of the 1770's to which Jennifer alluded above.