Judge Neil Gorsuch Says the Declaration of Independence Is Not Foundational Law

Under questioning by Ben Sasse, Republican Senator from Nebraska, Judge Neil Gorsuch said that the Constitution is the foundational law.  The Declaration of Independence is not, though it is informative of the background of the Constitution and should not be lightly discarded.  Unfortunately, Judge Gorsuch did not discuss the fact that the Declaration of Independence is the primary statement of the philosophy behind the Constitution.  He neglected to say that the Declaration of Independence is the American document that defines the legitimate purpose of government -- the protection of the rights of the individual.

It is the Declaration of Independence that makes it clear that sovereignty resides in the individual, not in government.  Government exists to serve the sovereign individual, the holder of rights.  The individual and his rights exist whether government does or not.  Government does not define individual rights.  It is the nature of man and his need to survive and flourish in life that define individual rights.  An understanding of this is absolutely necessary to make it possible for government to fulfill its legitimate purpose in protecting everyone's individual rights.

The Bill of Rights enumerated some individual rights.  Yet that same document, in the 9th Amendment, made it crystal clear that the enumeration of individual rights was incomplete and that the federal government was not "to deny or disparage the other rights retained by the people." Unfortunately, the federal courts have attributed almost no protections to individual rights under this 9th Amendment, having virtually ignored the broad scope of individual rights acknowledged in the Declaration of Independence as those of life, liberty, and the pursuit of happiness.

The 14th Amendment also recognizes the broad individual rights of citizens: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Absent the context of preexisting and preeminent individual rights, the protections of those rights by the government are bound to be haphazard at best.  More likely, the government itself will become the greatest threat to individual rights.  The fact that the Declaration of Independence is not considered a foundational document in the law drastically undermines our understanding of the purpose of government, its proper limits, and the effectiveness of the Constitution to fulfill its contract with the people to provide "a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, ..."

It is very disturbing when politicians and judges prove themselves to be rudderless before their essential and only task of protecting individual rights.  There is no way that a knowledge of these individual rights is or can be spelled out by a few short documents.  The Constitution is itself a given document whose meaning is the Law of the Land.  It is not a changing or living document and it must be interpreted in accordance with its original meaning.  When and if one cannot do that, it should be amended.

What is living and evolving is our understanding of individual rights.  The Constitution literally makes it clear that we are to see to it that the government protects everyone's equal individual rights as these rights are understood in terms of man's nature and the reality in which he lives.  The use of this understanding of man's rights is not a matter of changing the meaning of the Constitution.  Its meaning was always to provide a very limited government whose purpose was the protection of individual rights.  There is no other interpretation of the Constitution which is self-consistent, rational, and legitimate.

Freedom of speech has evolved since the time of the Constitution's adoption as the Law of the Land. It still means that one has the right to say what one wants to those within hearing range, but it also now means that one has the freedom to buy a radio or a television station and say what one wants through that medium, or that one can say what one wants in a video posted to You Tube.  Similarly, property and labor rights have evolved in many ways to include new forms of contracts and new forms of intellectual property.  It has come to be recognized that domestic partnership contracts have to equally recognize the partnerships of two people of the same sex, as well as those of two people of the opposite sex.  Not to do so is a violation of the principle of the equal protection of individual rights necessary to the right to pursue one's happiness.  One can only hope that our broad right to freedom of association will one day be more recognized than it is now.  As these changes have occurred and will continue to occur in our real lives, the 9th and 14th Amendments should be constant as sources of the justification for protecting these individual rights. No change in the Constitution is needed to protect individual rights, despite their evolving nature.

To be clear:  I am not a believer in a living Constitution.  I believe that it is our understanding of individual rights that is changing.  To some degree, those individual rights are themselves evolving as the conditions of man's existence in reality change.  Most of that change is the result of man using his rational faculty to improve and control the world in which he lives.  We need judges throughout our judicial system who understand that the Constitution itself should be interpreted literally and always in such a manner as to maximize the protection of individual rights.  These same judges should be open to understanding our individual rights and prepared to expand their range.  It is not the Constitution which is the primary basis for rational law.  The primary basis is the protection of individual rights.  The Constitution is an important and critical tool to limit the powers of government and to direct its actions toward the equal protection of every citizen's many and broad individual rights.  This is the critical context for all valid constitutional law -- indeed for any valid law.

It is sadly the case that Judge Neil Gorsuch seems to defer too much to any existing law and any prior interpretation of the law whether or not they violate these principles of legitimate government.  It appears that Justice Clarence Thomas will remain the best of the Supreme Court justices.

American Exceptionalism in the Moral Foundation of the Declaration of Independence

The United States of America is unusual in that it became a nation comparatively recently and  its People have maintained a similar philosophy of government, at least implicitly, throughout its lifetime.  For decades, however, the Progressive Elitists have been working hard to change that philosophy to one more like that of most nation-states and their societies.  What is the keystone of the American philosophy of government and why would Progressive Elitists want to change it?

The Declaration of Independence clearly spelled out the central fact of the exceptional American Principle of Government.  Without this great and noble document, our Constitution cannot be viewed in its proper context and becomes a much weakened limit on the scope and powers of government.  The United States of America were declared independent of Great Britain on 4 July 1776 with a very exceptional purpose in the annals of nations.  Other nations simply had a government controlled by aristocrats, commonly in an alliance with high-level clergy, who were empowered to protect the people and take care of them, at least in theory.  Our first founding document, The Declaration of Independence, clearly and emphatically states that a legitimate government is the tool of the People as the holders of sovereign, equal individual rights to protect and defend their rights.  This is the first part of the exceptional American Principle of Government.


Let us read this straight from the Declaration of Independence:

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 -- That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed, that whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or to 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.  Prudence, indeed, will dictate that Governments long established should not be changed for light and transient Causes; and accordingly all Experience hath shewn, that Mankind are more disposed to suffer, while Evils are surfferable, than to right themselves by abolishing the Forms to which they are accustomed.  But 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.

Legitimate government secures our individual unalienable rights.  Government cannot take our rights away from us and it certainly cannot give them to us.  Our rights are the result of our nature as thinking individuals who must use our independent minds to survive and to choose the values that we will act to gain or to keep.  At that time, it was assumed that the nature of man was given to man by a god, so therefore God was the giver of rights.  Prior to the French and Indian War, or the Seven Years War in Europe, Americans had long been neglected by the government of Great Britain.  They had developed their own legislatures and had taxed themselves very lightly under local governments of very limited scope for a long time.  When Great Britain awoke to the fact that the Colonies had become rather well off and could be taxed to help pay off the huge war debt from the Seven Years War, they levied new taxes and sent of a swarm of new officers to the Colonies to tell Americans what they could and could not do.  By the standards of Americans then, the government of Great Britain had become illegitimate because it was violating the individual rights of the People.

The Constitution was ordained and established by the People as our second form of government in 1789 after they had found that the first form of government under the Articles of Confederation was somewhat too weak.  The People wanted a federal government more capable of providing defense, without too heavy a dependence upon the states.  They found it necessary to prevent the states from violating the property rights of the People and from prohibiting or impeding their trading with one another in commerce.  They needed a government more capable of dealing with foreign powers.  They needed a government to help them establish courts to handle disputes across state lines, nationwide postal service with post roads, patent laws, provide a common coinage, and common weights and measures so that the People in the various states might have some basic rules and means to develop more commerce with one another.

This was still a government of very limited scope and with a few, carefully enumerated powers.  This was not a government that gave the People certain rights.  It was the People, with their rights already in hand, who ordained and established the government.  That government had such limited powers precisely because the People knew that strong governments with wide-ranging powers become the greatest threat to individual rights.  Such governments always seek to expand their powers.  The People knew from history that freedom was lost in Greece and in Rome, for  instance, to  governments which had acquired too much power.  They knew of many other abuses of government power from British history.  The Americans were fortunate to know these things and fortunate to generally have escaped the indoctrination of government-run schools.

The Constitution has its moral foundation in the Declaration of Independence.  The Constitution had to provide for a government with no more than minimal powers and scope or the government operating under it would necessarily become an instrument to violate the rights of the individual to Life, Liberty, and the Pursuit of Happiness.  This is the second part of the exceptional American Principle of Government, which was explained in the Declaration of Independence somewhat and enacted in the Constitution.  This must happen because the Rule of Law must apply to all, but few laws can be written to accommodate the highly differentiated and complex natures of thinking Men.  The Rule of Law requires that every law apply equally to every Man.

There are only a few laws that can comply with this requirement, however.  For instance, a law might say that no Man may initiate the use of force against another.  Such a law is consistent with the General Welfare since it is necessary for the protection of each and every Man's rights.  But once government takes on powers beyond the protection of the rights of every man, then every law becomes one to promote a special interest rather than the General Welfare.  For instance, a law of the form: Every Man with an income greater than $250,000 will pay a higher tax rate on his income than any Man with a lower income, is a special interest law, which violates the General Welfare by only addressing the welfare of those making less than $250,000 of income a year.  A law that requires a doctor to treat a patient who does not have enough money to pay for his treatment is another such special interest law which does not satisfy the condition that it provide for the General Welfare.  The doctor's right to his own Life and how he will spend the hours of it is violated.  He is not at Liberty to Pursue his own Happiness under such law.  This is a clear violation of the doctor's equal and sovereign individual rights.  The requirement by law that one must purchase a health insurance plan approved by government is a clear violation of the right of every Man to own his own life and to manage his own health care needs.  Some, for instance, might rationally be wealthy enough to be self-insured.  Others might have no need for a low-deductible policy or for mental health care.  Some may not need pre-natal care.  Individuals have differing needs and their values will differ accordingly.  Government laws under progressive governments deny these basic facts of reality.

The Constitution recognizes the importance of the Rule of Law applying equally to everyone many times.  It refers to the General Welfare as a requirement that must be provided for whenever any of the limited powers of government are executed.  The government is authorized to build military facilities, but it is not authorized to have the Speaker of the House give the construction contract to his son-in-law at three times the lowest responsible bid cost.  For him to do so, would be a violation of the General Welfare and of the Rule of Law.  The many laws that apply to all Americans except the members of Congress and/or their staff, are another example of special interest law in violation of the General Welfare and the Rule of Law.  Similarly, the award of government contracts only to those paying union wages is another obvious violation of the moral rule stated in the Declaration of Independence.

There is a presumption of liberty for the individual in both the Declaration of Independence and the Constitution.  The long list of grievances against the interferences of Great Britain make this clear in the Declaration of Independence.  The entire effort to limit the powers and scope of government in the Constitution makes this clear in that document.  The long list of rights the government acknowledged in the Bill of Rights is another recognition of this fact, especially given the 9th Amendment which says:

The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.

This amendment clearly states that the government is not the source of individual rights.  The government has the duty to recognize and honor the unalienable rights of the every individual to Life, Liberty, and the Pursuit of Happiness.  The Declaration of Independence even implied that there were other rights not covered by that very broad combination of Life, Liberty, and the Pursuit of Happiness when it precedes that list of rights with "among these are."  I am not sure what rights are not covered by that list, which does cover many rights not listed in the Bill of Rights, but this is another strong example of the presumption of liberty which legitimate government must not violate.

The Declaration of Independence is a critically foundational document of the exceptional American Principle of Government.  Its moral principles provide the real backbone to the Constitution.  If one can eliminate the Declaration of Independence from our understanding of our moral duty as citizens and as a definition of legitimate government, then the Constitution is greatly weakened and becomes more subject to changing interpretations and tortured mutations of constitutional law and precedent. 

The central purpose of the Progressive Elitist is to make government much more powerful and to put it to the endless task of providing goodies for an endless list of special interests.  That list presently includes government employees, labor unions, big financial and car outfits with special protection by government against their bad business decisions, trial lawyers, government-run school teachers, non-competitive energy providers, ethanol refiners and blenders, farmers with subsidized crops, tariff-protected industries, low income housing users, high income housing owners who want green space, zoning laws, and building codes to keep lower income people away from their neighborhoods, and the unemployed who like sitting at home on unemployment benefits.  None of this is consistent with the General Welfare or the Rule of Law.  It is just faction against faction to win special interests at the expense of violating the individual rights of others.

Obama very clearly explained that he does not like the Constitution which is a barrier to his central purpose of redistributing the wealth by taking some of the People's time, money, and property and giving it to others of his choosing.  Vice President Biden explicitly stated that there are no such things as Natural Rights.  Rights are given to People by the government he says.  Of course, this means that People do not have unalienable rights.  If the Declaration of Independence is wrong about that, then it is also perhaps wrong in claiming that the People have equal rights.  It is certainly wrong in the minds of such Progressive Elitists for the Declaration of Independence to define legitimate government as that government that protects the equal rights of the individual to Life, Liberty, and the Pursuit of Happiness.  These two men are very aware that the Declaration of Independence and the Constitution form a very strong front against their idea of government.  Indeed, Progressive Elitists very often claim the Declaration of Independence has no standing in the law.  How odd a claim this is given that it is the moral foundation upon which the Constitution rests.  But, as with a fortress, the Constitution is no stronger than its foundation.

The 9th Amendment has been virtually struck from the Constitution by Progressive judges.  Even the explicitly enumerated rights of the individual in the Bill of Rights have been split into categories which deserve strong protection and those which are mere after-thoughts.  Any right to pursue one's happiness through commerce is now completely subject to the whim of the government.  That means that the People have lost all of their economic rights, which most people spend many hours a day pursuing.  Clearly, such rights must be denied by a government that presumes to choose the People's values and to micromanage their lives with Central Planners.  This is the goal of the Progressive Elitists.  Obama is particularly derogatory about people who pursue their happiness in part by making money or creating wealth.  This predilection against commerce explains why he has proven so effective in destroying the jobs many Americans once had in the private sector.

Note also that the Declaration of Independence says the People have a moral duty to change the form of their government if it becomes illegitimate by violating their rights.  This is a very scary idea for a Progressive Elitist who desperately wants to dictate our values to us and force us to live in accordance with those mandated values.  He believes the People are generally unable to wisely choose their values and are not up to managing their own lives well.  He lacks the faith of the Declaration of Independence in the People.

It is interesting in this light to note the study by two Harvard University professors, David Yanagizawa-Drott and Andreas Madestam in which they found that

The political right has been more successful in appropriating American patriotism and its symbols during the 20th century. Survey evidence also confirms that Republicans consider themselves more patriotic than Democrats. According to this interpretation, there is a political congruence between the patriotism promoted on Fourth of July and the values associated with the Republican party. Fourth of July celebrations in Republican dominated counties may thus be more politically biased events that socialize children into Republicans.

There are plenty of Progressive Elitists in the Republican Party, but they tend to be less radical than those in the Democrat Party and fewer in percentage.  The impact of 4th of July parades on the People that pushes them toward the Republicans is due to there being less resistance among Republicans to the ideas of our Declaration of Independence.  These ideas are still more in sync with those of the Tea Party.  It is these ideas that make Americans exceptional.  The Democrats have a great deal of difficulty seeing American principles as exceptional because they have dismissed all of our American principles and hold none that are unique to America.  Their core values all hinge on an aristocracy of college-indoctrinated elitists running the country by controlling its all-powerful government.  This is a variant of the Medieval concept of government that long-preceded the Scottish and French Enlightenment philosophy found in the Declaration of Independence.  The peasants in their society are the many who received just enough indoctrination in the government-run schools that they will be docile in obeying the government they are told has only their best interest at heart.  Such docile peasants bear no resemblance to the Americans of our founding period.

It is a fine thing to remember the great deeds of our veterans on the 4th of July, but let us also remember that we are celebrating the great and critically important ideas of the Declaration of Independence on that wonderful day.  They are the moral foundation of our Constitution and they inform of us of when our government is legitimate and when it is our moral duty to reform it.  It is clear that our present government is not legitimate and that we must reform it.  We must carry this realization with us into the election of 2012 and do our duty as defined by the most exceptional and moral American Principle of Government.  It is time to stand for that American Principle of Government as the Winter Soldiers did in our Great American Revolution.

The Sovereign Rights of the Individual

The sovereign rights of the individual are well summarized by The Declaration of Independence as the right to life, liberty, and the pursuit of happiness.  But what then are these rights?  Some of them are given in the original Constitution and some more are given in the Bill of Rights of the Constitution.  But, the 9th Amendment of the Bill of Rights implies that there are more rights which are not enumerated.  What might some of these additional rights be?

In modern politics, it is common for the socialists to claim that a person has a right to adequate food, clothing, education, housing, and a good job.  This is nonsense, since any of these "rights" as they understand them mean that someone else is expected to provide these goods and services to the "right" claimer and that someone else is then enslaved to the right claimer to some degree.  No right can entail the enslavement of others or their involuntary labor or the taking of their income or property.  When one person claims their rights, those of others must not be thereby diminished.

It has, however, been often noted that the right to free speech means little if you are starving to death or freezing to death on a cold winter's night.  Food is a necessity of life, as is adequate clothing.  There is no question that education better prepares us for sustaining our lives and may provide us the information and some of the wisdom needed to pursue happiness with a decent chance of success.  Although we have no right to be provided with food, clothing, housing, education, and jobs, we very much have the right to pursue the attainment of each of these values.  No one has the right to act to prevent us from growing our own food or from trading for food with those who will join us voluntarily in such a trade.  No one has the right to prevent us from having a home, provided we provide ourselves with the land on which it sits and build it, or we trade with others voluntarily for the land and the house or the rent of some housing someone else wishes to rent us by mutual agreement.  It is in this sense that we each have the right to food, clothing, housing, education, and a job.  Others are never obliged to give these things to us, but they are obliged not to use force to keep us from them either through our own work directly or through our trading with others in a mutually voluntary trade.

To be perfectly clear, when we assert our freedom of speech, we do not require others to rent us an auditorium in which we can comfortably address a crowd who are comfortably seated.  We do not have the right to force a radio or television station owner to broadcast our speech.  But, others cannot shut us up if we speak in our own home or if we carry on a normal conversation while walking along a sidewalk.  Others are not obliged to provide us with a bullhorn or even a soap box, nor are they obliged to listen to us.  But, they can only stop us from speaking if we are on their property.  Generally, we are free to speak our minds wherever we can make an arrangement with the owner of the land or facility where we will speak.

There is no way in which we can be said to meaningfully have the right to life, liberty, and the pursuit of happiness if we have no right to perform productive labor, to think, to trade with others, to acquire property, and to act to secure our good health.  These actions are all necessary to us if we really have the right to life, liberty, and the pursuit of happiness.  It is these rights and other rights also necessarily subsumed by our right to life, liberty, and the pursuit of happiness which are secured to each of us by the critically important 9th Amendment, which unfortunately is hardly ever enforced.

Why were these critical rights not explicitly mentioned as protected in the Constitution and the Bill of Rights?  I am sure it is because they were so well understood to be rights that they had not been seriously challenged in colonial times in America.  The quartering of troops in private homes during peacetime had been forced upon the colonists, so the Bill of Rights protected the right not to have to share one's home with troops involuntarily.  Implicit in this protection is the broader recognition that a man has a right to his property and he has a right to his home.

None of the enumerated powers of Congress give it any power to infringe upon the individual's right to their property without just compensation.  There is no power to prevent anyone from pursuing their chosen line of work.  There is no provision allowing the government to interfere with any citizen's education.  There is no power that allows Congress to interfere with the trades and arrangements any citizen might make for his health care.  None of these rights can be infringed by a Congress exercising its enumerated powers and no more. 

Yet all of these fundamental rights are routinely infringed by our unconstrained Congress and our similarly unrestrained state governments.  Sadly, many of our most fundamental individual rights are violated daily by the very governments which were instituted by sovereign individuals only for the purpose of securing our inalienable individual rights.  These governments are now generally illegitimate, since they are acting contrary to the purpose for which they exist and by which they are to be judged.