Don's Tuesday Column

               THE WAY I SEE IT   by Don Polson Red Bluff Daily News   7/05/2016

               Declaration—more than meets the eye

Having given readers some analysis of how The Declaration of Independence can relate to the current state of our nation, I found some articles that help understand the creation of that document.

Randy Barnett, Carmack Waterhouse Professor of Legal Theory, Georgetown University Law Center, wrote “Happy 4^th of July! The Drafting of the Declaration of Independence,” and “What the Declaration of Independence Really Claimed.” They are excerpts from his book, “Our Republican Constitution: Securing the Sovereignty of the People.”

Barnett: “On June 11^th, 1776 the Continental Congress appointed a committee to draft a declaration to effectuate Richard Henry Lee’s motion ‘That these United Colonies are, and of right ought to be, free and independent states…’ Such a declaration ‘would, as John Hancock later put it, provide the Ground & Foundation of a future Government.’”

Think of the rapid progression from inception to publication and distribution of the Declaration to the people of the Colonies. Within about 3 weeks, it was read aloud for their understanding, acclamation and approval. While that committee assembled and assigned Thomas Jefferson with writing the first draft, he was also on some thirty-four different committees, all while the Continental Congress—lacking an executive—conducted the ongoing conflicts.

He wrote it in about 3 days and drew on other sources. The first was his draft preamble for the Virginia constitution that contained a list of grievances, “quite similar to the first group of charges against the King that ended up on the Declaration. The second was a preliminary version of the Virginia Declaration of Rights that had been drafted by George Mason in his room at the Raleigh Tavern in Williamsburg where the provincial convention was being held.”

Rather than detract from Jefferson’s final draft, it was a tribute to the ingenuity of prior attempts and models, honed to perfection by his inclusion. “Mason’s May 27^th draft proved handy indeed in composing the Declaration’s famous preamble. Its first two articles present two fundamental ideas that lie at the core of a Republican Constitution. The first idea is that ‘first come rights, and then comes government’…Among [the certain inherent natural rights] are the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.”

Mason’s and Jefferson’s efforts also were incorporated into several state constitutions. “Article 2 of Mason’s draft then identified the persons who comprise a government as the ‘servants’ of the sovereign people, rather than their masters: ‘That all power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants, and at all times amenable to them.’ As trustees and servants, those people who serve as governing magistrates are to respect the inherent natural rights retained by the people.”

Paraphrasing Rodney Dangerfield, “We just can’t get no respect” anymore from our government’s trustees, servants and magistrates. Perhaps that describes the motivation for a 52 percent majority of Great Britain’s voters who, in effect, declared their own “Independence Day” by severing ties to the behemoth European Union, its unelected rulers and arbitrary mandates. We see, in our federal government, a behemoth, unelected bureaucrats and arbitrary mandates.

In “What the Declaration of Independence Really Claimed,” Barnett explained how the “natural rights foundation of the American Revolution” was integral to what the founders believed made a constitution or government legitimate, as well as how those fundamental rights could be reconciled with the idea of the “consent of the governed.”

“The Declaration constituted high treason against the Crown. Every person who signed it would be executed as traitors should they be caught by the British. Also, the Declaration was considered to be a legal document by which the revolutionaries justified their actions and explained why they were not truly traitors. It represented, as it were, a literal indictment of the Crown and Parliament, in the very same way that criminals are now publicly indicted for their alleged crimes by grand juries representing ‘the People.’

“So the Americans had to allege more than mere violations of rights. They had to allege nothing short of a criminal conspiracy to violate their rights systematically. Hence the Declaration’s famous reference to ‘a long train of abuses and usurpations’ and the list that followed.”

Other aspects of the document’s wording emphasized the primacy of the individual over the collective, the prominence of private property as part of the right to “the pursuit of happiness,” and how the “consent of the governed” does not subject citizens to be ruled over.

Barnett summarized the political theory brought forth in the Declaration of Independence: 1) First come rights, and then comes government; 2) The rights of individuals do not originate with any government, but pre-exist its formation; 3) The protection of these rights is both the purpose and first duty of government;

4) Even after government is formed, these rights provide a standard by which its performance is measured and, in extreme cases, its systemic failure to protect rights—or its systematic violation of rights—can justify its alteration or abolition; 5) At least some of these rights are so fundamental that they are ‘inalienable,’ meaning they are so intimately connected to one’s nature as a human being that they cannot be transferred to another even if one consents to do so.

It begs the question: Have we not our own “long train of abuses and usurpations”?