July 1999

The Declaration of Independence:
The Precursor of Equal Justice Under Law

by Leonard W. Schroeter

This month we celebrate the birth of our nation, for the last time in this millennium. Almost two and a quarter centuries ago, "our fathers brought forth on this continent a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal."¹

Lincoln’s Gettysburg Address was a renewal and affirmation of our most fundamental constitutional document — the Declaration of Independence. It is "altogether fitting and proper" that we rededicate ourselves to the soaring ideas and spirit of the Declaration, which remains not only our American Scripture, but a precursor of, and a commitment to, the Universal Declaration of Human Rights.

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.²

There is a crisis of the legitimacy of political democracy in the United States, and throughout the world, despite, or perhaps because of, a massively changing technology, means of production, and communication and the globalization and concentration of corporate power. This leads to the obscenity of the chasm between rich and poor, the powerful and powerless, and the apparent triumph of rampant materialism over the ideas and ideals of rule of law, freedom, justice and peace.

But there are countervailing forces, including an access to justice movement not only in the United States, but in other countries in our interconnected world. Access to justice is a fundamental right and can be seen as implicit in those unalienable rights encompassed in the Declaration. The thrust of this review is a reminder of the vital continuity of constitutional principles — which have no beginning and no end — but continually evolve. For us, in the United States, the Declaration of Independence is our birthright, but for the Founders, it was a continuation and reaffirmation of English constitutionalism and natural law. For them, the common law heritage, incorporating the Magna Carta and other charters of constitutional rights, was adopted by the new nation, just as were the fundamental philosophic principles from Greek and Roman law, and the Enlightenment.

The two decades of the American Revolution produced a remarkable, perhaps unparalleled explosion of political, philosophical and constitutional thought and writing — state constitutions, declarations of rights, the Federalist Papers, the Constitution of the United States, and the Bill of Rights. All of these help us to understand our heritage, including its flaws and its compromises. But the Preamble is worthy of revisiting:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

In his Foreword to the Bicentennial of the United States Constitution, Chief Justice Warren E. Burger wrote:

The delegates who wrote this Constitution in Philadelphia in 1787 did not invent all the ideas and ideals it embraced, but drew on the wisdom of the ages to combine the best of the past in a conception of government of rule by "We the People" with limits on government to protect freedom.…It sought to fulfill the promises of the Declaration of Independence of 1776, which expressed people’s yearning to be free and to develop the talents given them by their Creator.

The Constitution in large part established the political arrangements of a tri-partite Federal government. It was deeply flawed by compromises over slavery, regionalism, mindless sexism and elitism. The Bill of Rights was largely adopted to curtail Federal power. Wisely, however, the Ninth Amendment provided that "the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."

During the next 75 years, slavery, sectionalism, expansion, and the industrial revolution preoccupied this nation. The Civil War and President Lincoln profoundly altered the nation’s consciousness. In Lincoln’s constitutional views, "the Declaration of Independence was closer to being the founding document of the United States than was the Constitution."³ In his Gettysburg Address, Lincoln revolutionized the Revolution, giving people a new past to live with that would change their future. He undertook a new founding to correct the Founders’ imperfections involving their declaration that "all men are created equal." The Civil War was seen as testing whether our nation "or any nation so conceived and so dedicated can long endure."

Lincoln’s high resolve was "that this nation, under God, shall have a new birth of freedom — and that government of the people, by the people, for the people, shall not perish from the earth." This was not only a readoption of the Declaration of Independence, but a renewal of it, saving it so that "succeeding millions of free happy people, the world over, shall rise up and call us blessed to the latest generation."⁴ The Address became a major pillar of our "American Scripture":

The Gettysburg Address has become an authoritative expression of the American spirit — as authoritative as the Declaration itself, and perhaps even more influential, since it determines how we read the Declaration. For most people now, the Declaration means what Lincoln told us it means, as a way of correcting the Constitution itself without overthrowing it. It is this correction of the spirit, this intellectual revolution, that makes attempts to go back beyond Lincoln to some earlier version so feckless. The proponents of states’ rights may have arguments, but they have lost their force, in courts as well as in the popular mind. By accepting the Gettysburg Address, its concept of a single people dedicated to a proposition, we have been changed. Because of it, we live in a different America.⁵

The post–Civil War constitutional amendments banned slavery, granted citizenship and suffrage, and imposed upon the states the Federal proscriptions on impairment of individual rights. The 14th Amendment made all persons, born or naturalized, citizens of the United States and the state where they reside. It also forbade states to abridge the privileges of immunities of citizens, nor to deprive any person of equal protection of the law; or of life, liberty or property without due process of law. But these vital expansions of rights were rapidly curtailed or aborted during the next half-century. Continued racism, the rise of corporate wealth and power, and class struggle limited access to justice for most people, and negated ideas of equality, unalienable rights and the pursuit of happiness. Certainly, despite a flurry of populism, particularly in the West, government of the people, by the people, and for the people became chimerical.

The state of Washington is fairly typical of western state constitutionalism. Its Enabling Act of 1889 required that "(t)he constitutions shall be republican in form, and make no distinction in civil or political rights on account of race or color, except as to Indians not taxed, and not be repugnant to the Constitution of the United States and the principles of the Declaration of Independence."⁶

The Washington Constitution itself, adopted in 1889, includes in its Bill of Rights, Article I sections that enact broad declarations of constitutional rights, which incorporate and implement the intent of the Declaration of Independence and the Gettysburg Address:

Political Power —

All political power is inherent in the people, and governments derive their just powers from the consent of the governed, and are established to protect and maintain individual rights.

Administration of Justice —

Justice in all cases shall be administered openly and without unnecessary delay.

Prohibited —

No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations.

Constitution Mandatory —

The provisions of this Constitution are mandatory, unless by express words they are declared to be otherwise.

Rights Reserved —

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

Fundamental Principles —

A frequent recurrence to fundamental principles is essential to the security of individual right and the perpetuity of free government.

Subsequent constitutional amendments created power in the people for initiatives, referendum and recall. Constitutional provisions in Article XII, on Corporations, in Section 1, made corporations subject to alteration, amendment or repeal and subject to regulation, limitation and restraint by law. Monopolies or trusts "shall never be allowed in this state" under Section 22, and strict provisions for regulation and forfeiture of corporate franchises are permitted.

The United States Constitution in 1912 added the 17th Amendment, providing for direct election for U.S. Senators, creating more direct election and participation by the people. And in 1920, the 19th Amendment was ratified. It provided for women’s suffrage — a massive step of inclusion and democratization. Retrospectively, it seems incredible that any American political order could have been thought to be acceptable for more than 130 years, when it constitutionally excluded half the adult population.

As the United States became a world power in the first decades of the twentieth century, constitutionalism was largely neglected in favor of economic growth and expansion and government prioritization of enhanced corporate power and public order. But the Depression of the 1930s revived respect for the Declaration. Franklin D. Roosevelt referred to it in his first inaugural. The first term would prioritize the people’s unalienable rights to liberty and the pursuit of happiness, he said. He continued in a more ominous vein, warning those who resist change:

We have learned a great deal of [liberty and pursuit of happiness] in the past century. We know that individual liberty and individual happiness mean nothing, unless both are ordered in the sense that one man’s meat is not another man’s poison.… Faith in America in our tradition of personal responsibility, faith in our institutions, faith in ourselves demands that we recognize the new terms of the old social contract.⁷

Perhaps the most significant broadening of the promises of the Declaration, constitutional doctrine, and the fundamental rights of all people, occurred at the end of World War II. It had long been clear that American constitutional jurisprudence was a legitimate child of natural law, common law, English constitutionalism, and the mainstream of enlightened social thought through the ages. But now the American constitutional experience had been universalized by the peoples of the world, yearning for the protection of rule of law and recognition of rights. With U.S. leadership, the Universal Declaration of Human Rights was proclaimed by the General Assembly of the United Nations and ratified by member nations, thus being incorporated into constitutional law as the consensus of civilized society. The 30 articles spell out fundamental rights, more commonly seen in U.S. constitutions, but also rights that could reasonably be seen as exemplars of the Declaration’s "Pursuit of Happiness."

The Preamble of the Universal Declaration reads:

Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,

Whereas disregard and contempt for human rights have resulted in barbarous acts which have enraged the conscience of mankind, and the advent of a world in which human being shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people,

Whereas it is essential that human rights should be protected by the rule of law,

Whereas the people of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom,

Whereas a common understanding of these rights and freedoms is of the greatest importance for the full realization of this pledge,

Now, Therefore, The General Assembly proclaims This Universal Declaration of Human Rights as a common standard of achievement for all peoples and all nations.

As the millennium ends, will the self-evident truths of the Declaration of Independence and the world-wide civilized consensus of the International Declaration of Human Rights be secured? That is the purpose for which governments are instituted. That is the duty of the judiciary to implement. But intransigence remains. Many courts still insist that legislative bodies are the sole implementers of fundamental rights, despite their political character and their vulnerability to powerful special interests. And many nations, although affirming support of human rights, state as China’s President Jiang did, in October 1997, at White House meetings with President Clinton: "I also believe that the world we are living in is a rich and diverse one; and therefore, the concepts on democracy, on human rights and on freedoms are relative and specific ones and they are to be determined by the specific national situations of different countries." President Clinton responded, as follows: "We believe all individuals, as a condition of their humanity, have the right to life, liberty, and the pursuit of happiness." Subsequently, Clinton told Jiang (noting that the Chinese president was to visit Independence Hall and the Liberty Bell in Philadelphia): "We believe liberty includes freedom of religion, freedom of speech, and freedom of association. We believe governments must protect those rights."⁸

Later, Clinton showed Jiang an original copy in Lincoln’s handwriting of the Gettysburg Address. Jiang immediately recited the first paragraph in English. Clinton’s commitment to the most fundamental scriptures of our society, the Declaration of Independence and the Gettysburg Address, and Jiang’s knowledge of the Gettysburg Address reflect their universality. It is important that our President, speaking for our country, stated that we, "as a condition of [our] humanity accept as fundamental the ‘right to life, liberty and the pursuit of happiness.’" It is very important that our rights jurisprudence believes that "liberty includes freedom of religion, freedom of speech, [and] freedom of association." But most important of all, the President affirmed that "we believe government must protect those rights."⁹ Thus, there is a committed recognition that rights require the implementation of society if they are to be meaningful.

When we add to the Declaration of Independence the Lincoln commitment that we will always be a nation "of the people, by the people, for the people," we should have no difficulty in also recognizing, as a fundamental part of our jurisprudence, the positive duties of governments and the law, to protect rights, including economic rights.

In our Fourth of July celebrations, we need a refresher course as to what we celebrate. It has become fashionable to trash the Declaration for omitting the mention of "property" as an unalienable right, and including a fuzzy concept such as the "pursuit of happiness." Yet, the unalienable right to pursue happiness was consciously written into the Declaration of Independence by Thomas Jefferson and his Committee. It appears in many state constitutions, and is omnipresent in our national mores. Books have been written about the constitutional character of this term, and it has been adopted and discussed in major constitutional case law.¹⁰ The Slaughterhouse Cases, of 1869,¹¹ 1872¹² and 1883¹³ are notable in the history of our jurisprudence for having wrenched the 14th Amendment from the protection of Negroes to protection of free enterprise, but they also represent a notable phase in the legal history of "happiness." "Pursuit of Happiness" was propounded by the plaintiff’s lawyer, John Campbell of Alabama, a former Justice of the Supreme Court, as necessarily including the right to one’s labor and livelihood, the right to dispose of one’s services, and thus a constituent part of freedom of contract, liberty and property. Justice Field thought highly of this unalienable right, and referred approvingly to the earlier case of Corfield v. Coryell. In 1825, Supreme Court Justice Washington was sitting as a circuit judge in Corfield v. Coryell, pondering what the privileges and immunities of citizens were in the several states, and asked which were, in their nature, fundamental. Justice Washington had "no hesitation" confining rights "to those privileges and immunities" which were in his judgment "fundamental," and which are all comprehended under "protection by the government; the enjoyment of life and liberty; the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety" (emphasis mine).

Justice Bradley also referred approvingly in the Slaughterhouse Cases to Corfield v. Coryell, to Blackstone, and above all, to the Declaration of Independence, which he said laid the foundation for our national existence. Thus, the pursuit of happiness remained viable more than 160 years after the Declaration and has been cited frequently since that time.

What is basic here is the principle that the pursuit of happiness has historically incorporated essential economic rights, most particularly "the constitutional justice of livelihood," as Professor Charles L. Black, Jr. has recently noted. But more particularly it has been clear in the multiple delineations of what are fundamental rights. These also include habitation, education, health care, family rights, privacy, dignitary interests, and safety. To Thomas Jefferson, these were well understood, commonsensical, self-evident truths. The inherent right to pursue happiness was, in short, an absolutely conventional view among Americans of his time, detailing what the Founders meant by "Pursuit of Happiness," and by common terms such as "estate" or "property." The eighteenth century usage of those terms related to the essential rights or values of individuals, which among others included their rights to habitation, to livelihood, and to be free of intrusive interferences.

We must leave for a later time a fuller explication of what fundamental constitutional rights are or should be. But, there is no question that in the eighteenth century, "pursuit of happiness" had rich and easily understood meanings that cannot and should not be trivialized by flippant commentators and uptight judges. And as to what are thought to be "fundamental rights" today, we need look no further than to the Universal Declaration of Rights, and the common-sense understanding of the fundamentality of change, and thus, the reality of essential values.

Recently, America’s most eminent constitutional scholar, Charles L. Black, Jr., Emeritus Professor at Columbia Law School, wrote a powerful monograph, A New Birth of Freedom: Human Rights, Named and Unnamed.¹⁵ Black’s thesis, distilled from more than half a century of constitutional thought, work and feeling is that:

a sound and satisfying foundation for a general and fully national American law of human rights exists in three imperishable commitments — the Declaration of Independence, the Ninth Amendment, and the "citizenship" and "privileges and immunities" clauses of Section 1 of the Fourteenth Amendment (as those clauses ought to have been and still ought to be interpreted). These three commitments speak in solemn organic harmony. They ought at long last to be attended to as they stand — for as they stand, in their harmony, they are all we have and all we need of prime authority for our building, by the methods of law, a never-to-be-finished edifice of human rights.

To Black, "law is reasoning from commitment." We Americans were the first people who formally dedicated their power and destiny to the commitment of securing human rights, and the rule of law. Our first constitutional document was the Declaration, in 1776 — "a distinctly juristic act." That "juristic act" remains the cornerstone of our freedom. It makes access to justice possible, because it treats equality as self-evident, because all people have natural rights which are unalienable. We can use terms such as "substantive due process" as our courts have done to protect the right to teach; or to learn foreign languages; or the rights of parents to send their children to schools; or the right to practice contraception; or the fundamental right to marry. But all of these legal captions are self-evident truths as to what is fundamental to the human condition, and why, to secure these rights, governments are instituted. This is common-sense constitutionalism.

We can do no better celebrating the last Fourth of July in this century than to read Charles Black’s book, A New Birth of Freedom, and then to read, understand and feel the commitment to our Declaration of Independence, and to the expanding freedom that all of us require in the new millennium.

1 The Gettysburg Address (1863), with apologies for changing "four score and seven years ago."

2 The Declaration of Independence (1776).

3 Garry Wills, Lincoln at Gettysburg: The Words That Rewrote America (Simon & Schuster 1992), p. 130.

4 Id. at 89.

5 Id. at 146-47.

6 "Enabling Act," Constitution of the State of Washington, adopted August 22, 1889 at Olympia, Washington.

7 David Freeman Hawke, A Transaction of Free Men: The Birth and Course of the Declaration of Independence (De Capo Press 1964), pp. 236-37.

8 Seattle Post-Intelligencer, October 30, 1997, p.1.

9 The New York Times, October 30, 1997.

10 See Howard Mumford Jones, The Pursuit of Happiness (Harvard Univ. Press, 1953). The book is dedicated to Mark Howe, "who should have written it." Professor Howe taught me constitutional law at Harvard Law School. The phrase is also discussed in Pauline Maier’s American Scripture: Making the Declaration of Independence (Alfred A. Knopf 1997).

11 77 U.S. 273, 19 L.Ed.915, 10 Wallace 273 (1869).

12 83 U.S. 36, 21 L.Ed. 394, 16 Wallace 36 (1872).

13 111 U.S. 746, 4 S.Ct. 652 (1883).

14 4 Wash. Cir. Ct. 380 (1825).

15 Grosset/Putnam 1997.

Back to table of contents >>