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The Declaration and the Constitution

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THE AMERICAN REVOLUTION was one of the most remarkable periods in history, not so much for the military battles that were fought but for the ideas and principles that were expressed during that time. Foremost among the documents expressing those ideas and principles are the Declaration of Independence and the Constitution, which are inexorably intertwined.

Throughout history, people have viewed the relationship between government and citizen as one of master and servant. It was always assumed that man’s rights came from government and, therefore, that it was entirely legitimate for government to regulate or even take away the “rights” that had been given the citizenry.

If the king, for example, decided to confiscate a farmer’s crops, there was nothing the farmer could do but obey, because the farmer held his land and grew his crops through the good graces of the king. If the king imposed a maximum price that could be charged for the farmer’s crops, the citizen obeyed because the king, as sovereign, was ultimately the owner of everything.

If the king granted monopolies to selected people to produce or sell certain items, such as royal playing cards, no one would dare to disobey the order, for a person’s livelihood was unconditionally subject to the dictates of his ruler. Or if the king ordered a citizen to leave his family to do battle in behalf of the kingdom, the citizen would rarely think of questioning the order.

Thus, the situation was such that people were beholden to the king for whatever degree of “liberty” he would permit them. Sometimes the king was good and would allow his people a significant amount of “liberty.” Other times he was not so good and would allow them less “liberty.” But what everyone clearly understood was that it was the king who had the legitimate power to make this determination.

Then along came the Declaration of Independence and totally inverted the traditional relationship between government and citizen. The Declaration is truly the most radical document in political history. Its ideas and principles continue to threaten governments and political rulers 225 years after it was written.

The Declaration pointed out that man’s rights do not come from government. Instead, rights exist independently of government. If government ceases to exist in a society, people’s rights do not cease to exist, because their rights preexist government.

Where then do government’s powers come from? The powers come from the people because it is the people who bring government into existence. Government does not preexist the citizenry (and their rights); instead, the government exists by favor of the citizenry. Thus, whenever the people wish to dismantle or abolish government, it is their right to do so, since the existence of government depends on the will of those who bring it into existence — that is, the people.

Those ideas are expressed in the Declaration: Men are endowed by their Creator (not by government) with certain unalienable rights, and whenever government becomes destructive of these rights, it is the right of the people to alter or abolish it and form new government.

It is impossible to overstate the truly radical and revolutionary nature of this central idea expressed in the Declaration. Remember that for eons, the commonly accepted belief among people was that their government could rightfully do whatever it wanted to the citizenry and that the citizenry were duty bound to obey. Then along came Thomas Jefferson, the author of the Declaration, and said, No, it is government that is the servant and that takes orders from the citizenry, not the other way around.

What were the rights to which the Declaration referred? Among them (not all were listed) are life, liberty, and the pursuit of happiness. Jefferson had taken the phraseology from the English philosopher John Locke, who had referred to “life, liberty, and property.”

It’s obviously important to delve into the meaning of these preexisting rights.

Life, liberty, and property

Each person is born different from every other person. Fingerprints. Hair texture. Skin color. Voice. Everything about one person is different from everything about every other person who has ever lived. Each person has his own talents, abilities, handicaps, and disabilities. In order to survive, he uses his abilities to produce goods or services that either sustain his life or enable him to trade with others for things that he needs to sustain his life.

The fruits of these economic exchanges are “income” or “property.” The higher the value that others place on one’s goods or services, the more property he acquires.

Let’s consider an example — Placido Domingo. Here is a person who was born with a voice that is different from everyone else’s. It is such a good voice that thousands of people are willing to exchange a large amount of money to listen to it. As Domingo performs in an increasing number of opera productions, his income or property increase. And he uses this property to pursue happiness in his own way, either through saving it, spending it, donating it, investing it, or some combination thereof.

Obviously, government officials are not responsible for Domingo’s voice or the fact that others place a high value on listening to it. What then is the role of government with respect to Domingo? To punish any person who inflicts violence against him, either in the form of a personal assault or in the form of a theft of the property that he has justly acquired through mutual trades.

This is what Jefferson was referring to when he wrote in the Declaration that to secure these rights, governments are instituted among men. It is the process of engaging in economic enterprise, trading with others, and accumulating wealth that we call “economic liberty.” Of course, there are other aspects of human liberty besides the economic one, such as intellectual, religious, and procedural (due process of law), but the overall principle is the same: rights such as life, liberty, property, and the pursuit of happiness preexist government and it is the duty of government to protect their exercise.

It is interesting to note that Adam Smith published his monumental work, An Inquiry into the Nature and Causes of the Wealth of Nations, in the same year — 1776 — that the Declaration of Independence was written. In that work, Smith argued that economic liberty was the key to rising standards of living, especially for those on the bottom rungs of the economic ladder.

The Constitution

Eleven years later — 1787 — the people of the United States brought into existence the Constitution, which in turn brought into existence the federal government. Therefore, there is no question, at least here in the United States, that the federal government is entirely a creation of the people, that the people preexist the government, and that the people have the right to dismantle it, abolish it, reform it, or limit its powers in any way they see fit.

And this was exactly what the Constitution was — an express limitation on the powers of government. After all, the people could have called into existence a government whose powers were total and absolute.

The Constitution established the federal government but, by its express terms and its express nature, it also limited its powers to those enumerated in the document. If the intention had been to establish a government of unlimited powers, there obviously would have been no need to enumerate powers or expressly restrict powers. The fact that powers were enumerated and restricted conclusively establishes that our Founding Fathers were not establishing a government with unlimited powers.

Even though the powers of government were expressly limited (for example, in Article 1, Section 8), the American people were still very distrustful of the new government. They knew the history of government and its proclivity for omnipotent and tyrannical control over the lives, liberties, and fortunes of the people. And they had had first-hand experience with such a government. Thus, to avoid any misunderstanding, they demanded express restrictions on the power of government to interfere with the fundamental, preexisting rights of man.

Thus, the first 10 amendments to the Constitution were enacted. Today these are known as the Bill of Rights, but actually that is a big misnomer. The Bill of Rights does not grant rights at all. A careful reading reflects that these amendments are either restrictions on the governmental power to interfere with rights that preexist government or procedural protections relating to government’s ability to punish lawbreakers (e.g., the right to trial by jury).

The result of this confluence of ideas and principles — the Declaration, The Wealth of Nations, and the Constitution — was the most unusual society in history: little or no taxation, regulation, licensing laws, immigration controls, trade restrictions, public schooling, welfare, Medicare, Medicaid, Social Security, drug laws, gun control, conscription, or involvement in foreign wars.

This is what Americans in 1890 celebrated as freedom. Moreover, they viewed government as a mere servant, whose purpose was to protect, not regulate or destroy, this freedom.

All of that, of course, is long gone. In the 20th century, Americans returned to the age-old idea that rights come from government. This is why such phrases as “your constitutional rights” have become such a big part of the common parlance. It is also why we must now suffer under the burden of such governmental programs as income taxation, regulations, public schooling, gun control, the drug war, Medicare, Medicaid, Social Security, immigration controls, trade restrictions, draft registration, foreign empire-building, and more federal bureaucrats than one could ever hope to count.

Today, most Americans honestly believe that their rights come from government and, therefore, that they can be regulated or taken away at the whim of government officials. That is why hardly anyone questions the power of government to take any percentage of people’s income it desires and to exercise virtually unlimited power in its quest to “take care” of people. No one can deny that the advent of the welfare state in America brought with it the destruction of economic liberty and the elimination of almost all limitations on government power, at least with respect to the economic aspects of human liberty.

Our quest, then, as libertarians is to recapture the principles of liberty on which our nation was founded and to restore the proper relationship between government and citizen, a relationship in which government officials are once again servants and the citizenry are their masters. Our job is to make the ideas of the Declaration of Independence and the Constitution popularly accepted once again in the context of modern society, with the ultimate goal of restoring liberty to our land.

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    Jacob G. Hornberger is founder and president of The Future of Freedom Foundation. He was born and raised in Laredo, Texas, and received his B.A. in economics from Virginia Military Institute and his law degree from the University of Texas. He was a trial attorney for twelve years in Texas. He also was an adjunct professor at the University of Dallas, where he taught law and economics. In 1987, Mr. Hornberger left the practice of law to become director of programs at the Foundation for Economic Education. He has advanced freedom and free markets on talk-radio stations all across the country as well as on Fox News’ Neil Cavuto and Greta van Susteren shows and he appeared as a regular commentator on Judge Andrew Napolitano’s show Freedom Watch. View these interviews at LewRockwell.com and from Full Context. Send him email.