I see fireworks! I see the pagaent and
Pomp and parade
I hear the bells ringing out
I hear the cannons roar
I see Americans - all Americans
Free forever more!
-- John Adams, 1776
On July 2, 1776, representatives of the British colonies in North America (Canada excepted*) in the form of the Second Continental Congress enacted what was often called "the ultimate act of treason." They agreed to a resolution "that these united colonies are and of right ought to be free and independent states." Not quite like the SWIFT or Cheney vacation home stories, I know, but it was pretty revolutionary. So to speak. The resolution itself had a flavor of natural law, namely the belief that "the Laws of Nature and of Nature's God entitle[d] them" to declare independence. They were not simply independent (a war would decide that), they were "of right" (the judgment of history would decide that) so. Thus, law and rights were with us (the U.S.) from the beginning.
The representatives felt "a decent respect to the opinions of mankind require[d] that they should declare the causes which impel them to the separation." [I shall dispose of the original capitalization, quaint as it is. Ah, that word.] This bow to the international community was important since ultimately they were now declaring themselves a member of the company of nations. They were "free and independent states" with full authority to do "things which independent states may of right do."
Brunt power was not offered here, but lawful authority. [The limitations of this principle, and the human rights results of the same, were greatly developed after WWII. The change was in part referenced in the Hamdan ruling.] To spell it out, they agreed to a sort of signing statement, the Declaration of Independence ... on July 4.
It is proper to celebrate our independence on July 4, since it is the day the document that underlined its principles was agreed upon. Our nation is not to be honored purely for it power or very existence, but "for which it stands." I know some want to honor the flag above and beyond the underlining principles, even amending the Constitution to do so.
But, the importance of this nation, what we should truly honor and celebrate, is the principles summarized in the Declaration. The document said to be "the fundamental act of union of these states" by James Madison. The principles of which its signers pledged their lives, fortunes, and sacred honor. And, some of whom thereafter joined together to "ordain and establish" a Constitution to formulate a "more perfect union" to further the ends of the nation formed 230 years ago yesterday.
Thus, the Declaration of Independence -- what we truly are honoring at those barbecues and while setting off small explosives -- is at the core of our system of laws. It is not simply boilerplate, but sets forth basic principles that guide our very system of government. This is seen by contrasting the trial of abuses with our own constitutional system. Federal judges are not to be "dependent" on the "will" of the executive or legislature. The military was not to be "independent of and superior to the civil power." Trial by jury was fundamental with even "many" exceptions to the general rule to be deemed "tyranny." And, dare I say that it is problematic when our representatives (surely influenced by the executive) refuse "assent to laws, the most wholesome and necessary for the public good."
The document sets forth the basic principles of our nation, principles its primary author later said was so commonly understood ["We hold these truths to be self-evident"] that the whole document was not remarkable in the least, but just a summary of accepted doctrine. One sometimes question this sentiment these days, but Jefferson's modesty was not really feigned ... though the eloquent way he phased the principles was an important means to better advance them.
The people have certain rights, "principles of natural justice" (as a signer, Samuel Chase, later noted in an opinion as a Supreme Court justice, voicing the sentiment that removal of such rights was not "law," but brunt power), that were "unalienable." Chase was not alone is so noting ... other justices and opinions in some form recognized such basic principles, though only a few (including Justice Stevens) directly referenced the foundational document in the process.**
In fact, governments were established to secure such rights. Rights without government institutions (and tax dollars) to secure them are fairly empty. They often did not, though many stay loyal because "prudence" dictates 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" the status quo than take the perilous alternative path. Or, sometimes, others decide for them ... oh wait, that isn't in there. Anyway. Representative government ("from the consent of the governed") must respect these unalienable rights, rights that might be "aliened" by brunt force, but remain ours "of right" pursuant the principles of the Declaration of Independence.
This should be recognized when carrying out the Constitution, including what is "necessary and proper" for the Congress to do to carry out its duties, the legitimate contours of "executive power," when determining what is "due process of law," the contours of rights that are not expressly enumerated but exist by force of law all the same, powers retained by the states and people themselves, and so forth.
The Declaration honors law developed by human reason examining the nature of mankind, their makeup, needs, and so forth. This leads to rights for which we are "entitled." The document begins the path of establishing such principles into statutory law ... our rights are not just principles, but principles secured by the Constitution and all other fundamental laws that carry out the principles we honor on the Fourth of July. Principles "he" -- the head of state -- did not honor. "[L]et facts be submitted to a candid world."
The document in part honored "divine providence" though often in a deistic sort of way that is best expressed in the phrase "the Laws of Nature and of Nature's God."*** What this did not say was that the state should be in the business of deciding the best way to honor said God, getting involved in questions of religious doctrine and practice. The modern path is often more secular, speaking of "human rights," which does upset some people.
In fact, though the Confederate States of America did include a reference to God in its constitution's preamble, our own made only "the people" the supreme rulers of temporal governments, who ordained and established its tenets. After all, no matter the source of rights, the Declaration reminds us "men" create governments. We might have an obligation to honor "nature's God," but it does not give this power or responsibility to government.
Generally speaking, separation of church and state is not frowned upon by principles of July, 1776. Let us remember and honor all of them tomorrow ... and sit down John!
---
* In fact, one of the "long trail of abuses" listed in the Declaration of Independence respected a recent move by Great Britain to respect the local rules and mores of the area obtained from France in the previous war, including what latter became the western part of the new United States: "For abolishing the free Systems of English laws in a neighboring province, establishing therein an arbitrary Government, so as to render it at once an Example and fit Instrument for introducing the same absolute Rule into these Colonies." This was the hated "Quebec Act," that established civil law and even the Roman Catholic religion (!) in the area. Shades of this still remain in Louisiana, which is a civil law state.
The founders here respected a common law system, which included statutory law, of course, but also judges in part guided by principles, sometimes only generally found in the statute books. Rights are not absent just because they aren't found in such books. The conservative leaning author Richard Brookhiser in his new book examining what the Framers would have thought of modern policy questions noted the likes of Madison and Hamilton recognized the fact while supporting judicial review. Jefferson was concerned about the excesses of this approach, but a supporter of bills of rights surely knew courts would be involved in their security. The balancing dispute continues.
** I refer the interested to A New Birth of Freedom: Human Rights, Named & Unnamed by Charles L. Black, Jr., a good little volume that in part relies on the Declaration of Independence. He even scorns "substantive due process" in the process of securing its ends by other means.
*** One might even say that "Nature's God," nature's creator, is perhaps but nature itself, not a separate omnipotent entity recognized by the major religions in this nation. The dual source of rights can be seen as an all inclusive phrasing, which was probably the case with stronger terms like "divine providence," which was only added in the editing process.
Surely, Jefferson and various others supported at least a deist path, though perhaps a few true atheists were in the mix. All the same, as with "life, liberty, and the pursuit of happiness," the term is not necessarily set in stone. Its understanding changed over time.