George Will had a column in the Washington Post (and elsewhere) last week, urging that we look to the Declaration of Independence to construe the Constitution.  In particular, Mr. Will wants to use the Declaration of Independence to interpret the word “liberty” in the Constitution.  

Mr. Will favorably quotes Timothy Sandefur who says that that word “does not refer to some definitive list of rights, but refers to an indefinite range of freely chosen action.”   I accept this statement by Sandefur for the sake of argument, with the caveat that the range of freely chosen action must be a bit narrower once we voluntarily leave a state of nature and enter civilized society. 

The Constitution’s preamble speaks of securing “the blessings of liberty,” and the Fifth and Fourteenth Amendments speak of depriving people of “liberty” either as punishment for crime or because some types of liberty are themselves crimes (instead of blessings).   Mr. Will implies that identifying and protecting the inalienable blessings of liberty is a job for the anti-majoritarian judiciary, because (he says) the Declaration of Independence not only privileges liberty over majority rule, but never even mentions majority rule at all.   However, that is not the Declaration of Independence that I was taught.  For example:

•The Declaration accused King George III of asking that “people would relinquish the right of Representation in the Legislature, a right inestimable to them”;

•The Declaration complained that the King “has dissolved Representative Houses repeatedly....”  and it affirmed the power of those houses to oppose “invasions on the rights of the people”;

•The Declaration condemned the King’s refusal to allow elections “whereby the Legislative Powers...have returned to the People at large for their exercise”;

*The Declaration says that the “consent” of the governed is required to set up a government in the first place, but also is required on an ongoing basis, e.g. “Standing Armies without the Consent of our legislatures” are tyrannical in time of peace, and “imposing Taxes on us without our Consent” is tyrannical as well.

Very clearly, then, the Declaration endorsed representative democracy.  It is true that the Declaration says natural rights preceded government chronologically, and says that government is instituted to protect inalienable natural rights, but the mere fact that natural rights were born before government does not imply that the Declaration privileges the former over the latter (e.g. primogeniture laws were repealed around the same time as American Independence with Jefferson leading the repeal in Virginia).   Even if the Declaration did privilege inalienable natural rights over government, that would equally include both the elected and judicial branches of government, because Mr. Will is incorrect that the Declaration disfavors the elected branches (see bullet points above).

Both the Declaration of Independence and the Constitution refer explicitly or implicitly to a wide range of individual rights, and they also refer to representative democracy as the way to identify and protect many of those inalienable rights, at least until there is sufficient consensus to protect them constitutionally (using Article Five).  Adopting an extremely broad definition of “liberty” does not help Mr. Will’s argument, because both the Fifth and Fourteenth Amendments provide mechanisms for taking liberty away, no matter how broad it is, subject to the exceptions elsewhere in the Constitution.

Suppose Mr. Will is correct that federal judicial supremacy over all branches and levels of government would be better than “congressional anemia enabling presidential imperiousness.”  Then we the people have several legitimate choices: (1) we could elect candidates who agree with Mr. Will that Congress should be more assertive and presidents less assertive; or (2) we could vote to adopt federal judicial supremacy per Article Five of the Constitution; or (3) we could exercise our revolutionary right to overthrow the present governmental system and put unaccountable judges in charge; or (4) we could continue to suffer under the status quo while it remains sufferable.  Pick one.

The Declaration of Independence was not meant to defend only individual liberty, but also collective and political liberty.  It speaks of “a free people” organized into “free and independent states.”  Those aspirations are reflected in the democratic architecture of the Constitution, which could all be irretrievably destroyed by rashly transferring power over every fundamental political question to a largely  unaccountable federal judiciary which was never meant to play such a role.