Principle #3: Legitimate Governments Derive their Powers From the Consent of the Governed
Our Founding Fathers were thoroughly educated in the principles of freedom and understood that the survival of our liberty depended on our understanding of and vigilance in defending our natural rights. Our Founders understood the necessity of governments which would by their very nature place limitations on natural rights. Thus the only way to establish legitimate government and a civil society required that those governments derived their power from the consent of the governed. People would out of necessity surrender in some part their natural rights to establish such a government. Understandably, our Founders were concerned about the dangers natural to this delegation of power, and took care to frame the Constitution with those mechanisms deposed to the protection of individual liberty, but they understood that the Constitution alone was not enough to secure liberty. Liberty would only be secured by a well educated and moral people.
Thomas Jefferson described the object of a primary education as to "give to every citizen the information he needs... to express and preserve his ideas... To improve by reading, his morals and faculties; To understand his duties to his neighbors and country... To know his rights; to exercise with order and justice those he retains; to choose with discretion the fiduciary of those he delegates; and to notice their conduct with diligence, with candor and judgment; And, in general, to observe with intelligence and faithfulness all the social relations under which he shall be placed. To instruct the mass of our citizens in these, their rights, interests and duties, as men and citizens...” ~ Thomas Jefferson (August 4, 1818)
To know our rights and to instruct others in their rights so that as we exercise in wisdom our consent in the delegation of our power, requires that we engage in a serious study of the principles of liberty and free government. That study should include those writings that were formative in our Constitution. The Essex Result is one such source, it was an influential document in constructing a U.S. Constitution that would articulate the critical balance between establishing governments and preserving individual liberty. It was an insightful criticism of the proposed Massachusetts Constitution in 1778, a critique that proved to be influential in the drafting of the U.S. Constitution in 1787. In the Essex Result a distinction is made between unalienable and alienable rights and how such powers are collected together to form the proper delegation of powers from the consent of the governed.
“...The State. This supreme power is composed of the powers of each individual collected together, and VOLUNTARILY parted with by him. No individual, in this case, parts with his unalienable rights, the supreme power therefore cannot controul them. Each individual also surrenders the power of controuling his natural alienable rights, ONLY WHEN THE GOOD OF THE WHOLE REQUIRES it. The supreme power therefore can do nothing but what is for the good of the whole; and when it goes beyond this line, it is a power usurped.” (The Essex Result, April 29, 1778)
What are unalienable 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." Declaration of Independence
"Unalienable: incapable of being alienated, that is, sold and transferred." Black's Law Dictionary, Sixth Edition, page 1523
Thomas Jefferson understood “unalienable rights” to be fixed rights endowed upon us by our Creator and not derived from any government of men. The principle of unalienable (or inalienable) rights cannot be understood outside the existence of our Creator, that these rights are derived from our Creator is crucial, because it establishes rights as predating the organization of governments.
Jefferson’s understanding of the source of these rights was impacted by Oxford’s William Blackstone, who described “unalienable rights” as “absolute” rights–showing that they were absolute because they came from him who is absolute, and that they were, are, and always will be, because the Giver of those rights was, and is, and always be. Moreover, because we are “endowed” with them, the rights are inseparable from us: they are part of our humanity.
The absolute rights of individuals may be defined in three basic categories, 1) the right of personal security, 2) the right of personal liberty, and 3) the right of self-determination and to acquire and enjoy property. Jefferson gave definition to these three categories as Life, Liberty, and the Pursuit of Happiness. Let's take a look at those unalienable rights defined in the Bill of Rights under these three categories.
The right of personal security, to preserve ones life and defend the lives of ones family and associates, is expressed in the Bill of Rights as the right to keep and bear arms. The basic unalienable right to self defense was a basic right protected in nearly every human society that predated our own. Each person is endowed with life by their Creator and to take a life is a crime against God.
Next to depriving one of their life, is to take ones life through incarceration. Also defined in the Bill of Rights as securing ones right to life is the guarantee that no person will be deprived of their life, liberty, or property without a just prosecution. Therefore, the Bill of Rights defines the parameters of justice which include the right to a fair, speedy, and public trial by a jury of one's peers and protection from cruel and unusual punishment.
The right of personal liberty is expressed in the Bill of Rights as our first liberty, the right to worship according to the dictates of our conscience, the freedom of speech and assembly. What is life without the freedom of the mind and the ability to act upon ones personal beliefs? The very essence of liberty is the principle of free will, and free will operates upon free thought, conscience, and speech.
Religious liberty is not a mere liberty of internal belief but extends to the "free exercise of" ones religious tenants. Free speech is a natural extension of the free exercise of religion and of particular concern within free speech is the freedom of expression related to ones beliefs and opinions. Therefore, the most sacred speech secured in the Bill of Rights is that speech that is related to religious teaching and action and political education and action.
In addition to religious liberty, thought, conscience, observance of belief, speech, and assembly the Bill of Rights defines the natural right to privacy. The right to be security in ones person, house, papers, and effects not only extends to tangible property but to guard the natural right of each person to private associations within their homes and among their families.
To retain ones liberty the Bill of Rights defines parameters with which every person is entitled to seek for redress of injustices against their rights. These parameters of protection are described in detail in the 4th through 9th amendments and make up the bulk of the Bill of Rights.
Pursuit of Happiness
The pursuit of happiness was understood by our founders as being a category of rights related to self-determination. The right to acquire & enjoy property is essential to self-determination. Our Founding Fathers universally agreed that the right to secure ones property was an unalienable right intricate to the protection of both life and liberty and was the realization of ones happiness. Alexander Hamilton explained that "a power over a man's subsistence amounts to a power over his will." This property right has been expressed in legal statutes that equate the defense of property with the defense of life itself.
Adam Smith explained that property is tangibly the extension of ones person as it is derived from his own labor. "The property which every man has in his own labor, as it is the original foundation of all other property, so it is the most sacred and inviolable." (Adam Smith's Wealth of Nations, Bk. I. Chap. 10." Butchers' Union, supra.) Therefore, that property which a man has honestly acquired he must by natural law retain full control of.
The right of men to pursue their happiness, extends to "the right to pursue any lawful business or vocation, in any manner not inconsistent with the equal rights of others, which may increase their prosperity or develop their faculties, so as to give to them their highest enjoyment. The right to pursue them, without let or hinderance, is an essential element of that freedom which they claim as their birthright." Property was not only that which was tangible but a man's original creations of his intellect were also considered his property. Madison went much further in describing property rights in such a way as to reveal why it is this area of natural right that falls into the category of the pursuit of happiness.
Property “In its larger and juster meaning, embraces everything to which a man may attach a value and have a right; and which leaves to everyone else the like advantage.” It is often thought that “a man’s land, or merchandize, or money is called his property…” but “a man has a property in his opinions and the free communication of them. He has a property of peculiar value in his religious opinions, and in the profession and practice dictated by them. He has a property very dear to him in the safety and liberty of his person. He has an equal property in the free use of his faculties and free choice of the objects on which to employ them. In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights… Government is instituted to protect property of every sort; as well that which lies in the various rights of individuals, as that which the term particularly expresses. This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own.” (“Property” James Madison, March 29, 1792)
Property fully understood becomes the source of happiness and includes the freedom to choose where one will live, how they will live, and with whom they will live. The right to enter into relationships of choice such as marriage and to freely establish families can be associated with that labor employed in the pursuit of happiness. Family life could hardly be separated from the unalienable right to pursue ones happiness independent of outside force or coercion.
The liberty of parents to direct the upbringing, education, and care of their children was traditionally associated with property rights as the begetting of children was a natural property, as children are the literal and natural offspring of ones life and liberty. Children as property has developed a negative connotation in modern times but mostly because of how view of property has been limited to the tangible and material. Understood in light of Madison's definition of property, the right of parents to make decisions concerning the care, custody, and control of their children, and to freely inculcate their values in the nurturing and education of their children, can be seen as a natural expression of a persons God given rights of influence upon those "objects" most dear to him.
What constitutes a legitimate limitation on unalienable rights?
The brilliantly concise statement of God given natural rights in the Declaration of Independence is far more expansive than most realize. Life, Liberty, and the Pursuit of Happiness are broad categories of natural unalienable and alienable rights. The Declaration of Independence describes the state of man in relationship to the natural world upon which their Creator placed them and contains all the rights with which we were endowed. All of our rights are our natural possession, both unalienable and alienable. What sets unalienable rights apart is that they cannot be forcibly usurped except as a crime against God.
Is there ever justifiable limitations that can be placed on unalienable rights?
Yes. Just as there are natural rights there are natural limitations, for example our rights cannot be legitimately exercised to deprive others of their natural rights. These natural limitations are exercised daily in U.S. criminal codes. In additional to natural limitations to unalienable rights, there are rights within these categories that are alienable and can be delegated by the consent of the governed. For example, a person can consent to the transfer of tangible property to another. One example of the transfer of this alienable right is the collective power to tax. Thus the Essex Report defines the consent of the governed as a necessary surrender of rights when the good of the whole requires it. Natural Rights balanced in the legitimate charter of government to secure those rights sets a high bar for what constitutes a legitimate limitation on both unalienable and alienable rights.