MORTIMER J. ADLER ON THE DECLARATION OF INDEPENCE AND
THE
1. HUMAN EQUALITY
All beings human, they are all persons, nothings; and as persons they all equally have the dignity that inheres in their being persons. But each is not only a person; each is also a uniquely individual person.
It is a self-evident truth that human equality exists as a matter of fact are asserting when we say that all human beings are equal in respect to their common humanity?
The Declaration asserts that all men are created equal.
We can make the proposition self-evident by dropping the word “created” and rephrasing the statement as follows: All men are by nature equal. This reiterates what has already been said: Human equality consists in the fact that no human being is more or less human than another because all have the same specific nature by virtue of belonging to one and the same species. If they all have the same nature, then it cannot be denied that, in respect of having that nature, they are all equal; no one has more or less than another.
In a speech delivered in Springfield, Illinois, in 1857, Lincoln pointed out that when it is understood that al human beings are equal not only in their common humanity but also in having by virtue of their common humanity the same human rights, it should not be thought that the signers of the Declaration were asserting “the obvious untruth that all were then actually enjoying that equality, nor yet that they [the signers] were about to confer it immediately upon them. In fact, they had no power to confer such a boon. They meant simply to declare the right, so that the enforcement of it might follow as fast as circumstances should permit.”
In the same speech,
The assertion that
“all men are created equal” was of no practical use in effecting our separation
from
That reference to “its future use” turns our attention to the political significance of the truth concerning human equality. Human equality-the personal equality of men as men, or of human beings as human- is by no means the only equality with which we are concerned in our social lives. We are concerned with what, in contradistinction to personal equality, might be called circumstantial equality- that is, equality of conditions, or results, equality of opportunity, an equality of treatment.
There is one very important difference between personal and circumstantial equality. Personal equality is either a fact or it is not. We say that human beings are equal as persons, not that they should or ought to be equal in that respect. With regard to circumstantial equality, we can speak both descriptively and prescriptively. On the one hand, we can say that in a given society at a certain time, all human beings are or are not politically or economically equal; and on the other hand, we can also say that whether or not they are, they should or ought to be. Under certain circumstances, they may not in fact be treated as equals, but those circumstances should be altered because they ought to be treated as equals.
2. INALIENABLE RIGHTS
What is being denied by the negative statement that certain rights are not alienable? Human beings living in organized societies under civil government have many rights that are conferred upon them by the laws of the state, and sometimes by its constitutions. These are usually called civil rights, legal rights, or constitutional rights. This indicates their source. It also indicates that these rights, which are conferred by constitutional provisions or by the positive enactment of man-made laws, can be revoked or nullified by the same power or authority that instituted them in the first place. They are alienable rights. The giver can take them away.
What the state does not give, it cannot take away. If human rights are natural rights, as opposed to those that are civil, constitutional, or legal, then their beings rights by natural endowment make them inalienable in the sense just indicated.
Their existence as natural endowment gives them moral authority even when they lack legal force or legal sanctions. Their moral authority imposes moral obligations, which may or not be respected or fulfilled.
A given state or society may or may not, by its constitution and its laws, attempt to secure these rights or to enforce them. It may even do the very opposite. It may transgress or violate these inalienable natural or human rights. When it fails to enforce these rights or, worse, when it violates them, it is subject to condemnation on moral grounds, as being unjust.
Later, in Chapter 10, we shall consider the question of how constitutional provisions or civil rights secure and enforce these human or natural rights. Right now we must deal wit another question. If unjust governments can violate these human or natural rights, in what sense do they still remain inalienable? Are they not being taken away by such violations?
When a human right is not acknowledged by the state, or when it is not enforced or when it is violated by a government, it still exists. It retains its moral authority even though it is not enforced or has been transgressed. If these rights did not continue in existence in spite of such adverse circumstances, then we would have no basis for condemning as unjust a government that failed to enforce them or that trampled on them.
One question still remains concerning the inalienability of natural human rights. The Declaration mentions our alienable right to life and to liberty. But when criminals are justly convicted and sentenced to terms in prison, are we not taking away their liberty? And when they are convicted of capital offenses for which death is the penalty, are we not taking away their lives? If so, how then do the rights in question sill exist and remain inalienable?
It is easier to answer the question about imprisonment that it is to answer the question about the death penalty. Tow points are involved in the answer.
First, the criminal by his antisocial conduct and by his violation of a just law has forfeited not the right, but the temporary exercise of it. His incarceration in prison does not completely remove his freedom of action, but it severely limits the exercise of that freedom for the period of imprisonment.
The right remains in existence both during imprisonment and after release from prison. If the prison warden attempted to make the prisoner his personal slave that would be an act of injustice on his part, because enslavement would be a violation of the human right to the status of a free man. This human right belongs to those in a prison as well as those outside its walls.
When the criminal’s term for imprisonment comes to an end, what is restored is not the individual’s right to liberty (as if that had been taken away when he entered the prison), but only his fuller exercise of that right. It is the exercise of that right that is given back to him when he walks out of the prison gates, not the right itself, for that was never taken away or alienated.
When we come to capital punishment, we cannot deal with the question in the same way. The death penalty takes away more than the exercise of the right to life. It may take away life itself.
If that right is inalienable, it cannot be taken away by the state, nor can it forfeited by the individual’s misconduct. It is one thing to forfeit the exercise of a right and quite another to divest one’s self of a right entirely. What cannot be taken away by another cannot be divested by one’s self.
It would, therefore, appear to be the case that the death penalty is unjust as a violation of a natural human right. Nevertheless, capital punishment has been pragmatically justified as serving the welfare of society by functioning as a deterrent to the gravest of felonies. But its deterrent effect has been seriously questioned in the light of all the evidence available. Whatever deterrent effect the death penalty exerts might be equally possessed by another punitive treatment out for capital offenses-for example, life imprisonment with no possibility for parole, though with some alleviation of the harshness of prison life as a reward for good behavior.
For the time being, we are left with a u resolved issue between proponents and opponents of capital punishment. The substitution of life imprisonment for the death of penalty might solve the problem.
3. THE PURSUIT OF
HAPPINESS
Our right to pursue happiness rests not on our needs, but on our moral obligation to make morally good lives for ourselves. If we were not under that obligation in the first place, we would not have a right to whatever is needed as means for the achievement of that end.
The moral obligation just stated is expressed by a prescription that is self-evidently true and, therefore, cannot be denied. When we understand the meaning of the words “ought” and “really good,” we immediately recognize the truth of the prescriptive injunction that we ought to seek everything that is really good for us and that there is nothing else we ought to seek. We cannot think that we ought to seek what is really bad for us or that we ought not to seek what is really good for us.
Since happiness, ethically conceived, is the complete good of a whole life enriched by the cumulative possession of everything really good for us, the self-evident prescription just stated is equivalent to saying that we ought to seek happiness, that we are morally obliged to pursue it.
Let me sum up what we have learned so far in our attempt to understand the Declaration’s assertion that “among these [inalienable] rights are life, liberty, and the pursuit of happiness.”
1. The primary right is the pursuit of happiness, having its foundation in our moral obligation to make good the lives for ourselves.
2. The rights of life, and liberty are subordinate rights because they are rights to means indispensable for the pursuit of happiness and also because security of life and limb, freedom of action, and political liberty are dependent on external circumstances that are within the power of an organized society and its government to control.
3. All other rights, those so far not mentioned or, it mentioned, not discussed, are also subordinate to the right to pursue happiness, either as supplementing the rights of life and liberty or as implementing these rights.
This last point calls for further comment. If the additional rights are supplementary, they have the same status as the rights they supplement. They, too, are natural rights, having their foundation in natural needs. But if the additional rights are not supplementary, but are implementations, they are then constitutional or civil rights, not natural rights.
Rights that implement natural rights are instrumental to the fulfillment of those rights. A few examples should clarify this point.
All human beings by nature desire to know. We have a natural need for knowledge. Under certain circumstances this need can be fulfilled without schooling or tutelage of any sort. However, schooling of one sort or another is certainly instrumental to the fulfillment of our need for knowledge. To whatever extent that is the case, we may have a right to schooling. While that is not a natural right, it may become a civil right when an organized society acknowledges it to be instrumental in the fulfillment of our natural right to knowledge.
Our natural right to life calls for the protection of our health as well as security of life and limb. Under certain circumstances, this may not involve the protection of the environment from spoliation by factors injurious to health. Under certain circumstances, it may not call for preventative medicine and medical care. Under different circumstances, such as those that exist today, the right to a healthy environment and to medical care may come to be regarded ads necessary to implement our right to life. When that is acknowledged by an organized society, the instrumental civil rights may be legislatively enacted.
A further and fuller discussion of such instrumental civil rights will be found in the next chapter. Natural rights other than those mentioned in the Declaration will be treated in certain chapters of Parts Three and Four. What remains to be considered here is a question that may arise in the minds of readers with regard to the foundation of natural tights in natural needs. Animals other than ma have natural needs. Why, then, do they not also have natural rights?
Those who tend to think that animals other than man have natural rights also think that all the differences between man and other animals are only differences in degree, not differences in kind.
A difference in degree is one in which the things being compared have the same properties, one having more, the other less, of whatever attributes they have in common. In sharp contrast, a difference in kind is one in which, of the things being compared, one has properties or attributes that are totally absent in the other. For example, longer and shorter lines differ only in the degree of their length; whereas a square and a circle differ in kind: one has angles, the other does not.
Those who hold that human beings and other animals differ in kind attribute to man attributes not possessed at all by brute animals. Only man has intellect capable of conceptual, as opposed to perceptual, thought. Because of this, only man has free will and the power of free choice. Because of these two natural endowments, human beings are persons. Brute animals lacking these endowments have natures different in kind, and are not persons.
Laws that permit the killing of animals and the use of them as beasts of burden as contrasted with laws that prohibit the murder and enslavement of human beings, or laws that permit the caging of animals in zoos as contrasted with laws that prohibit the unjust imprisonment of human beings, acknowledge the difference in kind between human beings who are persons and brute animals that are not persons.
Consequently, the presence of natural needs in brute animals does not give rise to their moral obligation to make good lives for themselves by the use of their life as a means to living well and a right to liberty of action as means of carrying our the free choices they make in the pursuit of happiness.
The fact that we are morally obligated to treat brute animals as humanely as possible-to avoid the wanton and useless killing of them, to avoid submitting them to needless pain, to avoid the sadistic exploitation of them for our pleasure-should not be interpreted as an acknowledgment of their having natural rights of either life or liberty. We ought to treat them humanely even if we do not treat them as persons ought to be treated. Our moral obligation here is a matter of charity, not of justice, because it does not stem from the rights of brute animals.
4. THE CONSENT OF THE
GOVERNED
After saying that men have instituted governments in order
to secure their rights,
The justice of government, as we have already noted, can be measured in part by the extent to which it secures the natural rights of its people. That measure of justice does not derive form the consent of the governed. It is rather the just powers of a government that depends for their justice, and consequently, for their authority, upon the consent of the governed.
What is a constitution? It is the framework of a government. It defines the offices of government and allocates to them certain governmental functions that each is expected to perform. It invests those offices (sometimes called the departments or branches of government with the authority they need in order to perform these functions)
The officials of a constituted government – its officeholders – have no authority or power in their own persons. They have only such authority or power as the constitution confers upon the offices they hold. For office holders to arrogate to themselves more power or authority than pertains to their offices amounts to usurpation on their part, and should be punishable by removal from office, by impeachment.
In the early centuries there were other disfranchised groups in the population who were among the governed but with suffrage – for example, women, blacks, individuals without sufficient property. They were, therefore, not members of the people who were governed with their own consent. It becomes necessary, then, to expand Jefferson’s phrase “ consent of the governed,” replacing it by the statement that a government derives its just powers from the consent of all those who are politically in a position to give their consent. They are the people within the population – the enfranchised citizens of the republic.
The Declaration does not tell us who the people are. We are left to discover by interpreting clauses in the Constitution and in its amendments that have to do with the qualifications for citizenship and with the extension of the suffrage. We will, therefore, return to this matter in later chapters dealing with the Constitution.
In response to the second question concerning the manner in which those who are in position to consent give it, we must distinguish the two principal ways in which consent can be given. One of these two ways was operative only in the years 1788 and 1789, when the people of the several states through their representatives voted yes or no on the question whether the Constitution that had been drafted in Philadelphia in 1787 and was now being submitted for their approval should be ratified and adopted.
That event occurred once and once only, although something like it was repeated many times thereafter when territories petitioned for the status of statehood in the federal union. On those occasions, the people of the territories who voted for statehood under the provisions of the Constitution were, in effect, giving their explicit consent to the Constitution itself. It is also the case that on occasion when citizens vote for an amendment to the Constitution, they are giving their explicit consent to the Constitution itself.
The consent of the people governed is explicitly given only in the manner described above. What about the minority who voted no on these occasions?
Since majority rule cannot become a regulative principle by the acquiescence of majority, we must assume that all members of the people have unanimously accepted it. Unanimity, as Rousseau pointed out, is required for majority rule to become operative. It logically follows, then, that the minority who voted against adopting the Constitution, or voted against petitioning for statehood, gave their consent tacitly or implicitly when they retained their status as enfranchised citizens and acted politically in that capacity. In doing so, they tacitly acquiesced in the Constitution as the framework of a government in which they participated.
This applies to all who have become enfranchised citizens and have acted politically as such since the years 1788 and 1789. We have given our consent tacitly or implicitly, not explicitly.
Giving consent to government does not preclude dissent from government. Consenting citizens can become dissenting citizens on one occasion or another when they protest against the law or acts they deem unjust as violations of their natural rights or for other reasons. Such dissent remains clearly within the boundaries of consent as long as it is dissent by due process of law and employs constitutional or legal means for seeking the redress of grievances. The First Amendment to the Constitution gives consenting citizens the civil right to petition the government for the redress of grievances, as well as rights to freedom of speech and freedom of the press.
This can be said another way. All those who do not explicitly withdraw their consent, including those who dissent within the boundaries of consent, can be regarded as implicitly or tacitly giving it. How, then, can anyone explicitly withdraw consent? In two ways: by emigrating to another country, or by taking up arms in violent insurrection. Civil disobedience that is nonviolent and is accompanied by voluntary submission to the punishment allotted for such disobedience does not involve withdrawal of consent.
How the line should be drawn between such civil disobedience and the kind that becomes a mass political protest in which the resort to violence is latent will be considered in the next chapter when we deal with the Declaration’s statement about the right and duty to withdraw consent and overthrow an unjust government and replace it by another that will respect human rights and promote the pursuit of happiness by its people.
Some enfranchised citizens – currently too many as a matter of fact – do not exercise their rights or perform their duties as citizens. If we maintain that citizens give their consent tacitly when they act politically, must we then say that those who do not act as they should have tacitly withdrawn their consent? No. Although they do not act as citizens should, they nevertheless willingly accept all the benefits that government confers upon them. They can, therefore, be deemed to have given their tacit consent.
5. WE, THE PEOPLE: CITIZEN- CONSTITUENTS
Before we consider these in relation to the common good, let us observe that a good can be common in two quite distinct ways.
1. On one hand, the word “common‘’ signifies that certain goods are common because they are the same for all.
2. On the other hand, it signifies that certain goods are common because they are shared or participated in by all.
6. TO PROMOTE THE GENERAL WELFARE
1. By being a good that is shared or participated in by many.
2. By being a good that is the same for all who enjoy it.
In the first sense, the good of the organized community as a whole is a common good because all members in the community can participate in it. The second sense, the personal happiness of each individual in the community is a common good because the essence of a morally good life is the same for all.
To keep them distinct, let us call the common good in the first sense the public common good. Common good in the second sense the personal common good. With that clear, we can now recapitulate what has been said about the two wrong interpretations of the general welfare phrase as it is used in the Preamble.
It does not belong in the Preamble if the meaning given to it identifies it with the public common “good’ for in that case it is redundant. Nor does it belong there if the meaning identifies it with the personal common “good,” for in that case it states an objective no government can achieve. In neither case can it be an element co-ordinate with justice, domestic tranquility, the common defense, and liberty as the four other distinct elements in the public common good.
In the vocabulary of traditional political theory, the distinction between limited and unlimited government is identical with the distinction between constitutional and absolute or despotic government. A constitutional government is by its very nature always a limited government because the power exercised by its officeholders is limited to the authority conferred by the Constitution on the offices they behold. An absolute monarch, ruling despotically, is not an officeholder and is not subject to such limitations.
The authority conferred on any department of government by a constitution can involve a very extensive grant of powers and still not turn that government into an unlimited one. In other words, a constitutional government remains a limited government, strictly speaking, whether the powers with which it is endowed by the constitution are relatively restricted in extent or much more extensive. They are never totally unrestricted or unlimited.
The proponents of relatively restricted government often
appeal to
Either statement or slogan goes to the heart of the matter. The question is how much governmental power and action is needed to satisfy all the purposes that government should serve if it is aimed, first and directly, at the public good, and then, indirectly, through serving the public good, the pursuit of happiness by its citizens, which is the ultimate objective of a just and benevolent government.
Hence, to the question of how much power should a limited or constitutional government possess, the answer is not as little as possible nor as much as possible, but rather as much as may be necessary in order for that government to discharge its obligations to the people.
That government governs best that governs most justly and most benevolently, whether in doing so the powers it exercises and the actions it undertakes are relatively slight or much more extensive. This means, in the words of Abraham Lincoln, that the government should do for the people whatever the people cannot do for themselves, either individually or collectively.
It is with understanding of the role of government in the lives of the people that we can assign a definite meaning to the phrase “general welfare” – one that justifies its conclusion among the Preamble’s enumeration of five distinct elements in the public common good.
What is to be promoted is the general economic welfare of the nation and the participation in that general economic welfare by all members of the population. The introduction of the word “economic” as the qualifying adjective gives the general welfare phrase the specific meaning it needs for its inclusion, along with justice, domestic tranquility, common defense, and liberty, as an element in the public common good, while remaining quite distinct in meaning from the other four.
This would appear to be what Alexander Hamilton, as Secretary of the Treasury, had in mind when he commented on the general welfare in his report to Congress. In that report he was exclusively concerned with the economic prosperity of this country, which he thought depended on its ceasing to be mainly an agricultural economy and becoming largely an industrial one. However, there is no indication in the report of concern on his part with participation in that economic prosperity by all the people of the country.
The notion that the country’s wealth should be so distributed that no one would go without a slice of the pie did not come to the fore until the third decade of the twentieth century. Until then, the promotion of the general welfare, even when understood as meaning the general economic welfare, did not call upon the government to take whatever steps might be necessary to see that no individuals or families were left out of the picture; or, Franklin Roosevelt’s memorable words, that there should be no forgotten men.
This Twentieth – century interpretation of what is involved in promoting the general economic welfare turns our attention from those natural human rights that are purely political, like the right to political liberty, to other natural human rights that are economic rather than political. These other rights are not explicitly mentioned in the Declaration of Independence, but they are implicitly there when we understand the Declaration to be saying that among the inalienable rights that human beings possess are life, liberty, and whatever else they need for the pursuit of happiness.
Can there be any doubt that they need a sufficient amount of wealth in the form of those economic goods which supply them with the comforts and conveniences of life? When Aristotle defined happiness as a whole life lived in accordance with mortal virtue, he was careful to point out that moral virtue is not enough for the pursuit of happiness. A moderate amount of wealth and of other external goods is also needed.
Becoming morally virtuous is almost wholly within the power of each person. Each individual succeeds or fails according to the free choices that individual makes. But acquiring sufficient wealth – the moderate amount that is need for a decent life – is not wholly within the power of the individual. The individual’s participation in the general economic welfare may, in many cases, depend on the government’s doing for the people what the people cannot do for themselves, either individually or collectively.
Further treatment of the general economic welfare, at least as far as the twentieth- century understanding of what is required in order to promote everyone’s participation in it, must be postponed until we come to the discussion of economic rights in Chapter 21. When economic rights are recognized, as they are not at the time the Constitution was drafted or ratified or in the century that followed, we cannot fail to see the very close connection between the establishment of justice and the promotion of the general welfare.
7. TO SECURE THE BLESSINGS OF
In his Treatise of Law in the Summa Theologica, he asked two questions about positive law – the laws made by civil governments. He asked, first, whether civil governments should make laws to prohibit vicious or sinful act. He asked second, whether they should make laws to prescribe all the actions that can be expected from virtuous and righteous individuals. To both questions, he responded with emphatic negatives. Civil la, the law of the state, enforced by its government, should extend, he said, only to those actions that affect the good of others and the good of the community.
According to the principle thus enunciated, there can be no crimes where there are no victims – where no individual is injured, nor society adversely affected. Sexual acts performed in private by consenting adults should not, therefore, be prohibited as criminal actions regardless of how sinful or nitrous they may be. Laws that attempt to prohibit such actions should be rejected as unjust because they are in violation of the human right to freedom in all matters that do not involve injury to others or to the public good.
To think otherwise is to confuse crimes with sins or with acts that are simply un-virtuous. A religious minority that arrogates to themselves the role of a moral majority may be offended by the knowledge that just sinful or immoral conduct is occurring in the community in which they live. But their being outraged by such knowledge does not constitute the kind of injury that the criminal law should attempt to prevent.
8. FROM POLITICAL TO ECONOMIC RIGHTS
The right to a useful and remunerative job in the industries or shops or farms or mines of the nation;
The right to earn enough to provide adequate food and clothing and recreation;
The right of every farmer to raise and sell his products at a return which will give him and his family a decent living;
The right of every businessman, large and small, to trade in an atmosphere of freedom from unfair competition and domination by monopolies at home or abroad;
The right of every family to a decent home;
The right to adequate medical care and the opportunity to achieve and enjoy good health;
The right to adequate protection from the economic fears of old age, sickness, accident, and unemployment;
The right to a good education.