The Sources of Liberty in the Declaration of Independence

The word “Liberty” occurs relatively rarely in the founding documents of the United States. It appears only once in the Declaration of Independence and just three times in the Constitution. The Declaration announces that human beings are endowed by God with “Liberty,” which is said to be an “unalienable right.” In the Constitution’s preamble, We the People announce that among the purposes of the Constitution is to secure “the Blessings of Liberty,” pointing back to the foundational principles of the Declaration. While the word “liberty” is uncommon in these documents, its protection is among their most basic purposes, and the documents are replete with closely related concepts such as rights, privileges, immunities, and the like. But just what did the founders mean by “Liberty”?

The founders did not invoke the concept of liberty in a void. It arose in a particular metaphysical, religious, political-philosophical, and historical context. While the founders’ philosophical understanding of liberty, like the founding political philosophy, has been compared to a Scotch whiskey — a blend of distinctive malts (political-philosophical traditions ancient, medieval, and modern) — I contend that the central unifying “malt” is the Judeo-Christian natural law tradition.

Natural law and natural rights philosophy undergirded the founders’ worldview — and one can find evidence of the influence of classical natural-law philosophers like Cicero, broadly Aristotelian-Thomistic natural lawyers like Hooker, and “modern” ones like John Locke. But it should be noted that the founders were students of history and had a historical outlook, shaped by a particular reading of history, what has been called the Whig theory of history. The most influential exponent of this view was Thomas Jefferson, who had read Tacitus’s Germania, and believed that the ancient Saxons had brought over to England with them a tradition of individual liberty and property that had languished under the feudal despotism of kings since the Norman Conquest, and of which America was an inheritor. While modern historians find this history to be questionable at best, Jefferson seems to have believed it. Still, Jefferson himself suggests that what he likes in the Saxon tradition was ultimately rooted in first principles:

[O]ur ancestors, before their emigration to America, were the free inhabitants of the British dominions in Europe, and possessed a right which nature has given to all men, of departing from the country in which chance, not choice, has placed them, of going in quest of new habitations, and of there establishing new societies, under such laws and regulations as to them shall seem most likely to promote public happiness. That their Saxon ancestors had, under this universal law, in like manner left their native wilds and woods in the north of Europe, had possessed themselves of the island of Britain, then less charged with inhabitants, and had established there that system of laws which has so long been the glory and protection of that country.¹

In other words, the historical inheritance of ancient Saxon liberties was fundamentally grounded on a natural right of emigration, acquisition of property through labor, and self-government. So, the founders’ historical arguments, though they may have been myth-making, point us back to the first principles outlined in the Declaration, which are echoed not only in the Constitution’s preamble but also in several of the state constitutions.

After declaring that the American polity would assume among nations the “separate and equal station to which the Laws of Nature and of Nature’s God entitle them,” the Declaration set forth the first principles of the American mind: “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.”

The first-person plural, We, indicates “this is what Americans believe, and assert to be the case.” And, to us, these principles are self-evident. This means that they are grasped to be true, not as the deduction of a chain of reasoning but, as it were, immediately, once one understands what concepts like “men” and “created equal” mean. (This suggests that self-evidence is not knowledge in an epistemological vacuum, or a vantage from some Archimedean point, but from within a particular educational context.) For example, one can see the self-evidence of the proposition “All bachelors are unmarried,” once one understands the meanings of “bachelor” and “unmarried.”2 But are the propositions the Declaration asserts about liberty really like that?

Thomas Aquinas offers a distinction between two sorts of self-evident knowledge: a self-evident proposition “to us” and a proposition that is self-evident “in itself.” The example already given is of the first kind. But there are propositions of the second kind which are self-evident only to the learned. For Aquinas, the proposition “angels are in no place” is of this kind, for it requires one to understand something about the immaterial nature of angels. I submit that the epistemological status of the propositions of the Declaration are somewhere between these two categories. One need not have the elite political knowledge analogous to the theological knowledge of a divine master to grasp them; yet, one needs to have a certain level of education and worldly experience to grasp their self-evidence, i.e., the level of knowledge and experience of common Americans who read the Declaration for the first time on July 4, 1776, and agreed the principles were obvious.

Contrary to exclusionary interpretations advanced by later jurists like Justice Roger Taney and his successors among the critical race theorists, the word “men” did not mean merely white men. It meant “human being,” regardless of color. In James Otis’s words, all colonists, “black and white” born in America were entitled to the rights of Englishmen.³ And “created equal” did not mean equality of ability (as if everyone had equal athletic and intellectual abilities), but equality of dignity, by virtue of being a member of the natural kind human. And created equal meant that man was not the product of merely accidental material or historical processes. Man was artificed with an intended purpose by his Creator, whence his dignity derives.

Just what did equality of dignity consist in? Founders as different in their political sensibilities as Thomas Jefferson and James Wilson were fond of quoting the English revolutionary who resisted Stuart absolutism, Richard Rumbald, who could not conceive that the Almighty intended to endow men with unequal dignity in the sense of political inequality: “that the greatest part of mankind should come into the world with saddles on their backs and bridles in their mouths, and that a few should come ready booted and spurred to ride the rest to death.”4

In other words, the American view was that natural equal liberty (natural political equality) was self-evident to those with a fair degree of worldly experience, that God had not placed “indisputable marks” upon persons distinguishing some as superiors to be obeyed and others as inferiors to obey. In contrast (as founders from Jefferson to Wilson explained), God had indisputably marked man as distinct in dignity from the brutes in endowing him with intellectual and moral faculties, of reason, conscience, and free will. 5 Locke’s account sheds more light on the founders’ view.

Locke’s explanation of natural equal liberty, which we must assume absent an “evident and clear appointment,” was inextricable from his natural-kind ontology and theistic creationism. We all have similar faculties — no one has the indisputable mark of superiority. This also means that we are marked similarly as products of divine workmanship, bearers of the divine image.6 Because each individual person is made by God’s labor, each is God’s property. To be God’s workmanship is to be endowed with liberty, since it is an entitative status metaphysically and morally prejudicial to enslavement, i.e., arbitrary domination and control by another.

To be so marked by God is also to be endowed with purposes to which the brute animals cannot aspire. While human beings share with brute animals a striving toward objects or ends such as preservation of life and health, propagation of the species, and rearing of the young, reason and free will ennoble these objects. Contrary to the suggestion of some scholars, the founders shared a fundamentally teleological worldview, which in addition to Jefferson and Wilson was articulated ably by James Wilson and John Adams. In Wilson’s words, “Order, proportion, and fitness pervade the universe. Around us, we see; within us, we feel; above us, we admire a rule, from which a deviation cannot, or should not, or will not be made.”⁷ A teleological philosophical-theological anthropology, in which man is created by God for the specific purpose of exercising his faculty of free will for the pursuit of happiness, is a deeply classical and Christian natural-law idea.

In the Declaration’s teleological view, human beings’ pursuit of happiness is the overarching end to which God directs men, which logically presupposes the rights of life and liberty. The Creator is the legislator of the law of nature and the binding natural duties that are the correlates of natural rights. So the correlates of your natural rights to life and liberty are my natural duties not to unjustly kill and enslave you. The Creator is also the “Supreme Judge” who, in his particularly providential governance of the world, can judge the “rectitude” of intentions. The Declaration suggests that the Creator is also a Supreme Executive, who is the just protector and enforcer of the laws of nature. In short, the founders believed that the Source of Liberty is God. As James Wilson explains, in endowing his creation with the faculties to pursue happiness, God manifests his own goodness:

By his goodness, he proposes our happiness: and to that end directs the operations of his power and wisdom. Indeed, to his goodness alone we may trace the principle of his laws. Being infinitely and eternally happy in himself, his goodness alone could move him to create us, and give us the means of happiness. The same principle, that moved his creating, moves his governing power. The rule of his government we shall find to be reduced to this one paternal command — Let man pursue his own perfection and happiness.⁸

Letting man pursue happiness means that government is obliged to respect a sphere of action that is immune from its interference. The right to liberty therefore has an essentially negative component. Sometimes this negative conception of liberty is called “non-domination,” a right to be free from arbitrary interference in one’s life. The idea in classical natural law theory can be found in Cicero, and traced to Locke.⁹

Cicero’s influence illustrates how, if the founders’ political philosophy is something of an alloy, the Judeo-Christian natural law tradition (including its philosophical theology) is the base metal. Consider, for example, that Ciceronian theology was not the fountainhead of the civic theology of the Declaration. The god defended by Balbus, Cicero’s Stoic voice in De Natura Deorum, was supreme logos pervading and ordering the universe as a kind of world-soul. ¹⁰ This pagan, pantheistic idea does not distinguish between Creator and creation in the way that Americans predominantly did at the founding, having learned about God’s causal relation to the world not from Cicero, but from the Bible (which is not to deny that the rationalist founders who were more skeptical of the Bible affirmed the existence of the Creator or “Nature’s God” on the basis of unaided reason). The Americans’ predominant belief in the Bible’s authority was evident in their state constitutions, most of which established a religious test for holding public office of Protestant Christian belief, including belief in the divine inspiration of the Scriptures.

None of this entailed that the founders endorsed legal coercion of church attendance and religious worship. To the contrary, this teleological understanding of religion, which Madison defined as “the duty we owe to our Creator and the manner of discharging it,” was the basis of his defense of a negative conception of religious liberty in Virginia.¹¹ Because the duty to God is so important, and prior to any obligation the state can place upon someone, it must be free from state coercion.

Still, it would also be a mistake to overemphasize the negative component of liberty in the founders’ thought. The founders’ unique achievement was to combine the negative-liberty tradition in natural law theory with elements of a perfectionist understanding of liberty more closely associated with Aristotelian-Thomistic natural law. A perfectionist view of liberty holds that liberty and virtue are two sides of the same coin — an individual and a society grow in liberty as they grow in virtue.

The concern with virtue is evident in how the states exercised their reserved police powers from the founding forward. Some scholars of the founding have argued that the founders thought government had no role in character formation — but this is false. As Thomas West has argued, the founders believed that sound religious opinion should be promoted, that civil and criminal law should punish violations of natural law, and that natural law should be taught as part of a sound education.¹² Indeed, the founders recognized the need for sound civic education to sustain a free republic. In Noah Webster’s words:

Our national character is not yet formed; and it is an object of vast magnitude that systems of education should be adopted and pursued which may not only diffuse a knowledge of the sciences but may implant in the minds of the American youth the principles of liberty and of virtue to inspire them with just and liberal ideas of government and with an inviolable attachment to their own country.¹³

Indeed, several founders supported the creation of a national university. When the national university did not materialize, the project was taken up at the state level. Jefferson thus spent his retirement years continuing to advocate for public primary education and the creation of the University of Virginia which, as Madison explained, aimed to sustain the American experiment in ordered liberty: “It is certainly very material that the true doctrines of liberty, as exemplified in our Political System, should be inculcated on those who are to sustain and may administer it.”¹⁴

The dual authority of the federal and state governments in our uniquely federalist system goes some way to explaining how the founders combined aspects of negative and perfectionist liberty. The relationship of the federal government to the citizen had more of an emphasis on negative liberty (i.e., the Bill of Rights explicitly protects a range of negative liberties), while states’ relationships with their citizens had in some respects a more perfectionist valence, as is evident in the states’ concern with inculcating the virtues requisite for good citizenship in a republic in primary and higher education.

James Wilson was correct when he said that the American character is distinguished by “the love of liberty.” But it wasn’t only the love of liberty. It was also the “love of law.” For, “Without liberty, law loses its nature and its name, and becomes oppression. Without law, liberty also loses its nature and its name, and becomes licentiousness.” ¹⁵ That this understanding of law and liberty could be harmonious made sense to the American mind because there was a higher law, the natural moral law, which is legislated by God, and which requires his workmanship to be both respected and cultivated in a way befitting his dignity. From the founders’ perspective, if the right to liberty in the Declaration of Independence was severed from its foundation in theistic natural law, it would inevitably degrade into licentiousness.

¹ Thomas Jefferson, A Summary View of the Rights of British America, Yale Law School Goldman Library, https://avalon.law.yale.edu/18th_century/jeffsumm.asp.

² And the self-evidence of such propositions presupposes the self-evidence of the more fundamental principle of noncontradiction.

³ James Otis, The Rights of the British Colonies Asserted and Proved, Publications, Online Library of Liberty, at https://oll.libertyfund.org/pages/1763-otis-rights-of-british-colonies-asserted-pamphlet

⁴ James Wilson, Lectures on Law, Part I, Ch. 2 in Collected Works of James Wilson, eds. Kermit L. Hall and Mark David Hall, vol. 1 (Indianapolis: Liberty Fund, 2007); “From Thomas Jefferson to Roger Chew Weightman, 24 June 1826," Founders Online, National Archives, https://founders.archives.gov/documents/Jefferson/98-01-02-6179.

⁵ Wilson, Lectures on Law, Part I, Ch. 2; Thomas Jefferson to Martha Jefferson, December 11, 1783.

⁶ John Locke, Two Treatises of Civil Government, ed. Thomas Hollis (London: A. Millar et al., 1764), First Treatise, Ch. 3, Sec. 30; Second Treatise, Ch. 2, Sec. 4–6.

⁷ Wilson, Lectures on Law, Part I, Ch. 2.

⁸ Wilson, Lectures on Law, Part I, Ch. 3.

⁹ See Michael C. Hawley, Natural Law Republicanism: Cicero’s Liberal Legacy (Oxford: Oxford University Press, 2022).

¹⁰ Cicero, De Natura Deorum, trans. Francis Brooks (London: Methuen, 1896), Book II, Sec. XII.

¹¹ “Memorial and Remonstrance against Religious Assessments, [ca. 20 June] 1785,” Founders Online, National Archives, https://founders.archives.gov/documents/Madison/01-08-02-0163.

¹² Thomas West, The Political Theory of the American Founding: Natural Rights, Public Policy, and the Moral Conditions of Freedom (Cambridge: Cambridge University Press, 2017).

¹³ Quoted in George Thomas, The Founders and the Idea of a National University: Constituting the American Mind (Cambridge: Cambridge University Press, 2014).

¹⁴ From James Madison to Thomas Jefferson, February 8, 1825. Founders Online, National Archives. Available online: https://founders.archives.gov/documents/Madison/04-03-02-0470.

¹⁵ Wilson, Lectures on Law, Part I, Ch. 1.