Pursuing the Right to the Pursuit of Happiness in the Twenty-First Century

Editor’s Note: The essay below is a slightly modified version of a lecture delivered by the author at a joint Civitas Institute and Pacific Legal Foundation conference titled America 250: Liberty, Law, and the Pursuit of Happiness.

We are approaching the 250th anniversary of the Declaration of Independence. It is the kind of milestone that may tempt people to empty celebration or undue cynicism. I would like to have neither. I come to this discussion on law and the pursuit of happiness as a public interest lawyer, with observations about the Declaration’s promise and, among all that has gone right, why a core element of that promise has been hard to keep in law, and what we can do about it now, in this generation.

The Declaration is, of course, a political document, but it is also a moral one. It does not merely announce that the colonies are separating from Britain; it announces why and offers a potent moral justification. We possess our rights prior to government, by virtue of our nature as human beings. That nature is not bound to us by birth or ancestry or nation. It is possessed by all individuals, in all times, in all places. That universalism was radical then; it remains radical now. Government is created by us for an overriding purpose: to secure those rights. Everything else — the entire apparatus of law, courts, and constitutions — is downstream of that purpose.

The pursuit of happiness is not a rhetorical flourish punctuating a right to life and liberty. It is, in one sense, the whole point. It describes what human beings are doing when they are free—living according to their own judgment, working, building, and striving. The government’s job is to protect the political conditions under which that is possible and mostly stay out of the way otherwise. Madison understood the radicalism of this arrangement. “In Europe,” he wrote, “charters of liberty have been granted by power. America has set the example . . . of charters of power granted by liberty.” The Constitution is not a list of our rights. It lists limits on government power, justified by a moral claim to individual freedom.

It has also been underappreciated how deeply this moral perspective departs not only from Europe’s political traditions but also from its dominant moral tradition. For more than a thousand years before the Declaration, the highest Western virtue was not self-fulfillment but self-sacrifice — service to God, service to others, subordination of the individual to someone or something else. The pursuit of one’s own happiness, on that account, was at best a secondary concern. The Declaration proposes something quite different.

Drawing on Enlightenment ideas, it presupposes that each person is a rational agent, sovereign over his own life, with an inherent moral claim to pursue his own flourishing. The pursuit of happiness is not a temptation to overcome. It is a right to be secured. A government hostile to or failing in that purpose is illegitimate, a cause for revolution.

The Declaration is a natural rights document written in an era when Jefferson could assume a widespread conviction that rights can be known, derived by reason from reality and the needs of human nature, and enforced by law to create a good society. But that confidence did not survive the 19th century intact. We no longer live in that world.

There are many causes for the fading of the Declaration’s ideals. But I want to focus on one philosophical point, particularly on how I believe it operated in the courts. There had never been an adequate natural rights jurisprudence, but what strands there were frayed and snapped under the weight of what philosophers call the is/ought gap or fact/value dichotomy. In brief, the idea that no description of the world or identification of reality, however accurate, can tell you what ought to be. You can describe human nature at length, but that description alone cannot generate a moral claim of right. Over the course of the nineteenth century, as the insolubility of the is/ought gap was (wrongly, I believe) accepted by most intellectuals, confidence in the idea of rights grounded in human nature and as the foundation for law collapsed. Progressivism, legal realism, positivism—each alternative framework relocated the source of rights from the requirements of human nature toward something contingent: majority will, judicial preference, political power.

This became a legal crisis when it mattered most, in the interpretation of the Fourteenth Amendment. Before the Civil War, federal courts were largely drawing lines around the enumerated powers of the federal government. But the Fourteenth Amendment’s clauses, notably the Due Process and Privileges or Immunities Clauses, expanded the duty of federal courts as a vital brake on the police power of states. It required them to consider, on a case-by-case basis, when states had violated the liberty of their citizens. For a time, courts rose to meet the call.

The high-water mark may be represented by the Supreme Court’s 1897 decision in Allegeyer v. Louisiana, which said that the liberty protected by the Fourteenth Amendment means “the right of the citizen to be free in the enjoyment of all his faculties, to be free to use them in all lawful ways, to live and work where he will, to earn his livelihood by any lawful calling, to pursue any livelihood or avocation.” That scope honors the Declaration’s emphasis on the freedom to pursue happiness. The Court was not substituting its moral preferences for the text. It was reading the Constitution through the Declaration’s lens, ascertaining the scope of its guarantee of liberty in light of its purposes and the natural-rights context. That was the right approach. What ultimately collapsed was not the method but the philosophical confidence that made it defensible.

To strike down a democratically enacted limit on freedom (there, freedom of contract) required courts to be confident that they could objectively identify rights fairly included in the Fourteenth Amendment’s clauses — that they were not leveraging their judicial office to impose mere personal value preferences. The is/ought problem corroded that confidence. If values cannot be grounded in human nature, on what basis does a judge declare that his understanding of the concept of liberty is true against a legislature’s preference for restraining people? The courts eventually flinched. As Justice Holmes wrote in 1905, “I think that the word ‘liberty,’ in the Fourteenth Amendment, is perverted when it is held to prevent the natural outcome of a dominant opinion . . . ." The post-New Deal settlement was a surrender — a decision to defer to legislatures on questions of unenumerated liberties. The Allegeyer vision was abandoned, and legislatures themselves have not reliably backstopped wayward laws because they have often been further out of step than the courts with the Founders’ understanding of freedom.

Yet courts did not abandon all unenumerated rights. As conservatives are fast to point out, judges became selective, protecting the liberties that judges and the cultural elites valued while systematically under-protecting others, particularly economic freedom and property. This living constitutionalism never solved the underlying problem; it simply obscured it. If rights are whatever judges decide to protect based on evolving social values, you have not escaped the is/ought dilemma. Judges put themselves in the position of doing moral philosophy without admitting it, and generated acrimony or cries of illegitimacy.

The Supreme Court’s opinion earlier this year in the Mirabelli case illustrates this vividly. The majority enjoined California state policies requiring teachers to conceal minor students’ gender transitions from their parents and to use the students’ preferred pronouns regardless of parents’ wishes. The majority relied on an unenumerated constitutional right of parents to guide consequential decisions in their children's upbringing, rooted in the Fourteenth Amendment’s Due Process Clause. In dissent, Justice Kagan cataloged past instances in which the same justices had attacked the use of the Due Process Clause to defend unenumerated liberties as judicial overreach. The case is unremarkable in that, like in many other cases, it shows several justices accusing one another of invoking unenumerated rights when they approve of the result and denouncing the same doctrine when they do not. But it also shows that the underlying problem — how to objectively discern the scope of liberty written into the Fourteenth Amendment — remains unresolved in the year 2026.

This is at least in part why we are now in an Originalist era. At a meta-level, Originalism is a strategic retreat from the is/ought problem. It says: we judges are not competent to determine, beyond rights enumerated in the text or easily pointed at as dominant historical traditions, what rights ought to be protected against state interference, so we will anchor our decisions in the public meaning of the text when ratified. History is, ostensibly, a matter of fact rather than value. This is an understandable response to judges’ growing uncertainty about the legitimate scope of their authority, and I sympathize with it. I accept that many Originalists have adopted the method because they sincerely believe it is necessary as a matter of fidelity to the rule of law and ultimately to protect freedom. But it has costs.

The Declaration is not a historical argument — it is a philosophical one, a claim about what human nature requires, not merely about what was once practiced or understood. Surely, the original public meaning of the language used in the Constitution is important for understanding it. The tools of historical exegesis, however, cannot fully secure the constellation of liberties the Declaration describes or accomplish the deepest purposes that justify our form of government.

So, what is there to do? Quite a lot. I am an optimist on this front.

The Supreme Court will not suddenly change its entire philosophical orientation regarding unenumerated liberties. But the Court is responding to valid legal principles that can lead to a substantial restoration of the separation of powers and robust enforcement of enumerated liberties. People in my profession can help.

First, restore the separation of powers. The structural provisions of the Constitution — the non-delegation doctrine, the requirement that agencies stay within their authority, the due process rights of citizens before administrative tribunals — do not ask judges to wrestle with contested values concepts. They are textual and structural. The administrative state has been a substantial engine of the erosion of the pursuit of happiness in the past 150 years: occupational licensing, regulatory takings, permitting demands, and prosecutions conducted by agencies that are simultaneously lawmakers, prosecutors, and judges. Restoring serious checks and balances on government is itself an enormous advance for liberty.

Second, enforce the enumerated liberties (and enumerated limits on power) fully and without the double standard of the New Deal settlement. Free speech, the Takings Clause, the Excessive Fines Clause, the Fourth Amendment—these and many other express provisions allow courts to protect individual rights without a searching inquiry into the scope of individual rights or the police power. Enforced honestly and consistently, including in the economic and commercial domains where courts have been most deferential, the enumerated rights reclaim an enormous portion of the territory that the Declaration’s vision requires.

Third, keep the banner flying for a full-fledged right to pursue happiness. Fight where possible to maintain unenumerated liberties. The spirit of the Declaration is not dead; it is paused. It will wait for a culture and intellectual moment in which serious people are convinced that the is/ought dichotomy does not prevent us from knowing what human beings need to flourish, and what governments should (and should not) do to secure those conditions for us. That will stimulate discussion or acceptance of a philosophy of adjudication that honors the Declaration. This is not a call for judges to import their personal moral philosophy into the law, or to decide cases untethered from text. It is a call for objectivity and judgment. The text is composed of concepts that cannot be understood simply by pointing to the ratifiers’ expected applications. Judges have a duty to get the meaning of those concepts right. When more of them are certain or confident in an appropriate method, the argument that the Declaration sets the purpose and interpretive lens of the Constitution — that Madison’s charter of power granted by liberty means the end of the presumption of constitutionality — needs to be alive, articulate, and ready.

Two hundred and fifty years on, the Declaration’s claim remains the most radical in the history of political organization: that every human being possesses the right to pursue his own happiness, that this right is prior to government, and that securing it is the only thing that makes government legitimate. That project is unfinished. What could be more important than continuing?

Larry Salzman is Pacific Legal Foundation’s vice president for litigation and strategy. He is responsible for shaping PLF’s litigation program and leading its team of nearly 75 courtroom advocates to advance individual rights and the principles of limited government.