(Reader, please note: this little monograph has many footnotes. They are there solely to show a doubting Thomas that I have not made this stuff up. They may be ignored unless you’d like to check my sources. The footnotes might be useful as a guide to further reading. With these exceptions, feel free to ignore them.)

The Declaration

Julie Andrews had it right:

“Let's start at the very beginning,
A very good place to start-“

Thomas Jefferson, as we all learned in school, wrote the Declaration.

Take a look, first, at just part of it, broken into an outline with some notes added. Note carefully, the emphasized words, terms, and phrases :

1) “When in the Course of human events, it becomes necessary for one people

a. […]to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them,

b. […] they should declare the causes which impel them to the separation.”

2) “We hold these truths to be self-evident,

a. that all men are created equal,

b. that they are endowed by their Creator with certain unalienable Rights,

c. that among these are Life, Liberty and the pursuit of Happiness.—

3) “[T]hat to secure these rights,

a. Governments are instituted among Men,

b. deriving their just powers from the consent of the governed, --

4) “[T]hat whenever any Form of Government becomes destructive of these ends,

a. it is the Right of the People to alter or to abolish it,

b. and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. […]

And,

5) ...when a long train of abuses […] evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.” [Emphasis added.]

Our tendency is to simply read the Declaration and think, “Well put. Sounds great.” But, in 1776, the claims in the Declaration put out as “self-evident” were anything but self-evident to most ruling classes and were not supported by history. In fact, these ideas were novel.

So, it’s critical to closely examine the italicized words, understand where they came from, understand Jefferson’s purpose and reason for using them--especially, the words “Law of Nature and Nature’s God” and the term, “self-evident--” to understand how Jefferson could make such bold claims in the face of prevailing wisdom and history.

We'll do just that, but first, let’s recall what John Kennedy had to say about Thomas Jefferson at a White House dinner for the intellectual elite of the country--writers, scientists, artists, philosophers, etc.:

“I think this is the most extraordinary collection of talent, of human knowledge, that has ever been gathered at the White House - with the possible exception of when Thomas Jefferson dined alone.”

-----John F. Kennedy[1]

Why did Jefferson use the words “Law of Nature and Nature’s God,” and Why Did He Use the Term “Self-Evident Truths”?

The Declaration of Independence and the Constitution of the United States are the great state papers that formalize the structure of our government. It is virtually impossible to comprehend, let alone discuss, a Constitutional issue or a decision of the Supreme Court, without an understanding of the text of the Declaration and an understanding of the phrase “the Laws of Nature and Nature’s God” and the term, “self-evident,” as those words are used in that document.

With regularity, the Supreme Court’s decisions dictate the manner we exercise, and places limitations on, our liberty to enjoy the Pursuit of Happiness, rights the Declaration says we're born with.

We can’t all become constitutional lawyers, but we can learn enough about the government the Founders set up in 1789 to ask the right questions about the Court’s decisions and make up our own minds about whether the justices are implementing the Constitution or, are perverting it according to their own political, social, or private views--whether they are applying the principles of the Constitution or "interpreting" and rewriting them.

The Constitution was drafted and enacted to set up the structure of our government, give it power to do some things, forbid it to do some things, and, in my view, the Bill of Rights (the first ten amendments) is a list of what government is not to even think about doing!

There is one other very important provision in the Tenth Amendment the general public is, for the most part, unaware:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” (Constitution of the United States, Amendment X, italics added.)

The Tenth Amendment says, in street terms, if some power isn't set forth in the Constitution or its Amendments, it is beyond the power of the federal government to exercise such a power. That power resides in the states or the people, themselves. It’s the job of the Supreme Court to declare such illegal action void and, and if possible, unwind the damage. It’s our job as citizens to make damn sure that the court does its just that and doesn't write its own views, biases, and prejudices into a Constitution it’s supposed to protect, not amend.

We need to hold that Court accountable. That means we've got to understand the Constitution that created it, and, especially, the limits the Constitution places on that court and on the rest of government.

The first step in understanding the Constitution is to understand the Declaration of Independence—much more so than merely reading it in school, perhaps, memorizing the preamble, and noting that it declared our independence. There’s much more to it than that, and the first step to its understanding is to get some understanding of its author: Thomas Jefferson.

Jefferson’s ideas about government were grounded in the concept of Natural Law. [2]
The same can be said about the Founders who, thirteen years later, drafted and implemented the Constitution.[3]

Jefferson wrote the Declaration; his language is based on Natural Law; and, the Constitution is the government formed “by the consent of the governed” that the Declaration declares to be self-evidently the right of any people.

So, we begin by understanding Natural Law, to understand why Jefferson’s Declaration used the phrase, “Laws of Nature and Nature’s God,” and the words, “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….”[4] [Italics added.]

The term “self-evident,” itself, (as used in the Declaration) is one of the primary principles of Natural Law.

The “Laws of Nature and Nature’s God”

Thomas Jefferson’s religious beliefs and political views were similar to 18^th Century Deists.[5] He believed in God. He did not see God as being involved as personally in the lives of humans as believers do today,[6] but he did think of God as a Creator. That’s evident in the preamble to the Declaration, itself: “…all men are created equal, […]they are endowed by their Creator with certain unalienable Rights....” [Emphasis added.]

More specifically, Jefferson referred to God as man’s “Maker”:

"...[T]he subject of religion, a subject on which I have ever been most scrupulously reserved. I have considered it as a matter between every man and his maker, in which no other, & far less the public, had a right to intermeddle." [Emphasis added.][7]

Further, and key, Jefferson believed the Creator “endowed” humans with the ability to reason:

“Well aware that the opinions and belief of men depend not on their own will, but follow involuntarily the evidence proposed to their minds; that Almighty God hath created the mind free, and manifested his supreme will that free it shall remain by making it altogether insusceptible of restraint; that all attempts to influence it by temporal punishments, or burthens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are a departure from the plan of the holy author of our religion, who being lord both of body and mind, yet choose not to propagate it by coercions on either, as was in his Almighty power to do, but to exalt it by its influence on reason alone;…

…

‘’[T]ruth is great and will prevail if left to herself; that she is the proper and sufficient antagonist to error, and has nothing to fear from the conflict unless by human interposition disarmed of her natural weapons, free argument and debate; errors ceasing to be dangerous when it is permitted freely to contradict them.” [Italics added.][8]

"Man [is] a rational animal, endowed by nature with rights and with an innate sense of justice." Thomas Jefferson to William Johnson, 1823. ME 15:441[9] [Emphasis added.]

"Under the law of nature, all men are born free, every one [not, “everyone”] comes into the world with a right to his own person, which includes the liberty of moving and using it at his own will. This is what is called personal liberty, and is given him by the Author of nature, because necessary for his own sustenance." [Brackets, mine.][10]

In Jefferson’s view, human beings are born free, and with the ability to reason and with the ability to will. He used the term “created,” but, even professed atheists will concede, as they must, that man somehow comes into being, with the ability to reason, albeit at various levels of proficiency, according to each person’s intellectual capability. The atheist or agnostic[11] has more difficulty explaining the origin of reason (logos), but must concede its existence if he/she is to use it to make an argument for non-belief.

Thus, both Jefferson and “atheists” would consider the inherent ability of humans to reason to be self-evident, that is, something “any fool could see,” because the very discussion of the ability to reason is to concede its existence. That concession is implicit in Descartes’s famous proclamation, “Je pense, donc je suis” (“I think, therefore, I am,” i.e., I exist.”)

Further, humans, self-evidently, have the ability to communicate, and to remember. (Need this be argued?) The development of language and the ability to write, both put on steroids by the printing press and, now, the computer age, have given humans access to everyone else’s ideas and discoveries--those contemporary and those for all recorded history. Because we can store what we’ve learned in books and computers, we have a history that informs our thinking, experience actual and vicarious that our reason can use to see what’s obvious in Man’s existence.

Our ability to recall, communicate with each other and read what everyone else in recorded history has to say—all of that knowledge and experience--provides a sound basis for human beings to believe in some self-evident truths, e.g., fire is hot, doing what one likes provides more happiness than being told what one must do, even such things as “power corrupts; absolute power corrupts absolutely.” (Lord Acton, RIP.)

Jefferson considered history to be vital and urged its study:

“… [T]he people...are the ultimate guardians of their own liberty. History by apprising them of the past will enable them to judge of the future. It will avail them of the experience of other times and other nations; it will qualify them as judges of the actions and designs of men."[12]

Human beings, born with a history and the capacity to reason, see that there are some facts of life, including what makes them happy and how they’d like to be governed, that are obvious, can be recognized by “any fool,” and are, well, “self-evident.”

Thus, Jefferson believed the truth of some propositions are obvious and need no proof. A self-evident truth is a truth so obvious, to even the most pedestrian mind, that it requires no proof at all, and that’s what he says in the Declaration: such truths exist and the rights to life, liberty, and the pursuit of happiness are three of those self-evident truths. Jefferson called such self-evident truths “laws” and called the lot of them “The Laws of Nature and Nature’s God.” Thus:

“When, in the course of human events, it becomes necessary for one people […] to assume among the Powers of the Earth, the separate and equal Station to which the Laws of Nature and of Nature's God entitle them…[]…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….”

And, what he implied was (dramatic writers call it “subtext”), “These laws, self-evident Truths are so obvious, that you, George III, and everyone else who gives the matter some thought, should see and understand those laws, and we’re not going to waste time proving what’s so obvious.” [My, modern street language, translation.]

To sum up, we can conclude Jefferson believed Natural Law to be nothing more, really, than the Creator’s laws, the “Laws of Nature and of Nature’s God,” obvious to all, so obvious that anyone, being born with the ability to reason, could recognize. Put another way, anyone with ordinary or even sub-average intelligence, with the ability to function in life, earn a living, provide for dependants, live in a community, could see that : “all men are born with certain [i]nalienable rights, that among these are life, liberty and the pursuit of happiness.” ("Unalienable corrected to modern usage: "inalienable.")

And those laws, because we’re born with the ability to reason, are as obvious as simple math, 2 plus 2, the difference between night and day, certainly the ability to earn a living, raise children, and live in a community. These are obvious to “any fool” because of past human experience, i.e. , history, seen through the lights of reason, which is an endowment of our Creator. Or, if you profess to be a non-believer, reason with which we’re born, wherever it may have come from.

Jefferson was confident that most colonists could communicate, read, comprehend current events, and history, and discuss political issues intelligently, and, were, thus, capable of recognizing the self-evident laws of Nature..
He apparently had a sound basis for his opinion. (See, generally, at: http://answers.google.com/answers/threadview?id=361434. ) John Adams agreed.[13]

Obvious, Self-Evident Truths

What are examples of “self-evident truths” recognized by the colonial “man in the street”?

The most basic, of course, are the most easily recognized and comprehended, e.g., It is self-evident that people are happiest when left alone to do as they please. The obvious corollary is that no one else should interfere with that liberty and that one's own liberty is constrained by his/her duty to avoid interfering with someone else’s liberty.

And, from each basic self-evident truth, derivatives and corollaries follow.

If one person makes himself happy by stealing, robbing, or assaulting his fellow creatures, that person must be restrained. The self-evident conclusion, the corollary, or derivative, is that all must give up some of their freedom to insure the maximum freedom of everyone.

Jefferson stated the self-evident solution:

“That to secure these Rights, Governments are instituted among Men….” (Italics added.)

And, a second self-evident truth would be that those governments “…derive[e] their just Powers from the Consent of the Governed….”

It’s simple logic that we must give up some of our liberty to keep order and protect us from others and, also, to protect them from us. But, it is also self-evident that the rules and organization set up should be designed and consented to by those whose freedom is to be limited, e.g., “Government by the Consent of the Governed.”

Jefferson would have insisted that history shows that government without the consent of those governed has not produced liberty and the freedom of human beings to pursue happiness. That conclusion would be self-evident to a rational person, and, since it is self-evident, he saw no reason to explain it in the Declaration. That truth is simply so obvious that everyone, including the George III, should have seen it and should have understood it whether he had liked it or not.

In fact, Jefferson’s list of grievances against George III, is a list of examples that demonstrate that government by monarchy, without the consent of the governed, does not provide for life, liberty, and the pursuit of happiness for anyone except the rulers.

Objections to Jefferson’s Reasoning

We’ve seen that, in street vernacular, self-evident really means some thing or concept so obvious that “any fool could see it,” for example: the difference between black and white, whether the sun is shining, the difference between a pig and a human.

And, even more subtle distinctions.

The difference between a pig and human involves: a) what comes to mind when we see one or the other, and,especially, when we see both at the same time, and, b) what comes to mind when we hear or read the words “pig” or “human.”

Now, as to the difference between a pig and a human, most of us would agree the two are not the same type of creature and, importantly, “any fool” should see and understand that difference. But, the devil’s advocate might ask, “What about the difference between a six foot ten NBA player and a petite ballerina?”

The ballerina and, say, Kareem aldul Jabbar (The Great One), demonstrate how different humans can be, but still be recognized, even by the most dim-witted, as both being human. That is, the fact that the huge basketball player and the petite ballerina are both human is self-evident. The same could be said for the difference between an auto and a bicycle and the difference between a Ford and a Chevrolet (although, that’s becoming more difficult, especially, at a distance!).

So, Jefferson asserted in the Declaration that (again in street terms) “any fool” could see that,

a) all men (by “men,” he obviously meant “humans”) are created equal,

b) they’re born with some “unalienable” rights that cannot be taken from them. (He said, “unalienable,” but in 2015 we can say “inalienable”),

and,

c) three of those rights are i) Life, ii) Liberty, and, iii) the Pursuit of Happiness.

The subtext is: “Any fool should see and understand these points, and I’m not going to waste time justifying my claim.”

Now, this is an important point: An historian (in 1776) or, indeed, George III, himself, might have said,

“I don’t see anything ‘self-evident’ about your claim. We’ve had slavery since the beginning of mankind. We’ve had kings, strong-men, and oligarchies—groups, who ruled over the rest of their societies, and, for that matter, women have traditionally had children, cooked, washed, and scrubbed floors, following the general consensus in history that they are the weaker sex.”

A slaveholder might have said,

“As far as I’m concerned, my slaves were born to serve me. If one gets out of line, I can kill him. He’s my property. He’s got no “right” to life. He was not born equal to me. In fact, he was born to make me happy, not to “pursue happiness” himself."

As late as the 20^th Century, many men would have said, “My wife’s purpose is to have my children, take care of my household, the children, and, most importantly, me.”`

The king, the slave owner, men in general, and others might have said:

“It’s simply not obvious to us that all human beings have the same rights. It’s most assuredly not obvious that all humans are born equal! Any fool can see some are smart, some are dumb. Some in between. Some strong, some weak. If you want to use the term “self-evident,” you must agree that the differences in human beings’ intelligence, looks, judgment, strength, whatever, are self-evident.

“So, what’s the basis for your claim that everybody is born equal and every single human being has, at birth, the same rights?”

All in chorus and harmony might demand:

“What’s the authority for the claim that everyone is born with ‘the separate and equal station to which the Laws of Nature and of Nature's God entitle them.’ Just what on earth are ‘Laws of Nature and of Nature's God’? Did you come by this by Divine Revelation? If so, I’d like you to know that we got a different message!”

To understand the Declaration, we must answer those questions, i.e.:

a) Does Jefferson rely on a Divine Revelation by his use of the words “The law of Nature and Nature’s God? If not, what is the basis of his claim?

and,

b) What does “created equal” mean in the Declaration?

Natural Law: What It Is and Where It Came From

A good, working definition of Natural Law is:

“[The] theory that some laws are basic and fundamental to human nature and are discoverable by human reason without reference to specific legislative enactments or judicial decisions. Natural law is opposed to positive law, which is human-made, conditioned by history, and subject to continuous change. “ [Italics added.][14]

(It is noteworthy that our Supreme Court has recognized the logos of Natural Law.[15])

Thomas Jefferson explicitly names Cicero as one of several major writers and thinkers who contributed to the tradition “of public right” that informed Jefferson’s view that the Law of Nature is not created by man. Rather, man is born with the ability to recognize this law, and, because man is born as a rational being.[16]

Cicero wrote, variously:

“…[L]aw is highest reason, implanted in nature, which orders those things that ought to be done and prohibits the opposite.”[17]

“We must explain the nature of law [ius], and this must be traced from human nature.”[18]

“This, then, as it appears to me, has been the decision of the wisest

philosophers, that law was neither a thing contrived by the genius of man,

nor established by any decree of the people, but a certain eternal princi-

ple, which governs the entire universe, wisely commanding what is right

and prohibiting what is wrong.[19]

[…]

[The power of law] is not only far more

ancient than any existence of states and peoples, but is coeval with God

himself, who beholds and governs both heaven and earth.”[20] [Brackets in original.]

“True law is right reason conformable to nature, universal, unchangeable,

eternal, whose commands urge us to duty, and whose prohibitions

restrain us from evil.

[…]

This law cannot be contradicted by any other law, and is not liable either to derogation or

abrogation. Neither the senate nor the people can give us any dispensa-

tion for not obeying this universal law of justice. It needs no other expos-

itor and interpreter than our own conscience. It is not one thing at Rome, and another at Athens; one thing today and another to-morrow, but in all times and nations this universal law must for ever reign, eternal and imperishable. It is the sovereign master and emperor of all beings. God

himself is its author, its promulgator, its enforcer.

[…]

“This, then, as it appears to me, has been the decision of the wisest

philosophers, that law was neither a thing contrived by the genius of man,

nor established by any decree of the people, but a certain eternal princi-

ple, which governs the entire universe…Therefore they called that aboriginal and

supreme law the mind of God, enjoining or forbidding each separate

thing in accordance with reason. [The power of law] is not only far more

ancient than any existence of states and peoples, but is coeval with God

himself, who beholds and governs both heaven and earth.”[21] (Brackets in original.)

According to Cicero, Natural Law is not a creation of man; therefore, its pre-existence implies a Creator of man and a Law-Giver as the source of Natural Law.

So, What? What Does All This Have to Do With the Constitution and Our Lives Today?

The Declaration is in one sense a more important state document than the Constitution. The Declaration is the foundation on which the Constitution is built.

If we want to understand the Constitution, it’s absolutely essential to first understand the Declaration, where it came from, what it’s terms mean, and how it’s principles are what are government rests upon. Only then, can one notice when government swings away from, or morphs into, something different than the government the Declaration and the Constitution created--s government we accept is self-evidently the best, maybe the sole, means of preserving our freedom.

We can’t even enter into a meaningful discussion of the Constitution or a specific decision of some court without an understanding of the two great state documents.

Both, can be understood by a lay person. They’re both short. It takes less than an hour to slowly read the Constitution. We can read the Declaration in a matter of minutes, and it’s easy to understand, although Jefferson had his own way of spelling, punctuation, and capitalization. (If you’re Thomas Jefferson, you can get away with that.)

The Constitution takes a bit of help to read. Here’s why.
First, the Constitution assumes that a reader will understand some terms (not many) that are readily understood by lawyers.

Why did they use legal terms, not necessarily in common use by non-lawyers? Not a mystery: it saves time, and lots and lots of words. Many of the Founders were lawyers and many of the legal terms were familiar to the colonists. Some are familiar to those of us who aren't lawyers (and have lives!).

An example: habeas corpus.

Many of us learned in school that the Writ of Habeas Corpus originated in England and is a court order which is directed to any official who’s holding someone in custody. It orders that officer to come before the court, immediately, and tell the court why and under what authority he or she is keeping the “petitioner” (the prisoner) confined.

In ordinary language, if I get arrested, put in the slammer, illegally (at least in my opinion), I’ll tell my lawyer to go see the judge, get an order from the judge. That order tells the jailor, or whoever is holding me, to come in to court and give a good, sound legal reason for why I'm being held. If the judge decides the reason given doesn’t pass muster, the court will order my release, immediately.

My illustration, even in the simple form I’ve tried to use, is still wordy, very wordy. So, it’s easy to see why the Founders didn’t take the time to define just what a writ of habeas corpus is (there’s a great deal more to it than just described). They got their point across by simply using the term habeas corpus--an awful lot of law shoved into the document with two Latin words.

(As an aside, this example illustrates why judges and lawyers often speak in a strange language. Governor Jerry Brown once remarked that lawyers, with their strange incantations, are them modern day High Priests. But, legal terms are usually used very effectively because a huge body of law can be expressed in short terms or, regularly, by simply naming some specific decision of an appellate court--e.g.,
"Marbury," "Boykin v. Alabama, your Honor."-- This parenthetical is what’s called in Cajun Louisiana, “lagniappe.” Look it up. It’s a useful term—well, it is if you're in New Orleans.)

But, there’s more.

The Constitution can be a bit confusing to lay readers because it embodies common law rules, in addition to legal terms like habeas corpus, and practices that date from hundreds of years back into English legal history. Habeas corpus originated (depending on which legal historian you choose) some hundred or so years before the Declaration was drafted, or, according to some, as early as the Magna Carta, 1215.[23]

And, the lay reader doesn’t get any warning when one of these common law principles is hidden in some constitutional provision.

(But, right in the middle of this discussion, I want to say this: In spite of what’s being described and explained here, a person of ordinary intelligence and education can understand the Constitution quite well, particulary nowadays, when we have such resources as Wikipedia and other internet sources. A researcher or professional writer must always check Wiki cites to authenticate accuracy, but, for the most part, the information there is reliable. At times opinion creeps in, but this is usually easily spotted and the bases for it are usually cited. Use Wiki; it’s great.)

But back to the implicit inclusion of the English Common Law into the Constitution. Probably, the Founders should have explicitly stated that the English Common Law, as of ratification of the Constitution, would be the law of the land throughout the country where it applied, e.g., criminal law, business law, and land law. Some states, both before and after ratification, did exactly that. They included the English Common Law as of some specific date.[24]

Had the Founders explicitly adopted the Common Law as of ratification, it might have had the effect of standardizing law throughout the country. As it did not, each state has its own constitutional and statutory law, subject to, of course, federal law.
It would have also warned a reader that these principles, rules, and practices were embodied in the law of the land and would explain some terms and phrases used in the Constitution.

But, the Founders did not expressly adopt the Common Law, nor did they bother spelling out in the Constitution that some provisions of it would be implemented according Common Law principles.

The colonies were all governed under the English Common Law, and, even before the revolution, the individual colonies tried to use the Common Law, although it was difficult because for a long while they simply didn’t have the books! This probem was solved to some extent by the gradual availability of Blackstone’s Commentaries, a work which attempted to summarize the body of English Law which had developed since the Conquest. The Hand of Blackstone is still felt today!

Because the colonies were the “children” of England, it appears that few, if any, lawyers had the idea that anything other than the Common Law would be the law of the land, and that attitude prevailed after the Revolution. It appears that the Founders took the same view and simply assumed, without expressly saying so, that the English Common Law was the foundation of the new nation’s law and was incorporated into the operation of the judiciary in the new government.

Marbury v. Madison[25] is one of the most important Supreme Court decisions in our history. It’s still very relevant to what goes on today in the courts. But, leaving its holding aside, it’s also an excellent example to illustrate the invisible English Common Law in the Constitution.

Marbury filed a request, a “petition,” directly in the Supreme Court and asked for a specific court order. This type of request that he made is called a “Petition for Writ of Mandamus.” As with habeas corpus, the Writ of Mandamus was created and developed over the years in English Common Law.

The term, "mandamus,” is a household phrase in a lawyer’s lexicon today, and was so, in Colonial America. And, all lawyers (except, apparently, Marbury’s lawyer) would know that the only place you can initially make such a request, i.e., “file” such a petition, is in a court of “original jurisdiction,” a lower court. That is, one must first go to what we now call a “trial” court, the level where Perry Mason used to rip up Hamilton Berger. (I’ve wondered how Berger kept his job. As far as I know, he never won a case!) The trial court is the court where most lawsuits begin, e.g., personal injury, criminal trials, debt collection, breach of contract—that sort of thing. Most traffic tickets or “small claims"--you sue your tenant because he hasn't paid his rent--are at an even lower level.

But, if you want a Writ of Mandate, an order to an official to perform his/her legal duty—say, issue a marriage license when the official refuses, issue an order for the city to issue you a building license if you’ve got a disagreement about that, or, even to order the President to spend money according to a congressional appropriation,[26] you can’t start at the top, the Supreme Court, or even a mid-level court, e.g., the Federal Circuit Court of Appeals. You've got to start at the bottom, in what would now be a Federal District Court.

But Marbury started at the top—his lawyer filed the petition directly in the Supreme Court and “petitioned,”asked, that court to issue a writ of mandamus to James Madison, Jefferson’s Secretary of State, and tell Madison to deliver a commission to Marbury.

Marbury had been appointed by John Adams as a Justice of the Peace in Washington, but no one delivered his commission to him which would have effectively set him up in business as a JP. He wanted that commission, so he asked the Supreme Court to order Madison to turn it over. Madison had declined to do so.
There is a story behind this, but, read about that elsewhere.[27] For the moment, it’s significant that Marbury’s case was thrown out, and John Marshall wrote a long opinion which is, perhaps, the most important case ever decided by the Supreme Court.[28]

But, why must a Petition for a Writ of Mandate be filed in a lower court rather than in the Supreme Court?

Well, the common law of England says so. It’s simply the rule, “the way it’s always been done,” developed over the years.

Okay, so what? Well, the “what?” is: The Supreme Court is an appellate court. It has no jurisdiction, no power to rule, on anything except appeals from lower courts! Since Marbury’s petition is not an appeal, the Supreme Court can’t even hear the case, let alone, issue the order!

Why is the highest court in the land an appellate court, with no power (“jurisdiction”) over the case? Simple. Article 3 of the Constitution limits the power of the Supreme Court to only specified cases that may be filed directly in that court. Petitions for Writs of Mandate are not included (and, under common law rules could not be included). Apart from the list of exceptions, the Supreme Court may only hear appeals--“appellate jurisdiction.”

Why does an appellate court have no jurisdiction to hear petitions for writs of mandate? Again, simple. That was the custom under the English Common Law.

The Founders didn’t describe an “appellate” court. It wasn't necessary because all the lawyers (and many non-lawyers) would have known what an appellate court could do and what it could not, at least, in very general terms. Nothing more needed to be said about appellate courts in the Constitution itself.

A second example to show the implicit adoption of the Common Law is in the text of the Northwest Ordinance adopted shortly after ratification. Language from that document includes this:
“Art. 2. The inhabitants of the said territory shall always be entitled to the benefits of the writ of habeas corpus, and of the trial by jury; of a proportionate representation of the people in the legislature; and of judicial proceedings according to the course of the common law.” [29] [Italics added.]

Some Final Thoughts

The Founders, having the Declaration in mind, drafted the Constitution to create a government that would embody the self-evident truths the Declaration proclaimed:

“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.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed….”

So, reading the Constitution requires going into more than the text itself. But, even though, it takes many years of study to become a Constitutional lawyer, with a little help, the ordinary citizen can get a good grasp of constitutional law—enough to have some sense of whether any branch of the federal government is going of the rails—going astray from the government that was set up in 1789.

There is nothing wrong with changing the way our government or the way it is run, although, history has shown that it’s best to do so seldom and with a lot of thought.

Frankly, neither we nor our leaders are as smart, or as steeped in governmental theory, and as well-equipped, to draft a Constitution as the Founders were. That collection of men was what some statisticians refer to as a “five sigma event”—an event so remote in probability as, for the most part, not worth counting on.

We probably ought to leave the Constitution alone. It’s highly doubtful that we can improve it

But, if we must change it, we should change it according to the amendment process the Founders built into it—not by judicial fiat or executive order--certainly not with a committee of five unelected lawyers that make up a majority of the nine justices on the Supreme court.

The Constitution that went into force in 1789 had one tragic flaw: It recognized and accepted slavery in direct contravention of the proclamation in the Declaration that “all men are created equal.” The Fourteenth Amendment enacted just after the Civil War forbade denial of the “equal protection” of law to any person within the jurisdiction of a court.

In the 20^th Century, and since, legislatures and courts continue to wrestle with balancing equal rights with other individual rights, unenumerated, but thought by some to be self-evident rights such as the right to associate or do business with whom one chooses.

The 1789 Constitution was imperfect in that recognized slavery. Even after the passage of the Bill of Rights in 1791, slavery continued and was not abolished throughout the country until passage of the Fourteenth Amendment in 1868. It was not until Brown v. Board of Education[30] in 1954 that segregation was declared unlawful.

The Constitution’s history has not been perfect, but, it’s difficult to find an example of government in history that has done a better job.

Because the fundamental rights we have as free person, life, liberty, the pursuit of happiness, are so vital to our well-being and our right to enjoy life as best we can, enjoy the fruits of labor, and indulge ourselves in the activities we find meaningful and enjoyable, we must have an understanding of why we’ve got these rights and whether we're losing them. Are they in danger? If so, we've got to go to battle stations and protect them.

The Constitution included a provision for its own amendment[31] in keeping with the proclamation in the Declaration that,

“…when a long train of abuses and usurpations […] evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”

Obviously, peaceful change is better than violent revolution, so, the Founders built in a means of peacefully changing it.[32] If we don’t like what the government is doing, we've got two means of changing it:
a) overthrow it and start over (not recommended), or, b) amend the Constitution in the manner prescribed. The first is, well, not what we agreed on, and, the second is difficult, intentionally so, to assure stability.

Perhaps, the most important aspect of the Constitution is the separation of powers among three branches of government, an act which is now called the doctrine of (what else?), the “Separation of Powers.”

Since all governmental power self-evidently resides in the people, that government may do only what the people agree to allow it to do. Our Constitution, our Social Contract[33], divides the powers we've given up to the government among the three separate branches. This tripartite structure, the “Separation of Powers,” was embodied in the Constitution to prevent one branch or another, or a collusion of two branches, from acting in violation of the Constitution, itself, or changing it on their own to personal or political predilections.

We must understand the structure of our government set up by the Constitution to make sure any government we elect sticks to the rules and limits imposed by the Constitution.

At this writing, 2015, it’s apparent that we've already allowed our government to stray off the rails into government by bureaucracy and decree, i.e., Executive Order, i.e., healthcare administered by of all people, the Internal Revenue Service[34], and, an attempt to convert millions of people unlawfully resident to citizenship by presidential decree.[35]

Let’s learn what our “unalienable rights” and what protection was put into our governmental structure and make sure those in office stick to the plan.

Note: Comments are welcome. The author has a thick skin. Be candid.

Lee Hubbard

Los Angeles, 2015

[1] http://www.brainyquote.com/quotes/quotes/j/johnfkenn114950.html#hiTYoxVkpCSS3XhL.99

[2] “Natural Rights and the Founding Fathers,” Chester James Antieau, Washington and Lee Law Review, Vol. I, Issue 4, Article 1, http://scholarlycommons.law.wlu.edu/cgi/viewcontent.cgi?article=3506&context=wlul.

[3] “The Un-Education of a Nation,” 1. http://www.forbes.com/sites/mikemyatt/2012/07/03/the-un-education-of-a-nation-where-we-went-wrong/

[4] This is a direct quote. Jefferson used his own rules of punctuation and capitalization. If you were Thomas Jefferson, you would have had and should have had that license. Eat your heart out grammarians.

[5] Page 1 of Thomas Jefferson to Richard Rush, May 31, 1813, The Thomas Jefferson Papers at the Library of Congress, series: Series 1: General Correspondence. 1651-1827 Microfilm Reel: 046, http://www.loc.gov/search/?q=+%22To+the+corruptions+of+Christianity+I+am+indeed%2C+opposed%3B+but+not+to+the+genuine+precepts+of+Jesus+himself.+I+am+a+Christian%2C+in+the+only+sense+in+which+he+wished+any+one+to+be%3B+sincerely+attached+to+his+doctrines%2C+in+preference+to+all+others%3B+ascri&fa=segmentof%3Amtj1.028_0191_0199%2F&st=gallery.

See generally: http://en.wikipedia.org/wiki/Thomas_Jefferson_and_religion#Jefferson_and_Deism.

[6]

[7] Ibid., http://www.loc.gov/resource/mtj1.046_0835_0836/.

[8] The Works of Thomas Jefferson in Twelve Volumes, Federal Edition, Paul Leicester Ford, ed., New York: G. P. Putnam's Sons, 1904, Vol. 1, pp. 438–441, http://en.wikiquote.org/wiki/Thomas_Jefferson#Letter_to_Peter_Carr_.281785.29.

[9] “Thomas Jefferson to William Johnson, 17 March 1810,” Founders Online, National Archives (http://founders.archives.gov/documents/Jefferson/03-02-02-0250 [last update: 2015-03-20]). Source: The Papers of Thomas Jefferson, Retirement Series, vol. 2, 16 November 1809 to 11 August 1810, ed. J. Jefferson Looney. Princeton: Princeton University Press, 2005, pp. 301–302.

[10] Thomas Jefferson: Legal Argument, 1770. FE 1:376.

[11] It’s probably impossible to actually be an atheist because non-existence is even more difficult to prove than existence.

[12] (Jefferson, Thomas, The Life and Selected Writings of Thomas Jefferson, Modern Library; Reprint edition (November 10, 1998)

[13] See John Adams paper at: http://teachingamericanhistory.org/library/document/a-dissertation-on-the-canon-and-feudal-law/.

“A native of America who cannot read and write is as rare an appearance as a Jacobite or a Roman Catholic, that is, as rare as a comet or an earthquake. It has been observed, that we are all of us lawyers, divines, politicians, and philosophers. And I have good authorities to say, that all candid foreigners who have passed through this country, and conversed freely with all sorts of people here, will allow, that they have never seen so much knowledge and civility among the common people in any part of the world.”

[14]The Columbia Electronic Encyclopedia, 6th ed., http://www.infoplease.com/encyclopedia/society/natural-law.html.

[15] MAYO COLLABORATIVE SERVICES, […], [Pet’s] v. PROMETHEUS LABORATORIES, INC., “Justice BREYER delivered the opinion of the Court.

Section 101 of the Patent Act defines patentable subject matter. It says:

"Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title." 35 U.S.C. § 101.

The Court has long held that this provision contains an important implicit exception. ‘[L]aws of nature, natural phenomena, and abstract ideas’ are not patentable. “ (Citations.) 132 S.Ct. 1289 (2012, at page 1293.)

[16] Thomas Jefferson, “Letter to Henry Lee,” 8 May 1825, in The Political Thought of American Statesmen, eds. Morton Frisch and Richard Stevens (Itasca, Ill.: F. E. Peacock Publishers, 1973), 12.

[17] (On the Laws (De Legibus), Published on Natural Law, Natural Rights, and American Constitutionalism, par. 18, http://www.nlnrac.org/classical/cicero/documents/de-legibus.)

[18] Id., Par. 17—(On the Laws, Cicero, par. 17.)

[19] Marcus Tullius Cicero, On the Republic, Charles Duke Yongc, trans. (London: H.G.

Bohn, 1853), III, 22, http://www.nlnrac.org/classical/cicero/documents/de-legibus

[20]Ibid.

[21] Ibid.

[22] Ibid., 1,2,4-5

[23] Wikipedia has very good, succinct explanations of these terms. https://en.wikipedia.org/wiki/Habeas_corpus#Origins_in_England.

[24] See generally, “Reception of English Common Law in the American Colonies - Viewcontent.cgi.”

[25] Marbury . Madison, 5 U.S. 137,1 Cranch 137 (2 L. Ed. 60 [1803 U.S. LEXIS 352]).

[26] Train v. City of New York, 420 U.S. 35 (95 S. Ct. 839 [43 L. Ed. 2d 1]).

[27] https://en.wikipedia.org/wiki/Marbury_v._Madison

[28] Some lawyers believe the long opinion was dicta. No statement or proclamation of a legal rule in an opinion of an appellate judge is counted as actual precedent unless that statement was necessary to the decision in the case. Because, Article III of the Constitution specifically defines the Supreme Court as an appellate court (with some exceptions not relevant to mandamus), Marshall could have and should have simply given as an opinion: “Writ denied for lack of jurisdiction. See United States Constitution, Article III. But, nonetheless, Marshall’s opinion has been accepted as a “thus sayeth the Lord” in American Jurisprudence.

[29] Northwest Ordinance, Art. 2. The inhabitants of the said territory shall always be entitled to the benefits of the writ of habeas corpus, and of the trial by jury; of a proportionate representation of the people in the legislature; and of judicial proceedings according to the course of the common law.

[30] 347 U.S. 483 (74 S. Ct. 686 [98 L. Ed. 873]

[31] Article V, United States Constitution.

[32] Ibid.

[33] http://www.encyclopedia.com/topic/social_contract.aspx

[34] Public Law 111 - 148 - Patient Protection and Affordable Care Act, http://www.gpo.gov/fdsys/pkg/PLAW-111publ148/content-detail.html

[35] http://www.heritage.org/issues/immigration?ac=1

Friday, July 3, 2015

THE DECLARATION OF INDEPENDENCE: WHY IT’S IMPORTANT IN THE 21ST CENTURY (And, FOREVER)

Contents