The Last Fourth of July?

Independence Hall, Philadelphia

Mary Meehan

Americans recently observed another Fourth of July to celebrate the adoption of our Declaration of Independence in 1776. Parades, picnics, and spectacular fireworks always make this a happy day.

Yet the Declaration is much ignored in practice now. We really should restore it to life before we celebrate the Fourth again. If we don't, both our founding document and the happy Fourth may fade away together.

Let's take a look at the unalienable rights asserted by the Declaration of Independence: the rights to life, liberty, and the pursuit of happiness.

We certainly are not doing well on the right to life. The Americans who wrote the Declaration would be shocked to find that the Supreme Court in 1973 actually declared a constitutional right to kill through abortion. There is no way to square that with the right to life proclaimed by the Declaration. And as many critics have shown, the Court's Roe v. Wade opinion failed to ground the supposed right to abortion in the Constitution--because it is just not there. The Fifth Amendment to the Constitution, adopted as part of the Bill of Rights, provides that no person may "be deprived of life, liberty, or property, without due process of law." The Fourteenth Amendment, adopted in 1868, specifically applied the same directive to the states: "...nor shall any State deprive any person of life, liberty, or property, without due process of law." Unborn children now receive no due process at all--much less a trial by jury. Of what crime could these children be accused? Sheer existence itself?

With supreme audacity, and a distorted account of legal history, the Court got around the personhood problem by saying that "the unborn have never been recognized in the law as persons in the whole sense." While Roe supposedly allows states to ban late abortions except when the mother's life or health is at stake, its companion case of Doe v. Bolton says the medical judgment on abortion "may be exercised in the light of all factors--physical, emotional, psychological, familial, and the woman's age--relevant to the well-being of the patient. All these factors may relate to health."⁽¹⁾ Taken together, the two decisions ended the right to life for all unborn children.

What would the Founders have thought about Roe and Doe? The lawyers among them knew the English common law, which the colonies followed before the Revolution and most states followed after it. James Wilson of Pennsylvania--an attorney, Declaration signer, key member of the Constitutional Convention, and Supreme Court justice--said this in a lecture on natural rights: "With consistency, beautiful and undeviating, human life, from its commencement to its close, is protected by the common law. In the contemplation of law, life begins when the infant is first able to stir in the womb. By the law, life is protected not only from immediate destruction, but from every degree of actual violence..." States would provide more protection for the unborn by statutory law in the 1800s.⁽²⁾

In 1809 Thomas Jefferson expressed views that harmonized with the Declaration of Independence he had drafted some 30 years earlier. "The care of human life and happiness," he wrote, "and not their destruction, is the first and only legitimate object of good government."⁽³⁾ The context of this statement was his strenuous effort to avoid war during his presidency, though he did not limit the principle to that issue.

Jefferson and other Founders would find it hard to understand the perpetual warfare that has become our way of life. They might see it as a violation of the right to life of our soldiers, as well as the soldiers and civilians of our adversaries. In the American Revolution, they were fighting a defensive war against a mighty imperial power. Now the country they established has itself become such a power. It has done to the citizens of other nations many of the things the Founders held against King George III--and worse. The Declaration accused the King of England of many specific abuses, but did not accuse him of torture or the use of assassination squads.

While Jefferson and others were working on the Declaration of Independence in Philadelphia, George Washington was commanding the Continental Army and defending New York against the English forces. After the Revolution, he presided over the Constitutional Convention. Then, as our first president, he worked hard to keep us out of another war with England. Washington's Farewell Address, warning against American interventionism abroad, is well known. But he had taken the same position before his presidency even began. In early 1788, when states were voting on whether to ratify the Constitution, Washington told a French diplomat: "Separated as we are by a world of water from other Nations, if we are wise we shall surely avoid being drawn into the labyrinth of their politics and involved in their destructive wars."⁽⁴⁾ (What would Washington think of today's U.S. military bases all over the world? Our wars in Iraq, Afghanistan, and Pakistan?)

Also in 1788, Washington expressed to others his strong criticism of the imperial mind-set. One of his letters, to the Marquis de Chastellux, is interesting both for its pro-peace statement and for the way it defies the stereotype of Washington as a cold and formal man. As a general in the expeditionary force that France sent to aid America during the Revolution, Chastellux had been a great help to Washington. In replying to a letter from his old colleague, Washington noted that Chastellux had referred to his wife and then remarked, "A wife! well my dear Marquis, I can hardly refrain from smiling to find you are caught at last. I saw, by the eulogium you often made on the happiness of domestic life in America, that you had swallowed the bait and that you would as surely be taken (one day or another)... So your day has, at length, come. I am glad of it with all my heart and soul."

Referring to war preparations in Northern Europe, Washington sounded somewhat like those antiwar protesters of the Vietnam era who advised, "Make love, not war." He told Chastellux, "While you have been making love, under the banner of Hymen [the Greek god of marriage], the great personages in the North have been making war, under the inspiration, or rather under the infatuation of Mars. Now, for my part, I humbly conceive, you have had much the best and wisest of the bargain. For certainly it is more consonant to all the principles of reason and religion (natural and revealed) to replenish the earth with inhabitants, rather than to depopulate it by killing those already in existence..." He added that "it is devoutly to be wished, that the manly employment of agriculture and the humanizing benefits of commerce, would supersede the waste of war and the rage of conquest; that the swords might be turned into plough-shares, the spears into pruning hooks, and, as the Scripture expresses it, 'the nations learn war no more.'"⁽⁵⁾

To another good friend and colleague from the Revolution, the Marquis de Lafayette, Washington wrote in June of 1788: "There seems to be a great deal of bloody work cut out for this summer in the North of Europe. If war, want and plague are to desolate those huge armies that are assembled, who that has the feelings of a man can refrain from shedding a tear over the victims of Regal Ambition?"⁽⁶⁾ A few days later, he told a Massachusetts clergyman: "How pitiful, in the eye of reason and religion, is that false ambition which desolates the world with fire and sword for the purposes of conquest and fame..."⁽⁷⁾

Any American who believes that patriotism requires support of interventionism and unjust wars should think about our first president's views. In our entire history, there has been no greater patriot than Washington.

On the Declaration's right to liberty, we can claim progress--although very late progress--in finally extending constitutional rights to African Americans. If the Founders could understand all of the suffering of slavery, the Civil War, and segregation, I suspect they would be ashamed of the nearly-20-year protection of the slave trade that they wrote into Article I of the Constitution and the fugitive-slave clause that they wrote into Article IV. Founders who themselves were slaveholders might deeply regret that they failed to free all of their slaves during their lifetime or at least (as Washington did) in their wills.

A later generation also made substantial but overdue progress in establishing, through the Nineteenth Amendment, women's right to vote. In the past 40 years, American women have become far more involved in politics, the professions, and other work opportunities than ever before. Some Founders, I believe, would approve; some would not. Many would be totally bewildered at first but, like other men in recent decades, would adapt to the changed balance of power. Abigail Adams, and probably some other Founders' wives, would be delighted with the change.

In other areas of liberty, though, we are doing so poorly that in many ways we are no longer the "land of the free." The badly misnamed Patriot Act, passed in the wake of the 9/11/01 attack on the Pentagon and the Twin Towers, would have appalled the great patriots of 1776. It involves much surveillance of citizens and enormous power for government agencies such as the FBI and the National Security Agency, which already had too much power before 9/11.

The Patriot Act has taken its place beside widespread private-agency surveillance that Americans have become used to in recent decades: surveillance cameras everywhere; supervisors' listening to telephone conversations with customers to provide "quality assurance"; and massive collection of customers' personal information for marketing.

It seems that Big Brother is always watching and listening. Widespread surveillance invades our privacy, and government surveillance puts a chill on political protest. There is a close connection between U.S. wars abroad and government surveillance of citizens at home. While ending the American empire is a worthy goal for many other reasons, it is also needed to restore our political liberties.

Yet it is doubtful that we can keep our own rights safe in the long run if we violate those of suspected terrorists and prisoners of war. Torture of prisoners is one of the worst things our government has ever done. It also has violated U.S. law and treaties we have made.⁽⁸⁾ I believe the Founders would feel betrayed by the use of torture and by the prolonged captivity, without trial, of alleged terrorists. John Adams, who bravely provided legal defense for British soldiers accused of the 1770 "Boston Massacre," might feel the betrayal most deeply.

How about the pursuit of happiness? We still have the right to pursue it, but that is hard to do in our dreary culture. There is the endless pounding of electronic noise. The nonstop advertising that burns commercialism into our souls. The tasteless and empty "entertainment" that television offers.

Desperate for happiness, huge numbers of Americans seek it in even worse areas of our culture. They become addicted to street drugs that wreck their health, their lives, and their families. Many drug-addicted people who are well over 21 never grow up, and their children suffer neglect and/or abuse as a result. Dysfunctional families of this kind are huge burdens to others. Many grandparents, for example, are raising grandchildren because the children's parents are strung out on drugs, in jail, or otherwise missing in action.

Liberals are inclined to think that drug abuse stems from the hopelessness of poverty. They should look at the other side of the coin: Much poverty results from drug abuse and other addictions, including sexual ones. The sexual revolution that started in the 1960s was supposed to produce happiness. It produced instead epidemics of sexually-transmitted disease, a multitude of broken marriages and unhappy children, financial disaster for many after divorce, and countless lonely people who wonder why the much-heralded revolution didn't work for them.

No one can wave a magic wand to solve these problems. If we restore respect for life and political liberty, though, that will go a long way toward the pursuit of happiness. People who have genuine respect for life do not want to throw away their own lives or the lives of their children. And people who are engaged in serious politics realize that they need self-discipline. The Founders were not embarrassed to talk about virtue; they thought it was needed both for good politics and for true happiness in life. They would approve heartily this advice from an anthem written long after the Declaration was signed: "Confirm thy soul in self-control..."⁽⁹⁾

We Americans face a long path to full recovery and use of our rights to life, liberty, and the pursuit of happiness. Let's take brave strides up that path before the next Fourth of July.

Notes

1. Roe v. Wade, 410 U.S. 113 at 162-64 (1973); and Doe v. Bolton, 410 U.S. 179 at 192 (1973).

2. Robert Green McCloskey, ed., The Works of James Wilson (Cambridge, Mass.: Harvard University press, 1967), vol. 2, 597; and Roe v. Wade (n. 1) at 174-77 (Rehnquist, J., dissenting).

3. Thomas Jefferson to the Republican Citizens of Washington County, Md., 31 March 1809, in Andrew A. Lipscomb, ed., The Writings of Thomas Jefferson (Washington: Thomas Jefferson Memorial Association, 1903-04), vol. 16, 358-59.

4. George Washington to the Chevalier de la Luzerne, 7 Feb. 1788, in John C. Fitzpatrick, ed., The Writings of George Washington (Washington: U.S. Government Printing Office, 1931-44), vol. 29, 404-07, 406.

5. George Washington to the Marquis de Chastellux, 25 April [-1 May] 1788, ibid., 483-86, 483-85.

6. George Washington to the Marquis de Lafayette, 19 June 1788, ibid., 522-26, 523.

7. George Washington to Rev. John Lathrop, 22 June 1788, ibid., vol. 30, 4-5, 5.

8. United States Code, title 18, sec. 2340-2340B; International Covenant on Civil and Political Rights, Article 7 (ratified by the U.S. in 1992); and Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (ratified by the U.S. in 1994). According to the U.S. Constitution, Article VI, treaties we have made are part of "the supreme Law of the Land."

9. Katharine Lee Bates, "America the Beautiful," in P. Edward Ernest, ed., The Family Album of Favorite Poems (New York: Grosset & Dunlap, 1959), 293.