Freedom Line Blog

An allegedly misplaced period is causing at least one liberal academic to argue that the Declaration of Independence is as concerned with empowering government as it is with securing individual rights.

The argument runs like this. On the official transcript of the Declaration housed in the National Archives a period appears after the familiar phrase, “life, liberty and the pursuit of happiness.” However, the period doesn’t appear on the earliest version of the document we have, nor does it occur on other reproductions.

Removing the period changes the fundamental balance of government, argues Danielle Allen.

“That errant spot of ink,” summarizes the New York Times, “she believes, makes a difference, contributing to what she calls a ‘routine but serious misunderstanding’ of the document.

“The period creates the impression that the list of self-evident truths ends with the right to ‘life, liberty and the pursuit of happiness,’ she says. But as intended by Thomas Jefferson, she argues, what comes next is just as important: the essential role of governments – ‘instituted among men, deriving their just powers from the consent of the governed’ – in securing those rights.”

According to Professor Allen, “The logic moves from the value of individual rights to the importance of government as a tool for protecting those rights. You lose that connection when the period gets added.”

What we have here is a grammar czar masquerading as a political theorist.

Whether or not the period is included, the logic of Jefferson’s argument is the same: Individual rights precede the formation of government. In fact, the only reason governments are formed is to secure the enjoyment of these pre-existing rights; among these being life, liberty and the pursuit of happiness.

When a government becomes destructive of these ends, the people have the right to abolish the government and found a new one that will secure them. If Professor Allen and others will recall, the vast majority of the Declaration sets forth the reasons for dissolving the bonds between the British Empire and the American colonies before declaring the latter free, independent and self-governing.

Allen’s real project, though, is reading the Declaration as a collectivist document that empowers government to legislate equality. In a summary of her book Our Declaration: A Reading of the Declaration of Independence in Defense of Equality, Allen tries to make the most out of her ink blot by arguing that “Its list of self-evident truths does not end, as so many think, with our individual right to the ‘pursuit of happiness’ but with the collective right of the people to reform government so it will ‘effect their Safety and Happiness.’ The sentence laying out the self-evident truths leads us from the individual to the community – from our individual rights to what we can achieve only together, as a community constituted by bonds of equality.”

It’s impossible to square Allen’s interpretation with anything we know about the Declaration and the Founding. The Lockean theory driving the document puts individuals ahead of the group, and government – the largest expression of a group – at the service of the rights-bearing human person. If the group violates a person’s God-given rights (i.e. the inalienable ones endowed by the Creator), the group loses.

Going forward, it would be better if Professor Allen sticks to answering the marginally interesting question of the Declaration’s intended punctuation. Doing more – like trying to inject of a political philosophy into a blank space – risks making her contribution seem less important.

Less than a month after the Supreme Court lifted an outdated “preclearance” formula off the backs of states like Texas, Eric Holder’s Justice Department is trying to reinstate the restrictions by inviting judicial activism.

The move comes in response to the Supreme Court’s invalidation of a coverage formula in Section 5 of the Voting Rights Act. Previously, states with a history of racial discrimination had to seek Justice Department approval – preclearance – before enacting any changes to their election laws. The problem for states like Texas is that the formula for deciding which jurisdictions are required to submit to preclearance hasn’t been updated in decades, making it virtually impossible to get out from under the federal government’s thumb.

In striking down Section 5’s coverage formula, the Court said that Congress is free to create a new formula based on current data. But with the legislative branch divided, few think any action is imminent.

And so, in keeping with the Obama administration’s motto “We Can’t Wait,” Attorney General Holder announced today that his department won’t wait for Congress to update the law. Instead, lawyers at Justice are filing lawsuits against Texas and other jurisdictions seeking to reinstate preclearance on a case-by-case basis.

The cost to taxpayers will be huge, since both sides of the “v.” are government employees. Each federal judge hearing a case will act as a mini-Congress by making factual findings before crafting a rule of law to determine the outcome. Of course, these decisions will be litigated up the lengthy federal appellate chain; all the way to the Supreme Court, if possible.

What makes this an affront to the constitutional design of separation-of-powers is the deliberate intent of one arm of the executive branch to invite members of the judiciary to make laws that Congress will not pass.

Granted, for well-connected attorneys like Holder it’s cheaper to litigate the Left’s pet projects on the taxpayer’s dime rather than as a private lawyer working pro bono. But as Texas Republican Governor Rick Perry said in response, Holder’s actions really amount to “utter contempt for our country’s system of checks and balances.”