It is appropriate to revisit the Declaration of Independence on the 250th anniversary of its signing. Frances Wright, a Scottish woman who settled in the United States in 1824, was a social activist, lecturer, and writer. As was a July 4th custom at the time, she delivered on July 4, 1828, an oration about the meaning of America. In her oration, she stated in part: “Dating, as we justly may, a new era in the history of man from the Fourth of July, 1776, it would be well—that is, it would be useful—if on each anniversary we examined the progress made by our species in just knowledge and just practice.” In that vein, this article seeks to revisit the language of the Declaration of Independence and some of the important concepts contained therein. Lastly, following the suggestion of Wright, we will examine the Declaration’s language about the parameters of unalienable rights and discuss whether there has been progress in current jurisprudence made by our species in just knowledge and just practice.
The Language of the Declaration
The Declaration begins by explaining the philosophical basis for why the Colonies cut their political ties with Great Britain. Thomas Jefferson, the author of the document, initially states that the Colonies relied on the Laws of Nature and Nature’s God to justify their separation from England. Jefferson writes that there were self-evident truths relied upon by the Americans in support of their independence. These “truths” are said to exist in nature and are not bestowed by the monarchy or Parliament. The first “truth” is that all men are created equal. Jefferson then writes that there are unalienable rights endowed upon all men by their Creator, among which are “life, liberty and the pursuit of Happiness.” At that time the political thought was that rights were bestowed upon the governed by the monarchy or Parliament, but the concept that an individual had unalienable rights imprinted at birth was an emerging philosophical idea. Jefferson also did not limit the unalienable rights to those specified in the Declaration. His words clearly indicate the belief in the existence of unalienable rights beyond the triad of life, liberty and the pursuit of happiness. The Founding Fathers were familiar with governance having an organic component, as Great Britain had an unwritten Constitution of which Common Law was a part. The Declaration discusses in broad terms foundational points of governance. Jefferson wrote that the authority of the government to act flowed from the consent of those governed. A bold pronouncement in an era of monarchies.
The Declaration also contains language justifying abolishing a government that destroys unalienable rights. This has been interpreted by some as a rationalization for revolting against the government established after the Revolutionary War. This language is, however, an argument by Jefferson for the righteousness of the Colonialist cause. No government establishes itself with a self-destruct button inserted into its founding documents. In his 1796 farewell address, George Washington affirmed this thought. “Let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed.” Abraham Lincoln also made this same point in his first inaugural address. Jefferson also took the opportunity to argue that a change of government is not to be made for trivial reasons but only when a long train of abuses has been imposed upon the governed.
The Declaration next lists 26 examples of alleged abuses by the king that justify the termination of the relationship with the king. The vast majority of these complaints were actions taken by Parliament. Jefferson notes that multiple petitions to the king for relief from perceived injustices went unanswered or were rejected. Here, the document is attempting to seek the moral high ground. It is also in this section of the Declaration that Jefferson alludes to the legal or constitutional argument on behalf of the Colonies on multiple occasions: “[King George] has abdicated government here, by declaring us out of his protection, and waging war against us.” “We have warned them [British brethren] from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us.” These references are to the major issue in the legal analysis of the constitutional dispute. The document addresses the king, but Parliament is the real concern.
The concluding paragraph of the Declaration contains the operative language declaring the Colonies to be independent states absolved of any allegiance to the British Crown. Additionally, this action is taken “In the Name, and by Authority of the good People of these Colonies...” Once again emphasizing that the “authority” arises from the people and not the legislatures of the Colonies.
The Declaration of Independence is a political document. After the Americans won the War of Independence, the former Colonies turned to the issue of the form of government for the new country. When the U.S. Constitution was adopted in 1789, some of the broad pronouncements about the rights of man in the Declaration were included in the Constitution and the Bill of Rights. The statements about the rights of man were as inspirational then as today. Absent these pronouncements, it is doubtful that the Declaration of Independence would be a topic of discussion in 2026.
Debate continues to this day over what “rights” the Constitution protects and whether the language of the Declaration should play any role in identifying those rights. It is clear that the Declaration, as adopted by the Colonial representatives in 1776, contemplated rights other than the three enumerated in the document itself. As noted above, the Colonies were well familiar with the concept of an unwritten constitution and with the British Bill of Rights (1689). The question remains whether the Declaration plays any role in the discussion of identifying and protecting our rights in 2026.
Declaration of Independence in Modern Day Jurisprudence
A starting point for a discussion about the current relevance of the Declaration of Independence is to examine its influence in the past. The Declaration of Independence has been described as a clarion call for democracy. If that is true, what impression did it leave upon the drafting of the Constitution and the Bill of Rights? To paraphrase Frances Wright, how does the language of the Declaration advance the progress of our species in 2026?
The Declaration had a clear impact on the Constitution. This is seen in the Bill of Rights. The Bill of Rights speaks of a limited number of rights existing in the people (enumerated rights). The Ninth Amendment to the Constitution states: “The enumeration in the Constitution, of certain rights shall not be construed to deny or disparage others retained by the people” (unenumerated rights). What are these other rights? Who is to determine what these other rights are, and what test does one apply to determine in 2026 if a previously unenumerated right exists? We know that James Madison and Alexander Hamilton were concerned that the Constitution could be interpreted as protecting only the rights enumerated in the Constitution. This is the reason for the adoption of the Ninth Amendment. This is a clear connection between the Declaration of Independence and the Bill of Rights on this point. The connection is not completely seamless. The Declaration speaks about the “pursuit of Happiness” being an unalienable right but there is no mention of this in the Constitution or in the Bill of Rights. Is the “pursuit of Happiness” a right encompassed by the Ninth Amendment and, if so, what does that phrase mean?
One settled issue is that the Declaration of Independence is not “law,” see Inglis v. Trustees of Sailor’s Snug Harbor, 28 U.S. 99, 158-159, 7 L. Ed. 617 (1830). Scholars and some members of the bench and bar debate whether the language of the Declaration should inform interpretations of the Constitution. This question has not been addressed directly by the U.S. Supreme Court.
There are only a limited number of published opinions speaking to the impact of the Declaration upon jurisprudence. In United States v. Cruikshank, 92 U.S. 542, 553, 23 L. Ed. 588 (1875), it was alleged that the federal government was trying to deprive individuals of their lives and liberty without due process of law. The court noted that these are natural rights of man, and according to the Declaration of Independence they are to be secured by the government. The court also noted, quoting the Declaration, that the authority for the government arises from the consent of the governed. The Supreme Court appears to have used the Declaration of Independence in this instance to interpret the Constitution. In Rywelski v. Biden, 2024 U.S. App. LEXIS 10557, at page 3, (unpublished decision) (2024), however, the Ninth Circuit stated that the Declaration was a declaration of principles and ideas, not of law, and does not grant enforceable rights. The court in Rywelski appears to imply that the Constitution does not necessarily protect all rights endowed by the Creator as stated in the Declaration. Lincoln thought that the language of the Declaration should control the question of whether slavery should be allowed in the U.S. The Dred Scott decision in 1856 put an end to that argument until the passage of the Reconstruction amendments. While the Rywelski opinion held that the Declaration does not establish rights, the opinion does not address whether the Declaration might inform an analysis of how the enumerated rights are to be interpreted or whether there are unenumerated rights protected by the Constitution.
Some scholars contend that the language of the Declaration should be used by Courts to identify unenumerated rights mentioned in the Ninth Amendment to the Constitution. However, the Ninth Amendment was described as a Rule of Construction in U.S. v Bifield, 702 F.2d 342, 349 (2nd Cir 1983). The rule is that the full scope of specific guarantees is not limited by the text [of the Constitution] but embraces their purpose to provide broad freedom from all “arbitrary impositions and purposeless restraints.” This language appears to address the scope of enumerated rights but leaves open the question of what are the unenumerated rights retained by the people. Justice Potter Stewart, in a dissenting opinion in Griswold v. Connecticut, 381 U.S. 479, 529 (1965), described the Ninth Amendment as a truism. It has also been described as a Constitutional saving clause. Richmond Newspapers v. Virginia, 448 U.S. 555, 579-580 (1980). Finally, Associate Justice Antonin Scalia, in a dissent in Troxel v. Granville, 530 U.S. 57, 91 (2000), stated that neither the Declaration nor the Ninth Amendment gave power to a judge to identify what unenumerated rights might be against laws duly enacted by the people. Justice Scalia did not believe that the Constitution gave the judiciary the authority to overturn a state statute, even though he believed the state statute did apply to a “Right” protected by the Ninth Amendment. To date, there is no judicial support for the proposition that the Ninth Amendment is a vehicle for identifying unenumerated rights. The language of the Declaration is thus immaterial insofar as the Ninth Amendment is concerned.
The reason for the reluctance to use the Ninth Amendment to define rights is contained in Justice Scalia’s dissent noted above. The judiciary does not want to be a super legislature and announce new unalienable rights. Justice Scalia’s view goes even further than this statement, as he believed that the judiciary has no authority to strike down a state statute even if it concerned a “Right” within the scope of the Ninth Amendment.
The theory that the Declaration should be used in conjunction with the Ninth Amendment to inform the judiciary of the rights retained by the people but not mentioned in the Constitution appears to be a losing argument. The decision in Dobbs v. Jackson Women’s Health Org., 597 U.S. 215 (2022), resolved how the issue of the existence of a right will be determined, though that case turned on the 14th Amendment and not the Ninth Amendment. The applicability of the court’s standard would appear to apply to any argument under the Ninth Amendment. Associate Justice Samuel A. Alito Jr. wrote that the test for determining whether a right was protected under the 14th Amendment was an examination as to whether the right was “deeply rooted in this Nation’s history and tradition” and was “implicit in the concept of ordered liberty.” Id. At 231. This standard allows a judge to avoid being accused of inserting personal ideas into the category of retained rights by focusing upon whether the right was deeply rooted in history and tradition and implicit to the concept of ordered liberty. This leaves open the possibility that the Declaration can influence the analysis of whether a proposed right is deeply rooted in the nation’s history. Dobbs overturned Roe v. Wade, holding that there was no Constitutional right to an abortion under the 14th Amendment because there was no deeply rooted right on this issue at the time of the adoption of the 14th Amendment. Following the Dobbs test, it is difficult to conceive how any unenumerated right will be recognized by the judiciary. The parameters of previously recognized rights might be expanded or contracted, and in this context, the language of the Declaration may have some influence. The recognition of a new right falling into the category of “unenumerated” is not likely.
In light of the above, the most likely influence that the language of the Declaration might have is on the Court of Public Opinion. With respect to unenumerated rights, the avenue for recognizing them will have to be through amendments to the Constitution and it is here that the language of the Declaration might have some influence. So, the answer to Frances Wright’s query on this limited point is that the progress made by our species regarding unenumerated rights is slow and through the amendment process rather than through the courts.
Francis T. McDevitt, Esquire, is a founding member of Naulty, Scaricamazza & McDevitt, LLC and is of counsel in the firm’s Marlton, New Jersey office. He is the immediate past president of the Villanova Law J. Willard O’Brien American Inn of Court.