William & Mary Bill of Rights Journal Volume 20 (2011-2012) Issue 2 Article 4 December 2011 Restoring "Life, Liberty, and the Pursuit of Happiness" in Our Constitutional Jurisprudence: An Exercise in Legal History Patrick J. Charles Follow this and additional works at: https://scholarship.law.wm.edu/wmborj Part of the Legal History Commons Repository Citation Patrick J. Charles, Restoring "Life, Liberty, and the Pursuit of Happiness" in Our Constitutional Jurisprudence: An Exercise in Legal History, 20 Wm. & Mary Bill Rts. J. 457 (2011), https://scholarship.law.wm.edu/wmborj/vol20/iss2/4 Copyright c 2011 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmborj RESTORING “LIFE, LIBERTY, AND THE PURSUIT OF HAPPINESS” IN OUR CONSTITUTIONAL JURISPRUDENCE: AN EXERCISE IN LEGAL HISTORY Patrick J. Charles* INTRODUCTION .................................................458 I. PLACING THE DECLARATION IN LEGAL AND HISTORICAL CONTEXT .....461 II. A BRIEF HISTORIOGRAPHY OF “LIFE, LIBERTY, AND THE PURSUIT OF HAPPINESS” AS A MATTER OF LEGAL THOUGHT, WITH A FOCUS ON “HAPPINESS” ...............................................470 III. PLACING THE INTERRELATIONSHIP OF “LIFE, LIBERTY, AND THE PURSUIT OF HAPPINESS” IN THE CONTEXT OF AMERICAN CONSTITUTIONALISM ...477 A. Restoring the True Meaning of the Preservation of “Life, Liberty, and the Pursuit of Happiness” in Constitutional Thought .............481 B. “Life, Liberty, and the Pursuit of Happiness” and the Embodiment of the Representative Government ..............................490 C. Eighteenth-Century Legal Thought and the Constitutional Theory Behind Preservation of “Life, Liberty, and the Pursuit of Happiness” ......502 IV. APPLYING THE PRESERVATION OF “LIFE, LIBERTY, AND THE PURSUIT OF HAPPINESS” TO MODERN CONSTITUTIONALISM .....................517 CONCLUSION—OUR HAPPY CONSTITUTION ...........................523 * Patrick J. Charles is the author of numerous books and articles on the Constitution and legal history. Mr. Charles is the recipient of the 2008 Judge John R. Brown Award, received his J.D. from Cleveland-Marshall School of Law, and his B.A. in History and International Affairs from the George Washington University. He is currently an independent legal consultant on historical, immigration, and constitutional matters, and is a historian for the United States Air Force 352nd Special Operations Group stationed at Mildenhall, UK. The contents of this Article do not represent the opinions of the United States Air Force nor the Department of Defense, and are solely the author’s. The author would like to thank William Pencak (Penn State University), Darrin McMahon (Florida State University), and David Armitage (Harvard University) for their helpful comments and advice. Also, the author is appreciative to William & Mary and the Bill of Rights Journal for its hard work on making this Article the finished product that it is. This includes two William & Mary students in particular. First, a thank you to Julie Silverbrook for recognizing the importance of the Article and asking the author to submit it to the journal. Second, to Kristen R. Brown for providing the necessary support and friendship during the writing of this and many prior articles. The author will never forget the inspiration and hope she provided him during his young writing career. Lastly, the author would like thank the brave Air Commandos of the 352nd Special Operations Group for bringing daily perspective on life, accepting him as family, and allowing him to have served his country one more time alongside them. This Article is dedicated to the author’s mother, Constance J. Charles-Wheeler, who gave him a passion for history, and taught him the virtues of unconditional love, trust, honor, and commitment. In the end, we are all just seeking to pursue our own happiness. 457 458 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 20:457 INTRODUCTION On July 6, 1776, John Hancock sent letters to each of the colonial assemblies announcing the adoption of the Declaration of Independence.1 In these letters, Hancock stated that the Declaration had two significant legal effects. The first was that “all connection between Great Britain and the American Colonies” had been dissolved, so as to “declare them free and independent States,” and that each colony should proclaim this “in the way [it] shall think most proper.”2 The second effect was a structural alteration to the colonial governments, for each colony’s charter was expressly tied to England’s system of government. Therefore, Hancock requested that “the people . be universally informed” of this change, and that the Declaration be “considered as the ground and foundation of a future Government,” both at the State and national level.3 Hancock’s instructions are significant because they illustrate that the very essence of American government was the guarantees embodied in the Declaration of Independence. However, as insightful as Hancock’s instructions are, they do not end the historical inquiry. As to the constitutional importance of the Declaration, they leave many questions unanswered. Did the founding generation agree with Hancock’s assessment? Did the newly independent State governments have to em- body the principles in the Declaration, or was this merely an exercise in political rhetoric?4 What effect, if any, did the subsequent Articles of Confederation and super- seding Constitution have on the guarantees and grievances within the Declaration? As a matter of history, answering these questions has proven difficult, with the Declaration gaining acceptance as part of our social and international identity. Never- theless, working through these questions is essential if the United States Supreme Court is ever to truly acknowledge the Declaration’s preservation of “life, liberty, and the pursuit of happiness” in the pantheon of our constitutional jurisprudence.5 Perhaps providing the answer to these questions is difficult because the Declaration 1 See Letter from John Hancock, President of Congress, to the New York Convention (July 6, 1776), in 1 AMERICAN ARCHIVES: A DOCUMENTARY HISTORY OF THE UNITED STATES OF AMERICA, 5th ser., 33 (Peter Force ed., 1846) [hereinafter 1 AMERICAN ARCHIVES, 5th ser.]. 2 Id. at 1398. 3 Id. (emphasis added). 4 See Robert J. Reinstein, Completing the Constitution: The Declaration of Independence, Bill of Rights and Fourteenth Amendment, 66 TEMP. L. REV. 361, 361 (1993) (stating some scholars’ view that the Declaration is a purely symbolic document that “has nothing to do with constitutional law”). 5 During the last term, the Supreme Court cited to the Declaration of Independence twice to answer constitutional questions. See Stern v. Marshall, 131 S. Ct. 2594 (2011) (citing to the Declaration’s grievance that the King “made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries”); Borough of Duryea v. Guarnieri, 131 S. Ct. 2488 (2011) (citing to the Declaration in support of the right to petition). To date, the Supreme Court has yet to incorporate the Declaration’s preamble into our constitutional jurisprudence. 2011] RESTORING “LIFE, LIBERTY, AND THE PURSUIT OF HAPPINESS” 459 is often mistaken as embodying actionable natural rights or some form of judicial presumption of liberty.6 For instance, many associate the Declaration’s reference to “life, liberty, and the pursuit of happiness” as the embodiment of a libertarian ideal.7 They view the phrase as embodying protections for economic liberties8 and support- ing the political belief of limited governmental intrusion. At the same time, many people view “life, liberty, and the pursuit of happiness” as protecting broad natural rights in addition to the enumerated rights guaranteed by the Bill of Rights. Take, for example, an interview in which I took part, which predicted the outcome of the land- mark Second Amendment case of McDonald v. City of Chicago.9 In response to my historical analysis, it was asserted that I was wrong because I did not understand the Declaration’s guarantee of natural rights; an ideal, no doubt, many Americans identify with the sacred text.10 It should not be surprising that the use of the Declaration as a vehicle to assert con- stitutional rights is not a modern invention.11 During the ratification of the Constitution, the Declaration’s grievance related to the colonists’ deprivation of “the benefit of the Trial by Jury” was used by at least one anonymous editorial to assert the need for a 6 For some examples, see generally SCOTT DOUGLAS GERBER, TO SECURE THESE RIGHTS: THE DECLARATION OF INDEPENDENCE AND CONSTITUTIONAL INTERPRETATION (1995); John P. Kaminski, Restoring the Declaration of Independence: Natural Rights and the Ninth Amendment, in THE BILL OF RIGHTS: A LIVELY HERITAGE 141 (Jon Kukla ed., 1987); Eric R. Claeys, Essay, Euclid Lives? The Uneasy Legacy of Progressivism in Zoning, 73 FORDHAM L. REV. 731, 738–39 (2004); Michael Anthony Lawrence, Government as Liberty’s Servant: The “Reasonable Time, Place, and Manner” Standard of Review for All Government Restrictions on Liberty Interests, 68 LA. L. REV. 1, 35–37 (2007). 7 See Thomas B. McAffee, Restoring the Lost World of Classical Legal Thought: The Presumption in Favor of Liberty Over Law and the Court Over the Constitution, 75 U. CIN. L. REV. 1499, 1501–02 (2007) (“As is often stated, America’s Declaration of Independence articulates the Lockean doctrine that the purpose of government is to secure rights. There is little question that the founding generation as a whole shared this general view.” (citations omitted)); William Michael Treanor, Taking Text Too Seriously: Modern Textualism, Original Meaning, and the Case of Amar’s Bill of Rights, 106 MICH. L. REV. 487, 512 (2007) (“The right to pursue happiness, in short, is the individual’s right to pursue personal happiness.”); id. at 513 (stating the New York Constitutional Convention’s recommendation of “‘the enjoy- ment of Life . and the Pursuit of Happiness’ . was seeking protection of individual rights”). 8 See David N. Mayer, Substantive Due Process Rediscovered: The Rise and Fall of Liberty of Contract, 60 MERCER L.