How the Declaration of Independence relates to Proposition 8

This post is made up of excerpts (the whole thing was a bit long) from an awesome post:

Saturday, September 27, 2008

Posted by: Hugh Hewitt at 10:26 PM

The Forgotten Founding Document:


The Overlooked Legal Contribution of the Declaration of Independence

And California’s Opportunity to Revive It Through Proposition 8


A. Scott Loveless[1]

The Constitution that eventually followed the Declaration was the Founders’ effort to frame a government that accomplished what the Declaration (and natural law) required.  Seen in this light, the “Bill of Rights,” comprising the first ten amendments to the Constitution, should be perceived as a further enumeration of the rights of the people vis-?-vis the subservient government they had created and therefore as a list of limitations on the authority of government (including the judiciary), not as a list of rights granted to the people by the government, in the tradition of King John and the Magna Carta.[18]  The Constitution is devoid of any reference to authority in the courts, for example, to create new law out of whole cloth, as in Roe or Lawrence, or to disregard and overrule the expressed will of the people on moral questions, as in Romer and In re Marriage Cases, let alone to install as the foundation of our laws a moral philosophy other than natural law.  Indeed, their use of the word “unalienable” suggests the depth of their conviction on this point.

            That the United States’ government (including the courts) was created under a limited delegation of authority from the people is further made clear by the Ninth and Tenth Amendments, which reserve to the people and the States, respectively, all rights not delegated from the sovereign people to the federal government.  Activist judges and justices, who take it upon themselves to create law or to substitute other ideas for the natural law foundation of our legal system, thwart this foundational framework and can be seen as usurping the natural law rights of the people, an “unconstitutional” act of the most serious kind. […]

It is critically important that we remember that the effects of natural law limitations on the government differ in one material way from their effect on the people.  Both are limited by natural law restrictions, but the government must perceive its limitations as a matter of deference to the superior “individual rights” of the people, whereas people experience their “rights” as freedom limited by social, interpersonal duties If we were to make the mistake of perceiving individual morality in terms of enforcing “my individual rights” against others, for example, rather than only against the government, it is doubtful that my duties and obligations will be foremost on my mind.  […]

            The American Founders recognized these principles as moral truths, but others have perceived them, as well.  As one jurist in the United Kingdom, Sir John Laws, recently observed,

A society whose values are defined by reference [solely] to individual rights is by that very fact already impoverished.  Its culture says nothing about individual duty – nothing about virtue . . .  Accordingly, rights must be put in their proper place. […]

Thus, at the inter-personal level of society, natural law morality has fundamentally to do with self control and self-governance in our relations with others, with how we treat other people.[22]  The American founders recognized this relationship.  John Adams: “Our Constitution was made only for a moral and religious people.  It is wholly inadequate to the government of any other.”[23]  James Madison: “To suppose that any form of government will secure liberty or happiness without any virtue in the people is a chimerical idea;”[24] and “If all men were angels, no government would be necessary.”[25]  Benjamin Franklin: “Only a virtuous people are capable of freedom.  As nations become corrupt and vicious, they have more need of masters.”[26]  George Washington: “Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports….  It is substantially true that virtue or morality is a necessary spring of popular government. . . .  Who that is a sincere friend to it can look with indifference upon attempts to shake the foundation of the fabric?” […]

While “we the people” may, as a society, decide that certain harmful activities and behaviors can be “tolerated,” and therefore either decriminalize them or not strictly enforce laws against them, such “tolerance-based rights” (for lack of a better term) must never be mistaken for the “fundamental rights” granted by natural law. […]

Nowhere in society are our pivotal responsibilities toward others more on display or more vitally important than in our marriages and families.  Marriage is perhaps the last refuge of voluntary duty- and obligation-based morality in our society, and it goes well beyond the minimal duty “not to harm,” but is rather a commitment to seek to benefit others – spouse and children.  To redefine marriage to refer simply to any amorous relationship, would be a devastating blow not only to the definition of marriage, but to the very principles on which this nation was established.

            Before the rise of the modern welfare state, much social welfare was provided by family, nuclear and extended, and most of the balance was provided by church communities.  Meeting others’ needs was generally assumed to be a family duty, a large part of what it meant to be family or kin, or to “belong” to a family.  Caring for one another’s kin in such ways, assuming this responsibility in life, was among the quintessential characteristics of family, and it still is – in strong families. 

            Ultimately, this is why the same-sex marriage debate is so vitally important; redefining “marriage” to include same-sex couples vitiates the very core of duty, responsibility, and sacrifice intrinsic to what marriage really is.  If marriage becomes no more than a label of social approbation for an amorous relationship, we will truly have lost perhaps the last significant vestige of hope, the last remaining safe harbor of responsibility-based, natural law morality, the “foundation of the fabric” Washington described, on which he and the rest of the Founders pinned all their efforts and risked their lives.  We will have become just another society subject to the will of its government, in this case, a few elitist judges. […]

Natural law morality was largely dominant, assumed even, in the United States until the second half of the 20th Century, when a competing morality began to emerge, known as “political correctness” or “tolerance” or “moral relativism” or “religious humanism” or “secularism” or several other catch phrases, including the “rights-based approach to human rights law.” 

            This competing morality is diametrically opposed to the duty-based morality of not harming others under natural law.  It is an alternate claim of morality focused on one’s rights alone, ignoring, at least with regard to certain behaviors, one’s minimal moral responsibilities not to harm others.  It exacerbates the tension over such questions as, “How much harm can we allow without making an action criminal?” or “Do we overlook the harm if the action is between consenting adults?”  Arguments originating in this new morality have spawned new concepts such as “victimless crime” and “right of privacy,” and altered old words by giving them new meanings, such as “tolerance.”  In doing so, this competing morality tends to lower the standard of expected care and raise the level of actionable harm, but in the aggregate, seemingly minor harms to others – like secondhand smoke, the proliferation of pornography, or consensual casual sex – still have harmful effects in society. 

            This alternative morality assumes, wrongly, that the “rights” of the people vis-?-vis the government should also be the proper first focus of morality in the interpersonal realm.  It says, in effect, “I can do whatever I want as a matter of right, as long as it is not against the law, and laws that unreasonably restrict my freedom to act as I desire need to be repealed or struck down (and please don’t tell me I have moral ‘duties’ beyond what the law requires),” with the overall result of lowering the standards of acceptable social behavior. 

            It is worth observing that in those cases where modern judicial activism is most apparent, Roe, Lawrence, Goodridge, Romer, In re Marriage Cases, the courts have moved consistently in one direction only – away from the moral duty view of natural law, which requires a degree of self-control due to the unavoidable effects of one’s actions on others, and toward this new version of morality that perceives pure license as a protected moral good.  In the wake of this competing morality we now have a novel and virtually unchecked “right of privacy” with which the government may not interfere, invented in Griswold v. Connecticut (in the name of protecting the sanctity and importance of marriage).  This novel but seemingly innocuous right of privacy was later expanded in Roe v. Wade and its successors to deny completely the right to life of the unborn in favor of the right of the woman “to control her own body,” regardless of the views of mere state legislatures.   In Lawrence the Court expanded the privacy right to include how and with whom one might choose to have sex, without regard for the weight of precedent, such as Bowers v. Hardwick, and again without regard for the expressed “law” created merely by a state legislature of publicly elected officials, in favor of a morally (and judicially) favored sexual license, overlooking the real social consequences and possible valid reasons for which the Texas legislature, like many others, may have enacted its prohibition and satisfied the rational basis test in doing so.  In Romer the Supreme Court confirmed the elevation of homosexual practice to the level of full Constitutional protection by striking down a State Constitutional amendment that simply affirmed that homosexuality would not be considered a separate “protected class” under the State Constitution (but not denying homosexuals the same rights all other citizens held).  And more recently, in Goodridge and In re Marriage Cases, activist state supreme courts have relied on this same “right of privacy” and “dignity” to actually undermine the importance and sanctity of heterosexual marriage and its ensuing “natural” commitments, responsibilities, and the duties to renewed life in a rising generation.[31]  This competing morality also underlies “no-fault divorce,” which virtually swept the country in the 1970s and 80s, removing the duties of husband and wife to each other when those duties run counter to revised personal desires, often licentious in character. 

            In these critical cases, the courts have raised this version of morality to a Constitutional right, and in the process elevated themselves to a position of ultimate authority, denying the place of the Legislative Branch, much less the formerly supreme people, to speak to such questions, using their definition of the Constitution to defeat the very natural law-based rights it was intended to preserve. 

            We now witness this alternative morality in efforts to redefine marriage itself, using law in an attempt to reform an institution that precedes law and is a function of natural law.  These trends away from natural law morality have been promoted and accelerated by the news and entertainment industries, and by the tendency of judges and lawyers to follow trends in society (or rather, facilitate and enable them) rather than adhering to the legal and moral restraints imposed by natural law. 

            A common belief is that there is no harm in such actions.  The high and rising rates of crime and violence, even among the youth and in schools; child and spouse abuse; the general coarsening of society; the AIDS pandemic and sexually transmitted diseases; drug and alcohol abuse and addictions; as well as the recently much publicized ethical breaches in business practices, indicate that such is not the case.  Where people feel that freedom equates to personal license, other people inevitably suffer. […]

Increasingly, the Constitution is being reinterpreted by the Supreme Court and various advocacy groups to resemble the government style of King George, where novel “human rights” of the people are first defined by the government (Supreme Court), dictated (or “granted”) to the people, and then also enforced by the government.  And we are incrementally losing something extremely precious in the process – the “natural” freedoms from having the government dictate what rights we have and do not have, and increasingly, a society composed of individuals who perceive fewer and fewer responsibilities toward others.  Indeed, to return to the question the founders were addressing, what right do the courts or the Congress have to abandon the “unalienable” premise of the Constitution itself, natural law, and supplant it with a substitute morality?  Such powers lie outside the scope of the limited delegation from the people to the government and amount to a rewrite of the Constitution and an abandonment of the very foundation of our independence.

            In a true irony, under this “new morality” a great many harms to others and significant costs to society are being legally justified and thus fostered in the name of “human rights,” another phrase whose meaning has been turned on its head by the morality of license.[32]  Most significantly for voters in California, these same ideas are now being urged upon us in the form of attempts to redefine marriage to include same-sex couples, but when a “legal right” is a “moral wrong” under natural law, there will be unavoidable harmful consequences to society. […]

California, this is what is ultimately at stake in Proposition 8.  The vitality of our very Constitution lies on the block with marriage.  The Founders chose natural law.  Some, including the activist judges, appear to wish to undo the Founders’ choice and replace it with their own ideas on morality, and the people of California now face that same choice.  But it should be an informed choice, not a matter of political pressures, whims and winds.  Who will it be?  A unanimous Thomas Jefferson, James Madison, John Adams, and George Washington, or Oliver Wendell Holmes and a one-vote majority on a divided California Supreme Court?  And Arizona, Florida, and yes, Massachusetts, are you listening? […]

Rights, duties, freedoms, virtue, morality, public order, and the general welfare.  These concepts can only coexist in a pluralistic society when the individuals comprising the larger society assume a personal responsibility toward others.  We humans exist in a web of relationships, families in particular.  Natural law morality guided by conscience preserves and strengthens those relationships and social bonds, builds trust, inhibits our selfishness.  We need to regain an appreciation of the morality of natural law as the foundation for our law, both domestically and internationally, and the courts must self-police in recognizing the consequent inherent limitations on their powers, or the grand aspirations of the American Declaration will have come to naught. 

            The People of California need to reassert their natural law rights against a State Supreme Court that has disdained and disregarded them.  They need to overrule the Court’s decision to redefine marriage according to a morality that sees only libertine license as good, with no counterbalancing duties and responsibilities.  A State, any State, is a poor substitute for responsible self-governance, self-control, and self-discipline.  Nothing less than freedom, true freedom, is at stake, for our children and grandchildren, if not for ourselves. 

            Please, California, enact Proposition 8.  Much more than marriage is at stake, and not just on your fair shores.  Help protect our children’s and grandchildren’s marriages, and in doing so, help us take back our Constitution from those who were sworn to preserve it but have been its greatest undoing.



  1. How can removing rights from a section of the populace be interpreted as improving matters?

  2. If you would read the entire article, you might notice the author’s main point: our rights are tied directly to our responsibilities. Our natural rights, as the author put it, are not about gratification. He says that redefining marriage and lowering our moral standards is harmful to society as a whole, and therefore is contradictory to the intentions laid out in the Declaration of Independence. And until recently, gay people didn’t have the right to get married. Proposition 8 is about restoring the traditional definition of marriage, which matches the moral values of the majority of the population. People already voted once for traditional marriage, but our judges overturned the decision made by the democratic process. It you want more info on his viewpoint, you can go straight to the original author’s post; there’s a link at the top of this post.

  3. Good post. Thank you

    Yes on 8!

  4. What’s this about lowering moral standards? And where does gratification fit in? This doesn’t make sense.

  5. Thank you for your great post! If you know to stop at a red light, you’d agree it’s unreasonable to say to your child would you like an apple or an apple when you’re holding up 1 apple and 1 banana!!

    For a changing society, we need NEW TERMS to describe the types of relationships people have the free choice to form – not new laws that will put us all in speech & religious bondage.

    Vote not with emotion but with reason; get the facts:,, and Let’s you , me, and our same-sex friends unite to vote Yes! on Prop. 8.

  6. Just wanted to get your opinion on an idea that may or may not be a good approach. I have heard about people searching for proposition 8 in google and then clicking on the “yes on prop 8″ or “no on prop8″ paid ad links that appear at the top of the search results in google. Each time someone clicks on these links it is costing that campaign money. I guess clicking on the “no on prop 8″ ad is costing Hollywood stars like Ellen money they donated to the no on 8 campaign. I imagine if you were to break out the donations made to each campaign that the yes on 8 campaign’s donations have been made by at least twice as many people as the amount of people contributing to the “no on 8 campaign”. The majority of donations made to the “no on 8″ campaign have been made by Hollywood starts like Brad Pitt, Ellen Degeneres, and Steven Spielberg. Don’t forget the CTA, is it a bad idea for people who feel betrayed by the $1.2 million donation made by the CTA to fight back by clicking on the “no on prop 8″ paid search link multiple times each day? What do you think……

  7. Tony,
    Even if you don’t consider homosexuality to be an immoral practice, you must admit that the majority of the religious population of America does. And while some homosexual couples do form a lasting attachment and live a monogamous lifestyle, all too many don’t. Considering that I think even premarital sex is immoral, to me, homosexuality is definitely immoral.
    As to why gratification… a homosexual relationship cannot ever result in children. The relationship is purely about love and sex. A heterosexual marriage bears the responsibility for children, and provides a stable family unit that benefits all of society. Homosexuality doesn’t.

  8. CNJ,
    Interesting idea. I think you’d have to get a lot of people on board for there to be any noticeable effect though. I’m not sure how much money those google ads actually cost per click. My husband uses google ads on his website, and the money he gets from each click on the ads varies from 2 cents to about $1.50. Could be worth a try, though. Any ideas on how to spread the idea?

  9. Yes, the religious right is opposed to homosexuality. This is a good reason to cheert the news that the religious right is in long term decline.

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