The right to the pursuit of happiness affirmed in the Declaration of Independence is taken these days to affirm a right to chase after whatever makes one subjectively happy. Further, the Declaration doesnt guarantee the right to happiness, the thought usually goes, but only the right to pursue what makes you happy. But this reading of the Declarations pursuit of happiness is wrong on both scores.
Happiness in the public discourse of the time often did not simply refer to a subjective emotional state. It meant prosperity or, perhaps better, well-being in the broader sense. It included the right to meet physical needs, but it also included a significant moral and religious dimension. In correspondence between James Madison and James Monroe in 1786, Madison notes that happiness cannot simply be identified with meeting peoples interests, but includes a higher reference:
There is no maxim in my opinion which is more liable to be misapplied, and which therefore needs elucidation, than the current one that the interest of the majority is the political standard of right and wrong. Taking the word interest as synonymous with ultimate happiness, in which sense it is qualified with every necessary moral ingredient , the proposition is no doubt true. But taking it in its popular sense, as referring to the immediate augmentation of property and wealth, nothing can be more false.
The Massachusetts Constitution of 1780 affirms that the happiness of a people and the good order and preservation of civil government essentially depend upon piety, religion and morality, and . . . these cannot be generally diffused through a community but by the institution of the public worship of God and of public instructions in piety, religion and morality.
So, too, Article 3 of the Northwest Ordinance of 1787 affirms that religion, morality, and knowledge are essential to the happiness of mankind.
Affirmations of these kinds could be multiplied many times from documents and speeches of the time. The upshot is that happiness in the Declaration should be understood centrally as a sort of virtuous felicity, perhaps in the sense of Greek eudemonia , although one refined by Christian sensibilities.
Arthur Schlesinger Sr. observed in an obscure book chapter that pursuit has a particular meaning at the time of the Declaration. While less employed today, this secondary meeting nonetheless remains in use when referring, for example, to the pursuit of medicine, or the pursuit of lawyering, etc. In this sense pursuit means occupation or practice. We might even think of it in the sense of vocation.
So the pursuit of happiness means something like occupying ones life with the activities that provide for overall wellbeing. This certainly includes a right to material things, but it goes beyond that to include humanitys spiritual and moral condition.
That the pursuit of happiness is an inalienable right”one that cannot be given away”and that governments have been tasked to protect it suggests a relationship between government and humanitys moral ends in tension, if not in outright contradiction, with modern liberalism. It seems to assume an objective moral order from which a person may not alienate himself.
In the theory of the Declaration, liberty is not the entire universe of the American project. Liberty is encapsulated within equally significant commitments to life and to happiness. Life and happiness give form and shape to the liberty that the Declaration affirms.
All of this may seem like a quaint historical observation. And perhaps it is no more than that. Nonetheless, we Americans have a continuing habit of taking recourse to the Declaration to understand ourselves and our government.
Beyond that, there may be a more practical constitutional import in the not-too-distant future. To understand what this may be requires a bit of background. Throughout the 20th Century, the Fourteenth Amendment to the U.S. Constitution increasingly became a central channel through which national constitutional principles were applied to the U.S. states. After defining citizenship (and so effectively overturning the Dred Scott decision), the first section of the Amendment then guarantees that no state shall abridge the privileges or immunities of citizens of the United States, requires that no state deprive persons of life, liberty or property without due process of law, and prohibits states from denying to any person the equal protection of the laws.
The 14th Amendments language of privileges or immunities is borrowed from Section 4 of the Constitution which states that The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States. While the meaning of the Section 4 privileges and immunities clause is not transparent, that the constitutional framers lifted the language form Article 4 of the Articles of Confederation seems to illuminates its meaning: to prohibits states from discriminating in favor of their own citizens and against citizens of other states in regards to certain basic or fundamental rights.
When the Fourteenth Amendment was proposed and ratified after the Civil War, the purpose of the Privileges or Immunities clause in that Amendment seemed clear to many observers: it sought to apply the set of basic or fundamental rights protected by the Article 4 Privileges and Immunities clause internally to the states. It would authorize the organs of the national government to protect citizens of a state from deprivations of fundamental rights by their own state government.
This obvious purpose of the 14th Amendment Privileges or Immunities Clause, however, was effectively killed by the U.S. Supreme Court in the Slaughterhouse Cases in 1872. In declining to apply the clause to a group of Louisiana butchers, the Court limited the reach of the clause to a modest set of rights. This decision arguably distorted the development of Fourteenth Amendment jurisprudence up through today. In particular, the decision seemed to have forced the Court to draw on the Amendments due process clause to protect rights more naturally protected as privileges or immunities.
All this may be interesting enough, but what does it have to do with happiness in the Declaration?
The increased popularity and respectability of textualist approaches to interpreting the Constitution has prompted growing interest in revivifying the privileges or immunities clause of the 14th Amendment. There is more at stake in this than an honest of reading the Amendment. The long tradition construing the privileges and immunities clause in article 4 of the Constitution would inform how we understand the 14th Amendments privileges and immunities clause. It is this tradition that draws on the Declarations verbiage to understand Article 4 privileges and immunities guarantees and, hence, could be expected to inform how judges understand the 14th Amendments privileges or immunities clause.
In a pivotal 1823 case construing the Section 4 privileges and immunities clause, Justice Bushrod Washington (nephew to George Washington) wrote:
The inquiry is what are the privileges and immunities of citizens of the several States? We feel no hesitation in confining these expressions to those privileges and immunities which are fundamental; which belong of right to the citizens of all free governments, and which have at all times been enjoyed by citizens of the several States which compose this Union, from the time of their becoming free, independent, and sovereign. What these fundamental principles are it would be more tedious than difficult to enumerate. They may all, however, be comprehended under the following general heads: protection by the government, with the right to acquire and possess property of every kind and to pursue and obtain happiness and safety, subject, nevertheless, to such restraints as the government may prescribe for the general good of the whole.
The phrase, happiness and safety, derives from the Declaration. It affirms that whenever a government becomes destructive of inalienable rights, it is the peoples right to create a new government with principles and power formed as to them shall seem most likely to effect their safety and happiness. So the type of happiness that governments are formed to effect at this point in the text is the same pursuit of happiness that governments are instituted to secure two sentences earlier in the Declaration.
If happiness in the Declaration necessarily assumes the existence of an objective moral order, then its co-equal relationship to liberty is central to understanding liberty, and one little explored in modern jurisprudence. The understanding that life and happiness encapsulate liberty stands in obvious tension with the modern itch to universalize liberty as the sole dimension of the American constitutional project. Even given the ambiguity of the text, a privileges or immunities clause that draws on the Declarations theory of happiness would make it problematic for judges to affirm blandly, as the plurality did in the 1991 case of Planned Parenthood v. Casey , that the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.
Understanding the moral and religious overtones of the Declarations pursuit of happiness, as well as its application to physical sustenance, has potentially significant implications for understanding constitutional guarantees, as well as for understanding the nature of the American project more generally.
James R. Rogers is department head and associate professor of political science at Texas A&M University. He leads the New Man prison ministry at the Hamilton Unit in Bryan, Texas, and serves on the Board of Directors for the Texas District of the Lutheran Church-Missouri Synod.
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