Shortly after uploading Jeremy Bentham’s critique of the Declaration of Independence, I got around to reading the discussion in the New York Times of Danielle Allen’s questioning of the period that appears immediately after the words “life, liberty, and the pursuit of happiness” in the official transcript of the Declaration of Independence in the National Archives. According to the Times, she sees this “errant spot of ink” as leading to a “routine but serious misunderstanding” of the Declaration. Here’s how the Times summarizes her argument (a draft of her paper can be downloaded here):

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

The Times quotes Jack Rakove (whose volume Declaring Rights is worth consulting for those interested in how declarations of rights were framed in run-up to the only declaration of rights that Americans now bother to read) as pointing out that Allen’s work raises a significant issue about how to interpret the text:

“Are the parts about the importance of government part of one cumulative argument, or — as Americans have tended to read the document — subordinate to ‘life, liberty and the pursuit of happiness’?” said Jack Rakove, a historian at Stanford and a member of the National Archives’ Founding Fathers Advisory Committee. “You could make the argument without the punctuation, but clarifying it would help.”

At this point I suspect that readers of this blog are probably asking themselves, “what implications does this have for Jeremy Bentham’s attack on the Declaration of Independence?” Good question!

Bentham Vindicated

It strikes me that Allen’s discovery could perhaps be seen as lending further support to Bentham’s claim that the Declaration’s famous discussion of “unalienable rights” is inherently incoherent. Let’s take a look at (and, much as it might pain us, as patriotic Americans, admire the elegance of) what I take to be Bentham’s central point:

The rights of “life, liberty, and the pursuit of happiness” — by which, if they mean any thing, they must mean the right to enjoy life, to enjoy liberty, and to pursue happiness — they ” hold to be unalienable.” This they “hold to be among truths self-evident.” At the same time, to secure there rights, they are content that Governments should be instituted. They perceive not, or will not seem to perceive, that nothing which can be called Government ever was, or ever could be, in any instance, exercised, but at the expence of one or other of those rights. — That, consequently, in as many instances as Government is ever exercised, some one or other of these rights, pretended to be unalienable, is actually alienated.

His point would seem to go like this:

1. The Declaration maintains that there are certain rights (including, but not limited to, “life, liberty, and the pursuit of happiness”) that ought not, under any circumstances, be alienated.
2. It further argues that governments are established to secure these rights.
3. But the establishment of a government necessarily involves the alienation of rights.
4. Among the rights that must be alienated in #3 are certain of the rights that have been characterized as “unalienable” in #1.

As far as I can tell, the presence of the (potentially) spurious period matters not a bit to Bentham’s argument since his interpretation of the passage confirms Rakove’s point: even with the period after “the pursuit of happiness,” it was still obvious to him that the Declaration viewed the establishment of governments as essential to the securing of those rights. From this, he went on to argue that the argument advanced in the Declaration is fundamentally incoherent: government can’t secure those unalienable rights without requiring the alienation of certain of these allegedly unalienable rights. In other words, Bentham did not assume that the period ended the thought.

Though Bentham believed that it was clearly bonkers to assume that “Nature or Nature’s God” bestowed rights, he was willing to tolerate that claim, provided — of course — that those who talk this way could come up with some evidence:

If to what they now demand they were entitled by any law of God, they had only to produce that law, and all controversy was at an end.

He was, of course, not particularly pleased that, in response, all that the representatives of the American Congress offered was an invocation of “self-evident truths.” But what seems to have been the place where the Congress’ case tips over into what he would, in another context, characterize as “bawling on paper” was the self-contradictory claim that — period or not period — the whole purpose of establishing governments was to secure the list of “unalienable rights” compiled by the sage of Monticello.  For, in Bentham’s eyes, that list was so broad as to rule out the possibility of creating any government that would not, of necessity, infringe on certain of these allegedly “unalienable rights.”

Let’s Blame Locke

Not to drag things out (after all, it’s a national holiday in the country where I reside and we have rituals we need to perform: having been born in New Jersey, I am obligated to spend the rest of the day listening to every recording of Bruce Springteen’s “Sandy” in my iTunes library), but there’s one other part of Bentham’s argument that struck me as relevant to these troubled times.

Trying to make sense of the list of grievances compiled in the Declaration, Bentham observes,

For what, according to their own shewing, what was their original their only original grievance? That they were actually taxed more than they could bear? No; but that they were liable to be so taxed. What is the amount of all the subsequent grievances they alledge? That they were actually oppressed by Government? That Government has actually misused its power? No; but that it was possible that they might be oppressed; possible that Government might misuse its powers. Is there any where, can there be imagined any where, that Government, where subjects are not liable to taxed more than they can bear? where it is not possible that subjects may be oppressed, not possible that Government may misuse its powers?

What he is pointing out here was nicely captured in a famous sentence from the Declaration that he did not discuss:

But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

The sentence (which reads slightly differently in Jefferson’s original draft) recalls an earlier one (the emphasis here is mine):

revolutions happen not upon every little mismanagement in public affairs. Great mistakes in the ruling part, many wrong and inconvenient laws, and all the slips of human frailty, will be born by the people without mutiny or murmur. But if a long train of abuses, prevarications and artifices, all tending the same way, make the design visible to the people, and they cannot but feel what they lie under, and see whither they are going; it is not to be wondered, that they should then rouze themselves, and endeavour to put the rule into such hands which may secure to them the ends for which government was at first erected; and without which, ancient names, and specious forms, are so far from being better, that they are much worse, than the state of nature, or pure anarchy; the inconveniencies being all as great and as near, but the remedy farther off and more difficult.

The author of that passage is, of course, John Locke (Second Treatise § 225).  Jefferson — perhaps recalling Locke and certainly aided by Franklin’s substitution of “absolute Depotism” for Jefferson’s “arbitrary power” — conceded that governments were not to be dissolved for what he termed “light and transient causes.” Instead, what was required was evidence of a concerted effort to revoke those “unalienable rights” that governments were supposed to secure. What he might have found in Locke (and, if he didn’t find it there, could have found in any number of latter day English libertarians) was a way of making the case of dissolving a government. Central to that case was the idea of a concerted plot against liberties.

What Bentham might have found toxic here was the combination of (1) a conception of the relationship between rights and government that is inherently contradictory and (2) a case for dissolving governments that focuses not on actual actions done by governments but instead on the potential implications of these current actions for future actions that this government might take. To sum up:  since (according to Bentham) governments must, inevitably, infringe on certain of the allegedly “unalienable rights” that individuals possess as a gift from “Nature or Nature’s God,” it is all too easy for these infringements to be read by those persuaded that they are, indeed, the carriers of “unalienable rights”) as part of a master plot against liberty itself.  By now, we should be all too familiar where this sort of argument tends to lead.

So, happy Independence Day, fellow citizens. And, to my friends from the Garden State:  may the “the Aurora” keep rising behind you.

[Updated with minor corrections and clarifications, July 6, 2014].