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]

            In early November, eyes across the nation will focus not just on the outcome of the Presidential election, but also on an important proposed amendment to a state constitution, California’s Proposition 8.  Just eight years ago, 62% of California’s voters passed a “citizens’ initiative” that declared marriage as a union only between a man and a woman.  Earlier this year, however, the California Supreme Court declared otherwise by a 4-3 vote.  As in other states voting on similar amendments, this proposition is hotly contested because both its supporters and its opponents view their respective positions as morally compelling: gay rights advocates feel the amendment is discriminatory and would deny them their human rights; others see the amendment as necessary to block a movement that could reduce traditional marriage from its protected and privileged place as the major protection for children and the undergirding of society. 

            Each side claims the moral high ground with all the force of moral suasion for its position, claiming that the other position is wrong and its own is right.  But how are private citizens, much less courts, to be guided in matters where opposing groups claim not just to have the better solution to a political problem, but a moral justification for its position?  How should legislators and courts (and now the people) handle moral dilemmas on this scale?  Is there any legal authority applicable to such questions?  This paper proposes that we seek an answer in a long-neglected document: The Declaration of Independence.  First, it will argue that the Declaration is a useful legal document precisely in such difficult moral cases; next, it will discuss the Declaration’s assertions about government, freedom, and moral duty; and finally, it will point out the consequent unconstitutional nature of the judicial activism that has given rise to the larger modern culture wars, in which the important “marriage question” is but symptomatic.[2]
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Twenty-nine years ago, Samir Kutar broke into an apartment in Naharya to attack a young Israeli family. After murdering the father, he killed the four year old by crushing her skull against a rock. As the mother hid from the terrorist, she stifled the screams of her two-year-old, accidentally suffocating the child.  

Now the killer has been released from his life-sentence in return for the bodies of two kidnapped, murdered Israeli soldiers—and the unrepentant killer is welcomed as a triumphant hero by Hezbollah.  

The episode shows the value of the death penalty, especially in cases of terrorism: an executed killer can’t be freed and then honored for his ghastly crimes. Second, the incident exposes the true nature of Islamic extremism, which glorifies a vicious monster whose only accomplishment in life brought death to three innocents in their own home. 

Finally – a strict constructionist ruling from the Supreme Court.  Today is a good day and conservatives across the country, especially the legal scholars, need to praise the Court and encourage more rulings on these grounds.

Now, naturally, my first reaction was to hear what the liberals had to say….that’s the political energy that fuels me.  So I listened to Dianne Feinstein’s comments, and Chicago mayor Richard Daley’s comments and others and realized that they have no logical argument…just the propagation of fear.  They fear random gunfights and Wild West shoot outs, meanwhile they have their security teams carrying firearms, and they don’t live in the neighborhoods where you really have to worry about such things.  But the beauty of living in a society where gun ownership is a fundamental right is just that – you should be afraid that everyone has the ability to harm you, and you should feel protected by arming yourself. 

And like all of Barack Obama’s statements, this one appeals to your emotion, but makes no political sense and in no way identifies his position on major public policy.  So does he agree with the Supreme Court?  It’s either a fundamental right to self defense or it’s one the government can snatch away whenever a new sheriff comes to town.  What do you believe, Senator?

A great book is John Lott’s More Guns Less Crime.  He digs into the real statistics and the psychological profiles of criminals who prey on those who are the least likely to defend themselves.  It’s disgusting, but what’s even worse is a government that forces you to rely on their public services – meaning the cops who take 30 minutes to show up, if at all – as your first line of defense.   

Yes, this is frightening – for criminals who should fear breaking into a little old lady’s house who just may have a loaded gun in her nightstand.  This is a major victory but it’s not the end…there are many more fights and we can’t trust liberal politicians who are in charge of turning this ruling into sound law to do an about face just because the Supreme Court says so.  Now I’m going to start working on garnering support for concealed carry in D.C…

The U.S. Supreme Court made it illegal to execute persons convicted of child-rape in a 5-4 decision today.

 "The death penalty is not a proportional punishment for the rape of a child," wrote Justice Anthony Kennedy, who authored the majority opinion. The ruling broke on party lines, the liberal Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer siding with Kennedy.

"I would say that if he doesn't, it sounds like an unusually generous act by a Chief Justice."

Under questioning from Rep. Artur Davis (D-Ala.), former Bush administration spokesman Scott McClellan stated that ex-White House political mastermind Karl Rove would not, in his experience, be a trustworthy witness if he were not placed under oath while talking to lawmakers.