A Higher Law
Fundamentalist religious people like to talk about there being a higher law than the laws of human kind. Muslims take this to an extreme by basing the Sharia entirely on the Koran whereas Christians take a more piecemeal approach by demanding specific laws such as those making abortion illegal or by fighting against new laws that provide groups like gays protection from discrimination. Like religious zealots, I too believe in a higher law than the Constitution, namely the Declaration of Independence.
Kelly, a lawyer who both comments on my blogs and has a blog site of his own, has commented on my claim that the right to privacy is guaranteed both by the Declaration of Independence and the Preamble of the Constitution. He claimed that "the Declaration of Independence is not a source of law of any kind."
At another site, it is claimed, based on a search of Findlaw claims that though there were a hundred references to the Declaration of Independence, "not one single case can be found where the authority for the holding in that case was the Declaration of independence." So, this site seems to side with Kelly.
In fact, both Kelly and the claim just cited are clearly false. In Cotting v. Godard, 183 U.S. 79 (1901) we find:
The first official action of this nation declared the foundation of government in these words: 'We hold these truths to be self evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness.' While such Declaration of principles may not have the force of organic law, or be made the basis of judicial decision as to the limits of right and duty, and while in all cases reference must be had to the organic law of the nation for such limits, yet the latter is but the body and the letter of which the former is the thought and the spirit, and it is always safe to read the letter of the Constitution in the spirit of the Declaration of Independence.This passage elevates the Declaration of Independence over the Constitution in saying that "it is always safe to read the letter of the Constitution in spirit of the Declaration of Independence." Clearly, then, any "strict constructionist" like Kelly who likes to take the Constitution literally should see the Declaration of Indpendence as his guide to interpretation.
Ironically, in the Dred Scott case that fully legalized slavery, Chief Justice Roger B. Taney took the position in regard to
the phrase, "all men are created equal," that "it is too clear for dispute, that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this Declaration. . . ."Here we find the Declaration of Independence being cited as if it had the power to determine how the Constitution should be interpreted for the Chief Justice takes pains to assert that it is clear that this language was not meant to provide equal protection to slaves. Of course, today, we would interpret the Declaration of Independence as including anyone in our borders except illegal aliens and even they are given some rights.
The only reasonable interpretation of the Articles of Confederation and the Constitution that replaced it is that they codify the basic principle that 'We hold these truths to be self evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness.' In my opinion, it is the principles of the Preamble that both Americans and others see as defining who we are. Now, I am not too excited by the religious language included here, but it is clear that those who founded our country intended that people be treated equally and this to me means that if persons who are heterosexual through no fault of their own are permitted to marry and enjoy the legal benefits of marriage then persons who are homosexual through no fault of their own should also enjoy these rights. Similarly, just as the government gives me, a male, full rights to control my own body -- to get a tattoo, to have one of my kidneys cut out of my body so it could be implanted in another person, or have a vasectomy or even cut off my balls, then women should be permitted to have an abortion if they want. The thing that pisses me off most about laws abridging the right of women to have abortions is that men are the ones making this decision for men control every legislature in the country. They would never tolerate an intrusion into their lives of this magnitude.