was on this day in 1776 unanimously adopted by the Virginia Convention of Delegates. Written by George Mason, it predates both our national Declaration of Independence by several weeks, and our national Bill of Rights by more than a decade.
Yet few people, even in Virginia, learn about this document.
It is not that Mason was writing in a total vacuum. After all, Englishmen had a history of protection of rights beginning with the Magna Carta in 1215, from which one of our most basic rights, that of trial by jury, derived. Think about it - in just 4 years we will celebrate the 900th anniversary of that document. The idea of limiting of government and protecting the people continued through things like the Petition of Right and the English Bill of Rights.
Mason himself should be better known. His refusal to sign the original Constitution in Philadelphia was in large part based on its lack of protection of individual rights. His influence in Virginia was important enough that Madison was convinced of the need to add such protection when the new Congress first met.
I teach about Mason and about this document to my students. In part that is the influence of my wife, who while in high school became a strong Mason partisan, in large part because of his authorship of this document.
Allow me to share it with you below the fold.
You can read the complete text Here at the Avalon Project, an endeavor of Yale Law. Let me go through the sixteen articles, each of which I will place in bold before offering some commentary of my own.
I That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.
Here we see language that is reflected in Jefferson's famous words in the Declaration. The younger Virginian was aware of Mason's work, and Mason's phrasing is not entirely original. Locke's formulation of natural rights was more in the format of life, liberty, and property. Note Mason's use of pursuing happiness, borrowed by Jefferson in his reformatting of the concise expression from Locke.
II That all power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants, and at all times amenable to them. Jefferson writes that governments are instituted to among men deriving their just powers from the consent of the governed. The idea of the people as the source of all power was important to our Founders. After all, if we take the opening and closing of the Preamble, we read "We the People of the United States . . . do ordain and establish this Constitution for the United States of America." If we take Mason's phrasing seriously, government officials are "trustees and servants" and thus must be answerable to the real masters, the People. Somehow the idea that the government can keep secret from the people vast amounts of information would be alien to a mind like that of Mason, for absent knowledge, how can the people ensure those officials are "amenable to them" and thus answerable to the real source of power?
III That government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation or community; of all the various modes and forms of government that is best, which is capable of producing the greatest degree of happiness and safety and is most effectually secured against the danger of maladministration; and that, whenever any government shall be found inadequate or contrary to these purposes, a majority of the community hath an indubitable, unalienable, and indefeasible right to reform, alter or abolish it, in such manner as shall be judged most conducive to the public weal.
In the latter part of this statement we find the same idea - so powerful - put forth by Jefferson of our right to replace or abolish a form of government that ails to protect and preserve our rights. Note Mason uses words like "common benefit" as well as "protection" and "Security of the people, nation, or community." He argues for a baseline in which "maladministration" is seen as a danger, and the happiness of the people is of grave importance. Certainly our times may be very different than that of the 18th Century in which Mason lived and wrote, yet I think it fair to say that even with knowledge of the differences Mason would be appalled at how much we have allowed governments at various levels from national to local to impinge upon rights. I do not think this would place him in the camp of either the modern Libertarian Party nor of the Tea Party movement, because he saw a need for a balance between order and liberty. I would argue that despite his own wealth he would have been appalled at the loss of liberty inherent in our modern tilting in favor of the wealthy and of the corporations. He almost certainly would vehemently disagree with the logic of Court cases culmination in Citizens United that empowered the corporations with the rights of a human person without the parallel responsibilities inherent upon citizens.
IV That no man, or set of men, are entitled to exclusive or separate emoluments or privileges from the community, but in consideration of public services; which, not being descendible, neither ought the offices of magistrate, legislator, or judge be hereditary.
I suspect that Mason would at least have been troubled by our political dynasties. To be certain, in some families there has been a strong sense of obligation and of service because of their privileged positions. But Mason would almost certainly argue that a name is insufficient grounds for being raised to a position of public office and trust. Still, that is more upon us, because after all we either elect scions or acquiesce in the appointment of spouses to replace deceased senators.
V That the legislative and executive powers of the state should be separate and distinct from the judicative; and, that the members of the two first may be restrained from oppression by feeling and participating the burthens of the people, they should, at fixed periods, be reduced to a private station, return into that body from which they were originally taken, and the vacancies be supplied by frequent, certain, and regular elections in which all, or any part of the former members, to be again eligible, or ineligible, as the laws shall direct.
Would Mason even agree with the idea of appointments to fill vacant positions in government? In his own Virginia, there are local offices which can upon occasion be filled by election by judges, themselves not directly answerable to the people (they are officially elected by the General Assembly). He would certainly support term limits for all positions in government: they should, at fixed periods, be reduced to a private station - the idea of someone like John Dingell serving for half a century would have appalled him, perhaps because that implies a personal ownership of the position, rather than serving as a trustee on behalf of the constituents.
VI That elections of members to serve as representatives of the people in assembly ought to be free; and that all men, having sufficient evidence of permanent common interest with, and attachment to, the community have the right of suffrage and cannot be taxed or deprived of their property for public uses without their own consent or that of their representatives so elected, nor bound by any law to which they have not, in like manner, assented, for the public good.
So many key ideas. No taxation without representation, an idea that still carries weight for those residing in the District of Columbia, which remains after more than 200 years with no official voice in the making of national tax policy. Mason believe in universal male suffrage for those not in slavery. On slavery itself he presents, as does Jefferson, a contradiction. He was perhaps as outspoken as any Southerner on the evils of slavery, certainly wanted the further importation of slaves banned by the Congress under the Constitution. He saw slavery as an evil. Yet he owned slaves his entire life and of the 36 individually named in his final Will, he manumitted none of them. Perhaps I read too much into his words, but I suspect that some of the economic power given to corporations over their employees and their customers would have alarmed him, as the first steps in the directions of reenslavement of individuals. Mason understood the contradictions of his own life, between his beliefs and advocacy, and his continued ownership of other humans. He certainly would have opposed anything that moved in the direction of less liberty for humans.
VII That all power of suspending laws, or the execution of laws, by any authority without consent of the representatives of the people is injurious to their rights and ought not to be exercised. The executive should not have such power independent from the permission of the legislature. In theory, this is embodied in the Constitution, which says that CONGRESS cannot suspend habeas corpus except in cases of invasion or insurrection. Lincoln acting on his own would be something to which Mason in principle would have objected. But what if Congress chooses to so empower the executive, for example, through the USA Patriot Act? Here I suspect that Mason might argue that such action is not necessarily acting as magistrates and trustees for the people. I do not believe he would ever agree to an executive unleashed from the oversight of the people through their elected legislators.
VIII That in all capital or criminal prosecutions a man hath a right to demand the cause and nature of his accusation to be confronted with the accusers and witnesses, to call for evidence in his favor, and to a speedy trial by an impartial jury of his vicinage, without whose unanimous consent he cannot be found guilty, nor can he be compelled to give evidence against himself; that no man be deprived of his liberty except by the law of the land or the judgement of his peers.
A clear statement of principles later found in Amendments V and VI to our Constitution.
IX That excessive bail ought not to be required, nor excessive fines imposed; nor cruel and unusual punishments inflicted.
This idea is transmitted from earlier English documents through Mason to the 8th Amendment.
X That general warrants, whereby any officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offense is not particularly described and supported by evidence, are grievous and oppressive and ought not to be granted.
Beyond the fact that the ideas of this part are embodied in the Fourth Amendment, the idea of National Security Letters and the like where the FBI is empowered on its own initiative to go rooting around looking for wrong doing, that we come up with legal fictions of how the intelligence agencies can examine things without warrants because of their national security responsibilities and then somehow circumvent the requirements that were intended to protect against misusing that power to point law enforcement in the direction of prosecution would outrage Mason. Note his clear and unambiguous language, that such actions are grievous and oppressive and ought not to be granted.
XI That in controversies respecting property and in suits between man and man, the ancient trial by jury is preferable to any other and ought to be held sacred.
This requires no commentary on my part.
XII That the freedom of the press is one of the greatest bulwarks of liberty and can never be restrained but by despotic governments.
ANY restraint upon the press is a sign of despotism. Would Mason have an expanded view of the press, to include things like blogs? I think Mason himself would have been an avid blogger, using the media upon which we rely to further propagate his views and educate the people. The idea of the government perhaps approving who is entitled to be treated as a journalist would not be acceptable.
XIII That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that, in all cases, the military should be under strict subordination to, and be governed by, the civil power.
I read this article from the Virginia Declaration, and I have trouble understanding how an originalist like Scalia can so badly misinterpret the clear intent of the 2nd Amendment with its preface upon the idea of a 'well regulated militia. Like many of the Founders, Mason was more than wary of the idea of a standing army which could be used by the executive to trample upon the rights of the people. I do not doubt he would recognize the need for such in more modern times, but only for clearly defensive purposes. He would also have been absolutely insistent upon the military being answerable to the full civilian authority - this would require full disclosure to the Congress as the representatives of the people, and not merely being answerable to the President and a select portion of the legislature. He was intelligent enough to recognize that when times changes our methods of governance may need to be adjusted, but almost certainly would argue for the minimum change away from what he saw as basic principle.
XIV That the people have a right to uniform government; and therefore, that no government separate from, or independent of, the government of Virginia, ought to be erected or established within the limits thereof.
Our Constitution prohibits the formation of a new state from within the border of a preexisting state except by permission of the state itself. Here I think Mason would have rejected the 1863 creation of West Virginia. It was enough that Virginia surrendered any claims to territory beyond its boundaries at the time of the Constitution, despite possible legal justification derived from the 3 charters under which it developed.
XV That no free government, or the blessings of liberty, can be preserved to any people but by a firm adherence to justice, moderation, temperance, frugality, and virtue and by frequent recurrence to fundamental principles.
Fundamental principles were of great importance to Mason. He strongly believed in limited government. He believed in moderation not only in government action, but also in personal behavior. One might justifiably argue that he would be troubled by the idea of massive government debt, although he would examine the necessity for such debt in light of the attempt to adhere to other principles of greater importance.
And finally,
XVI That religion, or the duty which we owe to our Creator and the manner of discharging it, can be directed by reason and conviction, not by force or violence; and therefore, all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practice Christian forbearance, love, and charity towards each other.
Mason saw himself as a Christian. He thought it his Christian duty towards those of different religious persuasion not to impose nor to restrict - even were they not themselves Christian or perhaps believers in a deity. He would be appalled by those on the religious right who seek to impose their misunderstanding of Christian texts upon others. I have no doubt he would have been horrified to see in his own beloved Virginia the likes of Jerry Falwell and Pat Robertson. He would absolutely oppose an interpretation of our founding documents as establishing a "Christian" nation. The entire purpose of creating documents like the Virginia Declaration of Rights - adopted unanimously on this date by the Convention - was to preclude appeal to other external sources of authority. Remember, power is from the people, not from the Creator, who has if you will already ceded that authority to the people.
235 years ago this document became an important part of our heritage. I think more people should know about it. George Mason should be more than the name of a university that once went to the men's Final Four in basketball.
Thanks for reading.
Peace.