In the June 12th, 1776 Virginia Declaration of Rights (DOR) are elements familiar to us all, from the Declaration of Independence, later in the Constitution and the first ten amendments to the Constitution. Yet, there are some fascinating differences. As you read, notice the regular use of the words, “ought,” and “should,” as if the drafters were not entirely confident of their authority. To my initial puzzlement, these soft words are used in sections 3, 4, 5, 6, 7, 9, 10, 11, 13, and 14 below.
Section 1. The rights that God bestowed upon all men at birth cannot be given or taken away. To do so would imply the contradiction that subsequent generations could be born in slavery.
Section 2. No man was born with a God-given right to rule. Since all are born equal, and remain so, all government officials are servants and trustees of the people.
Section 3. In words only slightly modified later on in the preamble of our Declaration of Independence and Constitution, the DOR set out the purpose of government, which ought to be for the “common benefit, protection, and security of the people, (and) nation.” Government ought be designed to prevent maladministration. When government works toward contrary, opposite ends, the people have an “indubitable, inalienable, and indefeasible right to reform, alter, or abolish it.”
Section 4. Offices in government ought not to be hereditary.
Section 5. The three great branches, legislative, executive and judiciary, should remain distinct. The DOR recommends term limits for members of the legislative and executive, in order that they live under the laws they passed. Elections must be frequent, certain, and regular.
Section 6. Elections ought to be free. Electors of representatives must have a positive stake in society. These free men have the right of suffrage, and cannot be taxed nor deprived of property for public use without their consent.
Section 7. No law ought to be suspended without the consent of the representatives of the people.
Section 8. In all felony prosecutions, the accused have the right to know the cause and nature of the charges, confront accusers and witnesses, call for evidence in his favor, and to a speedy trial by an impartial jury of twelve men of his vicinity. Findings of guilt must be unanimous, and no man may be compelled to give evidence against himself.
Section 9. Bail ought not to be excessive, nor excessive fines, cruel or unusual punishments be imposed.
Section 10. General warrants, in which officials may search places without probable cause, are grievous, oppressive, and ought not to be granted.
Section 11. In cases between man and man, the ancient trial by jury is preferable to any other and ought to be held sacred.
Section 12. Freedom of the press is a great bulwark of liberty, and can never be restrained but by despotic government.
Section 13. A well-regulated militia, composed of the body of the people, is the proper, natural, and safe defense of a free state. Standing armies in time of peace should be avoided as dangerous to liberty.
Section 14. The people have a right to uniform government. No government separate from, or independent of, the government of Virginia ought to be erected within the limits thereof.
Section 15. No free government, nor the blessings of liberty can be preserved but by a firm adherence to justice, moderation, temperance, frugality, and virtue, and by frequent recurrence to fundamental principles.
Here, Virginia asks the people to conduct themselves as proper citizens worthy of republican government. Why is there so much resistance to the recurrence to fundamental principles in America 2016?
Section 16. Reason informs us that religion is the duty we owe to our Creator. Its free exercise must be according to the dictates of conscience. There is a mutual duty of all to practice Christian forbearance, love, and charity.
Review Section 14. What’s with the appeal for no other government within the limits of colonial Virginia? The principles set forth in the DOR feel provisional and tenuous because the drafters were unsure of their authority to write it in the first place. To wit:
In the face of continuing rebel violence, Virginia’s last Royal Governor, Lord Dunmore, fled to a Royal Navy frigate in June 1775. In November, he called on slaves to join him, fight for the Crown, and secure their freedom. King George III dissolved imperial government in his North American colonies on December 22nd 1775, through an act of Parliament by which “the colonies were removed from the protection of the crown, trade with them prohibited, and seizure and confiscation of American ships at sea authorized.” From this, the argument can be made that our independence actually occurred the moment King George signed the bill into law. It also constituted a declaration of war against his former subjects.
On Lord Dunmore’s orders, Norfolk was burned on January 1st, 1776.
So, Virginia legislators left over from the royal government took the first, shaky, unsure steps toward free government. But, by what authority did they issue the DOR? They had all sworn allegiance to George III. They were elected as colonial Burgesses, and not as representatives of a self-governing Virginia. This doubt as to the legitimacy of their new governments affected most of the other former colonies as well.
The basis of establishing legitimate constitutions, constitutions which rest on the foundation of special conventions of the people was hardly known in 1776. Yet, we Americans learned quickly. By the mid-1780s, we determined that in order to set fundamental law above statutory law, constitutions must rely on extra-legislative conventions of the people’s delegates.
Have we not largely forgotten this first lesson from our founding era? Do not congress, and especially scotus and the president amend our Constitution at will? In the very first Federalist, Alexander Hamilton asked whether American society is capable of establishing good government from reflection and choice, or whether it is forever destined to be ruled by accident and force.
Let’s restore the former. We are the many; our oppressors are the few. Be proactive. Be a Re-Founder. Join Convention of States. Sign our COS Petition.