26 Harvard Journal of Law & Public Policy [Vol. 42
nection between them and the State of Great Britain, is and
ought to be totally dissolved.”
18
The political theory announced in the Declaration of Inde-
pendence can be summed up in a single sentence: First come
rights, and then comes government.
19
This proposition is not, as
some would say, a libertarian theory of government.
20
The Dec-
laration of Independence shows it to be the officially adopted
American Theory of Government.
According to the American Theory of Government, the
rights of individuals do not originate with any government
but pre-exist its formation;
According to the American Theory of Government, the
protection of these rights is both the purpose and first duty of
government;
According to the American Theory of Government, at
least some of these rights are so fundamental that they are in-
alienable, meaning that they are so intimately connected to
one’s nature as a human being that they cannot be trans-
ferred to another even if one consents to do so;
According to the American Theory of Government, be-
cause these rights are inalienable, even after a government is
formed, they provide a standard by which its performance is
measured; in extreme cases, a government’s systemic viola-
tion of these rights or failure to protect them can justify its al-
teration and abolition. In the words of the Declaration,
“whenever any Form of Government becomes destructive of
these ends,” that is the securing of these rights, “it is the
Right of the People to alter or abolish it, and to institute new
Government, laying its foundation on such principles and
organizing its powers in such form, as to them shall seem
most likely to effect their Safety and Happiness.”
21
18. THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776).
19. See B
ARNETT, supra note 1, at 41. For an extended explanation and defense of
these natural rights, see R
ANDY E. BARNETT, STRUCTURE OF LIBERTY: JUSTICE AND
THE
RULE OF LAW 171, 354 (2d ed. 2014). For a summary of the argument present-
ed there, see B
ARNETT, supra note 1, at 44–51 (explaining “why the Declaration was
right”).
20. See, e.g. Ed Whelan, Randy Barnett’s Our Republican Constitution—Part 2,
N
AT’L REV. (Aug. 12, 2016, 7:58 PM), https://www.nationalreview.com/bench-
memos/barnett-republican-constitution-2/ [https://perma.cc/N7FH-FPG7].
21. T
HE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776).