49
Declaration of Independence
“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.”
The Declaration of Independence recognizes “that rights are innate, rather than
created by states or nations.”1 The Declaration has often been considered to be
a “super-constitution,” serving as “the American creed of liberty and equality”
2
that memorializes “the obligation of national government to abide by the
will of the people.”3 President Abraham Lincoln once likened the relationship
between the Declaration and the Constitution to the Biblical proverb “A word
tly spoken is like an apple of gold in a frame of silver.”
4
President Lincoln saw
the Declaration as the golden apple within the silver frame of the Constitution.
5
Although some legal scholars and Justice Antonin Scalia have dis-
counted the authority of the Declaration, dismissing it as, in Scalia’s
1. Alexander Tsesis, Self-Government and the Declaration of Independence, 97 C
L. R. 4 at 698 (May 2012).
2. Id.
3. Id.
4. Id. at 702.
5. Id.
Chapter 2
e First Amendment
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words, “not a legal prescription conferring powers upon the courts,”
the Declaration encapsulates the very spirit in which Constitutional
provisions were written, such as due process and equal protection.
6
The
Declaration also “maintains that the people retain the right to abolish
their government when it is consistently unresponsive to their lobbying
efforts against public abuses”
7
and serves as an enduring reminder to our
government that it is charged with upholding, preserving and defending
the God-given, unalienable rights of American citizens:
As evidence by the bold and succinct language of the Declaration
of Independence in 1776, the American view of sovereignty began
its articulation by recognizing that all human beings have certain
unalienable rights, derived rst and foremost from God as their Cre-
ator. These unalienable rights are evidence that individual human
beings have been given a derived sovereignty that is ultimately sub-
ordinate to God’s complete sovereignty. The Declaration also states
that it is one of the primary purposes of civil government to use its
delegated sovereignty to secure the unalienable rights that God has
given to all human beings. By implication, therefore, if civil govern-
ment acts in a way that improperly takes away the unalienable rights
that God has given to all human beings, then the civil government
has stepped outside the scope of its derivative sovereignty and has
begun to engage in a usurpation of authority. That kind of usurpation
is properly called tyranny.8
6. Id. at 703 (citing Troxel v. Granville, 530 U.S. 57 (2000) (Scalia, J., dissenting)).
7. Id. at 706.
8. State ex rel. Merrill v. Ohio Dep’t of Natural Resources, 2009 Ohio 4256 at **41–42
(2009).
C
50
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Discussion Point
The question of whether our government “has stepped outside of the scope of
its derivative sovereignty” and engaged in usurpation of its authority is a rel-
evant question today in many respects.
Has the government today usurped its authority and, if so, how, and what
remedies should be pursued?
First Amendment—Religion and E xpression
Congress shall make no law respecting an establishment of religion, or prohib-
iting the free exercise thereof; or abridging the freedom of speech, or of the press;
or the right of the people peaceably to assemble, and to petition the government
for a redress of grievances.9
Regulation of Fi rst Amendment Rights by
Time, Place, a nd Manner Restrictions
As with other constitutional provisions, our rights to free speech are not
absolute, and the government may impose reasonable time, place, and man-
ner restrictions on how speech is made and communicated. It is well-settled
law that even in traditional public fora, “the government may impose reason-
able restrictions on the time, place, or manner of protected speech, provided
the restrictions are justied without reference to the content of the regulated
speech, that they are narrowly tailored to serve a signicant governmental
interest, and that they leave open ample alternative channels for communi-
cation of the information.”
10
If speech is exercised in an appropriate forum,
it cannot be abridged merely on the basis that the speaker could assert the
speech somewhere else: “[O]ne is not to have the exercise of his liberty of
9. U.S. C. amend. I.
10. Seattle Afliate of Oct. 22nd Coalition to Stop Police Brutality, Repression and Crimi-
nalization of a Generation v. City of Seattle, 550 F.3d 788, 804 (9th Cir. 2008) (citing Ward
v. Rock Against Racism, 491 U.S. 781 (1989)).
51THE FIRST A MENDMENT
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