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Life, Liberty, and... the Divisive Issue of Slavery,

Why did the Founding Fathers use the words "Life, Liberty, and the Pursuit of Happiness"
in the Declaration of Independence instead of the phrase "Life, Liberty, and Property"?

-by Scott Rohter, January 2012

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“The sacred rights of mankind are not to be found among old parchments or musty records.  They are written as with a beam of light in the whole volume of human history by the hand of God, and they can never be erased or obscured by mere mortal power.”  -Alexander Hamilton, reprisal
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The fundamental rights upon which English common law is based are the right to Life, Liberty, and Property.  This has never been more eloquently stated than by the 17th century English philosopher John Locke (1632-1704) whose ideas became the foundation for the Whig Party in America.  Their motto was “Life, Liberty, and Property.”  Locke's ideas were the fountainhead from which Thomas Jefferson drew on later to write the Declaration of Independence.  However property rights were not even mentioned in the Declaration of Independence or in the United States Constitution for that matter. Why not?  Property rights were not mentioned as one of the truths that our Founding Fathers held to be self-evident and one of our unalienable rights with which we are all endowed by our Creator. Why was this?

A clue to this puzzle might be found in Article 1, Section 2, Clause 3 of the U.S. Constitution, where it states that, “Representation and direct taxes shall be apportioned among the several States… according to their representative numbers which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all other persons.”  Those other persons referred to here were African slaves who were still considered to be the private property of their Southern plantation owners primarily located in six Southern States: Virginia, Maryland, North Carolina, South Carolina, Georgia, and Delaware. These Southern States would have never agreed to ratify the Constitution nor enter into any Union that threatened their ‘property rights’.  On the other hand the seven Northern States of New York, New Jersey, New Hampshire, Massachusetts, Pennsylvania, Connecticut, and Rhode Island, did not want to provide any legal basis for prolonging what they considered to be the unconscionable sin of slavery.  Most Northerners felt that the whole idea of ‘owning’ another person was wrong. Later this ideological division would become the basis for our two party political system. Democrats believed in owning slaves. Republicans did not.

It is likely that the U.S. Constitution and the Declaration of Independence purposely side-stepped the divisive issue of slavery and did not mention property rights so as not to appear to take sides in that very divisive issue or provide a legal basis for the institution of slavery which many of the signatories considered to be morally wrong.  The Northern States did not want to sign a document that defended any concept of private property rights which included the ownership of people.

The Southern States wouldn’t have signed the Constitution if it had included a prohibition against owning slaves.  So instead of restating the simple and eloquent words of the philosopher John Locke that Life, Liberty, and Property are among the unalienable rights with which we are all endowed by our Creator, the Declaration of Independence substituted the less contentious phrase of Life, Liberty, and "the Pursuit of Happiness".  Thus the drafters of the Declaration of Independence primarily Thomas Jefferson, John Adams, and Benjamin Franklin avoided taking a position either for or against slavery. They avoided the politically and morally indefensible position of appearing to give Southern States a legal basis for prolonging and extending the institution of slavery while at the same time they provided them with a way forward to sign the document and create our Nation without having to give up their slaves. It was a great diplomatic achievement even while it was less than clear on the issue of slavery. The framers wisely decided to postpone that fight for another day. If they had chosen to fight that battle then, there might not be a United States of America today.

Years later after the Constitution had been ratified by the legislatures of nine of the original thirteen colonies one of the very first acts of Congress was to pass the Bill of Rights (the first ten Amendments to the Constitution).  When the Bill of Rights was signed into law the very difficult issue of Property Rights began to be addressed in the Fourth and Fifth Amendments. This is where you first see the term Life, Liberty, and Property used in American law, but this was only after the Constitution had been ratified and the Nation had been created.

In the Fifth Amendment to the U.S. Constitution we read, “[No person shall] be deprived of Life, Liberty, or Property without due process of law, nor shall private property be taken for public use without just compensation.”  This concept is attributed to the 17th century English philosopher John Locke but it did not actually originate with him.  It can be traced back to Greek and Roman law. It can be traced even farther back to the Mosaic law of the Bible.  The phrase without due process of law and without just compensation satisfied the concerns of Southern slaveowners at the time.  Nevertheless it is clear that our Founding Fathers were trying to carefully walk an explosive tightrope by steering our young nation around the divisive issue of slavery.

"The truth, the political truth, and nothing but the political truth. A journalist has no better friend than the truth." - Scott Rohter
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