State constitutions say quite a bit about the foundations of American rights. Oftentimes when thinking of rights and duties it is the United States Constitution that comes to mind. But state constitutions deal with the rights of the people as well, and in many ways are a much better gauge of how the American constitutional tradition conceptualizes the rights and duties of the people in our particular form of democratic republicanism. To use examples from the great Pacific Northwest, the preambles of both the Washington and Idaho state constitutions address the source of the rights of the people of those states, providing insight into the idea of liberty that undergirds each document.
The Idaho state constitution’s preamble proclaims: “We, the people of the state of Idaho, grateful to Almighty God for our freedom, to secure its blessings and promote our common welfare do establish this Constitution.”
The preamble of the Washington state constitution reads: “We, the people of the State of Washington, grateful to the Supreme Ruler of the Universe for our liberties, do ordain this constitution.”
Washington and Idaho are two very different states, demographically, economically and politically. Washington is, for the most part, deep blue politically, and is one of the least conservative states in the Union. In prior days it was, only half-jokingly, nicknamed “the Soviet of Washington.” Idaho is deep red, and is arguably the most conservative state outside of the American South. Yet, both state constitutions date from the same period in the late 19th century (1889 for Washington, 1890 for Idaho) and they display a consistent theory of the origin of the state and the basis of rights. First, both charters state that the foundation of the authority of the government is with the people. It is the “people” of each state who enact the constitution of each state. The language in the preambles to this effect is clear and unambiguous: the people “establish,” and “ordain.” It is the people of each state who create and are the basis of the authority that undergirds each state’s constitution. In that sense, the constitutions are populist and democratic.
But that doesn’t mean that the people are unconstrained in their actions or that the people themselves are the source of the freedom that is secured by each constitution. The preambles posit that the freedoms enjoyed by the people are not their own creation, but stem from a transcendent source. The Idaho constitution expressly identifies this transcendent source of rights as “Almighty God.” The Washington constitution uses more generalized deistic language, “the Supreme Ruler of the Universe.” But in each case, unambiguous divine authority is invoked, and that divine authority is identified as the source of the people’s rights. The Idaho constitution proclaims gratitude to God for the freedom enjoyed by the people of that state. The Washington constitution likewise proclaims gratitude to the Deity for the “liberties” of the people. The message of these two state constitutions is plain. While government’s authority comes from the people, neither the people nor the government stands as the source of rights and freedoms. Rather freedom comes as a gift from the One who stands beyond any legal and political systems, who governs the universe by his almighty power.
The Washington and Idaho state constitutions are not unique in their insights about the source of government and the nature of rights. The overwhelming majority of state constitutions include similar language in their preambles or bills of rights. These principles even transcend the American political and legal tradition as well. They appear, for instance, in one of the foundational texts of the classical liberal tradition, French thinker Frederic Bastiat’s book The Law. As Bastiat puts it forcefully:
Life, faculties, production—in other words, individuality, liberty, property—this is man. And in spite of the cunning of artful political leaders, these three gifts from God precede all human legislation, and are superior to it. Life, liberty, and property do not exist because men have made laws. On the contrary, it was the fact that life, liberty, and property existed beforehand that caused men to make laws in the first place.
At its core, Bastiat’s point is the same as that expressed in the preambles of the Washington and Idaho constitutions: rights come not from the government and its largesse, but rather from God as a gift. It is from this gift that the law takes its shape and has its power, as a vehicle to protect the freedom that comes from God and is ordered by him.
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