The Declaration of Independence - In 1776 representatives of the thirteen United Colonies lawfully declared their freedom and independence from tyrannical English government. Turning to the “Laws of Nature and of Nature’s God,” they asserted that as one people they were free to alter their monarchial form of government and to organize a new one on such principles as seemed most likely to secure their unalienable rights. Laying the foundation for a future constitutional government, the signers declared:

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of Mankind requires that they should declare the causes which impel them to the separation.

The Declaration asserted that government by consent was an unalienable right and employed it in three ways. The first involves the unalienable right to institute a government by the consent of the governed. The Declaration notes that “Governments are instituted among Men, deriving their just powers from the consent of the governed.” President George Washington declared, “The basis of our political systems is the right of the people to make and to alter their constitutions of government.” Abraham Lincoln called this “the leading principle - the sheet anchor of American republicanism.” This principle means that specific civil governments lawfully exist only at the behest of the people. Civil government cannot create or perpetuate itself without running roughshod over the basis of our political system. Civil government may not reorganize itself for the sake of expediency. Likewise, the federal government may exercise only those civil powers that are specifically granted to it in the Constitution. If a power is not granted, the general government does not possess it and therefore may not act as though it does possess it. Congress may not exercise jurisdiction not extended nor may it vest independent agencies with such jurisdiction.

The general principle of consent is found throughout the Constitution. The Preamble asserts, “We the People, of the United States … do ordain and establish this Constitution ….” The whole notion of constitutional government is predicated upon the requirement that people consent together to establish the form of civil government, and that political sovereignty is delegated directly to that government. Article I, section 1 reinforces this proposition. It notes that only the legislative powers specifically “granted” by the people of the United States may be exercised by the Congress. Therefore, Congress may only legislate with respect to those objects or purposes the people extended to Congress in writing.

Government by consent is based on the unalienable right to disestablish a tyrannical or lawless government, that is, the right to alter or abolish the form of government. The Declaration asserts:

[W]henever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or to 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.

The phrase “destructive of these ends” refers to the unalienable rights which civil government is instituted to preserve. It was the right to alter or abolish the form of government which the people exercised when independence was declared. The nature of this right presumes that it is not to be exercised lightly. If wrongly employed, it could constitute treason.

“when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”

In other words, the people have the authority to correct, rebuke and alter their government, but not for light or transient reasons.

Article V is an excellent example of the rule regarding alteration or abolition of the national form of government. Through amendments, the people can establish a more perfect government of the United States, that is, render it better able to accomplish its purpose of securing the God-given rights of the people.

The unalienable right of government by consent is given by God to all people. Its legal expression is called government by consent and it has three components. The first is the right and duty of the people (not the civil government itself) to establish, institute or form a civil government. This takes into account the second component, the obligation to lay the foundation of that government on true principles, including the right to organize its civil powers in any lawful way so that it secures these and other rights. Thus the right of government by consent is not the right to merely establish a civil government, but to establish a civil government under the rule of law with the objective of establishing and organizing it in such a way as to better secure the rights of the people.

The third component of government by consent is the right and duty of the people to disestablish a lawless government. Lawlessness implies tyrannical or despotic government. It takes into account factors which include the duration and design of the tyranny. It also includes considerations of how long the people will tolerate being reduced to slavery before they undertake a lawful alteration, disestablishment or abolition of that government. The words “establish” and “disestablish” are employed only for contrast. The Declaration uses the phrases “institute” and “alter or abolish.” Whether these words or those of “form” and “amend” are employed is not what is preeminently important. What is important is that the creation, alteration and destruction of the form of government, subject to certain procedural and substantive prerequisites, are unalienable.

The Declaration of Independence and the Constitution, however, rightly observe that the people can organize the power of government any way they desire, as long as they believe on good evidence that it will better secure their rights. The unalienable right to organize the powers of the federal government translated constitutionally into separate executive, legislative and judicial branches. It did not translate into extending to any of these branches the power to establish any independent agency or commission with power to exercise any rule-making authority binding on the society at large or segments thereof. Likewise, separating federal power into three constitutionally defined branches permits no combination of the power of those branches in an independent agency or commission. In short, it permits no fourth branch of general government, independent or otherwise, to be created by the government. The major issues regarding the organization of the federal government were settled by the people and recorded in the Constitution in 1787 and its amendments. The organization of the powers of the general government has not been entrusted by the Constitution to the general government itself.