We better get on right away
Well you get on your feet
And into the street
Singing power to the people
Power to the people
“Power to the People” by John Lennon/Plastic Ono Band (1971)
The preamble to the U.S. Constitution states majestically that one of the guiding principles of the Constitution is that to “secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.” Our Forefathers succinctly identified the purpose for lawful government: “That to secure these rights (of Life, Liberty, and the Pursuit of Happiness), Governments are instituted among Men…” Declaration of Independence. The United States set forth in the Declaration of Independence and the Constitution that the people instituted this government to secure the rights of the people. In other words, our government was delegated certain powers to secure rights which the people possessed. Briscoe v. President of the Bank of Ky., 36 U.S. (11 Pet.) 257, 317 (1837) (“The federal government is one of delegated powers. All powers not delegated to it, or inhibited to the states, are reserved to the states, or to the people.”) The people delegate their power to the government. The government cannot delegate any power to the people. JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 110 (abridged ed. 1987) (general government acts at the consent of the people).
“The Government of the United States is one of delegated powers alone. Its authority is defined and limited by the Constitution. All powers not granted to it by that instrument are reserved to the States or the people. No rights can be acquired under the Constitution or laws of the United States, except such as the Government of the United States has the authority to grant or secure. All that cannot be so granted or secured are left under the protection of the States.” United States v. Cruikshank, 92 U.S. 542, 551 (1875). As put by Abraham Lincoln in one of his political debates with Douglas in 1858 (p. 71): “We the people are the rightful masters of both Congress and the courts, not to overthrow the Constitution but to overthrow the men who pervert the Constitution.”
It was not until 1868 with the passage the Fourteenth Amendment of the U.S. Constitution that how the blessing of liberty was to be secured was described. Under the Fourteenth Amendment, the due process clause of the Amendment states that “no State [shall] deprive any person of life, liberty, or property, without due process of law…” The Constitution, the Bill of Rights and the Declaration of Independence, “known collectively as the Charters of Freedom, have secured the rights of the American people for more than two and a quarter centuries and are considered instrumental to its founding and philosophy of the United States.” National Archieves. Justice Field argued that the Fourteenth Amendment “was intended to give practical effect to the declaration of 1776,” in which “the pursuit of happiness” appears as one of those rights that “the law does not confer, but only recognizes.”” Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 105 (1872) (Field, J., Bradley, J., and Swayne, J., dissenting). “[I]t is always safe to read the letter of the Constitution in the spirit of the Declaration of Independence. No duty rests more imperatively upon the courts than the enforcement of those constitutional provisions intended to secure that equality of rights which is the foundation of free government.” Gulf, Colo. & Santa Fe Ry. v. Ellis, 165 U.S. 150, 160 (1897).
It must be understood that it is “neither the Bill of Rights nor the laws of sovereign States create the liberty which the Due Process Clause protects. The relevant constitutional provisions are limitations on the power of the sovereign to infringe on the liberty of the citizen. Of course, law is essential to the exercise and enjoyment of individual liberty in a complex society. But it is not the source of liberty. [It is]self-evident that all men were endowed by their Creator with liberty as one of the cardinal unalienable rights. It is that basic freedom which the Due Process Clause protects, rather than the particular rights or privileges conferred by specific laws or regulations.” Meachum v. Fano, 427 U.S. 215, 230 (1976) (Stevens, J., dissenting).
Interestingly, “the rejected dissents of Mr. Justice Field gradually established themselves as the views of the Court.” Felix Frankfurter, Mr. Justice Holmes and the Constitution, 41 HARV. L. REV. 121, 141 (1927). The substantive due process principle was developed with the Declaration’s natural rights philosophy mixed with it. For instance, in Meyer v. Nebraska, 262 U.S. 390, 399 (1923) the Court found liberty to be “not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.”