Today marks the 250th anniversary of the Virginia Declaration of Rights, written by George Mason and adopted by the Virginia Constitutional Convention on June 12, 1776. Mason is often labeled “The Forgotten Founder” in books and even at his memorial, tucked away off the path between the Lincoln Memorial and the Jefferson Memorial on the National Mall. But his contributions, including the Declaration of Rights, have had an outsize influence on the trajectory of freedom that should be unforgotten, a term I adopted when creating a program to honor Mason’s 300th birthday last December.
The Virginia Declaration of Rights is important for its recognition and protection of rights in Virginia and as the nation’s first written “bill of rights,” no doubt. But it is also widely recognized by historians as having served as a template for both Thomas Jefferson’s Declaration of Independence, which came three weeks later, the 250th anniversary of which we are directing the most attention this year. It also served as a model for James Madison’s Bill of Rights and portions of the articles in the U.S. Constitution.
Indeed, just reading Section 1 of Mason’s declaration rings familiar to those who’ve studied those other documents: “That all men are by nature equally free and independent and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.”
In 16 “sections,” Mason sets out the core principles of government and fundamental liberties. The Virginia declaration demands that power must be derived from the people and, like the Declaration of Independence, that “government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community.”
It enumerates the fundamental rights to free elections and suffrage. The Virginia takings clause states that individuals “cannot be taxed or deprived of their property for public uses without their own consent or that of their representatives so elected.” It includes sections protecting the free exercise of religion, freedom of the press, the right to confront accusers, the right to a speedy trial, the right to a jury trial, freedom from excessive bail, the prohibition on general warrants, and more.
Mason’s declaration also includes a “law of the land” clause as a precursor to the U.S. Constitution’s due process clauses, providing “that no man be deprived of his liberty except by the law of the land or the judgment of his peers.
And, it is the first American governing document to proclaim the reasons through which revolution is justified, much like the reason-giving features of the Declaration of Independence. The words here will also seem familiar even to those who have never read this founding document: “When any government shall be found inadequate or contrary to these purposes, a majority of the community has an indubitable, inalienable, and indefeasible right to reform, alter, or abolish it, in such manner as shall be judged most conducive to the public weal.”
One of the other strikingly informative but under-recognized features of the Virginia Declaration of Rights is its express inclusion of a separation of powers clause, inside a declaration of rights. The Virginia declaration proclaims “that the legislative and executive powers of the state should be separate and distinct from the judiciary.” Mason recognized that the protection of rights cannot be accomplished by only declaring their existence. Instead, rights holders are entitled to an institutional structure that maximizes the likelihood of their recognition and protection. The people have a right to limits on the powers that could threaten their rights.
OPINION: THE CONSTITUTIONAL SLAVERY EXCEPTION NOBODY TALKS ABOUT
The Virginia Declaration of Rights should be closely studied by any serious student of the American constitutional system. Notably, as a delegate to the 1787 Constitutional Convention, Mason refused to sign the U.S. Constitution, fearing, perhaps presciently, that it could be interpreted in ways that would centralize power in the federal government, and because of the concerns over the lack of a bill of rights. That stance is consistent with the focus on the fundamental priority of rights enshrined in the Virginia Declaration of Rights.
So, as we celebrate America 250 and the Declaration of Independence this year, we should equally celebrate and not forget Mason and the Virginia Declaration of Rights. We should remember that the American Revolution and its enduring legacy succeeded because the roots of liberty ran deep in 1776, were planted by a variety of gardeners of freedom, and were nourished by a broad and enlightened intellectual ecosystem like the world had never seen.
Donald J. Kochan is a professor of law at George Mason University’s Antonin Scalia Law School.