Virginia Declaration of Rights: The Legal Right to Alter or Abolish Government

Ask around today and you’ll find most people treat rebellion like a relic – something you read about in school, never something you do. That wasn’t how George Mason saw things. On June 12, 1776, he put the right to overthrow government into law – bold, unapologetic, and binding.

This wasn’t the language of a protest movement or the fine print of a petition. The Virginia Declaration of Rights didn’t ask permission. It made the right to alter or abolish government explicit. If government stops doing its job, the people step in and take charge.

Most Americans have never even heard of this document. That’s no accident. Schools and politicians would rather you remember slogans than the law that made those slogans real.

THE ROAD TO JUNE 1776

To understand how radical Mason’s declaration really was, you have to back up a few months.

Long before the rest of the colonies signed off on independence, Virginia was operating as an independent country.

The colonial governor had fled after the burning of Norfolk in January 1776. With the king’s man gone, the Governor’s Council and House of Burgesses dissolved themselves and reorganized as the Fifth Revolutionary Convention of Virginia – an assembly that claimed its power directly from the people.

This wasn’t some academic debate. Virginia’s old government was finished, and a new one was already forming and preparing to secede from Britain.

On May 15, 1776, the Convention passed a resolution that left no doubt about Britain’s actions. The Convention pointed to the harsh reality facing the colonies – confiscation, forced service, legalized oppression.

“By a late act all these Colonies are declared to be in rebellion, and out of the protection of the British Crown, our properties subjected to confiscation, our people, when captivated, compelled to join in the murder and plunder of their relations and countermen, and all former rapine and oppression of Americans declared legal and just:”

When faced with destruction, the Convention stated the only two paths left – total submission, or a complete break.

“In this state of extreme danger, we have no alternative left but an abject submission to the will of those overbearing tyrants, or a total separation from the Crown and Government of Great Britain, uniting and exerting the strength of all America for defence, and forming alliances with foreign Powers for commerce and aid in war”

Compromise was over. The Convention ordered its delegates to the Second Continental Congress to demand full independence.

“the Delegates appointed to represent this Colony in General Congress be instructed to propose to that respectable body to declare the United Colonies free and independent States, absolved from all allegiance to, or dependence upon, the Crown or Parliament of Great Britain; and that they give the assent of this Colony to such declaration”

A few weeks later on June 7, 1776 – Richard Henry Lee put those instructions into action, setting the stage for the Declaration of Independence.

THE FOUNDATION OF LIBERTY

While Congress was still debating independence, Virginia was already writing it into law. On June 12, 1776, the Fifth Revolutionary Convention of Virginia adopted a Declaration of Rights, drafted by George Mason.

The politicians you see today love to talk about “rights,” but Mason wasn’t talking about what government doles out. He made it law that some rights are off-limits – no government, no vote, no majority can take them away.

“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.”

Mason didn’t stop there. He drew a clear line: power doesn’t start with government – it starts and ends with the people. Politicians are just the hired help.

“That all power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants and at all times amenable to them.”

It’s the same principle that showed up in the Declaration of Independence. Any government power that isn’t rooted in the people’s consent is illegitimate – period.

“That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed”

REVOLUTION MADE LEGAL

Mason didn’t leave the question of government power to theory. Section 3 of the Virginia Declaration of Rights put the right to reform, alter, or abolish government into law.

The standard is straightforward. Government is created for the benefit and security of the people. When it fails that test, the majority doesn’t have to ask for permission. They hold an “indubitable, inalienable, and indefeasible right” to make the changes they see fit.

“That government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community; and that, 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.”

This principle had a long pedigree. Nearly a century earlier, John Locke wrote that when government fails its purpose, the people who granted power have every right to take it back:

“for all power given with trust for the attaining an end, being limited by that end, whenever that end is manifestly neglected, or opposed, the trust must necessarily be forfeited, and the power devolve into the hands of those that gave it, who may place it anew where they shall think best for their safety and security”

Jean-Jacques Burlamaqui drove the same point further. When a government uses its power against the public good, the right to decide what happens next returns to the people themselves:

“If the sovereign, utterly forgetful of the end for which he was entrusted with the sovereignty, applied it to a quite contrary purpose, and thus became an enemy to the state; the sovereignty returns (ipso facto) to the nation, who, in that case, can act towards the person, who was their sovereign, in the manner they think most agreeable to their security and interests.”

LIMITS ON POWER

Virginia’s Declaration of Rights also laid down essential rules to keep government power in check. Mason made clear that without strict limits, freedom cannot survive.

Section 5 of the Declaration insisted on separation of powers – the legislative and executive branches must be distinct from the judiciary.

“That the legislative and executive powers of the state should be separate and distinct from the judiciary”

This wasn’t a new idea. Montesquieu warned decades earlier that mixing legislative and executive powers kills liberty. When one body makes and enforces laws unchecked, tyranny follows.

“When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.

He also made clear that blending judicial power with either of the other two branches destroys liberty by removing any check on who makes or enforces the law:

“Again, there is no liberty if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary controul; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression.”

Mason continued in Section 5, asserting that term limits were essential for preventing tyranny.

“and that the members of the two first may be restrained from oppression, by feeling and participating the burdens of the people, they should, at fixed periods, be reduced to a private station, return into that body from which they were originally taken,”

A BILL OF RIGHTS

The Virginia Declaration next laid out a model bill of rights long before the Constitution existed. It guaranteed basic protections for criminal defendants – no self-incrimination, the right to confront accusers, a speedy trial, trial by jury, and bans on excessive bail and cruel punishments. It also defended freedom of the press as “one of the greatest bulwarks of liberty.”

Mason didn’t ignore the threat of military power either. He made it clear that liberty depends on a well-regulated militia of the people – not on standing armies.

“That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.”

Years later, General Henry Knox, George Washington’s first Secretary of War, reinforced the same warning. Standing armies might win wars, but they are enemies of liberty in times of peace

“Whoever seriously and Candidly estimates the power of discipline and the tendency of military habits, will be Constrained to Confess, that whatever may be the efficacy of a standing army in war, it cannot in peace be considered as friendly to the rights of human nature”

Knox made clear that a republic relies on an armed citizenry.

“An energetic national militia is to be regarded as the Capital security of a free republic; and not a standing army, forming a distinct class in the community”

A MODEL FOR THE AGES

The Declaration of Rights wasn’t just a paper for Virginia. After independence, several colonies adopted versions closely based on Mason’s work.

Pennsylvania’s Bill of Rights was almost Virginia’s with minor changes made by Benjamin Franklin. Vermont, New Hampshire, New York, Delaware, Rhode Island, Maryland, and North Carolina also followed their lead.

Even John Adams borrowed heavily from when drafting Massachusetts’ Bill of Rights, though he avoided Virginia’s strong stance on religious freedom, which was included on the urging of James Madison.

The influence went well beyond America. Thomas Jefferson helped bring some of Mason’s text into the French Declaration of the Rights of Man and Citizen. From France, this language spread in the years to follow into constitutions worldwide.

In 1825, Thomas Jefferson gave credit where it was due

“The fact is unquestionable that the Bill of rights and the Constitution of Virginia were drawn originally by George Mason, one of our really great men and of the first order of greatness.”

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