Jonathan Rowe, talking about the Declaration of Independence’s famous phrase “life, liberty, and the pursuit of happiness,” says
Why was property explicitly left out I’m not exactly sure, but a law professor of mine gave an odd but probably accurate explanation: Our framers were greatly influenced by the writings of English-Scottish philosophers. And that rhetorical style had its own quirks, one of which was that things would often be categorized into threes: “life, liberty, and property” or “life, liberty, and the pursuit of happiness.” Not, “life, liberty, property, and the pursuit of happiness.” Having four things listed instead of three simply didn’t flow right to the ears. But, I will say that perhaps the fact that property was explicitly left out was a mistake in drafting of the Declaration….
No! Oh, lord no. The Declaration was written very shortly after the Virginia Declaration of Rights, which was of course read by Jefferson while he was attending Congress in Pennsylvania. That document begins
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.
We see here no “rhetorical three.” Rather, it’s a more thorough philosophical explanation of the connection between liberty and property. When a person exercises his liberty by entering into a contract, say, for labor, he obtains in exchange for that, property—his wages. He puts those wages to use in providing for food, shelter, and amusements. That is, property is the mechanism by which we turn liberty into happiness and safety. The right to property is therefore the solid expression of one’s right to liberty. The 17th century Whig anti-monopoly tradition, with which the founders were all quite familiar, had long emphasized economic liberty as the means by which, in Sir Edward Coke’s words,
no man could be prohibited from working in any lawful trade, for the law abhors idleness, the mother of all evil, otium omnium vitiorum mater, and especially in young men, who ought in their youth, (which is their seed time) to learn lawful sciences and trades, which are profitable to the commonwealth, and whereof they might reap the fruit in their old age, for idle in youth, poor in age; and therefore the common law abhors all monopolies, which prohibit any from working in any lawful trade….
The Case of the Tailors, 11 Co. Rep 53a, 77 Eng. Rep. 1218 (1615). See further Timothy Sandefur, The Right To Earn A Living, 6 Chap. L. Rev. 207 (2003). Madison would later explain that the term “property” included this right to earn a living:
He has an equal property in the free use of his faculties and free choice of the objects on which to employ them…. Government is instituted to protect property of every sort; as well that which lies in the various rights of individuals, as that which the term particularly expresses…. That is not a just government, nor is property secure under it, where arbitrary restrictions, exemptions, and monopolies deny to part of its citizens that free use of their faculties, and free choice of their occupations, which not only constitute their property in the general sense of the word; but are the means of acquiring property strictly so called.
The phrase “the pursuit of happiness,” therefore, is intended more generally to refer to the right of, among other things, gainful pursuits. Property, of course, is included in that, but the fact that the word “property” doesn’t appear is hardly an oversight. Indeed, it is intended to be more inclusive, in order to encompass the most precious right that man possesses—the right to earn a living as he chooses. Jefferson was just better able to condense into a single phrase what Mason took a long time to say. For a more thorough explanation of the connection between the right to pursue happiness and the right to earn a living, consult Justice Field’s dissent in The Slaughterhouse Cases, 83 U.S. (16 Wall.) 36 (1873), or chapter 2 of Thomas West’s Vindicating the Founders.
