HLS875:

Lesson 1: Origins and Context of U.S. Homeland Security Law

The Treatment of Homeland Security in the Basic Documents

In 1776, when the advocates of independence asserted the claim to unalienable rights, based on a version of divine or natural law, they implied a right to basic security for the homeland and its inhabitants.  The statement of principles together with the description of challenges to them is not unlike the narrative used in current security strategies. 

Since 1607, when the first entrepreneurs and artisans moved from ship to uncertain shore, one of the motivating factors was that of being free.  Two hundred and ninety years later, the Supreme Court articulated that sentiment in the case of Gulf, C. & S. U. R. CO. v. Ellis, 165 U.S. 150 (1897), calling the Declaration of Independence the first official action of this nation, and implying it was the foundation of government:

"While such declaration of principles may not have the force of organic law, or be made the basis of judicial decision as to the limits of right and duty, and while in all cases reference must be had to the organic law of the nation for such limits, yet the latter is but the body and the letter of which the former is the thought and the spirit, and it 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. “

Eleven years later, mindful of the noble principles and the list of threats contained in the Declaration of Independence, the framers addressed the internal instability and external threats of the previous decade by designing a structure to form, establish, ensure, provide, promote and secure in whatever manner it would take to create a viable nation.  Three of the framers then anonymously advocated ratification by way of persuasive arguments, now known as the Federalist Papers, appearing as op-eds in New York paper. 

The Constitutional structure provided brilliantly for the freedom to enjoy life, liberty, and the pursuit of happiness and enrichment through self-determination, to include not being put in harm’s way---and all that with only sporadic government protection and intervention!  Of course, the cascade of statutes and executive actions, in response to the wars, conflicts, and disasters that ensued, has created a legal thicket surrounding security issues--but that is the price for a government with such a far ranging mission!