A Persuasive Argument

Many times in the past when I’ve written of the Declaration of Independence, I’ve emphasized that it is not law. The Constitution is law, but not the Declaration, which is a political document. This causes a lot of anxiety in people looking to cite the Declaration as though it were some kind of a trump card in an argument, and a wee bit of confusion.

After all, the Declaration was written by lawyers. The Continental Congress appointed lawyers from its ranks — from the initial motion by Richard Henry Lee to the committee of John Adams, Roger Sherman, Benjamin Franklin (the only member of the committee who was not a lawyer, to my knowledge), Robert R. Livingston, and its principal draftsman, Thomas Jefferson.

It’s a political document, albeit one written by lawyers. Just as culture is a foundation of law without being law itself, so too is the Declaration. John Adams wrote that the Revolution had already begun and was well underway by July 4, 1776, and the Crown had recognized the “open and avowed rebellion” before that date as well.

If it were anything like a legal document, it would be much more akin to a brief, a document of advocacy rather than adjudication. And what politics and law have in common is that they are about persuasion. And for that reason, it deserves study, for it exemplifies the manner of persuasion that prevails in courts to this day, on both sides of the Pond.

Jefferson’s draftsmanship — for the document is mostly Jefferson’s rather than his fellow committee members’ or Congress’, despite the edits made along the way — is quite extraordinary. The preamble, for instance, efficiently frames the reason for the document’s existence, and in a timeless but legal manner:

When, in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the laws of nature and of nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

Jefferson demonstrates awareness that history is underway, and aware that if somehow the Patriots could pull it off and establish independence, that the reasons they cited for their fight will serve as precedent. He is concerned about precedent because he is a lawyer, from the common law system, where precedent creates rules that bind the future. Notice also the obliqueness with which divine right and God are invoked — “the laws of nature and of nature’s God,” rather than simply “God.” There is an order to the universe, a way thing ought to be. You can see the hand of the divine in that if you want, or you can see nature on its own.

Lost in the flattering flourish to the reader (“a decent respect to the opinion of mankind”) is something more subtle: the use of the verb “entitle.” The colonists are entitled to their political independence — and an entitlement ought to need no explanation at all. But here is the explanation anyway.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.

The proposition that things are or even can be self-evidently true is something that it seems to me philosophers debate to this day. But who among the readership — a readership consisting of English colonists in the Americas and Europeans — would deny that people should have life that not be taken arbitrarily from them, and that people ought to be happy, or at least be able to pursue happiness? Who would not want life, liberty, and happiness for themselves, and not recognize a similar desire in others? Jefferson frames these unquestioned social goods as rights, and universalizes those rights.

What is radical, or at least radical enough, for 1776 was to do so on an individualized basis, claiming all men as equals to one another. In a world still steeped with and ruled by hereditary nobility, it was a relatively well-accepted proposition that some people were just plain better than others by virtue of the accident of their births. To say that all men are created equal denies the very concept of nobility and calls into question the concept of even a social elite. (No doubt the elites who comprised Congress would have, if pressed, claimed that they had earned their elite status through ability and achievement. I’d wager even the Randolphs and the Lees of Virginia, who were as old money as old money got back then, would claim that their status was the result of meritocracy rather than legacy.)

That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. That whenever any form of government becomes destructive to these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.

Another argument advanced, and again one that packs a whole lot of work into dense but appealing phrases. Governments derive their powers from the governed. Governments exist to secure the rights of their citizens. Governments that stop doing that lose their legitimacy. Illegitimate governments should be displaced and better ones, more true to their mission of securing the rights of the citizenry, should be erected in their place.

Jefferson could actually have stopped there. There’s enough intellectual groundwork laid to support a claim that the government of King George III Hanover had strayed from its mission and thus deserved displacement. While the claim would have been “bald” and Jefferson will go on to put some hair on that head soon enough, in three longish sentences, the second paragraph has done what needs to be done.

And what really needs to be done, as in a legal brief, is to frame the issue. By framing the issue as one of offering a justification for revolution, and that justification relating back to the whole reason governments exist in the first place, Jefferson has created a moral structure to justify what would otherwise be treason.

Prudence, indeed, will dictate that governments long established should not be changed for light and transient causes; and accordingly all experience hath shown that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same object evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security. Such has been the patient sufferance of these colonies; and such is now the necessity which constrains them to alter their former systems of government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute tyranny over these states. To prove this, let facts be submitted to a candid world.

To my eye, this is prolix composition, one of the worst habits of the eighteenth-century lawyer. I could trim this down to “Revolution is not an appropriate response to a casual grievance, but the King has abused our rights for many years now. Nothing short of what we are doing will make it stop. This is what we have endured so far and will tolerate no longer.”

While it took Jefferson 159 words to say what I could in 45, his language is lovely. I compare it in my mind to the elaborate lace ruffles and cuffs that were so popular in fashion for gentlemen of the day — the lacework was beautiful, the look distinctive and in its own way handsome. But dated, and serving no objective sartorial purpose, it’s no wonder that the lace of a gentleman’s outfit during George III’s reign was discarded in favor of the more trim, neat, and utilitarian manner of dress pioneered by George IV’s courtier, Beau Brummell, which turned in to the modern suit and tie that I wear to work (nearly) every day.

Bearing in mind its contemporary target audience, though, the inefficient luxury of the language would have felt comfortable and appropriate. We might say that just as a modern suit and tie would have looked strange and inadequate to the eighteenth-century gentleman, so too would the absence of rhetorical flourish have seemed sparse and weak to the eighteenth-century politician. It was, after all, the style of the day.

So what did George 3 do for so long that was so bad?

He has refused his assent to laws, the most wholesome and necessary for the public good.

He has forbidden his governors to pass laws of immediate and pressing importance, unless suspended in their operation till his assent should be obtained; and when so suspended, he has utterly neglected to attend to them.

He has refused to pass other laws for the accommodation of large districts of people, unless those people would relinquish the right of representation in the legislature, a right inestimable to them and formidable to tyrants only.

He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public records, for the sole purpose of fatiguing them into compliance with his measures.

He has dissolved representative houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.

He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the legislative powers, incapable of annihilation, have returned to the people at large for their exercise; the state remaining in the meantime exposed to all the dangers of invasion from without, and convulsions within.

He has endeavored to prevent the population of these states; for that purpose obstructing the laws for naturalization of foreigners; refusing to pass others to encourage their migration hither, and raising the conditions of new appropriations of lands.

He has obstructed the administration of justice, by refusing his assent to laws for establishing judiciary powers.

He has made judges dependent on his will alone, for the tenure of their offices, and the amount and payment of their salaries.

He has erected a multitude of new offices, and sent hither swarms of officers to harass our people, and eat out their substance.

He has kept among us, in times of peace, standing armies without the consent of our legislature.

He has affected to render the military independent of and superior to civil power.

He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his assent to their acts of pretended legislation:

For quartering large bodies of armed troops among us:

For protecting them, by mock trial, from punishment for any murders which they should commit on the inhabitants of these states:

For cutting off our trade with all parts of the world:

For imposing taxes on us without our consent:

For depriving us in many cases, of the benefits of trial by jury:

For transporting us beyond seas to be tried for pretended offenses:

For abolishing the free system of English laws in a neighboring province, establishing therein an arbitrary government, and enlarging its boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule in these colonies:

For taking away our charters, abolishing our most valuable laws, and altering fundamentally the forms of our governments:

For suspending our own legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.

He has abdicated government here, by declaring us out of his protection and waging war against us.

He has plundered our seas, ravaged our coasts, burned our towns, and destroyed the lives of our people.

He is at this time transporting large armies of foreign mercenaries to complete the works of death, desolation and tyranny, already begun with circumstances of cruelty and perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the head of a civilized nation.

He has constrained our fellow citizens taken captive on the high seas to bear arms against their country, to become the executioners of their friends and brethren, or to fall themselves by their hands.

He has excited domestic insurrections amongst us, and has endeavored to bring on the inhabitants of our frontiers, the merciless Indian savages, whose known rule of warfare, is undistinguished destruction of all ages, sexes and conditions.

Holy crap! This guy’s not a ruler, he’s a friggin’ monster! He’s practically declared war on his own people!

Which is an important thing to keep in mind in an age when there were still lots of people around Europe who still bought in to the idea of the divine right of kings. Kings get to be kings because God wants them to be kings, because God knows that these are the best available people and they will do the best job possible of ruling. To those people, Jefferson says, “Come on. You expect more than this from your own King. You expect him to at least keep the peace.”

Whether you bought in to the idea of divine right or not, the conduct as a whole is indeed “totally unworthy the head of a civilized nation” even if some of it was in response to resistance to peaceful civil rule. This is particularly true in a nation so committed to the rule of law in its own, albeit mostly unwritten, constitution as Britain. I’ve opined elsewhere that most of the offenses of King George enumerated here relate to the law and in particular criminal process. A few are political and are few relate to violence. But most of them deal with law — the way trials are to be conducted, the sorts of things that people can be prosecuted for doing, how civil laws including but not limited to taxes are made.

So having framed the rule — governments exist to fulfill the rights of the individual citizens to life, liberty, and the pursuit of happiness — Jefferson fills in that rule with facts. King George disrespects the rights of his colonists to life, liberty, and the pursuit of happiness by kidnapping them, imposing taxes without their consent, disbanding their local legislatures, taking them to Canada or Britain to be tried before juries unsympathetic to them and not giving them lawyers, refusing to prosecute murderers, issuing general warrants and writs of assistance to search as his agents please, inciting Indian attacks, and sending soldiers to generally run amok amongst people who would really prefer to just be left alone to make money peacefully.

After framing the issue, the next most important hallmark of good advocacy is getting the facts to fit into the rule such that the rule produces the desired outcome. Jefferson hits this, again and again and again. Not for nothing is more than half of the body of the Declaration this litany of abuses. I find it fascinating that to English people (and who knows, maybe Scots and Welsh people too) George III is seen as a nearly heroic, strong King who is more remarkable for recovering from a mental illness and governing well. Here, he’s practically Caligula. Well, Commodus.

In every stage of these oppressions we have petitioned for redress in the most humble terms: our repeated petitions have been answered only by repeated injury. A prince, whose character is thus marked by every act which may define a tyrant, is unfit to be the ruler of a free people.

Nor have we been wanting in attention to our British brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which, would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our separation, and hold them, as we hold the rest of mankind, enemies in war, in peace friends.

Here we are again with the moral justifications and the demonstration of restraint. It’s an important point to make — the Americans tried to work within the system first. They did not resort to violence quickly or casually. I do like that last line, though — it holds out the promise that one day, war will end and people will get back to being friends and doing business together rather than shooting each other. Where the first portion of this section is again longer than it needs to be, the ending is so elegant and hopeful that we can forgive Jefferson for the time it took to get there.

We, therefore, the representatives of the United States of America, in General Congress, assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the name, and by the authority of the good people of these colonies, solemnly publish and declare, that these united colonies are, and of right ought to be free and independent states; that they are absolved from all allegiance to the British Crown, and that all political connection between them and the state of Great Britain, is and ought to be totally dissolved; and that as free and independent states, they have full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent states may of right do.

This is the only language that I would call operative. It’s the only part of the Declaration that has any real effect on law: the Crown has no more power over these Colonies; they are self-governing and from this day forward they’ll make and enforce their own laws. Interestingly, about a third of this very long sentence copies exactly the month-old resolution of Richard Henry Lee that led to the drafting of this document.

And for the support of this declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our lives, our fortunes and our sacred honor.

Well, they didn’t have much choice, did they? If they pulled it off, they could rely on this justification. If they failed, their lives were forfeit. Note again the oblique reference to God, one suitably vague to appeal to anyone from a Deist to a Calvinist. After that, it was signatures, with John Hancock going large and first. For a reason — Hancock individually was likely to have had more property and money on the line than anyone else there. The was the Bill Gates of the era. If he signed off on this, that meant that the rest of the Establishment in the colonies had a green light to sign off, too.

The American Revolution remains one of the oddest, longest-odds fights in all of human history. Britain should have won. Getting big money interests aligned with populism and against the establishment is a pretty unusual convergence of interests. The reason Britain didn’t fully commit was that British people understood, or at least some of them did, that Americans were arguing for the rights of Englishmen, rights that they enjoyed themselves but that their own establishment just couldn’t (or more likely, wouldn’t) find a way to provide.

It was a fight about law, a fight about legal rights. And the reason the Declaration stands the test of time is not only Jefferson’s elegant composition, but his mastery of the substance. true, the revolution was won on the battlefield, in places like Brooklyn, Ticonderoga, Trenton, and ultimately Yorktown. But it was also won in the hearts and minds of the British public, the French aristocracy, and the Dutch oligarchy. Something persuaded the home crowd in Britain that there was justice to the Patriots’ cause; the American rebellion was unpopular in England and most of the people there wanted the war to end as soon as possible. Something persuaded the hard-nosed Dutch that more than tactical advantage could be gained by supporting the American independence cause. And something persuaded the roughly one-third of the colonists themselves who were sitting on the fence to go along with the Patriot cause rather than the Loyalists, despite the privations war brought.

And for that persuasion, to which the United States of America owes its very existence as much as it owes the debt of blood paid by the soldiers and the misery of the people in whose back yards the war was fought, I suggest that you raise a toast today to the man who would become our third President. Not for nothing did he select his authorship of the Declaration as a greater accomplishment for his epitaph than his Presidency.

Happy Birthday, America.

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.


  1. Thanks for this.
    When the kids were small, we started reading the Declaration with them every year. We added the Gettysburg Address and then the “I Have a Dream” speech (although sometime we do part of “Letter from a Birmingham Jail”) and talk about what was accomplished, as well as what still needs to be done.
    They were quite a radical bunch back then. Lucky for us.

    • There’s something to be said for reading it out loud, that’s for sure. The litany of King George’s misdeeds becomes so long, and cumulative, and more and more outrageous, as you go.

      I have visions of a gathering of historians or at least history buffs for a reading on July 4, after a few beverages have been consumed, with the audience hooting and booing at the description of King George and cheering and whistling for the proclamation of independence, in the rowdy parliamentary style that prevailed in the day (and, to a degree, still does prevail in the British Parliament even now, although I trust that most of them are sober these days).

  2. If you’ve never read Judge Drayton’s Address, commencing with the British response to the Declaration of Independence, by Lord Howe. Drayton then proceeds to chew and digest Howe’s response.

    Well worth the read. William Drayton, Sr. was a lawyer and later a judge, a graduate of the Inns of Temple in London. The rebellion against the Crown had started long before July 4, 1776 and Drayton had been forced to resign as judge: the British thought he had rebel sympathies. If he did not, he certainly does in Drayton’s Address.

    Howe wasn’t an entirely bad man, though Drayton gives him quite a scratching with the wire brush, pointing out Howe, for all his titles, had no mandate to negotiate any terms. Most of the tyrannous intent arose from Lord North.

    William Pitt the Elder on the American Revolution It is my opinion, that this kingdom has no right to lay a tax upon the colonies. At the same time I assert the authority of this kingdom over the colonies to be sovereign and supreme in every circumstance of Government and legislation whatsoever. The colonists are the subjects of this kingdom, equally entitled with yourselves to all the natural rights of mankind and the peculiar privileges of Englishmen…The Americans are the sons, not the bastards, of England. Taxation is no part of the governing or legislative power…When, therefore, in this House we give and grant, we give and grant what is our own. But in an American tax, what do we do? We, your Majesty’s Commons for Great Britain, give and grant to your Majesty,—what? Our own property?—No! We give and grant to your Majesty, the property of your Majesty’s Commons of America…The distinction between legislation and taxation is essentially necessary to liberty…There is an idea in some, that the colonies are virtually represented in this House…Is he represented by any knight of the shire, in any county in this kingdom?…Or will you tell him that he is represented by any representative of a borough?—a borough which perhaps its own representatives never saw.—This is what is called the rotten part of the constitution. It cannot continue a century. If it does not drop, it must be amputated…I rejoice that America has resisted. Three millions of people so dead to all the feelings of liberty, as voluntarily to let themselves be made slaves, would have been fit instruments to make slaves of all the rest…The gentleman asks, When were the colonies emancipated? I desire to know when were they made slaves?

    • I’ve long felt that the success of the American colonies left England in an untenable position.

      Unlike most British colonies, these weren’t a small number of English manipulating/exploiting/whatever a large native population (eg, India); these were — for the most part — permanent settlers who believed themselves English. Anyone who took a longish view could see the American population surpassing that of the UK. So, two equally unpalatable options: (1) treat the colonists as second-class Englishmen and if necessary, mount an ongoing occupation to enforce that, an expensive effort doomed to eventual failure; or (2) treat the colonists as first-class Englishmen with all that entailed wrt Parliament and recognize that at some point, the Americans will hold majorities. Oh, you could fuddle around with intermediate things, but those would be transient at best; the ultimate choices are between (1) and (2).

      I’m not surprised that a king would opt for (1). You have to wonder how things might have turned out if George had thought in terms of one of his great-grandchildren being head of a United Kingdom based in the Americas, with England/Ireland/Scotland as an eastern, outlying part of the country, and acted accordingly.

      • Another potential option, perhaps a compromise between 1 and 2, would be something like the “dominion” status granted eventually to what would become Canada, although it’s unclear to me that any such status was contemplated before that unfortunate rebellion actually happened.

        • Even if they used the dominion model from 90 years later, it still leaves some of the grievances unaddressed — defense, foreign affairs and regulation of international trade remained in the hands of Parliament and the monarch, sans representation. So, still second-class status, even if somewhat more enlightened. As became apparent in the years following 1776, the crown lacked the power, at least when other demands on the military were considered, to impose second-class status on the 13 American colonies. Growing population and wealth in America were only going to make that problem worse.

          OTOH, any meaningful form of (2) is probably politically impossible in England — simply because of the degree to which it would dilute Parliamentary power.

      • What we got isn’t too far off from (2) in critical respects, though it took a couple hundred years and innumerable political and theoretical adjustments, and a whole lot of fussing and fighting, to arrive at a situation in which Great Britain is one unique and important virtual appendage or tributary state within an (Anglo-)American (neo-)empire.

        • But sooner. How does WWII play out if a monarch and prime minister in New York, already gearing up somewhat for war with the North American industrial machine behind that, tell Hitler, “Don’t even think about touching England”? Or, “We don’t care what you do on your eastern front, leave France and the lowland countries alone”?

          • Not sure I understand the full grounding of the counterfactual, Mr. Cain. From this perspective, WW2 was the climax of a world-historical process of the displacement of the Old World by the New. In that context, the rise of the Third Reich is explicable in relation to a multi-generational breakdown of the Eurocentric order and rise of a globalized system, as already embodied in principle by the American Revolution (and expressed within the Old World most directly by the French Revolution and the Napoleonic Wars). In theory, the shared and parallel British and American grand strategic interests in preventing the rise of a Eurasian hegemonic power, implying eventual cataclysmically world-historical collisions with the furthest aspirations of any rising Middle-European empire, would have remained the same with or without a formally independent or separate North American political entity, .

          • Not sure I understand the full grounding of the counterfactual, Mr. Cain.

            Undoubtedly because there isn’t much of one. Let me borrow from your comment and try. Suppose that, 20 years or more before the Declaration, the British monarchy and Parliament had taken the position that the colonists were, in fact, first-class British citizens, that the colonies were to become a first-class part of Great Britain on a par with England, with representation in Parliament proportional to the rapidly expanding population, etc. The American Revolution never happens, although this approach towards North America certainly represents a change in British style. The North American continent, with its abundant natural resources and room to grow becomes initially a significant part of, and eventually the dominant part of, well, let’s call it Greater Britain for convenience.

            Your comment suggests that history on the European mainland would play out over the next 150 years in much the same way it did: French and other interests attempt to establish a hegemonic power, Britain counters, etc. Does it play out that way? Greater Britain may not care so much about the mainland, given that a considerable share of Parliament is looking to North America. The Royal Navy would have been an even more impressive weapon, a colossus straddling the North Atlantic. I’m certainly not enough of a historian to argue how things might change, but suspect that they would.

    • Burt, something is screwy (-er than usual) about comments – I clicked on your response to Cletus under the FP “GoG”, and it takes me here to NAPP – but your and his actual comments do not show either on the FP post or here. I tried the usual “post a comment” trick that sometimes resolves issues on the subblogs but still no dice.

      • Maybe related to the cross-posting somehow? The FP post shows a comment count (2), which IIRC it usually doesn’t when you cross-post (and the comment count here at NAPP is, correctly, 6)

        • I didn’t set up the 301 redirect correctly when I did the FP post, so there are actual comments to that post now. I think I’ve fixed the problem now; all comments should be directed here.

  3. “And what politics and law have in common is that they are about persuasion”

    Not really. Politics is about persuasion; law is about who can do violence to whom, and when & how it can be done.

    • I recoil. Law is about following rules, rules that make peaceful communal existence and commerce possible in a way that raw power is not.

      That government agents bearing the badge and indicia of law enforcement sometimes behave lawlessly is not a claim I dispute. But this is cause to condemn the lawless who betray their oaths, and not cause to condemn law itself.

      That those charged with protecting the public interest in making the laws make ill-advised or corrupt decisions is evidence of their human falliability, but again, bad laws and bad lawmakers are not cause to discard the rule of law but rather a clarion call to change them. At a dear cost of blood and treasure, our forefathers gave us a way to do this peacefully, a way that with a few tweaks still works today.

      This is cause for celebration.

      • Not really.
        By far the majority of most claims in federal courts are employment discrimination cases.
        Most of the heavy lifting is done at the state level, where abuses are rampant.
        The tortured history of our civil rights acts and the way they are required to be adjudicated is cumbersome and foolish– it’s unworkable, for the most part. The history of it shows that the main intent of the courts is to shield state actors from liability rather than to vindicate the rights of citizens.
        It would be much better to have a new cause of action; but simply abrogating by statute all immunities under the common law would go a long way toward righting things at the state level.

        I remember reading this one case from Pennsylvania (and I forget if it was the SCOTUS or an appellate court) that went into the history of the extortion offense under the common law. They were actually analyzing an extortion statute (as they then determined) that named the same offense by some other name (and that’s really what the case was about– Is extortion by another name still ‘extortion’ for purposes of law? and it turns out that it is.). Under the common law in its earliest form, extortion was an offense that only a judge could commit. (It’s that history part that’s always most interesting to me.)
        The last major change I know of to our civil rights statutes was an amendment which specifically authorized equitable relief against judges; although the same amendment effectively immunized them from all other forms of relief.

        But there was an older form of law before Lord Coke; the law which followed Tyler’s Rebellion. There are two manners in which justice might be rendered– the courts to serve the nobility, and vigilantes for the common man.
        I’ve seen this written as the role of the courts is to create the expectation of justice in a society; for where there is no expectation of justice, people will be unwilling to enter the courts to resolve their disputes.
        Based on that, I can see that 28 shootings in Chicago within one weekend were actually the rule of law at work– that people with no expectation of justice were able to resolve their disputes without the need for having entered a court of law. This too is law.

      • Speaking of all that, there’s a new Third Amendment suit resulting from police taking over a person’s house and throwing him out.

        Volokh link.

        I read about the case yesterday and it does raise quite a few serious issues.

        • The most obvious obstacle to winning a Third Amendment claim here is that police arguably do not qualify as “soldiers.”

          I just read sports story about an officer in the Navy reserve whose “time on active duty included 6½ months circumnavigating South America aboard the USS Klakring.”

          The story quotes him talking about that experience thusly: “We were out there surveilling and trying to find go-fasters … drug boats that were trying to carry drugs from South America, Central America to the United States,” he told the NFL Network.”

          That surely seems like police work to me, rather than military work. So if the military is increasingly doing police work, where is the difference between police doing the work of “soldiers”?

          • Out of curiosity, did “police” exist at the time of the 3rd Amendment’s ratification?

          • I mean, because if they didn’t, I don’t see why we can’t evolve the terms the same way we evolved “cruel” and/or “unusual”.

          • The American colonies had operated on the ancient British model. They came in two flavours: the sheriff with his posse who enforced the law — and the militias proper which defended against invasion. Permanent standing armies were anathema in Britain: everyone understood how dangerous they were to civil order and had been outlawed outright in the Bill of Rights in 1689.

            The sheriff’s mandate arose from the shire, now counties. The Sheriff kept the King’s Peace, which did not mean “peace and quiet” but rather enforced justice at a local level with mandate from the King.

          • I sure would like to be able to answer the first one. I dunno, tho. Re: the second point, it surely seems like a distinction between enforcing the domestic laws of a nation and acting to defend a nation from existential threats is sustainable.

            That enforcing drug policy constitutes an existential threat to our nation is something I might be unclear on. Like oh so many other things.

          • BP, are you saying there was a distinction in the US between the police and “soldiers” at the time of ratification?

          • Yes. The states provided the sheriffs and the militias, as had the British shires/counties for many centuries. As with the militias, the sheriffs and their posses were everyone’s responsibility and men took turns serving. It wasn’t until a few decades before the Civil War that organised municipal police forces were established in the major cities.

            We think of Sheriffs and Posses as artefacts of Western lore. They are far more ancient. They come straight out of Saxon England.

        • I’ll follow that up by pointing out that the British soldiers being quartered weren’t really “soldiering”, because there really wasn’t any soldiering to do in New York, Boston, or Richmond back then. In fact, aside from the French and Indian War, British soldiers in the Colonies never did do much soldiering at all. But they were often used like police, protecting the Crown’s property, overseeing customs collections and tax collections, conducting searches, and the like. They were used for functions that have since been split off to professional police forces, and the complaint was about embedding such forces in with the public that they policed, taking over homes whenever they saw fit. We were not upset at soldiers sitting in barracks or a fort where they can form an organized response to an invasion threat at a moment’s notice.

      • Surely the fathers could not have foreseen the damage, economic and otherwise, that comes from hemp.

      • I recoil. Law is about following rules, rules that make peaceful communal existence and commerce possible in a way that raw power is not.

        Rules without violence is a bowling league.. How do you think everyone gives their assent to all the rules? And even moreso how do we make sure the rules are followed?

        True law is not raw power, anymore than strawberry shortcake is raw sugar. And I’m not an anarchist, or even much of minarchist either. The law is a tool, and though it may fall somewhere between a chainsaw and a scalpel, it’s not a fuzzy bunny.

    • On the bright side, K, they didn’t shoot the kitten.

  4. Very enjoyable analysis. I would suggest, however, that the framing Jefferson was doing on behalf of his comrades wasn’t just for focusing the minds and interest of a domestic audience or a British audience, or in reference to “history” or “mankind” in the abstract. The goal of a “separate and equal station” among “the powers of the Earth” was not just a poetic unifying and descriptive idea, but would have had practical significance, especially in regard to how existing “powers” would deal with all would-be ex-Colonial citizens, and especially with American leaders, ambassadors, military officers, soldiers, and businesspeople. In contemporary terms, which are modifications of the terms then in use, it would be the difference between being “recognized” or not, and a major goal of the Revolution as well as of the immediate post-Revolutionary period was to obtain and confirm such recognition.

    The revolutionaries were seeking to be included in the then-reigning regime of international law as a new sovereign power of the Earth (as we would come to say “with a right to exist,” “right of self-determination,” and so on), while at the same time they were both proposing and realizing a critical modification in that regime that eventually amounted to that its overturning and uneven replacement. In short, all of the next 237 or so years and counting of world history up to the present neo-imperial moment are forecast in those lines.

    • That’s a clear-eyed observation — Jefferson et al. no doubt saw themselves already as capable of discharging the roles of the great nobles and kings of their day; it’s no great leap from there to see themselves as aspiring to a similar station.

      To your point, there was talk of making Washington King. To my point, as well as to Washington’s credit, the General quashed that notion immediately after it was floated. For all its imperfections, ill deeds, vulgarities, and fallings-short, I remain proud of my nation, the good it has done, and the goals she aspires. Something new, different, and better was started 237 years ago.

  5. Ginny Stroud: Okay guys, one more thing, this summer when you’re being inundated with all this American bicentennial Fourth Of July brouhaha, don’t forget what you’re celebrating, and that’s the fact that a bunch of slave-owning, aristocratic, white males didn’t want to pay their taxes.

    Dazed and Confused, Richard Linklater

  6. Very nice, thanks for this. Have a happy & safe weekend!

  7. Happy Birthday [sic], America.

    Today is not the birthday of the United States; it is the anniversary of the day the united states of America ratified the Declaration of Independence.

    Now, what IS America’s birthdate? I would say March 4, 1789, the day the Constitution went into effect. The period of time between September 3, 1783, the signing of the Treaty of Paris, and September 17, 1787, the ratification of the Constitution, is generally glossed over in K-14 history classes. We weren’t truly one country during that time frame.

      • I’d try to marry a pennant, but it’s pending from the wall of my good friend Mary, just like the diamond pedant she wears.


    • March 4 would be the anniversary of the existing system of government. But the nation existed before March 4, 1789; it had a government before then, and it did things (like fight a war and negotiate a peace) prior to that date.

      September 3 would be the anniversary of Britain’s recognition of the United States. But the United States actually existed before September 3, 1783; the Treaty of Paris did not create it.

      A case could be made for the Battle of Lexington, or the Battle of Bunker Hill, too, as points during which the notion of America as a nation coalesced and took action in rebellion against the British. Or the convening of the Second Continental Congress in defiance of the King’s order that it not assemble. Or the anniversary of Cornwallis’ surrender. Or a bunch of other points.

      July 4 seems as useful and convenient a date as any other we might point to. Congress’ ratification of the Declaration was the formal political announcement of the creation and existence of a viable political entity.

      • Quibble. The Articles of Confederation did not create a nation, but a confederation of 13 countries. The Articles specify that “Each state retains its sovereignty, freedom, and independence…” Only with the Constitution did it become appropriate to call the United states a nation, an “it” instead of a “them.”

      • Yes, what Mr Aitch said.

        The better reason to celebrate July 4 rather than March 4 is that otherwise the only holiday in summer would be Labor Day.

        For those who think March 4 has no significance, remember that 31 presidents were inaugurated on March 4*; only 13 have been inaugurated on January 20*.

        *or the following Monday

        • Well, it’s all symbolism anyway, and March 4 tends to be bad picnic weather.

    • Come on, folks, celebrate the discovery of the higgs boson!

        • Is this a typo, or am I missing a joke here?

          Is the HB supposed to tell us something about causality?

          • My understanding is that the Higgs relates to that quality of matter which we refer to as “mass.”

          • Ah, gotcha. I got hung up on your word reversal (“that does” vs. “does that”).

          • The Higgs also enables transsubstantiation, so it makes Mass matter.

          • Glyph, my ability to quip with dry humor is often handicapped by the need to do so in free moments between hearings in the courthouse. This, alas, was such an event.

            Also, IANAPP (I am not a particle physicist).

  8. I remember hearing a historian on NPR once who suggested that only about 1/3 of the colonists wanted to separate from the crown; a distinct minority; and that if the polling technology of today had been available then, we’d never have gone to war for our independence.

    If the Declaration is a political document instead of a legal document, it’s one hell of a piece of propaganda.

    But it’s more than propaganda; I agree with this (and the quote above), and wonder if you’ve underestimated its legal importance?

    This is the only language that I would call operative. It’s the only part of the Declaration that has any real effect on law: the Crown has no more power over these Colonies; they are self-governing and from this day forward they’ll make and enforce their own laws.

    Because that’s the legal justifying a new nation. Without first declaring, no, we are not part of this old system, there’s no space for a new system.

  9. To be fair, saying that a truth is “self-evident” would get one an F in debate class.

    • “In in making the argument that these truths are self-evident I will appeal to various widely held but controversial metaphysical assumptions as well as various theories concerning the epistemic limits of justification… ….”

      • Fine, I’m reasonable.

        While some justification was offered, that justification seemed to be made out of whole cloth. I will raise him to a D-, so he doesn’t have to take it in summer school.

      • This depends on which geometry class you’re taking. Euclid’s Sixth is not self-evident, nor is it true in the real world.

      • It would also be a problem in a well-taught geometry class, the point of which is to teach how to do proofs.

  10. July 4 is also the birthday of two great Yankee legends: George M Steinbrenner, former principal owner, and “John Sterling,” current WCBS play-by-play broadcaster.

    Since anyone who doesn’t root for the Yankees is a communist, it is appropriate that their biggest public face and voice are born on July 4.

  11. You’re doing Jefferson a great disservice by included the version abbreviated by 30%, removing the denunciations of slavery, and blaming it on Britain.

    He was greatly upset at the truncation… and all his life insisted that his origonal be the one preserved for posterity

    • Cletus, I’m not sure what your problem is. Is the post you’re trying to comment on more than 4 days old? Comments auto-close after 4 days.

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