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.