I hope everyone reading this is having a nice Independence Day. And while I encourage everyone to enjoy the fireworks, and fried chicken, I wanted to take a moment to talk about what the Declaration of Independence means to me, in part infusing the knowledge I have as a lawyer.
Abraham Lincoln once stood in front of Independence Hall in Philadelphia and said
I have never had a feeling politically that did not spring from the sentiments embodied in the Declaration of Independence.
That’s pretty close to how I am. I first read the document when I was very young—no older than nine years old. I didn’t exactly memorize it so much as I internalized it. So, while I couldn’t recite every word from memory, I could tell you every sentiment expressed in it and it is the underlying framework of how I see politics to this day. Even if I don’t mention it specifically, it is the foundation of how I see everything in politics.
But as I started to learn the law, my understanding of the document deepened. I began to see phrases as having additional meanings that only make sense if you understand the law. And, in general, I began to see people just fail to understand what the document means. I think this problem is disproportionate on the left—I think they often don’t even understand what they are rejecting—but still, I wanted to talk about how I saw it, and possibly give people a deeper appreciation for this frankly ingenious document.
And before I dig in, I should credit the book ‘American Scripture: Making the Declaration of Independence’ by Pauline Maier. I will say bluntly, I don’t remember how much of this is from her, and how much is from stuff I picked up elsewhere, and stuff I just figured out myself. But it is a good book, worth reading.
So, let’s go though this, starting with the preamble:
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,…
Now compared to the second paragraph—where the really meaty stuff comes in—this is pretty straightforward. But they reference ‘the Law of Nature’ and ‘Nature’s God.’ The law of nature, a.k.a. natural law, shouldn’t be confused with the actual workings of nature. Like some people seem to think that just because an animal does it, we should do it, too, but that’s not what this ‘natural law’ philosophy is saying. For instance, many animals eat their own young. The founders, however, would have thought this was a violation of natural law.
The Declaration of Independence actually works as a Cliff’s Notes version of John Locke’s ‘Second Treatise of Government.’ Locke argued that if you are in a ‘state of nature’ you still have rights. These were not rights in the sense that you could go to court and sue for a violation, so I tend to call these ‘moral rights’ so they don’t get confused with legal rights. Locke laid them out as the right to life, liberty and property. So, if you are in a state of nature—as in, there is no government—and your next-door neighbor starts stealing your crops, you have a right to go and reclaim them by force, to defend your right to that property. And if that neighbor says in earnest that he is going to kill you, you have a right to go kill him first, to defend your right to life. I will talk a little more about Locke's philosophy as I go on, but the obvious flaw in that state or nature is while might doesn't make right, you can only vindicate your rights if you are physically capable of doing it. And we think Locke would be the first person to acknowledge that shortcoming.
On to the next part:
…a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
I have seen people claim that this meant the founders were seeking the approval of the international community, particularly other countries. Except, well… most of the world was run by various types of tyrants. Monarchs, oligarchs, dictators and other types of tyrants are not going to be very pleased by what the Declaration says and are unlikely to support any of it. I think that people who make that argument are underestimating the importance of the word ‘decent.’ They have only a decent respect for the opinions of ‘mankind’—and humankind means more than just the heads of state, by the way. That decent respect means that they will explain themselves. But it doesn’t mean they need anyone else's approval.
And that gets us to paragraph two, as in the good stuff. And I’m going to be getting very granular here:
We hold these truths to be self-evident,…
A lot of people have criticized this phrase as saying it's not self-evident because not everyone agrees. But they aren’t saying everyone agrees, just that to them it is self-evident. It is functionally like an axiom in mathematics—basic assumptions that undergird everything else. And if you can’t agree with them on these axiomatic principles, there is no further point in discussion. That’s what they mean when they say it is self-evident.
…that all men are created equal,…
Now, here’s where I get very granular. One objection is to say that obviously not everyone is created equal. For instance, I was born with three learning disabilities. I am obviously not created equal to people who lack them. Of course, the the founders didn't know about those disabilities (although Jefferson and Washington both are believed to have had learning disabilities), but even at the time the founders knew people were sometimes born with various physical disabilities, and just in general they knew some people were born smarter or dumber, and so on.
But the equality Jefferson is speaking of was not equality in abilities. He was saying that they were equal in those basic natural rights. I will talk more in a minute about that point but that is what he meant: Equality of basic natural (moral) rights.
And that folds into another point. Jefferson gets a lot of flak because he talks only about men, and many people argue that he really meant ‘all white men are created equal.’ Let’s take that one point at a time.
First, the reference to men might mean less than you think. As I have repeatedly pointed out on this site, in the law, the word ‘man’ often includes men and women. In other words, the term ‘man’ is really read as ‘person.’ For instance, a statute making murder illegal might speak in terms of one man killing another man, but the courts will not accept as a defense that either the killer or the victim was a woman. The courts will read every instance of the word ‘man’ as being either a man or a woman in that statute. So when Jefferson talks about all men, he really might mean ‘all people.’
In any case, in my personal philosophy I read that as ‘all persons are created equal’ whether Jefferson intended it that way or not.
As for the claim that Jefferson meant ‘white men’ and not just ‘men’ the argument typically goes something like this. Jefferson owned slaves. And as you are about to see, it would be incredibly hypocritical for him to say all men are created equal if he meant to include black people in that. Therefore, since no one is ever a hypocrite, he couldn’t possibly have meant ‘all men.’ He must have meant ‘all white men.’
For instance, here’s a famous author making that exact argument:
The general words above quoted would seem to embrace the whole human family, and if they were used in a similar instrument at this day would be so understood. But it is too clear for dispute, that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this declaration; for if the language, as understood in that day, would embrace them, the conduct of the distinguished men who framed the Declaration of Independence would have been utterly and flagrantly inconsistent with the principles they asserted; and instead of the sympathy of mankind, to which they so confidently appealed, they would have deserved and received universal rebuke and reprobation.
And what old-timey document am I quoting from? Well, nothing less than the opinion of the Supreme Court in Dred Scott v. Sandford, 60 U.S. 393 (1857)—which is probably the first sign that this logic was flawed.
But first, let’s look at the evidence. It seems pretty clear to me in context that Jefferson was against slavery. The vast majority of the founders, including Jefferson, were on record saying that slavery needed to go away, but they favored gradual emancipation. Jefferson even attempted to free his slaves in his will (but he screwed that up so they weren’t actually freed).
But the smoking gun evidence actually comes from his interaction with a lesser-known founder: George Mason. Mason was charged with writing the first draft of what became the Virginia Constitution. The Virginia Constitution contained what can be best described as a ‘declaration of independence’ section. Basically, in order to explain how they even had the right to write a new constitution for the state/colony, they needed to declare their own independence. And Mason’s draft of that ‘declaration of independence’ section of the Virginia Constitution contained language that was considered to be so clearly against slavery, that it was changed to clearly exclude the slaves.
But, and this is key, when Jefferson wrote his draft of the Declaration, he borrowed from Mason’s original, unedited language. And even though there were many revisions to Jefferson’s draft of the Declaration of Independence, they didn’t change it the way they had in the Virginia Constitution. So everyone involved in writing, editing and adopting the Declaration understood that similar language was read as a condemnation of slavery … and they left it in.
As for the claim that this would be hypocritical for many people who wrote, edited and adopted the Declaration of Independence, first, hypocrites exist. They always have existed and they always will exist. As reflected in Dred Scott, some people think that the worst thing you can be is a hypocrite. What that view reflects is this weird moral relativism which doesn’t actually have morality, but only wants you to be consistent in your morality.
But I am not a moral relativist. I am a moral absolutist. One of the great advocates of moral absolutism was Martin Luther King, Jr. In one of his sermons, he argued that
The first thing is that we have adopted in the modern world a sort of a relativistic ethic. Now, I’m not trying to use a big word here. I’m trying to say something very concrete. …
Most people can’t stand up for their, for their convictions, because the majority of people might not be doing it. (Amen, Yes) See, everybody’s not doing it, so it must be wrong. And, and since everybody isdoing it, it must be right. (Yes, Lord help him) So a sort of numerical interpretation of what’s right.
But I’m here to say to you this morning that some things are right and some things are wrong. (Yes) Eternally so, absolutely so. It’s wrong to hate. (Yes, That’s right) It always has been wrong and it always will be wrong! (Amen) It’s wrong in America, it’s wrong in Germany, it’s wrong in Russia, it’s wrong in China! (Lord help him) It was wrong in two thousand b.c., and it’s wrong in nineteen fifty-four a.d.! It always has been wrong, (That’s right) and it always will be wrong! (That’s right) It’s wrong to throw our lives away in riotous living. (Yeah) No matter if everybody in Detroit is doing it. It’s wrong! (Yes) It always will be wrong! And it always has been wrong. It’s wrong in every age, and it’s wrong in every nation. Some things are right and some things are wrong, no matter if everybody is doing the contrary. Some things in this universe are absolute. The God of the universe has made it so. And so long as we adopt this relative attitude toward right and wrong, we’re revolting against the very laws of God himself. (Amen)
So, from a moral absolutist point of view, obviously the best thing is for a person to speak out against slavery, and to act in accordance with those values, never holding a person in bondage. But the worst thing isn’t to be a hypocrite. No, the worst thing is to be consistently an advocate of slavery who practiced what he or she preached.
As for people like Jefferson who advocated against slavery while holding people in bondage, his hypocrisy wasn’t his greatest sin. It was his saving grace. I will say bluntly I think every person who owned a slave endangered their immortal soul. And if there is any hope for forgiveness for Jefferson, it is because as he wrote this document, he embedded right into the founding of this country words that rang as a condemnation of all tyranny, including slavery. I believe by writing those words, Jefferson struck a death blow to slavery in America. It took a few decades for it to finally die, but that was when American slavery received its fatal wound.
And not for nothing, but even though the original Constitution reconciled itself with the reality of slavery, the founders refused to call it slavery because they thought it was a term that would stain the document. For instance, look at the famous 3/5 compromise. It is common and correct to summarize it as counting all slaves as 3/5 of a person for apportionment and taxation purposes. But it never says ‘slaves.’ Here’s what it actually says:
Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.
And the original Constitution does this constantly, going out of its way to avoid saying the word ‘slave,’ ‘slavery’ or any word like that. The first time that slavery is mentioned in the Constitution is in the Thirteenth Amendment, when it was abolished. It reflects the reality that at the founding, slave-holding public figures like Jefferson, Madison, etc. agreed that slavery should eventually be abolished. The idea that slavery was a positive good didn’t become fashionable in the South until closer to the Civil War, pushed by advocates like John C. Calhoun.
So, I have never doubted that ‘all men’ meant all men, regardless of color, and my legal knowledge leads me to believe that ‘all men’ might be better read as ‘all persons.’
And again, they are not saying that all persons are actually created equal in terms of abilities. They are only created equal in terms of their natural rights—which makes it easier to understand why the founders might have included black people and women in their declaration that all men are created equal. Many people who advocated for the end of slavery still believed that black people were inferior to white people and the belief that women was inferior to men was nearly universal at the time. But those people could still say ‘that is beside the point. These people still have the same basic natural rights as I do.’ In other words, the philosophy of the Declaration of Independence doesn’t require actual equality in abilities—only in their natural rights.
Moving on:
…that they are endowed by their Creator with certain unalienable Rights,…
Of course, 'their Creator' was a refence to God, but I want to highlight the term ‘unalienable.’ ‘Unalienable’ (or more often ‘inalienable’) refers to something that you own but can’t get rid of. In law, we usually talk about this in terms of ‘inalienable’ property. For instance, I have a license to practice law in Virginia. It is my property. But I cannot sell it to anyone else or give it away, so someone else can practice law without having earned it for themselves. So, the rights I am about to talk about, people can’t give away or sell. They have them no matter what. And what are those rights?
…that among these are Life, Liberty and the pursuit of Happiness.
Naturally, this is a direct reference to Locke, but also a modification of his words, too. Locke claimed that we had a right to life, liberty and property. But Jefferson changed ‘property’ to ‘the pursuit of happiness.’ Why? Because back then slaves were considered a form of property, and Jefferson didn’t want to imply any support for slavery.
And it is worth noting that both in the Fifth and Fourteenth Amendment’s due process clauses, they use Locke’s formulation: life, liberty and property.
Finally, we will note that the term 'among' leaves open the possibility you believing in rights that he didn't mention.
Then comes an underappreciated line in this document:
…That to secure these rights, Governments are instituted among Men,…
(Dash removed.) In other words, it is not enough for the government to avoid violating these rights. Rather the government has a positive duty to protect those rights.
Bear in mind, Locke wasn’t writing in a vacuum. Before Locke wrote his book, Thomas Hobbes wrote ‘Leviathan or The Matter, Forme and Power of a Commonwealth Ecclesiasticall and Civil.’ People usually just call it ‘Leviathan,’ which is NOT the basis of that Alien rip off from the late 1980s.
Jokes aside, Hobbes’ book argued that there was nothing worse than being in a state of nature, so that in order to enter into a civil society people gave up all of their rights to the government. And it was worth giving up all rights, Hobbes argued, because the state of nature was so awful. Probably his most memorable line was to say that life in a state of nature was ‘solitary, poor, nasty, brutish, and short.’
On the other hand, Locke made the point that while a state of nature was bad, it wasn’t the worst possible thing—some forms of government was worse than no government at all. (Modern readers would probably think of Nazi Germany being worse than no government at all, especially if you were Jewish.) One of the more interesting passages in Locke's book is that he argues that you can see what the state of nature is now by looking to foreign relations. He argued that the ‘princes’ of the world (the rulers, more or less) existed in a state of nature in relation to each other. From there he argued that we didn’t give up our basic rights when we entered into a civil society—meaning we went from having no government to having a government. In fact, as Jefferson points out, these rights were inalienable. We can't give them up. And so Locke and Jefferson argued that a government that either violates your basic rights or fails to defend them defeats the entire purpose of joining a society that has a government in the first place.
Jefferson goes on:
…deriving their just powers from the consent of the governed…
(Dash removed.) I will briefly note a subtlety here. Modern readers read this as an endorsement of democracy or at least republicism. But Locke actually said that if you voluntarily remained in a country, you gave your consent to whatever kind of government there is and their laws. And that view remains in effect to an extent where our courts basically tell foreigners present in this country who have no vote in this country that they are bound to our laws and further, that ignorance of the law is no defense in a criminal case. In short, the courts take an ‘if you don’t like our laws, leave’ attitude when it comes to immigrants. Still overall, most of the time, we think consent of the governed requires at least republican government.
And here’s Jefferson’s big move:
…That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it…
(Dash removed.) I don’t think I need to go on and on about it, but he’s saying that if the government doesn’t protect our rights, we have a right to overthrow 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.
And then once we overthrow the government, we can try to create a better one.
…Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes;…
In short, we don’t think we should do this lightly.
… and accordingly all experience hath shewn, 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.
I think this is not too hard to understand, but I will point out that the term ‘long train of abuses’ is directly from Locke.
…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.
So, here’s where the fact I am a history geek starts to come into play. Jefferson is about to start off rattling off the specific bad things King George III did to the colonies. But the dirty secret is that the King wasn’t really doing this: Parliament was. So why didn’t they say Parliament? Well, I’ll get to that in a minute.
The next part, where they say specifically what the king/Parliament did wrong, is what is commonly known as the ‘bill of particulars’ in the Declaration. This is very much a legal term dragged into a historical document. In law, very often a lawsuit can be started by a very vague claim: ‘Bob owes me $5,000 for breach of contract’—something like that. If you are the defendant, you can move for the other side to be more specific by asking the court to require the plaintiff to file a bill of particulars. That document then has to lay out the alleged facts that justify the legal claim against you in enough detail to understand what you are being accused of.
In any case, I am not going to go over the entirety of that bill of particulars, but let me quote a few of the ways that the founders said that the king had wronged them:
By assuming and exercising a power of dispensing with and suspending of laws and the execution of laws without consent of Parliament;
By committing and prosecuting divers worthy prelates for humbly petitioning to be excused from concurring to the said assumed power;
By issuing and causing to be executed a commission under the great seal for erecting a court called the Court of Commissioners for Ecclesiastical Causes;
Oh wait… sorry… I made a mistake. That is the wrong document. It’s actually the English Bill of Rights.
Or, okay, that is a patented Aaron Walker fake out in order to make a larger point. It wasn’t until I reached law school that I even knew that England had a Bill of Rights. And if you read over the document…
...you will notice that it reads mostly like a mashup between the bill of particulars in the American Declaration of Independence and our own Bill of Rights. The English Bill of Rights was written to justify deposing King James II, and putting William and Mary onto the throne at the end of the Glorious Revolution of 1688. It frankly doesn’t have the soaring rhetoric of the American Declaration of Independence but it also represented an attempt to go forward with certain rights being protected.
The big problem with the English Bill of Rights is suggested by it’s name. It was a bill of rights that eventually became a statute, but with England having no written constitution, it could be superseded by any subsequent statute. It is my understanding that basically it has been almost completely obliterated this way so that the English Bill of Rights has little practical legal effect today.
And to go off on a tangent, their original version of the Second Amendment is interesting:
That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law;
I like to point this out to leftists and say ‘this was clearly done for the benefit of Catholics, right?’
As for the philosophical justification of that Glorious Revolution, you won’t find it in the English Bill of Rights. But it is generally agreed that Locke’s Second Treatise on Government that I have been citing throughout this piece provided that philosophical foundation.
And the purpose of all of that discussion of Locke and the English Bill of Rights is to make a simple point. When we rebelled against England, we were not rejecting English values. We were actually taking the principles of the Glorious Revolution of 1688 and throwing it into the faces of the English people, saying ‘these are your principles. And you are not living up to them in the colonies.’
And this fed into part of the founders’ war strategy. There are two ways to defeat an enemy in war. You can either 1) defeat their military forces or 2) convince the other side to stop fighting. As much as some people stress that we allied with France during the Revolutionary War, the more important alliance was arguably with sympathetic British politicians in Parliament, particularly in the Whig party. (Did you ever wonder why America briefly had a Whig party? Because they were referencing the British version.) It is fair to say that we didn’t defeat the British so much as to convince them that they were wrong and to stop fighting.
And, to circle back a little bit, that is why we also accused the king of doing what Parliament was actually doing. It was a way of chewing out Parliament without calling them out by name, which was more politically palatable. Because again, we had allies in Parliament who could help us. This was part of that war strategy of ‘convince the other side to stop fighting.’
Another thing that is noteworthy about the Declaration’s Bill of Particulars becomes obvious if you remember that Jefferson believed that government not only had a duty to avoid violating your rights, but it had a duty to actively protect your rights from all comers. And if you go through the bill of particulars part of the Declaration, you can see Jefferson clearly believed that. Five times in the bill of particulars he chewed out the king (parliament) for refusing to do something that needed to be done, he accused the king of neglect once, and complained that our petitions have been ignored. This view that government has a positive duty to protect our basic rights is infused in the entire document.
In any case, I think you know how the rest goes so I will skip to the last paragraph:
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 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. 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.
But I will say that if you haven’t read the whole thing for a while, do so now. You might be surprised with what you find.
And it is worth remembering that these people were engaged in open treason against England. They weren’t kidding when they said that they were pledging their lives and fortunes and if you aren’t sure how nasty England can be when you commit treason against it, I suggest you watch the end of ‘Braveheart.’
Finally, I will end with a quote from Lincoln where he talks how remarkable Jefferson’s achievement truly was:
All honor to Jefferson—to the man who, in the concrete pressure of a struggle for national independence by a single people, had the coolness, forecast, and capacity to introduce into a merely revolutionary document, an abstract truth, applicable to all men and all times, and so to embalm it there, that to-day, and in all coming days, it shall be a rebuke and a stumbling-block to the very harbingers of re-appearing tyranny and oppression.
Amen to that. The Declaration of Independence, properly understood, is a universal charter of freedom for all people in all times. Americans have fought and died for these principles and we should never lose sight of its meaning. Because as much as the Fourth of July celebrates the birth of this country, but it is a moment to remember the sacrifices made to bring it into being, and we honor their sacrifices by reminding ourselves of these principles and giving them new life.
Enjoy the holiday, and remember the people who gave it to you.
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