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The Declaration of Independence and the Rule of Law

Our world seems a little bit brighter this Independence Day. Last year, we were mired in the pandemic and widespread unrest. I suppose 2020 is a low bar. It was certainly an unusual time, and I for one am glad that year is in the rearview mirror.

There is much debate about what our nation was, is and should be. Being something of a student of history, I think much of which is bandied about these days is at best silly and at worst dangerous. When this country was founded in 1776, the Declaration of Independence gave us what we might call a “mission statement.” It was radical then. It still is:

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. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.

These days, we get hung up on the “contradictions” of the founding. Equality did not include slaves or women and even among free men the notion of universal suffrage was not fully embraced. All quite true, and certainly as to slavery that uncomfortable factor was an issue at the time of the founding. Sort of the elephant in the room. Yet what is so radical about the Declaration and what has given us the framework to make the huge progress we have is the notion that certain human rights are “unalienable.” They are not derived from the government. They are inherent. In fact, as the declaration points out, governments derive their power from the consent of the people, not the other way around.

The broad principles of the Declaration carry over to our constitution, its amendments and (usually) the other laws of the land. The progress toward fully realizing the aspirations of the Declaration has at times been a tortuous and slow course. At times we have seemingly gone backwards. One can find too many examples where our nation and society failed miserably. Still, I would submit that the overall arc of our history is one of moving towards a society that better recognizes and protects those innate rights of “life, liberty and the pursuit of happiness.”

Of course, I am a lawyer, not a historian - despite my wide reading. While the Declaration provides the mission, the framework has been the rule of law. As pointed out in the Federalist Papers, if people were angels, we would not need governments and laws. Human nature is far from angelic, to make a gross understatement. Reasonable laws evenly enforced (due process) are what allow society to function and progress. Rule of law is the check on aberrant or evil conduct. Like any human endeavor, our legal system is far from perfect. We can find many examples of its failings, but again, I think the arc of its history bends toward better justice – however uneven that progress has been and likely will be in the future.

One of our traditional songs, America the Beautiful, has a verse that neatly sums up the link between liberty and law:

America! America! God mend thine every flaw, Confirm thy soul in self-control, Thy liberty in law!

Whenever I hear it, these words send chills down my spine.

Being human, we are flawed – often very flawed - but the rule of law is the mechanism for mitigating and correcting those flaws. It is the only way that liberty is preserved, enhanced and expanded.

On this Fourth of July, we cannot ignore our flaws, old or new. That’s never healthy. At the same time, we should acknowledge and, in fact, celebrate what is so right and noble about this great social experiment called the United States of America.


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