A Lawyer Looks At The Declaration Of Independence07/03/2011
Lawyers know we make easy targets. We enjoy lawyer jokes as much as the next person: What's the difference between a good lawyer and a great lawyer? A good lawyer knows the law; a great lawyer knows the judge.
Still, as we celebrate our independence, we note that author Thomas Jefferson and 23 other of the 56 signers of the Declaration of Independence were lawyers, and that the document was crafted and understood fundamentally as a legal pleading, and is the product of careful legal thinking.
So lawyers can't be all that bad, right?
As convincingly argued by historian Peter Charles Hoffer in his book "The Law's Conscience: Equitable Constitutionalism in America" (1990), the structure and style of the Declaration follows a form familiar to most modern lawyers: a complaint initiating a lawsuit. There's the introduction and "whereas" section (why we're doing this); the bill of particulars (28 specific factual charges against George III); the Prayer for Relief (severing the colonies' political bonds to Great Britain); and finally, the verification where John Hancock and others put their signatures and "mutually pledg[ed] to each other our lives, our fortunes and our sacred honor." (That last part is a pretty tough standard to be sure, and one I am glad not to have to meet in every case.)
As Professor Hoffer notes, Jefferson was an equity lawyer and the Declaration advances a familiar equitable breach of trust theory, asserting that George III was a trustee for the colonies and therefore owed them fiduciary duties, and that his failure to protect them from the capriciousness of Parliament was a breach of the trust for which equity provided the remedy of independence.
However, since equity derived its power from an appeal to the King's fairness, it seemed inconsistent for the colonists to seek relief for a breach of the King's fiduciary duties from the King himself, so Jefferson and his fellow lawyers crafted the then-radical legal theory that equitable power derived from the people as the sovereign, and that the Continental Congress, as representatives of the people, could impose the remedy of independence.
Thus, the Declaration is much more than stirring political prose, and may not have been possible without the work and deep thinking by a bunch of lawyers.
So while you're enjoying the hot dogs, fireworks and sunshine on the Fourth of July, please thank a lawyer. We can happily return to lawyer jokes on July 5th.