Independence Day once again.

Fireworks.

Beer and burgers and brats in the backyard.

Most of the government shut down.

In celebration.  Of the founding.  It's our birthday.  We're 238 years old.

They used to play afternoon doubleheaders.  But we're 238 years old and don't engage in that sort of youthful foolishness any more.  Ernie Banks is, after all, long since retired.  

The parties now mostly pro forma.  Just another occasion to drink too much and get into an argument with a neighbor or an in-law about Hobby Lobby or Game of Thrones.

But see, here's the thing.  That birth we celebrate with fireworks and bratwurst and, well, I guess no doubleheaders.  That birth?  It wasn't wholesome and warm and fuzzy.  It was birth through revolution. 

Necessary revolution.

When in the course of human events it becomes necessary for one people to dissolve the political bands.

Necessary.  Not optional.  And When, not if.  Because for sure.  One of these days.  Not now, not today.  And that's not because we're lazy or cowrdly (though we may be both) but because it really isn't time.  Not even close.  Not yet.  But the day will come.  So they promised.  The day when we don't celebrate the birth but arrange the death.

Hurl it on the pyre.  Hope that that the soon to be born new phoenix won't look like Sheriff Joe.

An article in the Times talks about Danielle Allen's view that there wasn't supposed to be a period after "Life, Liberty and the Pursuit of Happiness."  Which actually strikes me as right, even if what she spins from that - well, you can easily derive it from the Declaration.  Not so much from the potential flow from Pursuit of Happiness to 

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

In any event, the core is closer to this.

Which is Ukrainian protestors singing "Putin Huilo" which roughly translates as 

Putin is a dickhead.

Or maybe

Putin is a dipshit.

Except, of course, that the Declaration of Independence is ours.  And really, it's a hell of a document.

IN CONGRESS, July 4, 1776.

The unanimous Declaration of the thirteen united States of America,
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.
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, --That whenever any Form of Government becomes destructive of 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. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; 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.--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.

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 mean time exposed to all the dangers of invasion from without, and convulsions within.
He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations 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 harrass our people, and eat out their substance.
He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.
He has affected to render the Military independent of and superior to the 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 a 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 offences
For abolishing the free System of English Laws in a neighbouring 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 into 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, burnt our towns, and destroyed the lives of our people.
He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & 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 endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

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 attentions to our Brittish 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.
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.

---------------------
h/t to Alan C for noticing the Times article on ProfessorAllen's insistence that Jefferson didn't put in that period after "Happiness" and to Kathy G for The news that Putin is a dickhead.

Lives, Fortunes, Honor

And so, in honor of Independence Day, the Egyptian Army staged a coup d'état.  And the people cheered.  And our government warned folks to stay away and if they happen to be in Egypt, don't go out.  Because Egypt after the coup is too darn dangerous. 

You know, we're the old established guys now.  We who were born in revolution now fear it because it involves upsetting the apple cart. 

But a couple of hundred years ago . . . .

In the course of human events.

When it was our ox being gored.

 

IN CONGRESS, July 4, 1776.

The unanimous Declaration of the thirteen united States of America,
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.
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, --That whenever any Form of Government becomes destructive of 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. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; 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.--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.

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 mean time exposed to all the dangers of invasion from without, and convulsions within.
He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations 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 harrass our people, and eat out their substance.
He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.
He has affected to render the Military independent of and superior to the 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 a 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 offences
For abolishing the free System of English Laws in a neighbouring 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 into 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, burnt our towns, and destroyed the lives of our people.
He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & 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 endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

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 attentions to our Brittish 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.
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.

The Republic Endures

On the NACDL listserv Sunday and Monday, one lawyer wrote of the Supreme Court term just ended.

It will always be known as the term where the Chief Justice and 4 other justices disgraced themselves by ignoring the Constitution in order to give the President a  political victory.  As a result, the rule of law is dead, and no person can be certain that their rights will be vindicated.
This was a disaster.  If freedoms and liberties are not upheld for all, then all are at risk.

The judgment was plainly wrong.  P L A I N L Y wrong.  Wholly unsupported by the Constitution.

And this time I am not so sure that the Republic does endure.  Or that I care if it does not.

This is the fourth Independence Day post since I began this blog in 2009.  It is not a post about the health care law or the Supreme Court's decision or whether John Roberts changed his vote and why and whether it was a good or bad thing for him to change it if he did.

It is, rather, as were my prior Independence Day posts, a post about liberty and revolution and the Rule of Law.

And about getting close enough for government work.

In the first of those posts, on July 4, 2009, I began this way.

Consider these words:

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, — That whenever any Form of Government becomes destructive of 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. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; 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.

They are, of course, from The Declaration of Independence. It's quite an extraordinary document, one well worth reading every now and again - say, on Independence Day.

They say that "all men" (and one can only wish that "all" were meant to include people of color, including those who were enslaved, and that "men" were intended to include women) "are created equal" which really leaves no room for invidious discrimination.

They say that those equal men have certain rights that are "unalienable," that is, they cannot be alienated or taken away. They say that among the unalienable rights are "Life, Liberty, and the pursuit [not the attainment, however, since that's beyond guarantee] of Happiness." They say that government exists "to secure these rights."

And they say, and these are amazing words today, but we must remember that the landed gentry who signed this document were not just the establishment - they were an establishment teeming with enlightenment ideals and with revolutionary ardor, they say that when governments don't do that job, then it is the right and the duty of the people to overthrow the government. Revolution is obligatory.

I copied that the next year, that time putting the final sentence in italics.  I didn't quote that whole thing last year.  Oh, I hit the theme, but I focused as much on the need as on the obligation.

I began (not the post, just the part of it I'm about to quote), with that sentence about the "long train of abuses."

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.

No small thing.  Not a bitch about this or that.  No revolution over health care reform or the Patriot Act or Scope and Grope.  Taxes too high or too low?  Nope, not enough. But "a long train of abuses and usurpations" intended to crush the people "under absolute Despotism."  Still, you work on it, wait on it, try to avoid it.  "[P]atient sufferance."  And then, there it is again, "now the necessity."

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.

And then the argument.

To prove this, let Facts be submitted to a candid world.

There follows the list of grievances.  It's a list that pretty well catalogues the usurpation of the Rule of Law and its replacement with the Law of Rule.

And, frankly, much as we in the criminal defense blawgosphere may bitch and moan about how bad things are, we're not close.  Much as the most rabid of the TeaPartiers may bitch and moan about how bad things are, we're not close.  This is what it takes.

Last year I then quoted the list.  I'm not going to do that now.  (It's at the bottom of this post where I've pasted the whole Declaration.)  Here, I'm offering a different list, a shorter one, inspired by (and partly stolen from) Patrick at Popehat.

• Dred Scott v. Sandford
• Korematsu v. United States
• Plessy v. Ferguson
• Buck v. Bell
• Schenck v. United States

I could easily go on, but I want to avoid getting the point lost in political quibbles or squabbles. What's striking about those cases is that they're almost universally recognized as deeply offensive to liberty, to who we are as a people, to the Constitution. 

National Federation of Independent Business v. Sebelius?

Not in the ballpark.  Nor, frankly, are nearly all those other cases that make some group of us apoplectic.

It won't come as any surprise if you've followed this blog that there's a constant tension between the Rule of Law and the Law of Rule.  And you know, or you do if you've been paying attention - not just to me and some other blawggers but to the news and, frankly, to what goes on outside your front door every day - that in the balance, on a regular basis, the Law of Rule wins.

And yet the republic endures.

Sigh.

Maybe upholding the Affordable Care Act is the Law of Rule in action. Maybe it's the Rule of Law at its best.  Same for Citizens United  or Arizona v. United States.

But Korematsu? Plessy? Buck? Those aren't even questions you can ask.

And yet the republic endures.

Looking for another case to generate outrage?  Try Imbler v. Pachtman giving absolute immunity to prosecutors.

We conclude that the considerations outlined above dictate the same absolute immunity under § 1983 that the prosecutor enjoys at common law. To be sure, this immunity does leave the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty. But the alternative of qualifying a prosecutor's immunity would disserve the broader public interest.

What "broader public interest?"  Oh, yeah, convicting bad guys.  You see, if prosecutors were held responsible for lying and cheating and hiding evidence and . . . . Well, then they might be wary of lying and cheating and hiding evidence and . . . .

So to ensure that the republic endures.

And yet it does.

Consider Matthew Swaye and his partner Christina Gonzalez.  The folks on this Wanted poster.

The offense, if you can't read it, is "30th Pct. Professional Agitators."  And the poster includes their home address.

From DNAinfo.com.

It was spotted by multiple people, including the couple, when it was taped to a podium outside a public hearing room in the 30th Precinct house last Thursday, where residents met for precinct council meeting.

"Be aware that above subjects are known professional agitators," read the flyer, which bears the NYPD shield and a seal of the NYPD's Intelligence Division. It also gave the home address of the couple.

"Above subjects MO is that they video tape officers performing routine stops and post on YouTube," the sign said. "Subjects purpose is to portray officers in a negative way and too deter officers from conducting there [sic] responsibilities."

The flyer also listed the name and cellphone number of a Sgt. Nicholson in the 30th Precinct, and implored cops to "not feed into above subjects propaganda."

Intimidation, along with a warning against getting caught abusing the power. Not bad for a simple poster.

And yet, the republic endures.

Ken at Popehat and guest blogging at The Agitator recalls watching a number of Filipinos taking the oath to become naturalized citizens.

One said, not with anger but with the tone of a dream finally realized, "We've waited so long for this."

And oh, how they had waited. These men, born Filipinos, answered America's call in World War II and fought for us. President Franklin D. Roosevelt asked the men of the Philippines to fight, promising them United States citizenship and veterans benefits in return. 200,000 fought. Tens of thousands died. They weathered the brutal conditions under Japanese occupation, fought a valiant guerrilla war, and in some cases survived the Bataan death march.

In 1946, Congress reneged on FDR's promise. Filipino solders who fought for us and their families were not given their promised citizenship, let alone benefits. Many came here anyway, had children who were born U.S. citizens, and some even became citizens through the process available to any immigrant. But many others, remembering the promise, asked that it be kept. And they waited.

They waited 54 years, until after most of them were gone. It was not until 1990 that Congress finally addressed this particular stain on our honor and granted them citizenship. (They never received their promised benefits, and never will. Some received lump sum payments of up to $15,000 in 2009 under the unpopular stimulus bill, some 68 years after more complete benefits were promised. Most of the happy men I saw that day 20 years ago are dead.)

A promise, after all, is a promise, and the republic endured the decades of shame. As it has endured, and continues to endure, the decades, no the centuries of shame of our treatment of Native Americans, you know, the ones we call American Indians. The ones with whom we broke (and, according to many, continue to break) treaties right and left.

And yet the republic endures.

And in some sense, and to some degree

• Despite the fear and outrage and horror
• Despite the broken promises and dreams deferred
• Despite Gitmo and Abu Ghraib and waterboarding
• Despite Sheriff Joe
• Despite Sharon Keller and the cold-blooded murder of Cameron Todd Willingham
• Despite Scope and Grope and the TSA
• Despite the Patriot Act and Stop and Frisk
• Despite Korematsu and Plessy and Buck and Dred Scott and Schenck
• Despite Bush v. Gore and Citizens United and Arizona v. United States
• And, yes, even despite the Affordable Care Act and National Federation of Independent Business v. Sibelius

Despite all that, the republic endures.

Shaky though it may sometimes seem.

Though Jefferson's warning, his admonition, his Declaration stands.

Not yet. Not today. But at some point. At some times. 

When in the course of human events.

Revolution is obligatory.

So said the rich white guys who put, quite literally, their Lives [their] Fortunes and [their] sacred Honor" on the parchment.

On this date 236 years ago.

IN CONGRESS, July 4, 1776.

The unanimous Declaration of the thirteen united States of America,
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.
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, --That whenever any Form of Government becomes destructive of 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. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; 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.--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.

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 mean time exposed to all the dangers of invasion from without, and convulsions within.
He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations 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 harrass our people, and eat out their substance.
He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.
He has affected to render the Military independent of and superior to the 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 a 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 offences
For abolishing the free System of English Laws in a neighbouring 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 into 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, burnt our towns, and destroyed the lives of our people.
He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & 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 endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

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 attentions to our Brittish 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.
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.

h/t Scott Greenfield and others for the story about Matthew Swaye and Christina Gonzalez

Rich, White Men - and Revolutionaries

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.

With those words, a bunch of rich white guys signed off on this quite extraordinary document.

You know how it begins, and if you don't, you should.

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. 

Think about those words.  "When . . . it becomes necessary."  Not if it should happen.  When it does happen.  For it will.  That's the opening.  In time, "in the Course of human events," it will be "necessary" - not just once, from time to time - "necessary" to undo the government.  But it's no trivial thing.  So important is it, and so important and even tenuous an act, that it must be explained, justified.  With clear argument so as to make it understood.  That's the "decent respect [owed] to the opinions of mankind."  Logic.  Argument.

First the premises:   

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, — That whenever any Form of Government becomes destructive of 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. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; 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.

And there it is again.

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.

No small thing.  Not a bitch about this or that.  No revolution over health care reform or the Patriot Act or Scope and Grope.  Taxes too high or too low?  Nope, not enough. But "a long train of abuses and usurpations" intended to crush the people "under absolute Despotism."  Still, you work on it, wait on it, try to avoid it.  "[P]atient sufferance."  And then, there it is again, "now the necessity."

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.

And then the argument.

To prove this, let Facts be submitted to a candid world.

There follows the list of grievances.  It's a list that pretty well catalogues the usurpation of the Rule of Law and its replacement with the Law of Rule.

And, frankly, much as we in the criminal defense blawgosphere may bitch and moan about how bad things are, we're not close.  Much as the most rabid of the TeaPartiers may bitch and moan about how bad things are, we're not close.  This is what it takes.

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 mean time exposed to all the dangers of invasion from without, and convulsions within.
He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations 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 legislatures.
He has affected to render the Military independent of and superior to the 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 a 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 benefit of Trial by Jury:
For transporting us beyond Seas to be tried for pretended offences:
For abolishing the free System of English Laws in a neighbouring 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 into 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, burnt our towns, and destroyed the lives of our people.
He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation, and tyranny, already begun with circumstances of Cruelty & 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 endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

Or something of the sort.  Which will happen.  Because in time, power will beget power.  Absolutely.  And always.

Then, then, 

it is their right, it is their duty, to throw off such Government.

The thing is, Jefferson really believed it.  He is, after all, the one who offered this.

The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.

Damn.

A bunch of rich white guys.  

Their lives, their fortunes, their sacred honor.

Happy Independence Day!

On Constitutional Interpretation and the Opinions of Mankind

I've said before that the Declaration of Independence, that extraordinary document, is not the law of the land.  It's a campaign speech, a call to arms.  It rouses and inspires.  But it has no legal consequence.  Still, you might think that those who believe the Constitution (the legal document) must be understood exclusively as things were thought to be in the just-recently-former Colonies of the late 1700s might attend to the words of that campaign speech.

I was reminded of that while reading this article by Robert Barnes on Sonia Sotomayor and her first term on the Supreme Court from Sunday's Washington Post.

Here's the part that caught my attention.

Republicans on the Senate Judiciary Committee are concerned that Sotomayor has not lived up to her pledges. At her hearings last summer, she told the committee that she considered the court's 2008 decision in District of Columbia v. Heller, which held for the first time that the Second Amendment protects an individual's right to gun ownership, to be "settled law." But when the court last month extended the Second Amendment's reach to local and state governments, Sotomayor joined a dissent that raised questions about whether Heller had been properly decided. Sens. Tom Coburn (R-Okla.) and John Cornyn (R-Tex.) accused Sotomayor of insincerely telling the senators what they wanted to hear.

And Coburn wrote to Sotomayor after she joined the majority opinion that declared juvenile life-without-parole sentences unconstitutional. He objected to the decision's having found support in the idea that the United States is virtually alone in allowing the punishment. "Its conclusion conflicts with your pledge to the Judiciary Committee and the American public 'not to use foreign law to interpret the Constitution,' " he wrote. Coburn acknowledged that the opinion did not rely on foreign law as a precedent. 

They're right about Heller, though I'm not so sure that saying something is "settled" means as much as everyone seems to think it does.  Whenever SCOTUS decides something, it's "settled."  That's because the Court is final.  But saying something is "settled" doesn't say much, if anything, about whether it was settled properly or whether the settlement ought to be allowed to remain on the books.  Elena Kagan used the word so often at her hearings before the Committee that, if it were to be taken as an oath of permanence, the only case it might allow revisiting is Korematsu v. United States. 

Anyhow, what struck me was that whole silly using foreign law thing.

I get that the Constitution is ours, not some other nation's.  And I have no problem with the principle that the U.S. Constitution means what it means regardless of whether some other nation (or all other nations) think what it means is stupid or evil.  Other nation's laws (even their Constitutions) cannot be and should not be binding on our interpretation of our Constitution.

The part I don't get is why those things can't ever be allowed to inform our decisions.  Hell, if I were on the Court and thought that an advertisement in the Brooklyn Yellow Pages from 1947 could help me understand a provision of the Constitution (and no, I can't think of an instance where that would be so), I'd use it.  Why in the world would I exclude from consideration what other countries do?

But that's really neither here nor there.  I'm not on the Court.  I don't want to be on the Court.  (Sorry Barak, but you can take me off the short list for the next opening.)  And my view of what to read doesn't much matter.

But Jefferson?  Adams?  Franklin?  The Lees (Richard Henry and Francis Lightfoot)? The charmingly named Button Gwinnett?  All the rest?  Because here's the first paragraph of what they signed.

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.

Notice that part about "a decent respect to the opinions of mankind"?  They may or may not have had in mind only male property owners such as themselves, but those property owners included the ones in England and France and everywhere else in the world of the Enlightenment as they understood it.  It sure wasn't just those in the being-declared-no-longer-to-be Colonies.

Got to look abroad then.  So why not now?

You Say You Want a Revolution? Nah.

Consider these words:

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, — That whenever any Form of Government becomes destructive of 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. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; 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.

They are, of course, from The Declaration of Independence. It's quite an extraordinary document, one well worth reading every now and again - say, on Independence Day.

They say that "all men" (and one can only wish that "all" were meant to include people of color, including those who were enslaved, and that "men" were intended to include women) "are created equal" which really leaves no room for invidious discrimination.

They say that those equal men have certain rights that are "unalienable," that is, they cannot be alienated or taken away. They say that among the unalienable rights are "Life, Liberty, and the pursuit [not the attainment, however, since that's beyond guarantee] of Happiness." They say that government exists "to secure these rights."

And they say, and these are amazing words today, but we must remember that the landed gentry who signed this document were not just the establishment - they were an establishment teeming with enlightenment ideals and with revolutionary ardor, they say that when governments don't do that job, then it is the right and the duty of the people to overthrow the government. Revolution is obligatory.

That's how I started last year's Fourth of July post (though I didn't put the last sentence in italics last year).  It's not a bad way to begin this year, either.

And so with revolution in our souls, let's look one more time (I'll try to hold myself in check for a bit and at least consider having it be the last time) at the Generalissima, Elena Kagan - about as non-revolutionary a choice as there could be for the Court.  No surprise that the guy who eschews excitement would choose a nominee who exudes none.

She could end up voting my way on every issue to come before the Court.  (I'd be surprised, really I'd be shocked, but it's theoretically possible.)  I still wouldn't think it was good to put her on the Court (though I'd like her votes).

I want a lawyer who's actually practiced law.  I want someone who's stood in the well next to some poor person charged with a crime or victimized by the police or an unfeeling government agency or a major corporation.  I want a person on the court who knows what it means to stand up for the Bill of Rights at some risk.  Someone who actually knows something about risk.  Someone whose trajectory offered something other than a direct line to where she is.

I want a justice who understands constitutional rights both from the ground up and from the top down.  The Generalissima gets them, insofar as she does, only from the top down.

But then, I get the idea of the Declaration of Independence.  It's a call for revolution by a bunch of wealthy landowners (the same sort who brought King John to heel at Runnymeade and made him sign Magna Carta).  [It's no surprise that having established their republic, these same men were eager to protect "life, liberty, [and] property.]  And yet, there was more.

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.

No small thing, that.  And truly at risk.

The Declaration is not a blueprint for government. (That's the Constitution.)  It is, as I said last year, "a campaign speech for overthrow of tyranny."  And it's one of our sacred documents.  Think about that.  Then look at the Supreme Court.  

Is there even one of them who'd sign?  Who'd risk life, fortune, honor?  One of them for whom honor itself might be something sacred?  

Look at Elena Kagan.

Happy Independence Day.

Sigh.

Archimedes to Ben Franklin

It's not certain just what Archimedes said.  We don't have his written version (if there ever was one), and if we did it would no doubt lend itself to varying translations.  But the idea is clear enough.  With a sufficient lever and a fulcrum and a place to stand, one can move anything.

Archimedes was speaking literally.  He was concerned with physical objects and physical forces.  His fulcrum and lever were imagined, not metaphorical.  But metaphorical they might have been.  For pressure properly applied can work amazing changes.

Consider, then, the power of the question.

It's Rhetoric 101.  If you get to choose the question, you can control the answer.  Opinion pollsters know this.  Ask Americans if they believe in the Bill of Rights, they say they do.  Read them the provisions and support goes way down.  It's a variation on the idea that words matter.

Which brings us to terrorists and enemy combatants.

Liz Cheney, daughter of he who favored ("I'm a strong believer in it," he said at the National Press Club last year) and still favors (it should have been an option for use on the alleged underwear bomber) waterboarding, says (through her organization, Keep America Safe, that those who chose to represent prisoners at Guantanamo are supporters of Al Qaida.

The perhaps aptly named Andrew McCarthy, in Room For Debate at the NY Times on-line agrees.  So does Rush.

Pretty much everyone else disagrees - from the other commentators at Room for Debate to the New York Times Editorial Board to conservative signatories of a letter condemning the KAS video.  Dahlia Lithwick  called her out.  So did Orin Kerr.  Nearly everyone has mentioned John Adams and his defense of the British soldiers.  (McCarthy acknowledges the propriety of what Adams did but says it doesn't apply.)

More than a few have noted, although in different language, that the lawyers at issue weren't defending terrorists and enemy combatants, they were defendant those accused of being terrorists and enemy combatants, which is something rather different.  As we tell jurors, the indictment is no more than a statement of the charges; it's not evidence of anything.*  On the other hand, the implication that it's only OK to defend up until the point where guilt is established and after that defense is treason is remarkably dangerous and, er, unAmerican.

Scott Greenfield talks about how war trumps all and how everything is now a war.  That's true, but like the focus on whether or not the Gitmo prisoners are actually what they are alleged to be, it's too limited a way to talk about it.

It is, I think, ultimately about the rule of law (make that Rule of Law) and the underlying point behind the Rule of Law.  It is about insisting that principles matter and the first principle isn't j'accuse.  Nor is it Ed Meese's "If a person is innocent of a crime, then he is not a suspect."  It's not even innocent until proven guilty.

The first principle is about standing up to the abuse of power.  It's the Declaration of Independence, which, you'll recall, is a document of revolution.  Our country was founded on rejection to tyrrany, on refusing to be victims of unreviewable decisions by those in power. 

Despite what many think, the Declaration isn't law.  It's a document of no legal consequence today.  But there's no more powerful statement of just who we are and what we want to be.  And like Magna Carta, it stands for the basic principle that the Rule of Law beats the rule of power and announcement.  Every time.

I wonder some, and have written more than a bit, about just what it is that lawyers do.  Who we are.  Why we do what we do.  What keeps us going.  I'm not going to link to those posts here.  Root around the blog and you'll find them.  I believe in the client and the work.  I am a criminal defense lawyer and a capital defense lawyer and there's nothing I take more seriously.  But when I think about how I got into this line (beyond serendipitous chance), I think about power and taking it on, which I did, in my own ways, long before I ever considered the idea of going to law school.

Because, really, the Rule of Law is about standing up to the Law of Rule.

Liz Cheney and her people want to live in a dictatorship.  They don't say that.  They'd probably disagree.  But they do.  Except, see, they don't live in one.  Damn frustrating for them.

Franklin, is said to have remarked on coming out of the Constitutional Convention and being asked what they had wrought, "A republic if you can keep it."

Yep.

Take that, Liz.

--------------

*I used to grumble all the time that the media would report that so-and-so pleaded "innocent" to the charges.  Nobody pleads "innocent."  It's not one of the options.  Even if you say it (OJ did), it doesn't go down that way.  The plea is "not guilty."  Then Eleanor Clift (or maybe it was her husband, Tom Brazaitis) explained to me that there's a real danger of accidentally leaving out the word "not" so they go with innocent instead.

Are they really self-evident?

Consider these words:

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, — That whenever any Form of Government becomes destructive of 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. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; 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.

They are, of course, from The Declaration of Independence. It's quite an extraordinary document, one well worth reading every now and again - say, on Independence Day.

They say that "all men" (and one can only wish that "all" were meant to include people of color, including those who were enslaved, and that "men" were intended to include women) "are created equal" which really leaves no room for invidious discrimination.

They say that those equal men have certain rights that are "unalienable," that is, they cannot be alienated or taken away. They say that among the unalienable rights are "Life, Liberty, and the pursuit [not the attainment, however, since that's beyond guarantee] of Happiness." They say that government exists "to secure these rights."

And they say, and these are amazing words today, but we must remember that the landed gentry who signed this document were not just the establishment - they were an establishment teeming with enlightenment ideals and with revolutionary ardor, they say that when governments don't do that job, then it is the right and the duty of the people to overthrow the government. Revolution is obligatory.

So: The Declaration says that government cannot take away the life of a citizen (not a subject, since it is government established by the people - a bottom up, not top down system) but must secure it. No death penalty. Period. (They didn't mean that, of course, though Jefferson was generally opposed to the death penalty.) No encroachments on "liberty," though that's more difficult since "liberty" is less clear a term than "life" (which has its own ambiguity - consider abortion) and besides freedoms can collide and something will have to give. And no interference generally with people's activities. That last is something like what Justice Brandeis said (in dissent, alas) in Olmstead v. United States:

The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings, and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone -- the most comprehensive of rights, and the right most valued by civilized men.

As Brandeis understood the goal, so he understood the threat:

Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning but without understanding.

Brandeis understood that. Those revolutionary land and slave owners who signed the Declaration understood it viscerally if not literally.

It's a good day, this 4th of July, to recall all of that. But we need, too, to remember that the Declaration is not law. The Constitution is. And where the Declaration is a campaign speech for overthrow of tyranny, the Constitution is what they put in its place.

My seventh grade history teacher told us (and this is probably the only specific thing I remember from the class) that "Democracy is the system that allows you to choose your dictator."

Happy Independence Day!!