We hear a lot about the desperate state of American society today. The news is full of stories of divisions at home and interference from abroad and talk of indictment and impeachment. If you listen to the media, you might think America is falling apart.
These certainly are times that try the souls of nations (to paraphrase Thomas Paine, about whom we will hear much more in this book). Yet despite the challenges and controversies of the day, our nation can continue to thrive. Our system has held up miraculously well for more than two hundred years—making the United States the oldest-existing nation with a constitutional government in which we, the people, elect our own leader and representatives.
Much of that success is due to the foundations of our law in the U.S. Constitution. I never stop marveling at the genius of the Constitution; that’s why after law school, I went into business to defend it: as an assistant U.S. attorney in Salt Lake City, as a law clerk for Samuel Alito (today a Supreme Court justice), and currently as a member of the U.S. Senate and its Judiciary Committee. After everything I’ve witnessed in these roles, I remain confident that our system of government protects people better than any other system of government the world has seen.
And yet, as much as we should all strive to preserve, protect, and defend our Constitution, the American system relies on more than the mechanics of government outlined in that document—three coequal branches, separation of powers, and the like—to keep the country functioning. What gives life to that system is our animating spirit, readily apparent in the Constitution’s preamble but which was more fully articulated eleven years before, in the Declaration of Independence.
The Declaration is certainly appreciated but too often not fully understood. Scores of students are busily engaged in the study of constitutional law, but who studies “Declaration law”? There are legitimate reasons for this imbalance, of course. For one thing, the Declaration is significantly shorter than the Constitution, clocking in at only 1,337 of (mostly) Thomas Jefferson’s words. And technically speaking, the Declaration is not a legal document—it does not set out a legal code or contain the building blocks for a system of government. Its purpose is far simpler—and perhaps even more prescient.
Jefferson details, in clear and often indignant language, all the various outrages that King George III committed against his own subjects, who just happened to live on the wrong side of the Atlantic Ocean. Just governance, as British subjects understood it, was indeed falling apart. The Declaration’s signers saw plainly that the decisions made by His Majesty’s Government violated their natural rights to life, liberty, and property—rights that would have been upheld had they been living in Britain.
Moreover, as colonists with no representation in Parliament, our Founders and their forebears had no way to give their consent to be governed. Equal protection of rights and the consent of the governed . . . a simple set of principles, which proclaimed to the world a new nation which was, in the words of a great American of a later generation, “conceived in liberty, and dedicated to the proposition that all men are created equal.”
This was an unprecedented origin story for a country, and the Declaration of Independence was an unprecedented document. The truth that “all men are created equal” was so simple as to be “self-evident,” the Declaration stated (although, as we will also see, these were not Jefferson’s original words). Also self-evident was the truth that all were “endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”
That “spirit of 1776”—enshrining (albeit not fully achieving) the concepts of equal rights before the law and rejecting tyrannical government—gave birth to a truly exceptional nation. It has grown into a nation that has stamped out totalitarianism around the world and remains a beacon of hope for those in search of a better life.
But I worry that too many of us—including those who serve in government—are losing that spirit. We are becoming unmoored from the Declaration’s ideals, flailing in the deep waters of our unnavigable regulatory state, an insatiable centralized government, and the winds of judicial activism—the tyrannical tendencies that rear their heads today. When American citizens can be hauled in front of administrative law judges for abiding by their honest religious convictions, as happened to baker Jack Phillips in Colorado in 2013, are all of our rights really as safe as we think?
What inspired our Founders in those first tumultuous years as thirteen colonies fought for recognition as united states? Their desire to never return to a monarchical system in which they were subject to the whims of a king and a powerful central government that acted in His Majesty’s name. Indeed, this is why the bulk of the Declaration of Independence is taken up with detailing just what King George III had done that his former subjects found intolerable. And in reading this most significant, often-overlooked section of the Declaration today, one is struck by how timely so many of these grievances sound. Consider the following excerpts:
“He has refused his Assent to Laws, the most wholesome and necessary for the public good.” When a president fails to enforce the law on the books or does so in bad faith because of political disagreements, he damages the public good.
“He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance.” Today, a massive regulatory state manned by “swarms” of unelected bureaucrats continues to harass our citizens with burdensome federal red tape.
“For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.” The individual legislatures of individual states have today been all but suspended in practice, as a flawed understanding of federalism allows for the creeping centralization of power in the hands of the federal government in Washington, DC.
Many of the problems the American colonists experienced with King George are, either directly or indirectly, still with us today. This is a consequence of a federal bureaucracy that has been allowed to expand under both Republican and Democratic presidents. It gathers more power however it can, stripping that power away from states, localities, and ultimately the people—contrary to the Founders’ intent.
Jefferson warned us about the dangers of centralized, overreaching power in the Declaration, and by heeding these warnings today, we might be able to stop the march of government expansion. What if rediscovering the Declaration of Independence—even more than the Constitution—is the key to returning America to a land of limited government, individual rights, and personal freedom? Because if we actually adhered to the spirit of the Declaration of Independence, we would have an improved state of affairs today.
In 1790, upon visiting a synagogue in Rhode Island, George Washington wrote to the Jewish worshippers that in this new nation, “all possess alike liberty of conscience and immunities of citizenship.” No longer were they subjects of a monarch whose personal biases—religious or otherwise—outweighed their dignity as beings created equal. “It is now no more that toleration is spoken of,” Washington wrote, “as if it was by the indulgence of one class of people, that another enjoyed the exercise of their inherent natural rights.”1
Nine years later, George Washington would pass away at his home of Mount Vernon, a plantation on which he lived and worked—with 317 human beings held as property. Washington’s will declared that all the slaves owned legally by him—123 in all—would be freed after his wife, Martha, died. Despite this virtuous last act, an acknowledgment of the injustice of slavery, Washington and his fellow slave-owning Founders still perpetuated a system that violated the unalienable rights of others. Realizing the ideals in the Declaration of Independence would turn out to be a very long, bloody process—and there still remains work to be done.
This is something I can understand on a very personal level. I know it may seem strange—as a white male U.S. senator, what do I know about having your rights taken away? The answer has to do with the reason I serve in the Senate as an elected official from Utah and not, say, from New York or Illinois.
I’m a member of the Church of Jesus Christ of Latter-day Saints, as are many of my Utah constituents. We Mormons didn’t end up in Utah because everyone got the same coupon in the mail. Mormon pioneers, including my ancestors, moved west because they were banished from everywhere else they tried to live. The church had its beginnings in New York, but its members kept moving westward to Ohio, then to Missouri, then to Illinois, and finally to Utah—often one step ahead of an angry mob that was dead set against living in harmony with this faith. And these weren’t simple disputes among neighbors. The discrimination against Mormons came from the top down. On October 27, 1838, Missouri governor Lilburn Boggs issued an executive order stating, “The Mormons must be treated as enemies, and must be exterminated or driven from the State if necessary, for the public peace.”
A sitting U.S. governor called for some of his people to be “exterminated” simply by virtue of the faith they practiced. This would seem to fly in the face of the protection of “unalienable Rights” that the Declaration guarantees. The “unalienable Rights” of the Missouri Mormons to “Life, Liberty and the pursuit of Happiness” were certainly not “self-evident” to Governor Boggs.
The Declaration can be ignored, perverted, and even trampled on by those who happen to temporarily hold power. We need to remain vigilant against abuses of that power even today. And there is no more powerful rebuke of overweening, centralized power than that document penned by Thomas Jefferson in 1776.
This book is a reexamination of the Declaration of Independence that aims to restore its rightful place alongside the Constitution. I hope you will be convinced of its fundamental importance to our country’s foundation and awed, as I am, by its prescient wisdom.