The Declaration of Independence is one of the two most revered documents in American history (the other being the U.S. Constitution.) It is without doubt a remarkable document. From the perspective of a twenty-first century appellate lawyer, however, it leaves much to be desired as a example of persuasive legal writing. Now, before you tar and feather me, please allow me to explain.
Imagine the following colloquy between a lawyer and a judge:
Judge: Counselor, you argue in your brief that the earth revolves around the sun, not the other way around.
Counselor: Yes, your honor.
Judge: On what basis do you make that argument?
Counselor: It is self-evident your honor.
Judge: Do you have any proof, any evidence, to support your argument?
Counselor: As I said your honor, the truth of the argument is self-evident. The truth is obvious to any person of normal intelligence. I don’t need to prove the obvious.
Judge: So, you’re saying that by asking you to substantiate your argument, I’m an idiot?
Counselor: Well, if the shoe fits your honor. . . . .
The point of my imaginary conversation (assuming it is not self-evident) is this: when a lawyer is attempting to persuade a judge to accept an argument, telling the judge that the argument is “self-evidently” correct is not very persuasive.
Yet, Thomas Jefferson used precisely that technique when he drafted the Declaration of Independence. Moreover, that technique has ancient origins–the Greek mathematician Euclid.
Recall high school geometry. Your teacher taught you that Euclidean geometry is based on and derived from certain “axioms.” An axiom is a proposition or statement that is regarded as self-evidently true; as obvious; as universally accepted on its face. Euclid demonstrated that all sorts of amazing geometric propositions, indeed an entire internally consistent geometric system, could be logically deduced from only a handful of axioms (and a few things called “postulates”).
When Thomas Jefferson wrote, “We hold these truths to be self-evident [his original draft said “sacred and undeniable”], 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. . . . ,” the parallel to Euclidean geometry was not accidental. In fact, Jefferson was a fan of Euclid.
I’d like to say that my insight into the parallels between the Declaration of Independence and Euclidean geometry is original, but that would be a lie. Many people have written far more thoughtfully than I about these parallels.
By characterizing the core propositions of the Declaration of Independence as self-evident truths–as axioms–Jefferson imbued the Declaration with great rhetorical strength as a political document. But he also relieved himself of the need to prove his assertions, something that is essential to legal advocacy. A great and terrible war would be fought some four score and seven years later because the South disagreed with those self-evident truths.
My point in writing this post is not to denigrate the Declaration of Independence, nor to question its core assertions about equality and liberty. I concur completely with those propositions, although I think they are better understood as normative, rather than empirical, propositions. Rather, I only want to suggest to my colleagues at the bar who make a living trying to persuade judges to accept certain arguments that describing a legal or factual proposition as “self-evidently” true is questionable as a persuasive technique.