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Injuries and Usurpations, 250 Years Later

Featuring: Thomas A. Berry, Director of Cato’s Robert A. Levy Center for Constitutional Studies, and Ryan Bourne, Cato’s R. Evan Scharf Chair for the Public Understanding of Economics

Ryan Bourne: Most Americans know the opening line of the second paragraph of the Declaration of Independence: “We hold these truths to be self-evident.” Many will remember too the Declaration’s claim that governments derive their just powers from the consent of the governed. But fewer of us, I suspect, could recite the history of repeated injuries and usurpations that followed — the practical indictment of King George III through which Thomas Jefferson laid out the specific complaints that justified separation. Now, in the aftermath of last week’s celebrations to mark the 250th anniversary of the Declaration, a new Cato volume, A History of Repeated Injuries, asks what those grievances meant then and whether modern American government has reproduced analogues of those injuries today. I’m Ryan Bourne, Cato’s R. Evan Scharf Chair for the Public Understanding of Economics, and I’m delighted to be joined by the book’s editor, Tommy Berry. He’s director of Cato’s Robert A. Levy Center for Constitutional Studies and editor in chief of the Cato Supreme Court Review. Tommy, welcome to the Cato podcast.

Thomas A. Berry: Great to be here. Thanks for having me, and excited to talk about the book.

Ryan Bourne: So Tommy, the Declaration is often treated, particularly here at Cato, as a kind of civic scripture. But most people cite the soaring universalist language at the start. Your book asks us to spend time with the more legalistic, accusatory part of the document — that list of injuries. What made you want to organize a whole book around those grievances? And why do you hope readers would get something out of returning to them 250 years later?

Thomas A. Berry: Yeah, thank you. Well, I think when we were brainstorming, what does Cato specifically have to bring to the table that’s unique in both public policy discussions, but also in this historical moment we’re having with the 250th anniversary and with all Americans thinking about our shared historical record, our shared birth story, origin story? And I think what struck us, especially when looking through that list of grievances, is just how much it echoes into the present day, but also how much they are grounded not just in specific complaints that these injuries were a pain to deal with. It’s not just high taxes, but they were actually grounded in pretty core classical liberal values — that these policies were not just wrong, but they were imposed anti-democratically, without proper input, with favoritism towards allies of the King, without due accounts of principles like federalism, more local control, consent of the governed.

And I think thinking about that gave us the inspiration. And I should give a lot of credit to my colleagues, Ivan Osorio and Ellen O’Connor, and the publications department, who really had the original idea for this volume. I think that made us realize that we can bring to the table both mastery of current public policy issues, but also the fact that so much of what we do is grounded in principle, grounded in history, and the fact that in some ways there’s nothing new under the sun, and that a lot of the same classical liberal principles that provided answers 250 years ago can provide answers today.

Ryan Bourne: And we’re going to talk about a lot of the specific complaints later in the podcast. But of course, there are a lot of grievances here — things about legislatures, courts, taxes, armies, trade, immigration, and a lot more. Now, your book can’t treat every one of those clauses equally. So how did you decide which injuries deserved chapters? And were there any grievances that you considered including, but then left out?

Thomas A. Berry: Oh, good question. I think to some extent they jumped out because of the things that are of the moment, and that we spend so much of our time thinking about here at Cato. When you see a grievance about putting up blockades to trade, how can that not jump out at you, given the debates and controversies we’ve had about tariffs over the last two years? When you see a grievance about cutting off the flow of immigration and preventing free immigration, that obviously is such a core interest of ours here at Cato as well. I would have loved to have a chapter about quartering soldiers in people’s homes — could potentially connect that to things like the takings clause, taking private property for public use, and things like that. A lot more that could have gone into the book. But I think we really focused on those areas where there is a very clear through line to public policy controversies that are right in the crosshairs today of public debate and where Cato scholars have been doing great work.

So, of course, before the list of injuries, the Declaration makes the famous philosophical argument about the importance of natural rights, equality under the law, consent of the governed, and the right to alter or remove a destructive government.

Ryan Bourne: So Roger Pilon, I think, does a really beautiful opening chapter arguing that this is not just decorative language. This is the standard by which all those other later grievances must be judged. And I think that’s what this book is really about, isn’t it? It’s about trying to recover the theory of legitimate, limited government that makes all of those other grievances meaningful.

Thomas A. Berry: That’s exactly right. So just because my taxes are too high doesn’t mean I get to overthrow the U.S. government. Just because I don’t like tariffs, or I don’t like the Jones Act, doesn’t mean I get to overthrow the U.S. government. There has to be a deeper theory to it, and there has to be a more fundamental problem. And Roger’s chapter, as you say, lays out this theory that it wasn’t just bad policy — it was that the British government had fundamentally erred from the baseline expectations of any good government, that they were enacting policies for the enrichment and benefit of those connected to the imperial capital in London, those connected to the ruling party, the ruling king, not with an interest towards the common good, and not with any appreciation for the core zone of unalienable rights, which if you infringe them, it’s basically impossible to have human flourishing without a government that respects those core rights. And that philosophy can be traced back to John Locke and others who the framers, including Thomas Jefferson, had all read.

Ryan Bourne: So the Declaration itself criticizes Britain for imposing taxes on us without our consent. There’s a great chapter here from Adam Michel and Joshua Loucks, who argue that that grievance wasn’t just, as you say, about colonial taxes being high. In fact, the colonial tax burden was much lower than back in the motherland in Britain. The deeper complaint was taxation imposed without that consent and designed in ways that were discriminatory.

Thomas A. Berry: That’s right. It was favoritism towards the companies that the English government wanted to promote, wanted to protect — protectionism, we would call it today — most prominently the East India Company, that essentially had an exception from these taxes that were imposed on the Americans. So it was very much an attempt to lift up one favored company and punish, basically suppress, American competition. And that’s what felt like it’s not an even playing field. And that’s what the Tea Party was actually about — they were specifically throwing over the tea of the East India Company that could evade these taxes for no good reason other than that they were allies of the ruling party. And you see a lot of the same issues today with favoritism, unequal treatment. The core protection, I think, against bad policies is at least if you’re going to have a bad policy, apply it equally, because then everyone bears the brunt of it and feels the hurt in some way. But when you have bad policies that are imposed unequally on an unconnected or unpowerful minority, or even sometimes a majority that just isn’t able to influence the government, that’s when you really have no recourse, because the people in favor, they’re not bearing the brunt of the policies they’re enacting on others.

Ryan Bourne: Yeah, no, that’s a really good point. And a point that I took away when reading the chapter really is that there are lots of complaints that we make about tax policy at the moment, lots of carve-outs from the tax code that if you apply the high principle inherent within the Declaration, you could say that they’re discriminatory and privilege some groups compared to others. But recently there’s been a turn of a lot of benefits and things that benefit a specific industry relative to another — like a specific form of energy generation, for example, green energy in the IRA bill that Joe Biden passed, the IRA subsidies. And of course, more recently we’ve seen forms of economic policy that benefit one type of company relative to another — you know, give a certain company special access to be able to export their goods as long as they provide a particular proportion to the federal government in some new fund. So this seems like an area where we’re actually slipping back, and we may have overcome the injury before, but we’re kind of slipping back away from the high principle here.

Thomas A. Berry: Unfortunately so. And it’s not just bad economics — and of course, you know very well why it is bad economics to have this favoritism, to put a thumb on the scale and not simply allow the competition of a free market to play out and let the chips fall where they may. It’s not just bad economics — it’s also bad government, bad public policy, and just bad from a classical liberal view of equal treatment and equal protection.

Ryan Bourne: So the Declaration’s list of injuries is not all about economics — audience, I’m sure, will be pleased to hear. The Declaration also talks of Britain depriving us in many cases of the benefits of a trial by jury. Now, the right to trial by jury can sound like a procedural issue, but I think Clark Neily’s chapter really makes it much more fundamental. He argues that the founders didn’t see juries as mere fact-finding bodies — they saw them as institutions of direct self-government. So why did the trial by jury loom so large for the founding generation?

Thomas A. Berry: Well, you’ve set it up exactly right. They treated it as one half of democracy — well, the other half being voting — but they saw them as equally important, in some ways two sides of the same coin. Democracy, voting writ large, is how you survey the populace for its policy views. But a jury is kind of like a specific survey, or a gut check, against the injustice of a particular action by the government, a particular attempt to apply the law to a given set of circumstances. And it asks a random set of twelve people in that same community: is this just or not? And that’s a pretty powerful way to avoid going off the rails, which it’s so easy to do, especially when so many laws are so broadly and vaguely written that they could be applied very unequally if you didn’t have that check against it — if you didn’t have the local community deciding, is this at a basic level just, or is this so off the rails that we’re not going to go along with your attempt to prosecute and convict this person?

There were specific examples that were very well known to the American colonists, such as the trial of William Penn, later the founder of Pennsylvania, for so-called preaching against the teachings of the Church of England — given how important religious liberty was to the American colonists as a reason for coming here, the fact that he was acquitted by a jury, despite probably being under the letter of the law guilty, was hugely influential. And in the United States as well, the trial of John Peter Zenger for so-called seditious libel — saying true, but damaging things, criticism of the governor general of New York State at the time — was another case where, under the letter of the law as applied at the time, truth was not a defense. Nonetheless, a jury acquitted him of seditious libel based on the sense that it was unjust and had violated core free speech principles and core principles of democratic debate. So having these two examples at hand were a huge influence on the framers to realize we can’t risk getting rid of the trial by jury, because you lose that check of the people evaluating the justness of prosecutions.

Ryan Bourne: So what had happened that meant that it was serious enough to appear in the Declaration’s indictment? How had this right been impaired?

Thomas A. Berry: In several ways. So one of these so-called Intolerable Acts by the British Crown was that when members of the British government were tried for alleged violence or other crimes in America, they were allowed to go back to England and have their trials, despite the fact that the alleged incident had happened in the United States. So this meant that, again, you were deprived of the local jury — the jury that would have been most attuned to the community standards at the time, and also most likely to have access to the evidence and testimony of witnesses. It was sometimes called the “get away with murder” law, because in practical effect it often just made it impossible to have a trial back in England. And even if you did have a trial, the local jury there might be much more favorable to the British Crown. So that was one reason.

Another reason was the so-called vice admiralty courts, which started as a relatively narrow exception to trial by jury. These were situations where someone was alleged to have violated, for example, tariffs or other trade rules — running a ship past the checkpoint that they shouldn’t have. They would go to maritime court, which at the time did not have trial by jury. But increasingly, the King liked this so much that more and more civil prosecutions, more and more civil cases, were funneled into these vice admiralty courts just purely to evade jury trial. And so those were the two key examples where the framers basically said, we’re going down a path here where if this continues, we’re eventually going to reach a point where the King can basically charge you with anything and get it without a jury trial, often with a judge who’s not life-tenured, but removable at will by the King, and thus loyal to the King, and often in a very inconvenient location, either back in England or at the vice admiralty court in Nova Scotia.

So the modern contrast drawn in the book is pretty stark. It argues that instead of ordinary citizens routinely judging criminal prosecutions, we now have a plea-bargain-driven system, which in effect means that although the jury trial system technically survives, in practice it is almost absent from the criminal justice system. It’s something like 98% of convictions in the criminal justice system are by plea bargain, meaning you never had a jury of twelve find that you were guilty beyond a reasonable doubt. Under 2% are actually convictions by trial by jury. And there are multiple reasons for this. Unfortunately, the Supreme Court has blessed many coercive tactics by prosecutors — they’ve allowed prosecutors to threaten to prosecute defendants’ families unless they plead guilty, massive disparities in sentencing, the so-called trial penalty — you know, you’ll get probation if you plead guilty, but you’re at risk of thirty years in jail if you fight it and go to trial. All sorts of things that make it almost impossible in practice for someone to make a rational choice to fight the charges rather than plead. There will be claims that this is the only way for the system to work, that we just don’t have the capacity — the number of judges, the number of trial courts, the number of people available for juries for the number of prosecutions we have. But I think that assumes too much. It assumes that the number of prosecutions we have is the correct number. And if we actually required a jury trial in every single one, you would have more selective prosecutions, as we did at the time of the framing. That’s part of what a prosecutor should have to think about — is this worth the resources of the federal government to prosecute, including a judge’s time and a jury’s time?

Ryan Bourne: Yeah, that was a great point that I appreciate as an economist. If the plea-bargaining system reduces the cost of convicting and criminalizing people, then in equilibrium you’re probably going to get more people convicted and criminalized. People argue now it’s an efficient workaround, but they’re talking as if today’s number of convictions is the absolute right number. And that’s a really powerful point that I think this chapter debunked. So you have a chapter on the civil jury right too. Can you just outline specifically what that is and how that differs from the criminal right to jury trial?

Thomas A. Berry: Yeah. So civil cases — probably most people, when they hear civil law, they think of a lawsuit between two private citizens against each other, something like a car accident or any other type of injury. The key difference is you’re not at risk of going to jail in a civil suit — usually it just means you have to pay money. But another huge category of civil suits is the government going after you. And in a lot of ways, government civil suits against private citizens don’t look that different from criminal prosecutions. True, they can’t put you in jail, but they can fine you for millions of dollars. They can also take away your license to practice your career, your livelihood. And in the 20th century, as we had the administrative state build up into the behemoth it is today, the various alphabet-soup agencies — like the Securities and Exchange Commission, the Federal Communications Commission — each one of them created their own in-house adjudication system to get around the federal court system. So no Article III life-tenure judges, no juries. If people were accused of violating securities law, violating communications law, and the government went after them with a civil prosecution, they go to these administrative processes, and in many ways they’re found liable, they’re fined for millions of dollars, without ever seeing a jury. And that’s the big concern. And that’s ultimately what the Seventh Amendment was enacted to prevent. We’re only just now seeing the Supreme Court start to push back against this practice and give the Seventh Amendment some teeth again.

Ryan Bourne: So you’re arguing essentially that, like those colonial vice admiralty courts, the modern parallel is the government finding new ways through administrative law judges to find a forum that’s friendly to the government’s interests.

Thomas A. Berry: Exactly. Very, very similar. And it’s not just me making this argument — the Supreme Court itself, in a case called SEC v. Jarkesy, brought up the history of the vice admiralty courts, which shows this history is not just for fun. It’s not just for debating societies or philosophical edification. It matters to these constitutional debates we’re having right now, because knowing the history, knowing why something was in the Declaration, helps you know why it was in the Constitution. And ultimately that helps you win cases at the Supreme Court about the Constitution.

Ryan Bourne: I was really struck by the complaint about immigration, which I hadn’t really read before until I’d seen the book. So let me just read it to you: “He has endeavored 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” — I love the word “hither” — “and raising the conditions of new appropriations of land.” So the Declaration is actually complaining that the King is obstructing naturalization and discouraging migration to the United States. David Bier argues therefore that the founders were actually broadly committed to free immigration, and they weren’t merely tolerating newcomers, but seeing America as an asylum for the oppressed and a magnet for population, enterprise, and liberty. Why do you think that part of the Declaration gets so little attention?

Thomas A. Berry: Good question. Well, as David lays out, it’s hard to find any other policy area where the presumptions and attitudes of the federal government have switched 180 degrees to the extent that this has — where up until the early 20th century, the default rule was that you are presumptively allowed to enter this country. And as you say, as you read that language, it would have been pretty hypocritical for the framing generation not to have welcomed the vast majority of immigrants, given that everyone there would have been at most a few generations into being an American, a few generations removed from immigrating to the states. That was the main way that the states were increasing their populations, and they understood that they needed to — they were, in many cases, quite small, still vastly smaller than England, and the best way to start to build up infrastructure, start to compete with other countries on the global economy, was to increase population at a rapid clip.

Starting in the 1920s, as David lays out, we completely changed our approach to immigration. We now have a system where you are presumptively not allowed in this country unless some exception applies to you — you meet a quota, you meet rules for asylum, and so forth. And so now the attitude is one of skepticism and looking askance at potential immigrants, thinking they’re trying to get one over on us and looking for all the ways that they might fail to qualify to enter this country. And it’s unfortunate that at least at the federal level, legal culture has moved in that direction, and I think that shows that we’ve lost connection with those original attitudes. So as far as David’s work outlines, the situation really flipped in terms of that presumption in the 1920s. And just to give you a figure here that I think is pretty striking, David’s work estimates that only 3% of people with pending green card applications would receive permanent residence in fiscal year 2024. So much, much higher demand to be here than the number of permanent immigration settlements we’re willing to supply.

Ryan Bourne: So what would that actually mean, to take the founders’ immigration grievance seriously today? Because I think some people might read this and say, well, therefore, are you arguing for completely open borders for everyone in the world? Can you kind of justify an immigration policy according to this principle? Or does it necessarily mean an open border for anybody who wants to come?

Thomas A. Berry: You can definitely justify it, and no, it’s not just a completely open border without checking who is coming in. Even at the time of the framing, there were laws about people with infectious diseases, people with criminal convictions — they wanted to know, they would check who is coming in. And part of the Constitution was that the federal government did get centralized control over naturalization — it was thought that you didn’t want to just leave it up to the states. But in general, the default presumption was you’re allowed to come in unless you have one of these problems that tips the scales and makes it so that it’s no longer permissible to come in. And the other big difference is that the states themselves wanted as much immigration as possible — they were in competition with each other as well, and so they viewed immigration as an asset, an economic asset, to further their growth. If we were closer to the attitudes of that time today, you would have a lot more complaints from states against the federal government: we want these people to come into our state, boost our economy — why is the federal government getting in the way?

Ryan Bourne: So another complaint, of course, was about cutting off our trade with all parts of the world, and that seems to be something we’re living through at the moment. Doug Irwin, who I think is one of the top scholars on the history of U.S. trade policy in the world, argues that the policies of the time — things like the Navigation Acts and various trade restrictions — did matter, but their aggregate burden perhaps was relatively modest. What really mattered, though, was that those burdens were unevenly distributed. So you had big losses for politically influential groups, people like tobacco planters and merchants, and that fueled real resistance to protectionism. So what does that trade grievance teach us about the current political economy of restrictions? Because at the moment, we seem to be having almost the opposite — we’re imposing new burdens that are justified as helping a particular industry to grow, whereas the costs are being imposed on a broad number of people. So we’ve kind of flipped the political economy of that era, it seems. But I’ve put you on the spot a bit, and I know that you’re not an economist — but when you were editing this chapter, what do you think the key takeaways were for our current policy debate?

Thomas A. Berry: Yeah, well, I think you hit the nail on the head with the fact that it’s now more concentrated interests and dispersed costs, and political economists will explain why that’s sort of the natural trend of things. We do have a democracy, but unfortunately, in many cases, a minority, a special interest group, can get its policies enacted despite not having popular support, because they are so intensely interested in this policy that they will go all out for it. Whereas if it’s just, say, five dollars more spent on everybody’s TV, they maybe don’t notice it, or they don’t realize the extent it’s harming them, or the aggregate harms are just less likely to make a difference in how people end up voting. So in some ways, the modern situation is even more dangerous, because it’s harder to fix democratically when you have one special interest after another asking for these exceptions.

And this connects to later on — we’ll probably talk about executive orders — but I think they’re very closely connected, because the other big problem we have now is statutes that give so much discretion just to the executive branch. At the very least, if you’re going to have interference in trade, let it come from Congress, where the people do get a say, and where you can at least try to make the case to voters that free trade is a better policy overall. When you pass a statute that’s kind of a blank check for the president to fill in — you decide which industries get these benefits and which don’t — it’s even harder for the political process, the democratic process, to turn that around and go to a more even-handed, fair system.

Ryan Bourne: So our former colleague Brent Skorup has a chapter that draws that analogy from the King dissolving representative houses in the colonies to modern governments operating by executive order, as you say. Now, I think we’d all acknowledge not every executive order is illegitimate — we need the president to be able to administer law — but modern presidents often use those orders and other things, like memoranda, emergency powers, delegated authority, in ways that look a lot like lawmaking.

Thomas A. Berry: Yeah, that’s exactly right. So the framers, they were not against executive power. Yes, they were against the King, but that didn’t mean they were against any single person holding executive power. In fact, they ended up creating a constitution which in some ways copies that system — we have a president who, of course, is democratically elected by the Electoral College, but similarly, all of the executive power is vested in him. And that was in some ways a reaction to many of the state systems, where they had governor by committee, and it just didn’t work very well — there was too much diffusion of responsibility and accountability. But they knew the difference between executive and legislative power, and they knew that when key policymaking decisions — like what level of taxes, what level of tariffs — come from the King, or the president, or whoever is the executive, it’s way, way harder, almost impossible, to turn that around and fight back against that democratically. So in some ways, the King had gone around Parliament in imposing a lot of these taxes and tariffs, and that was part of the complaint. And so today, you see in too many cases, Congress will write a law that’s too vague — or in some ways, the law will not actually be that vague, but the president will claim it is, as we saw both for Trump’s tariffs and Biden’s student loan forgiveness. They’ll claim an old, not very controversial law actually gives a huge, never-before-discovered power, and they’ll make policy via executive order that way.

Ryan Bourne: How fair do you think the Declaration’s focus on King George III personally is? Because it seems to me, reading through this list of injuries, that in many cases the colonists were angry actually at acts of Parliament, and were petitioning the King to protect them from Parliament’s claim to authority. So they were in some cases hoping the King would overrule Parliament, use his executive power to overrule Parliament.

Thomas A. Berry: In some cases that’s true. I think part of the focus on the King is rhetorical. I think part of it is that they still had a philosophical justification for the King’s power that came from this notion of the divine right of kings. And I think part of the work of the Declaration is to justify how you can go against the King, how you could rebel and start a new government, without it being seen as literally going against God and God’s chosen leader. And so going full bore at the King specifically, and saying he had basically failed to meet the baseline standards for someone holding his power such that any divine right he used to have is no longer legitimate — I think that was core to it, and it hits a little different than going after Parliament itself. But you’re exactly right that there are some legitimate prerogatives of the King, like the veto power — we adopted that for our Constitution as well. And the framers knew that accountability and the ability to veto also allowed you to put more responsibility in a single executive. And as you say, if he wasn’t blocking the worst policies, you could hang that on his shoulders.

Ryan Bourne: So our scholars obviously tend to work on policy areas where we think there are continuing threats to liberty, or emerging potential to take things in a pro-liberty direction. So naturally, I think a volume organized around modern analogues to old grievances will emphasize what is still imperfect, or areas where we’ve got modern concerns, or things haven’t improved. But if we compare America today, not with the full ideal of the Declaration, but with most governments in human history, I think it’s clear that the Declaration and its ideals are still ingrained in the way that this country works, and have achieved a lot. So why don’t you give the more glass-half-full case for the legacy of the Declaration in shaping the country’s government institutions?

Thomas A. Berry: Absolutely happy to. Well, I’m biased as a constitutional lawyer, but the first thing that comes to mind is the fact that we have a Constitution with a Bill of Rights and an independent judiciary that has been remarkably strong and remarkably respected, and is remarkably willing to stand up to the democratic branches when they infringe those individual rights. So we take it for granted now that there are some red lines that the democratic branches cannot cross, even if it’s potentially good policy from an economic sense, or popular from a democratic sense. The Declaration saying there are certain unalienable rights that we have by nature that can’t be infringed just as a matter of philosophy or of natural rights — that was a very unusual attitude at the time, and it’s still unusual. Even if you look at most other constitutional democracies around the globe, their constitutional rights, their bills of rights, are much more flexible — you can overcome an individual right if you make a case that it’s in the general interest or the common good. Whereas here, if you violate free speech, take someone’s property, you simply cannot do that, or you simply must pay compensation, no questions asked. And that’s particularly unique. And of course, we also still have to recognize that we simply have a very stable democracy — since the Civil War, we’ve had no real serious threats to the continuity of government. And I think that shows that the system they designed was remarkably sturdy.

Ryan Bourne: So the Declaration says that the King’s conduct marked him as a tyrant. I know John Adams later said that he thought that specific language was a bit too personal. And some historians, like Tory historians — like Andrew Roberts — have argued that several of the grievances were perhaps slightly exaggerated or a bit selective, and many were complaints about the conduct of military action, something which, of course, it’s logically difficult to use to justify the initial revolt, although they can be things that you kind of add to the list as things are ongoing. But I think everyone recognizes the core constitutional complaint about consent and sovereignty alone was just and powerful and justified the revolution in its own right. So I want to ask: what do we take away from this? Because given that the book implies many of the grievances do have modern parallels, what are we to make of that? If we struggle with many of these injuries in different ways today, does that mean we’re on the slide to tyranny? Or perhaps that we need a new revolution? Or are you concluding something more optimistic than that?

Thomas A. Berry: I’m more optimistic. I don’t think we’re on the slide to tyranny. I think that it shows there are seemingly inevitable trends or temptations whenever you have a government. The framers famously said, if men were angels, we wouldn’t need government, but men are not angels. And if our officers in government were angels, we wouldn’t need a constitution, but they’re not angels either. And so inevitably, when you have flawed people making government and making policy, you tend towards these same flaws over and over again — favoritism, cronyism, attempting to help politically connected groups, attempting to meddle with economies, attempting to help the people who are already in the polity at the expense of those who want to join it. These just seem to be inevitable trends that we have to be constantly vigilant to push back on. But we are, again, unique and unusual in having this history and having this document, this shared creed that points it out, that specifically makes the classical liberal case for why these policies were not just flawed at the moment, but will always be flawed, for why they violate core aspects of good government. And that’s really what I personally view natural rights, or unalienable rights, as — simply the rights that you can’t violate and still have a flourishing government and flourishing economy. I think that’s how many of the framers understood it, and I think that’s the lesson for today: it doesn’t mean that the people making these policies are all bad people or that they’re tyrants, but it means that you can’t ever rest just on the fact that we have the parchment constitutional protections or the Declaration. You have to actually watch what’s happening, and you have to push back when you see violations of these core principles.

Ryan Bourne: I think that’s exactly right. And I think analyzing and evaluating these injuries matters because they’re measured against the promise of the first two paragraphs — that world of natural rights, government by consent, and understanding the pursuit of happiness not as a guaranteed outcome, but as a freedom to live, strive, build, associate, speak, trade, move, and worship as you see fit. So the 250th anniversary, I think, could easily become a whole bunch of patriotic cheerleading or, on the other hand, cynicism about the founders’ failures. But I think the value of this book is that it’s aiming for something else, which is to use this moment as a really serious audit of whether we still understand the principles and grievances that justified independence, and so live up to those ideals of that document in our modern government. So I’m going to give the final word to you, Tommy. What do you want listeners to take away from this book as they continue to think about that 250th anniversary?

Thomas A. Berry: Oh, wow, big question. I mean, one thing I want them to take away is just that the Declaration is so well written and so unusual in its appeal to philosophy — and this goes back to Roger’s chapter, that you really do have to read Roger’s chapter to understand the rest of the book, because it was not just a work of political complaints, it was a work of political philosophy and a work of making the case for classical liberal values. And the other thing I would stress is that, as you’ve mentioned, there’s revisionist history, there are genuine debates about how much of the complaints were accurate, how much of them were exaggerated. And of course, there are also complaints that the framers, in their conduct, did not live up to so many of the ideals — so many of them held slaves and didn’t live up to the ideal that all men are created equal. But I think, personally, as an originalist, as someone who focuses on the text of the Constitution more than the subjective intent of its drafters, I think one of the lessons I take away from this book is that the Declaration is an aspirational document, and that we share the document even more than we share the people who drafted it — that the people who drafted it were more flawed than the document that they created, and that the document has lasted longer than them. And that’s a unique aspect of our culture: that as much as we can respect the framers despite their flaws — and they did have flaws — we respect and revere the Declaration, and its follow-on, the Constitution, even more.

Ryan Bourne: Tommy Berry, editor of A History of Repeated Injuries: Threats to Liberty Since American Independence, thank you for joining the Cato podcast. I’m Ryan Bourne, Cato’s R. Evan Scharf Chair for the Public Understanding of Economics. We’ll be back with the next episode of the Cato podcast next Tuesday.