The Founding Fathers and Fiduciary Fundamentals

Anyone who has ever found their grand idea shackled to the deliberations of a committee, or who has had to kowtow to the sensibilities of a recalcitrant compliance department, can empathize with the process that produced the Declaration of Independence we commemorate this week.

Not that the machinations of a plan committee can be fairly equated to the deliberations—or impact—of the Second Continental Congress, but there are some parallels. Things like…

Committee members should understand their obligations—and the risks.

Those who gathered in Philadelphia that summer of 1776 came from all walks of life, but it seems fair to say that most had something to lose. True, many were merchants (some wealthy, including President of Congress John Hancock) already chafing under the tax burdens imposed by British rule, and perhaps they could see a day when their actions would (eventually) accrue to their economic benefit. Still, they could hardly have undertaken that declaration of independence without a very real concern that in so doing they might well have signed their death warrants.

It’s not quite that serious for plan fiduciaries. However, as ERISA fiduciaries, they are personally liable, and may be required to restore any losses to the plan or to restore any profits gained through improper use of plan assets. Moreover, fiduciaries have potential liability for the actions of their co-fiduciaries. So, it’s a good idea to know who your co-fiduciaries are—and to keep an eye on what they do and are permitted to do.

Indeed, plan fiduciaries would be well advised to bear in mind something that Ben Franklin is said to have remarked during the deliberations in Philadelphia: “We must, indeed, all hang together or, most assuredly, we shall all hang separately.”

Money can be a sticking point.

Before it declared independence, the Second Continental Congress created the Continental Army, named a Commander-in-Chief (George Washington), and authorized the first printing of American money ($1 million in bills of credit). Indeed, in the months (and years) that followed, the costs of (and means of funding) that army would be a constant source of contention between the Congress and the leaders of the Continental Army, even after the fighting on the battlefields was over.

The costs of running a retirement plan are varied, and these days many are borne—directly or indirectly—by the plan and participants themselves. But if the American Revolution was fought over “taxation without representation,” ERISA charges plan fiduciaries with an unequivocal obligation to ensure that every action taken, every service or service provider enlisted, be done for the exclusive benefit of retirement plan participants and their beneficiaries.

It’s not all about money, of course. But—as the Labor Department has noted, and as the plaintiffs’ bar clearly knows—fees and expenses paid by the plan can have an impact on retirement savings and security. Plan fiduciaries should be no less attentive.

It can be hard to break with the status quo.

By the time the Second Continental Congress convened, the “shot heard round the world” at Lexington and Concord was more than a year old, but many of the representatives there still held out hope for some kind of peaceful reconciliation, even as they authorized an army and put George Washington at its helm. Little wonder that, even in the midst of hostilities, there was a strong inclination on the part of several key individuals to put things back the way they had been, to patch them over, rather than to take on what was then the world’s most accomplished military force.

As human beings we are largely predisposed to leaving things the way they are, rather than making abrupt and dramatic changes. Whether this “inertia” comes from a fear of the unknown, a certain laziness about the extra work that might be required, or a sense that advocating change suggests an admission that there was something “wrong” before, it seems fair to say that plan sponsors are, in the absence of a compelling reason for change, inclined to rationalize staying put.

Little wonder that we often see new fund options added, while old and unsatisfactory funds linger on the plan menu, a general hesitation to undertake an evaluation of long-standing providers in the absence of severe service issues, and reluctance to adopt potentially disruptive (and, admittedly, often expensive) plan features like automatic enrollment or deferral acceleration.

While many of the delegates to the Constitutional Convention were restricted by the entities that appointed them in terms of how they could vote on the issues presented, plan fiduciaries can’t defer that responsibility to others. Rather, their decisions are bound by an obligation that those decisions be made solely in the best interests of plan participants and their beneficiaries—regardless of any other organizational or personal obligations they may have outside their committee role.

It’s important to put it in writing.

While the Declaration of Independence technically had no legal effect, its impact not only on the establishment of the United States, but as a social and political inspiration for many throughout the world since is unquestioned, and perhaps unprecedented. Putting that declaration—and the sentiments behind it—in writing gave it a force and influence far beyond its original purpose.

As for plan fiduciaries, there is an old ERISA adage that says, “prudence is process.” However, an updated version of that adage might be “prudence is process—but only if you can prove it.” To that end, a written record of the activities of plan committee(s) is an essential ingredient in validating not only the results, but also the thought process behind those deliberations. More significantly, those minutes can provide committee members—both past and future—with a sense of the environment at the time decisions were made, the alternatives presented, and the rationale offered for each, as well as what those decisions were.

They also can be an invaluable tool in reassessing those decisions at the appropriate time(s) in the future and making adjustments as warranted—properly documented, of course.

Big change takes time—and effort.

Congress may have declared independence that July, but the reality took considerably more time and effort. Before the year was out, Washington’s troops would cross the Delaware under unimaginable conditions and win a stirring victory at Trenton, on their way to a series of impressive, but largely unappreciated victories against the British army in New Jersey—but less than a year later Washington’s troops would winter at Valley Forge.  It was not won until the victory in Yorktown, Virginia in 1781, and not official for two years after that. 

We do, of course, have much to be thankful for this Independence Day; for those who had the courage to stand up for the principles and ideals on which this nation was founded, for those who were willing then to take up arms to defend those principles and ideals against overwhelming odds, and those who continue to do so to this day.

Plan fiduciaries who are doing their duty and fulfilling their obligations aren’t exactly putting their lives on the line—but in their own special way(s), they’re working to help assure American worker retirement freedoms—their financial independence—every day.

- Nevin E. Adams, JD

Independence 'Gaze'

A week from today the nation will celebrate Independence Day—though of course independence didn’t actually occur on July 4.

Let’s face it, the Declaration of Independence[i] was little more than that—a declaration. One that had yet to be backed by anything beyond the artfully crafted and narrow consensus of a handful of delegates appointed by a wide variety of means and mechanisms, with correspondingly disparate levels of responsibility and accountability for their alignment with the principles outlined in that document. 

As practically meaningless as that declaration might have been, we commemorate and celebrate those actions because, eventually, events transpired that made those aspirations a reality. But it came only after years of hard-fought fighting, and while we don’t often talk about this, it ultimately divided the nation between those who wanted to be free from what they viewed as tyranny—and those who viewed those actions and aspirations as nothing less than treason.

That said, the deliberations that produced that declaration are in many ways emblematic for how groups—including retirement plan committees—move forward—though it’s important to keep these things in mind:

Inertia is a powerful force.

By the time the Second Continental Congress convened, the “shot heard round the world” had already been fired at Lexington, but many of the representatives in Philadelphia still held out hope for some kind of peaceful reconciliation. Little wonder that, even in the midst of hostilities, there was a strong inclination on the part of several key individuals to put things back the way they had been, to patch them over, rather than to take on the world’s most accomplished military force (not to mention putting their own lives and fortunes at risk).

Indeed, as human beings we are largely predisposed to leave things the way they are, rather than making abrupt and dramatic change. Whether this “inertia” comes from a fear of the unknown, a certain laziness about the extra work that might be required, or a fear that advocating change suggests an admission that there was something “wrong” before, it seems fair to say that plan fiduciaries are, generally speaking, and in the absence of a compelling reason for change, inclined to rationalize staying put.

Little wonder that we often see new fund options added, while old and unsatisfactory funds linger on the plan menu, a general hesitation to undertake an evaluation of long-standing providers in the absence of severe service problems, and a reluctance to adopt potentially disruptive (and, admittedly, sometimes expensive) plan features like automatic enrollment, deferral acceleration, or more recently—retirement income.

While many of the delegates to the Constitutional Convention were restricted by the entities that appointed them in terms of how they could vote on the issues presented, plan fiduciaries are bound by a higher obligation—that their decisions be made solely in the best interests of plan participants and their beneficiaries—regardless of any other organizational or personal obligations they may have outside their committee role.

Consensus can be hard to achieve.

The Second Continental Congress was comprised of representatives from what amounted to 13 different governments, with delegates selected by processes ranging from extralegal conventions, ad hoc committees, to elected assemblies—with varying degrees of voting authority granted to them, to boot. Needless to say, that made reaching consensus even more complicated than under “ordinary” circumstances.

Today the process of putting together an investment or plan committee runs the gamut—everything from simply extrapolating roles from an organization chart to a random assortment of individuals to a thoughtful consideration of individuals and their qualifications to act as a plan fiduciary. But if you want a good result, you need to have the right individuals—and they should be aligned around a singular purpose—decisions made with the exclusive purpose of the best interests of plan participants and beneficiaries.

It’s important to put it in writing.

Before the delegates at the Second Continental Congress were united in purpose, there was a sense by those favoring independence that putting those thoughts in writing would help crystalize, as well as formalize, that proposition. And while the Declaration of Independence technically had no legal effect, putting that declaration—and the sentiments expressed—in writing gave it a force and influence far beyond its original purpose. It also provided a focus for the debate and discussion of those delegates—and an opportunity to tweak and shape those thoughts to be in alignment with the whole group.

There is an old ERISA adage that says, “Prudence is process.” However, an updated version of that adage might be “prudence is process—but only if you can prove it.” To that end, a written record of the activities of plan committee(s) is an essential ingredient not only in validating the results, but also the thought process behind those deliberations (not to mention that there WAS a thought process behind those deliberations). More significantly, those minutes can provide committee members—both past and future—with a sense of the environment at the time decisions were made, the alternatives presented and the rationale offered for each, as well as what those decisions were. 

Those might not serve to inspire future generations—but they can be an invaluable tool in (re)assessing those decisions at the appropriate time(s) in the future and making adjustments as warranted—properly documented, of course.

You can delegate authority—but not responsibility.

When it came to drafting the declaration itself, there was an acknowledgement that some delegates were better writers than others. But while the primary responsibility for the draft fell to Thomas Jefferson, he was teamed with several other key individuals to help assure that the draft took into account the sensibilities of the entire delegation—and even then, when presented there were additional edits.

Ultimately, however, the responsibility for the declaration fell to all the delegates. As Ben Franklin is said to have commented just before signing the Declaration, “We must, indeed, all hang together, or most assuredly we shall all hang separately.”

It’s not quite that serious for ERISA plan fiduciaries. However, there is the matter of personal liability—not only for your actions, but for those of your fellow fiduciaries—and thus, you might be required to restore any losses to the plan or to restore any profits gained through improper use of plan assets. So, it’s a good idea not only to know who your co-fiduciaries are—but to keep an eye on what they do, and are not only permitted, but expected, to do.

Actions can speak louder than words.

As dramatic and inspiring as the words of the Declaration of Independence surely were (and are), if they never got beyond the document in which they appeared, it’s unlikely we’d be talking about them today. Indeed, it’s likely that, without the actions committed to in that Declaration, their signatures on the document would have only ensured that they wound up on the gallows, rather than the history books.

Anyone who has ever had a grand idea shackled to the deliberations of a moribund committee, or who has had to kowtow to the sensibilities of a recalcitrant compliance department, can empathize with the process that ultimately produced the Declaration of Independence we’ll commemorate next week.

Yes, Independence Day is a great opportunity to reflect and recall that our actions have consequence(s)—and that while plan committee meetings and deliberations may sometimes seem like little more than obligatory (and tedious) reviews of arcane information, it’s worth remembering that those decisions affect people’s lives—and, ultimately, their financial independence.

- Nevin E. Adams, JD

 

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[i] Ironically, despite the celebrations on the 4th, the resolution that declared that “these United Colonies are, and of right, ought to be, Free and Independent States” was approved by the Continental Congress on July 2. In fact, only President of Congress John Hancock and Charles Thomson, secretary, signed it on the 4th (the former famously in a hand “large enough for King George to read without his spectacles”). Most of the 56 delegates didn’t sign it for another month. One didn’t sign until 1781.

 

Time That Try Men's Souls

It seems trite, almost unnecessary, to comment that we are living in and through extraordinary times. 

I’m a student of history, and I have often found comfort, if not guidance, from what has gone before. As often as not, however unique and extraordinary the times seem (or are portrayed in the headlines), there’s inevitably a comparable, and almost always, an even more extreme example, of such times in decades past.[i]

And while there’s been a renewed interest in, and awareness of, the pandemic of 1918 (though I’m told the pandemic of 1957-58 is a more apt comparison to COVID-19), as the anniversary of our nation’s declaration of independence nears, I’ve been drawn to the events of 1776.

As it turns out, the newly declared (but not yet formal) nation was confronted not only with the struggle for independence (and no small number of voices that simply wanted to preserve the status quo), but with the scourge of smallpox. Just as the close quartering and movement of troops in the first World War served to spread what is now termed the “Spanish flu,” the Continental Army was confronted with a deadly disease that was arguably a larger threat to its cause than the British army.

Indeed, General Washington once wrote to Virginia Governor Patrick Henry that smallpox “is more destructive to an Army in the Natural way, than the Enemy’s Sword." And no wonder—we’re talking about a pandemic that killed one in three in the Continental Army who contracted the virus.

We mark the Fourth of July, and indeed the year of 1776, as the birth of our nation, but it’s worth remembering that it was a year full of disappointments and near disasters for George Washington’s Continental Army. One can garner a sense for the change in tide by noting in January of that year Thomas Paine published “Common Sense,” but before the year was out had turned his pen to “The American Crisis,” fretting about “sunshine patriots” and “times that try men’s souls.” And we hadn’t yet gotten to that terrible winter at Valley Forge.

There are challenges both personal and professional confronting us every day—they were “before,” though most were individualized, personal events: a death in the family, a job lost, a flood or tornado’s impact, a wildfire’s devastation. And while the events of the past several months have imposed new burdens on us all, it’s imperative that we remind ourselves that those we support and serve are struggling as well; their retirements, their plans for retirement, indeed their retirement plans themselves, despite years of careful planning and attention, may well have been upended in ways that no one could anticipate just a few short months ago.

In the days ahead, your insights, your expertise… your empathy… are going to be called upon in ways you might never have imagined. Surely, these are, certainly in recent memory, extraordinary times—times that have, and will, in some measure, continue to try our collective “souls.”

Bleak as things may seem at times, however, this is our time to shine.    

America’s retirement is depending on us.

- Nevin E. Adams, JD

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[i]Perhaps unsurprisingly, one of my favorite quotes is George Santayana’s “Those who cannot remember the past are condemned to repeat it.”

5 Plan Committee Lessons from the Second Continental Congress

As we prepare to celebrate the Declaration that marks the birth of this nation, it seems a good time to reflect on some lessons from that experience that hold true even today.

Inertia is a powerful force.

By the time the Second Continental Congress convened, the “shot heard round the world” had already been fired at Lexington, but many of the representatives in Philadelphia still held out hope for some kind of peaceful reconciliation. Little wonder that, even in the midst of hostilities, there was a strong inclination on the part of several key individuals to put things back the way they had been, to patch them over, rather than to take on the world’s most accomplished military force.

As human beings we are largely predisposed to leave things the way they are, rather than making abrupt and dramatic change. Whether this “inertia” comes from a fear of the unknown, a certain laziness about the extra work that might be required, or a sense that advocating change suggests an admission that there was something “wrong” before, it seems fair to say that plan sponsors are, generally speaking, and in the absence of a compelling reason for change, inclined to rationalize staying put.

Little wonder that we often see new fund options added, while old and unsatisfactory funds linger on the plan menu, a general hesitation to undertake an evaluation of long-standing providers in the absence of severe service issues, and reluctance to adopt potentially disruptive (and, admittedly, often expensive) plan features like automatic enrollment or deferral acceleration.

While many of the delegates to the Constitutional Convention were restricted by the entities that appointed them in terms of how they could vote on the issues presented, plan fiduciaries are bound by a higher obligation – that their decisions be made solely in the best interests of plan participants and their beneficiaries – regardless of any other organizational or personal obligations they may have outside their committee role.

Selection of committee members is crucial.

The Second Continental Congress was comprised of representatives from what amounted to 13 different governments, with delegates selected by processes ranging from extralegal conventions, ad hoc committees, to elected assemblies – with varying degrees of voting authority granted to them, to boot. Needless to say, that made reaching consensus even more complicated than under “ordinary” circumstances.

Today the process of putting together an investment or plan committee runs the gamut – everything from simply extrapolating roles from an organization chart to a random assortment of individuals to a thoughtful consideration of individuals and their qualifications to act as a plan fiduciary. But if you want a good result, you need to have the right individuals – and, certainly in the case of ERISA fiduciaries, if those individuals lack the requisite knowledge on a particular issue, they need to access that expertise from individuals who do.

Know that there are risks.

The men that gathered in Philadelphia that summer of 1776 came from all walks of life, but it seems fair to say that most had something to lose by signing on to a declaration of independence. True, many were merchants (some wealthy, including President of Congress John Hancock), and perhaps they could see a day when their actions would accrue to their economic benefit. Still, they could hardly have undertaken that declaration of independence without a very real concern that in so doing they might well have signed their death warrants. As Ben Franklin is said to have commented just before signing the Declaration, “We must, indeed, all hang together, or most assuredly we shall all hang separately.”

It’s not quite that serious for ERISA plan fiduciaries. However, there is the matter of personal liability – not only for your actions, but for those of your fellow fiduciaries – and thus, you might be required to restore any losses to the plan or to restore any profits gained through improper use of plan assets. So, it’s a good idea not only to know who your co-fiduciaries are – but to keep an eye on what they do, and are permitted to do.

It’s important to put it in writing.

While the Declaration of Independence technically had no legal effect, with the possible exception of the Gettysburg Address (which was heavily inspired by the former), its impact not only on the establishment of the United States, but as a social and political inspiration for many throughout the world is unquestioned, and perhaps unprecedented. Putting that declaration – and the sentiments expressed – in writing gave it a force and influence far beyond its original purpose.

Plan fiduciaries are sometimes cautioned (often by legal counsel) about committing to writing certain decisions, notably an investment policy statement. In fairness, the law does not require one, though ERISA basically anticipates that plan fiduciaries will conduct themselves as though they had one in place. And, generally speaking, plan sponsors (and the advisors they work with) find it easier to conduct the plan’s investment business in accordance with a set of established, prudent standards if those standards are in writing – rather than being crafted at a point in time when you are desperately trying to make sense of the markets. That said, and in the defense of caution, if there’s something worse than not having an IPS, it’s having an IPS that isn’t followed.

There is an old ERISA adage that says, “Prudence is process.” However, an updated version of that adage might be “prudence is process – but only if you can prove it.” To that end, a written record of the activities of plan committee(s) is an essential ingredient in validating not only the results, but also the thought process behind those deliberations. More significantly, those minutes can provide committee members – both past and future – with a sense of the environment at the time decisions were made, the alternatives presented and the rationale offered for each, as well as what those decisions were.

Those might not serve to inspire future generations – but they can be an invaluable tool in reassessing those decisions at the appropriate time(s) in the future and making adjustments as warranted – properly documented, of course.

Actions can speak louder than words.

As dramatic and inspiring as the words of the Declaration of Independence surely were (and are), if they never got beyond the document in which they appeared, it’s unlikely we’d be talking about them today. Indeed, it’s likely that, without the actions committed to in that Declaration, their signatures on the document would have only ensured that they wound up on the gallows.

Anyone who has ever had a grand idea shackled to the deliberations of a moribund committee, or who has had to kowtow to the sensibilities of a recalcitrant compliance department, can empathize with the process that produced the Declaration of Independence we’ll commemorate this week.

While plan committee meetings may sometimes seem like little more than obligatory (and tedious) reviews of arcane information, it’s worth remembering that those decisions affect people’s lives – and, ultimately, their financial independence.

- Nevin E. Adams, JD

4 Things Plan Fiduciaries Have in Common With the 2nd Continental Congress

Anyone who has ever found their grand idea shackled to the deliberations of a committee, or who has had to kowtow to the sensibilities of a recalcitrant compliance department, can empathize with the process that produced the Declaration of Independence we’ll commemorate on the Fourth.

That said, I think there are things that today’s investment/plan committee share with, and can learn from, the experience of those forefathers who crafted and signed the document declaring our nation’s independence.

It’s hard to break with the status quo.

By the time the Second Continental Congress convened, the “shot heard round the world” had already been fired at Lexington, but many of the representatives there still held out hope for some kind of peaceful reconciliation, even as they authorized an army and put George Washington at its helm. Little wonder that, even in the midst of hostilities, there was a strong inclination on the part of several key individuals to put things back the way they had been, to patch them over, rather than to break things off, and take on the world’s most accomplished military force.

However, even those who were ready to declare independence weren’t of a single mind on how it should be done, or how those intentions expressed. Committee work is the art of compromise – and had those varying voices not been accommodated, the status quo would likely have prevailed.

As human beings we are largely predisposed to leaving things the way they are, rather than making abrupt and dramatic change. Whether this “inertia” comes from a fear of the unknown, a certain laziness about the extra work that might be required, or a sense that advocating change suggests an admission that there was something “wrong” before, it seems fair to say that plan sponsors are, in the absence of a compelling reason for change, inclined to rationalize staying put.

As a consequence, you see new fund options added, while old and unsatisfactory funds linger on the plan menu, a general reluctance to undertake an evaluation of long-standing providers in the absence of severe service issues, and an overall inertia when it comes to adopting potentially disruptive plan features like automatic enrollment or deferral acceleration.

While many of the delegates to the Constitutional Convention were restricted by the entities that appointed them in terms of how they could vote on the issues presented, plan fiduciaries don’t have that option. Their decisions are bound to an obligation that those decisions be made solely in the best interests of plan participants and their beneficiaries – regardless of any other organizational or personal obligations they may have outside their committee role.

Selection of committee members is crucial.

The Second Continental Congress was comprised of representatives from what amounted to 13 different governments, with everything from extralegal conventions, ad hoc committees, and elected assemblies relied upon to name the delegates. Delegates who, despite the variety of assemblages that chose them, were in several key circumstances, bound in their voting by the instructions given to them. Needless to say, that made reaching consensus on the issues even more complicated than it might have been in “ordinary” circumstances.

Today the process of putting together an investment or plan committee runs the gamut – everything from simply extrapolating roles from an organization chart to a random assortment of individuals to a thoughtful consideration of individuals and their qualifications to act as a plan fiduciary. But if you want a good result, you need to have the right individuals – and if those individuals lack the requisite knowledge on a particular issue, they need to access that expertise from individuals who do.

It’s important to put it in writing.

While the Declaration of Independence technically had no legal effect, with the possible exception of the Gettysburg Address (which was heavily inspired by the former), its impact not only on the establishment of the United States, but as a social and political inspiration for many throughout the world is unquestioned, and perhaps unprecedented. Putting that declaration – and the sentiments expressed – in writing gave it a force and influence far beyond its original purpose.

As for plan fiduciaries, there is an old ERISA adage that says, “prudence is process.” However, an updated version of that adage might be “prudence is process – but only if you can prove it.” To that end, a written record of the activities of plan committee(s) is an essential ingredient in validating not only the results, but also the thought process behind those deliberations. More significantly, those minutes can provide committee members – both past and future – with a sense of the environment at the time decisions were made, the alternatives presented and the rationale offered for each, as well as what those decisions were.

They also can be an invaluable tool in reassessing those decisions at the appropriate time(s) in the future and making adjustments as warranted – properly documented, of course.

Committee members should understand their obligations – and the risks.

The men that gathered in Philadelphia that summer of 1776 to bring together a new nation came from all walks of life, but it seems fair to say that most had something to lose. True, many were merchants (some wealthy, including President of Congress John Hancock) already chafing under the tax burdens imposed by British rule, and perhaps they could see a day when their actions would accrue to their economic benefit. Still, they could hardly have undertaken that declaration of independence without a very real concern that in so doing they might well have signed their death warrants.

It’s not quite that serious for plan fiduciaries. However, as ERISA fiduciaries, they are personally liable, and may be required to restore any losses to the plan or to restore any profits gained through improper use of plan assets. And all fiduciaries have potential liability for the actions of their co-fiduciaries. For example, the Department of Labor notes that if a fiduciary knowingly participates in another fiduciary’s breach of responsibility, conceals the breach, or does not act to correct it, that fiduciary is liable as well. So, it’s a good idea to know who your co-fiduciaries are – and to keep an eye on what they do, and are permitted to do.

Indeed, plan fiduciaries would be well advised to bear in mind something that Ben Franklin is said to have remarked during the deliberations in Philadelphia: “We must, indeed, all hang together or, most assuredly, we shall all hang separately.”

- Nevin E. Adams, JD

The Course of Human Events

It is easy, looking back, to gloss over just how remarkable was the sequence of events that made this nation’s independence a reality. The bickering and machinations of the Continental Congress in 1776 were every bit as unpleasant, and unproductive, as the worst of today’s elected officials — even though, and perhaps in some measure because, hostilities with Great Britain had officially been underway since the so-called “shot heard ‘round the world” the preceding spring.

The men who gathered in Philadelphia that summer to bring together what was not yet a “new nation” came from all walks of life. Still, it seems fair to say that most had something to lose, both financially and in terms of the personal liberty they advocated as an “unalienable” right. True, many were merchants (some wealthy, including President of Congress John Hancock) already chafing under the tax burdens imposed by British rule, and perhaps they could see a day when their actions would accrue to their economic benefit. But they could hardly have undertaken that declaration of independence without a very real concern that they might well have signed their death warrants.

Ironically, despite the celebrations on the 4th, the resolution that declared that “these United Colonies are, and of right, ought to be, Free and Independent States” was approved by the Continental Congress on July 2. In fact, only President of Congress John Hancock and Charles Thomson, secretary, signed it on the 4th (the former famously in a hand “large enough for King George to read without his spectacles”). Most of the 56 delegates didn’t sign it for another month. One didn’t sign until 1781.

Of course, that “declaration” didn’t magically make it so. The winter at Valley Forge and many other disappointments still lay ahead. The surrender of Cornwallis at Yorktown was still more than five years off, and an official end to the hostilities would not come until two years after that, in 1783.

This week most will commemorate the declaration of this nation’s independence as a unifying experience. And yet, just “four score and seven years” later, as the nation approached another Independence Day celebration, President Abraham Lincoln would find himself in the middle of an enormously unpopular war fought to keep the nation together, even as two massive armies converged at a crossroads community called Gettysburg.

Even in 1776, historians have suggested that only about a third of the colonial citizenry actually favored independence, while a third remained loyal to Britain — and the remainder apparently just wanted to be left alone.

It seems only right then that today, as part of this “course of human events” and perhaps particularly at this time when our nation seems so deeply divided on a number of issues, that we remember not only the differences, but the sacrifices, large and small, that have made this great nation possible.

- Nevin E. Adams, JD

You can read more about the Declaration of Independence here.

'Free' Wills

Editor's Note: No matter what else is going on in our lives this weekend, a student of history cannot help but be conscious of the boldness of the Declaration of Independence we celebrate today, and how dearly won its principles. There may be other ways to express it, but this weekend I'm going to draw on the perspectives expressed in a prior posting. Whether you remember it or not, I'm hoping you enjoy it - and take it to heart!

Over the weekend I reacquainted myself with that episode of the HBO miniseries “John Adams” titled “Independence.”

As a writer and editor, I watched with a special appreciation the part where Benjamin Franklin and John Adams are “tweaking” Thomas Jefferson’s draft – and the pain in the latter’s face as his “precisely chosen” words were modified. All in all, a modest sacrifice, to be sure. But I, for one, could feel his pain.

That said, anyone who has ever found their grand idea shackled to the deliberations of a committee, who has had to kowtow to the sensibilities of a recalcitrant compliance department, or who has simply suffered through the inevitable setbacks all-too-frequently attendant with human existence must have at least a modest appreciation for the trials that confronted not only that document’s authors, but those then living in these not-yet-united states.

Without question, 1776 is one of those turning points in history, not just for this nation but, in the course of time, for the world as well. And yet, from the perspective of those who, in 1776, put not only their property, but their lives on the line to achieve what we will commemorate this weekend, the prospects of success must surely have seemed unlikely.

Indeed, 1776 itself was full of disappointments for many supporting the cause of independence – and near disasters for George Washington’s Continental Army. One can garner a sense for the change in tide by noting that Thomas Paine in January of that year published “Common Sense”, but before the year was out had turned his pen to “The American Crisis”, fretting about “sunshine patriots” and in “times that try men’s souls.”

However, before the year was out, Washington’s troops would cross the Delaware under unimaginable conditions and win a stirring victory at Trenton, on their way to a series of impressive, but largely unappreciated victories against the British army in New Jersey. Not that the worst was behind them – less than a year later Washington’s troops would winter at Valley Forge. Independence may have been declared in 1776, but it was not won until 1781, and not official for two years more.

The point, of course, is that we have much to be thankful for this Independence Day; for those who had the courage to stand up for the principles and ideals on which this nation was founded, for those who were willing then to take up arms to defend those principles and ideals against overwhelming odds, and those who have done so to this day.

If we are to preserve those “unalienable rights” if we are to continue to enjoy the freedoms of “life, liberty and the pursuit of happiness”, we must remember that the truths so eloquently espoused in 1776 may indeed be self-evident, but dictators and tyrants from time immemorial have sought to vanquish them. It is easy to forget amongst the grilling, fireworks displays, and summer temperatures just how precious those rights are, and how rare still in this world.

This Independence Day we should remember that, “in the course of human events”, the battles that preserve those ideals for us and future generations are never really “won,” they must be fought for every day.

=======================================================

Editor's Note: For those interested in learning more about the events noted above, I heartily recommend:

“1776” by David G. McCullough

“Washington’s Crossing” by David Hackett Fischer

“Almost A Miracle: The American Victory in the War of Independence” by John Ferling

“His Excellency: George Washington” by Joseph J. Ellis

For those who prefer a “lighter” read (a la historical fiction), check out:

“To Try Men's Souls: A Novel of George Washington and the Fight for American Freedom” by Newt Gingrich, William R. Forstchen, and Albert S. Hanser

Nevin E. Adams, JD

'Free' Wills

Over the weekend, I reacquainted myself with that episode of the HBO miniseries “John Adams” titled “Independence.” As a writer and editor, I watched with a special appreciation the part where Benjamin Franklin and John Adams are “tweaking” Thomas Jefferson’s draft—and the pain in the latter’s face as his “precisely chosen” words were modified. All in all, a modest sacrifice, to be sure. But I, for one, could feel his pain.

That said, anyone who has ever found their grand idea shackled to the deliberations of a committee, who has had to kowtow to the sensibilities of a recalcitrant compliance department, or who has simply suffered through the inevitable setbacks all too frequently attendant with human existence must have at least a modest appreciation for the trials that confronted not only that document’s authors, but those then living in these not-yet-united states.

Without question, 1776 is one of those turning points in history, not just for this nation but, in the course of time, for the world as well. And yet, from the perspective of those who, in 1776, put not only their property, but their lives on the line to achieve what we will commemorate this weekend, the prospects of success must surely have seemed unlikely. Indeed, 1776 itself was full of disappointments for many supporting the cause of independence—and near disasters for George Washington’s Continental Army. One can garner a sense for the change in tide by noting that Thomas Paine in January of that year published “Common Sense,” but before the year was out had turned his pen to “The American Crisis,” fretting about “sunshine patriots” in “times that try men’s souls.”

However, before the year was out, Washington’s troops would cross the Delaware under unimaginable conditions and win a stirring victory at Trenton, on their way to a series of impressive but largely unappreciated victories against the British army in New Jersey. Not that the worst was behind them: Less than a year later, Washington’s troops would winter at Valley Forge. Independence may have been declared in 1776, but it was not won until 1781, and not official for two years more.

The point, of course, is that we have much to be thankful for this Independence Day: for those who had the courage to stand up for the principles and ideals on which this nation was founded, for those who were willing then to take up arms to defend those principles and ideals against overwhelming odds, and those who have done so to this day.

If we are to preserve those “unalienable rights,” if we are to continue to enjoy the freedoms of “life, liberty and the pursuit of happiness,” we must remember that the truths so eloquently espoused in 1776 may indeed be self-evident, but dictators and tyrants from time immemorial have sought to vanquish them. It is easy to forget amongst the grilling, fireworks displays, and summer temperatures just how precious those rights are, and how rare still in this world.

This Independence Day, we should remember that, “in the course of human events,” the battles that preserve those ideals for us and future generations are never really “won”; they must be fought for every day.

—Nevin E. Adams, JD

For those interested in learning more about the events noted above, I heartily recommend:

“1776” by David G. McCullough
“Washington’s Crossing” by David Hackett Fischer
“Almost A Miracle: The American Victory in the War of Independence” by John Ferling
“His Excellency: George Washington” by Joseph J. Ellis

For those who prefer a “lighter” read (a la historical fiction), check out:
“To Try Men's Souls: A Novel of George Washington and the Fight for American Freedom” by Newt Gingrich, William R. Forstchen, and Albert S. Hanser