As America marks the 250th anniversary of the Declaration of Independence, we celebrate its language of equality, rights and liberty. But we often forget how the founders arrived at an understanding of those God-given rights by living under what they called a “tyrant” and suffering “a long train of abuses.”
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Indeed, much of the Declaration’s text is an accounting of the wrongs they endured, and of their attempts to seek redress under various legal avenues. It speaks of “patient sufferance,” appeals to “justice and magnanimity,” and imagines enemies in war becoming friends “in peace.” The text records grievances about a king who answered humble petitions “only by repeated injury,” waged war against his own people “with circumstances of Cruelty … scarcely paralleled,” and thereby proved himself “unfit to be the ruler of a free people.”
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The Declaration called into focus a pathway toward the opposite of such repression: a nation whose liberty would depend not on rights and resistance alone but on the capacity to temper judgment with compassion, to make room for forgiveness and to believe that people can return from error.
This anniversary invites us to recover mercy as one of the hardest virtues freedom requires.
Mercy in public
That mercy was not merely a private virtue. Hamilton later defended the pardon power as “the mercy of government,” warning that justice without room for “unfortunate guilt” would become cruel.
Washington made the same principle visible after the Whiskey Rebellion, pardoning those he called “the misled” once they had “abandoned their errors.” The founders understood that a republic needs accountability but also a way back. Among the virtues a free people needs, mercy may be the hardest to practice and the easiest to forget, especially once the power position shifts.
One of my first cases as a law clerk concerned whether a man would be allowed to remain in the United States. As I understood it, the law pointed clearly toward removal, and I drafted a memorandum saying so. This was likely his last chance before deportation. I did this even though, as a refugee years earlier, I had depended on the mercy of a judge not so different from the one whose decision I was now reviewing on appeal. But trained as a lawyer, more than a decade later, I gave too little thought to the person whose future turned on my words. My judge saw what I had missed, and the case became one of my first lessons in mercy.
The mercy we forget
We are quick to name civic responsibility, patriotism and justice as key characteristics of a thriving republic. We are slower to name mercy — and yet a free society cannot survive long without it. The same people who must hold one another accountable must also leave a door open for those who have done wrong to become good again.
Accountability without mercy hardens into something a free people cannot bear; mercy without accountability dissolves the order that makes freedom possible. Meshing the two together is among the hardest things a free people is asked to do, and it is the one I have spent my career studying: the discretion entrusted to those who enforce the law, and the a healthy society is willing to extend.
Accountability without mercy hardens into something a free people cannot bear; mercy without accountability dissolves the order that makes freedom possible.
The origins of criminal law held more than morality and punishment. The same traditions that gave us proportional justice also gave us — the Jubilee year, the Day of Atonement, the communal wiping clean of the slate. We have kept the half that punishes and nearly that restores. A nation that imprisons more of its people than any in human history might recover the truth that a society, and not only the person wronged, can choose to offer a way back.
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Our deepest threats today are not foreign. No army menaces our liberty; we are simply quicker to condemn one another than to forgive. What a proud society loses first is not its wealth but its charity — its willingness to lift the neighbor who has stumbled rather than write him off.
Second chances in law
Mercy of this kind need not stay private. A people serious about can write them into law: sentences that can be revisited when someone has truly changed, prosecutors who are free to set a charge aside when an offender makes real amends and records that clear themselves once a person has lived honestly for years.
None of this is going soft on crime — accountability still matters, and some who do grave harm must be kept apart. It is simply the other half of justice, the part that reclaims rather than only punishes.
After years of war with the Gadianton robbers, the Book of Mormon: Another Testament of Jesus Christ records that the Nephites set free those who covenanted to keep the peace and granted them lands of their own to work and rejoin the community. This is one picture of what mercy looks like when a society believes people can become new.
The case that taught me mercy
I saw that lesson first in that early case when the judge took my draft memorandum home and slept on it. He was a man of deep faith and a careful jurist, and in him, those commitments were not in tension.
The case involved a Chinese man seeking to remain in the country because he was a Christian and would endure persecution upon return. His claim rested on little more than his own word, and at the time, I thought the record was too thin.
The next morning, the judge told me I had gotten it wrong. A court, he said, has no business measuring the sincerity of a person’s faith by testing his religious knowledge. His ruling held law and compassion together, choosing mercy and liberty where both allowed it.
That, I came to understand, is the pursuit of happiness in the Founders’ sense: not the right to feel good, but the chance to become good — and to extend that chance to others, including those who have fallen.
As America turns 250, whether liberty endures will depend on whether we remain a people capable of mercy: able to hold one another to account and still leave the door open for return. A free people is finally known not by how fiercely it condemns, but by how readily it makes room for those who seek to come back. Mercy is critical to what freedom asks of us.
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