GUEST BLOG: Pursuing America by Aegis Frumento Esq

July 3, 2019

Pursuing America

by Aegis J. Frumento, Partner, Stern Tannenbaum & Bell

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable Rights, that among these are Life, Liberty and the pursuit of Happiness; -- that to secure such rights Governments are instituted among Men . . . .

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These lines, the heart of the Declaration whose anniversary we celebrate today, tell us why we think we have governments. We have a "Government" so as to "secure" certain "Rights" that we have because we "are created equal." The logic of it works; the practice of it, not as well. Still, we've come closer to that ideal than most, so it is always worth pondering what it really means. The Declaration leaves ambiguous the exact scope of those rights, and does not say a word about how the government should go about securing them. That's what American history is all about. Historian Ralph Barton Perry once observed that the whole history of the country has been a coming to terms, "too slow for some and too soon for others," with what the Declaration implies.

By far the most enigmatic of Thomas Jefferson's primal rights is "the pursuit of Happiness." We honestly don't know what that means. To most of us, today, pursuing happiness means grabbing at wealth, power, or a hammock and an ice-cold beer. That is almost certainly not what Jefferson meant. Despite his own elitism, he disdained tyrants and bullies. Nor was he a slacker. Jefferson was as erudite a politician as we've ever had. President Kennedy was not far off when he quipped to a group of visiting Nobel Laureates that so much brainpower had not gathered at a White House since when Thomas Jefferson dined alone. Jefferson's secret? "Determine never to be idle," he once wrote. "No person will have occasion to complain of the want of time who never loses any. It is wonderful how much may be done if we are always doing."

So how should we think about "the pursuit of Happiness"? Arthur Schlesinger wrote an obscure little article in 1964 in which he wrote that "pursuit," as used in 18th Century political discourse, did not mean "chasing after." It meant practicing, as in having a pursuit, or pursuing a career, vocation or profession.
. Not very long ago, lawyers still "pursued the law;" today we just practice it, but it means the same thing. We are not guaranteed the right to chase after happiness, but to practice it.

OK, it's a start. But how do you practice happiness? Is it simply practicing those things that make you happy? Perhaps to some extent, but not entirely. One can't understand "happiness" as used in the Declaration without taking into account the primacy of luck.

Jefferson was an Enlightenment thinker, and the occurrence of chance events, luck, was an obsession with them. Blaise Pascal noted that one way to avoid boredom is to gamble a little every day. His "wager" argument for believing in God was just the sort of thing he would come up with. That things just happen at random, for no good reason, ran seriously against the grain of the Middle Ages, when everything had its proper place in the Great Chain of Being and all that happens is just what makes this the best of all possible worlds.

Jefferson would therefore applaud the first definition of "happiness" in Webster's Third International Dictionary: "good fortune; good luck; prosperity" -- also labeled "archaic." To be happy is to have "hap" another fine English term for fortune, luck, chance. Hap is the random events that just, well, happen. We still see it in words like "hapless" (unlucky), "mishap" (accident), "haphazard" (disorganized, as in random), "happenstance" (a chance event).

There's more. Jefferson's biographer Dumas Malone reports that Jefferson was quite the student at The College of William & Mary. Young Thomas learned Greek and was well read in ancient Greek philosophy. He would have known that "happiness," in that archaic sense, is how translations of his day rendered the Greek word "eudemonia." Jefferson would have known eudemonia to mean "human flourishing" -- to be all that we can be, whatever our fates (chances, luck) allow us to be. The Greeks knew that luck was integral to achieving eudemonia. For example, when the Greek wise man Solon met King Croesus -- he who we all desire to be as rich as -- Croesus asked him who was the "happiest of men," who had the most eudemonia. Solon refused to name Croesus, which pissed him off. Solon explained that fortune comes and goes, and no one can be judged happy until he is dead. Croesus learned that to his cost; when his kingdom was overrun by the Persians he almost ended up barbecued by Cyrus the Great. Another story.
. Jefferson's equality wasn't naive. He knew very well that because of the chance circumstances of birth -- both what you are born with and what society you are born into -- some will always be born more equal than others. Sally Hemmings no doubt would have told him. We are each born with cards in our hands and a seat at a game table, neither of which is of our own choosing.

Ever since John Rawls wrote his seminal A Theory of Justice in 1972, moral philosophers have argued that to achieve the equality promised by the Declaration, society should give out trump cards to even the disparate odds created by chance at birth. This so-called "luck egalitarianism" underlies much of the rhetoric of the new left, and is also its stumbling block. To equalize our cards means, inevitably, that the government will use brute force to make naturally better hands worse and inferior hands better. Both she from whom is taken and he to whom is given instinctively recoil from this. Take my aces, and I'll resent your tyrannical thievery. Give me someone else's aces and I'll resent your condescending paternalism. It's a no-win situation, which is a clue that we are thinking about it wrong.

One of the few modern philosophers who has been thinking about it better is Elizabeth Anderson at the University of Michigan. See Anderson correctly sees that any attempt to make us equal after the fact is not going to sit well. Government can, however, ensure that the rich and powerful don't interfere with our ability to exploit whatever gifts we do have. That is, as Anderson calls it, democratic egalitarianism, which more about how we treat each other than about how much hap each of us is dealt.

"The pursuit of happiness" now takes on a different cast. It has nothing to do with chasing after whatever turns you on, whether it's a fat bankbook, a toke over the line, or a wasted day in Margaritaville. To pursue happiness is to practice luck, and any poker player can tell you what that means. You practice luck by staying in the game, playing each hand to the best of your ability, round after round. It means, as Jefferson noted, always be doing.

Most hands are a mix of aces and deuces and each round of play is different. As the song goes, every hand's a winner, every hand's a loser. The pursuit of happiness is nothing more than the right to stay at the table and play your hand as you see fit. By that light, Government exists to make sure some bully doesn't steal your aces or throw you from the table. Immigrants and refugees know this better than we do. They come from societies where bullies took away their aces and left them holding deuces. All they want is the freedom to play their own cards in peace.

They think they'll find it here, if anywhere. That's why they're coming to America, and why they (your ancestors and mine) always have. And why, with luck, they always will.


Aegis J. Frumento
Stern Tannenbaum & Bell
Co-Head, Financial Markets Practice

380 Lexington Avenue
New York, NY 10168

Aegis Frumento is a partner of Stern Tannenbaum & Bell, and co-heads the firm's Financial Markets Practice. Mr. Frumento represents persons and businesses in all aspects of commercial, corporate and securities matters and dispute resolution (including trials and arbitrations); SEC and FINRA regulated firms and persons on regulatory compliance issues and in SEC and FINRA enforcement investigations and proceedings; and senior executives of public corporations personal securities law and corporate governance matters.  Mr. Frumento also represents clients in forming and registering broker-dealers and registered investment advisers, in developing compliance policies, procedures and controls, and in adopting proper disclosure documents. Those now include industry professionals looking to adapt blockchain technologies to finance and financial market enterprises.

Prior to joining the firm, Mr. Frumento was a managing director of Citigroup and Morgan Stanley, a partner and the head of the financial markets group of Duane Morris LLP, and the managing partner of Singer Frumento LLP.

He graduated from Harvard College in 1976 and New York University School of Law in 1979. Mr. Frumento is a frequent author and speaker on securities law issues, and is often quoted in the media on current securities law developments.

NOTE: The views expressed in this Guest Blog are those of the author and do not necessarily reflect those of Blog.