The Declaration is not the Constitution. But it does have some important consequences for American law.
The Declaration is not the Constitution. But it does have some important consequences for American law.
T oday, we celebrate the 250th birthday of our nation, on the grounds that this is the 250th anniversary of the Declaration of Independence. It was enacted by the Second Continental Congress, which immediately thereupon changed its character as a body to become the United States Congress — as the document itself says, “the Representatives of the united States of America, in General Congress, Assembled.” So, let’s consider a question that sometimes arises: Is the Declaration law?
In one simple yet extraordinarily important way, the Declaration has enormous legal significance. It creates the United States of America as a sovereign nation, consisting of 13 states that previously were British colonies. In American courts and American law, this is immediately effective. It authorizes the states to reject all further royal authority and commence writing their own constitutions. It empowers Congress, even before the adoption of the Articles of Confederation a year later, to insist upon state contributions to the national army.
Internationally, the Declaration needs to be proven by force of arms before most states will recognize it. But once that is accomplished, it becomes a universally accepted fact that the United States are (later, is) a member of the community of sovereign nations. We have long insisted that this is effective as of July 4, 1776 (although that was resisted by the British). In any future discussion of citizenship, contracts, property, inheritance, marriage, or other individual rights recognized by states, that date remains conclusive. The same is true for national-level rights such as treaties and the recognition of ambassadors and lawful combatant armies.
As the Supreme Court explained in the windy language of early Republic courts in Dawson’s Lessee v. Godfrey (1808), a British subject in America became legally American on July 4. The law of property and inheritance recognized that all of America was properly under the British crown until that date, so Americans could be considered former Britons; but after that, Britons were foreigners in our law:
This case rests upon the single question, Whether a subject of Great Britain, born before the declaration of independence, can now inherit lands in this country? . . . In the state of Maryland, in which the land lies, an alien cannot take by descent . . . We have no doubt that the correct doctrine of the English law is, that the right to inherit depends upon the existing state of allegiance at the time of the descent cast. And that the idea that it depends upon community of allegiance at the time of birth, is a consequence that follows from the doctrines that a man can never put off his allegiance, or be deprived of the benefits of it but for a crime. Community of allegiance once existing must, upon these principles, exist ever after. Hence it is that the antenati of America may continue to inherit in Great Britain, because we once owed allegiance to that crown. But the same reason does not extend to the antenati of Great Britain, because they never owed allegiance to our government.
On the other hand, as the Court recognized in another inheritance case, Inglis v. Trustees of Sailor’s Snug Harbor (1830), while “the settled doctrine of this country is, that a person born here, who left the country before the declaration of independence, and never returned here, became thereby an alien,” the two sides could not agree on when that rule applies: “The English rule is to take the date of the treaty of peace in 1783. Our rule is to take the date of the declaration of independence.”
Congress has since recognized by statute that the Declaration is part of the body of American law. The Declaration is formally printed as the beginning of the United States Code, the compilation of all our statutory law. On occasion, it is referenced in particular laws, such as 22 U.S.C, § 8201, governing the State Department’s democracy-promotion initiatives, which includes the congressional finding that “the United States Declaration of Independence, the United States Constitution, and the United Nations Universal Declaration of Human Rights declare that all human beings are created equal and possess certain rights and freedoms, including the fundamental right to participate in the political life and government of their respective countries.”
On the other hand, the Declaration is not the Constitution, from which flows the powers of our federal government. The Declaration merely declares a nation; it does not constitute authority. It creates neither powers nor enforceable rights. What it creates is the body politic that grants powers; what it recognizes is the universal rights that body politic is bound to respect — or else.
Where there has long been controversy is the question of whether the Declaration’s famous preamble has some independent force, or what other uses it may have to courts in construing the rest of our laws. Abolitionists, for example, argued that the Declaration’s pronouncement that “all men are created equal” and have inalienable rights to liberty was enforceable to prohibit slavery. That was a well-meaning argument, but one at odds with the supremacy of the Constitution, and ahistorical as well: Neither Thomas Jefferson nor the rest of the Second Continental Congress acted in July 1776 as if they believed that they had just freed all the slaves.
On the other hand, the preamble is, as Justice Neil Gorsuch told me when I interviewed him this spring, “kind of our mission statement,” whereas the Constitution is a “how-to manual” with the actual rules. The Supreme Court has cited the Declaration quite a lot over the years: A quick electronic search shows that the phrase “declaration of independence” is used in well over 200 cases. It was cited by the majority and dissents in Dred Scott.
But while its natural law principles inform the philosophical backdrop of the original Constitution and the Bill of Rights, the more prominent use of the Declaration actually turns on the list of grievances against the British that make up the bulk of its text. The reason why Congress insisted on a declaration that was more than just a one-line “Dear George” note was to justify the divorce from the mother country by noting exactly how it had violated the liberties of the American colonists. That, of course, is not law, but it is a highly useful historical source for understanding what was originally meant and aimed at by the original Constitution and the Bill of Rights — what rights they were intended and understood to protect, and what abuses they were intended and understood to prevent.
Or else.