The Declaration & Constitution: The Legal Status of Founding Documents [No.86]
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The Declaration & Constitution: The Legal Status of Founding Documents [No.86]


Americans love the Declaration. Rightly so. But American legal practice doesn’t reflect
and doesn’t represent that same, uh, utilization in the Declaration, other than as a statement
of political principle, not a statement of legal principle. Americans, since about the 1820s, have robustly
debated the role of the Declaration of Independence in the political sphere and in the legal sphere. In the current debates that law professors
engage in and scholarship and in public debates is nothing new. And it’s important that we, as Americans,
and we, as law professors, get that relationship right because there’s a lot at stake. The Declaration has phrases like, “All men
are created equal,” and different people interpret that phrase differently, but regardless of
how one interprets it, if the Constitution, in some form or facet, embodies that phrase,
then that authorizes a different meaning for the Constitution with different implications. The strongest points of contention in the
debate among legal academics over the relationship between the Declaration and the Constitution
is, first, does the Declaration have a unique role or a unique status in constitutional
interpretation, and then second, what that unique role or status is. The Constitution’s own text identifies it,
and only it, as the supreme law of the land. And it’s inconsistent with that claim of the
Constitution’s text to say that the Declaration has unique legal status. And this isn’t something that scholars in
2018 have thought of. It’s actually something the First Congress
and the first session also saw. So the first Congress and the first session,
in its eighth law, passed a law reenacting the Northwest Ordinance. The Northwest Ordinance had initially been
enacted by the Second Continental Congress under the Articles of Confederation. Since the Northwest Ordinance was not the
Constitution, was not a law made pursuant thereto, because it was under the Articles
of Confederation, and because it was not a treaty, under the supremacy clause of our
current Constitution, it became inoperative. And so, the first Congress re-passed the Northwest
Ordinance and expressly said it was doing so that it would continue to operate in the
Northwest Territories. Now, think about the Declaration. The Declaration was a law passed by the Second
Continental Congress. It’s not the Constitution, it’s not a law
passed pursuant thereto, and it’s not a treaty. And therefore, just the like Northwest Ordinance,
under the supremacy clause, for it to continue to have legal status, it would have to be
passed again by our current Congress under our current Constitution. But of course, it never was. I think the Declaration and the Constitution
have significantly different purposes. First, the Declaration of Independence was
primarily about declaring independence of the colonies from the United Kingdom with
a justification, both in political principle and in the actual actions of the king. It’s relatively theoretical, uh, it’s relatively
abstract in its justifications, and it’s relatively elegant in the language that it uses. The Constitution isn’t that. The Constitution is an eminently practical
document. The Constitution identifies, for example,
how many branches of government we’ll have, how long the president’s term shall be, what
powers will Congress have. It leaves aside the sonorous language of the
Declaration and puts in place the practical language of governance. Now, that doesn’t mean that they aren’t doing
something related, and I think, in fact, the Declaration and the Constitution are related,
because the Declaration identifies the point of independence of the United States, identifies
the political principles of the United States, and the Constitution is the mechanism to implement
those political principles.

4 Comments

  • David Parsons

    and the bar accusations it's not laws folks wake-up understand their business is not our business and they have authority over man and woman of America we are law their lawless and are not American it's s corporation a Banking system that don't belong to the American people its all about contracts stop contracting with agencys you dont know and never met.

  • Enkidu

    The D.I. provides historical support demonstrating principles that are deeply rooted in our nations history and tradition; principles that are so deeply rooted that neither liberty nor justice could be had in the absence thereof. Accordingly, they are fundamental to our orderly system of justice.
    In my view, the D.I. is indeed the law of the land too.

  • huddless50

    The reason government cannot allow the Declaration of Independence to have any "lawful" authority is simple. It sets forth the ultimate right and DUTY of the people to commit treason against the ruling government to overthrow it by force if necessary should due cause can be shown.
    Can you think of anything more dangerous to a sitting government? Of course they must deny it's legitimacy.

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