法律英语：101 The Declaration of Independence

by Michael W. Flynn

First, a disclaimer: Although I am an attorney, the legal information in this podcast is not intended to be a substitute for seeking personalized legal advice from an attorney licensed 1 to practice in your jurisdiction 2. Further, I do not intend to create an attorney-client relationship with any listener.

Happy 4th of July, Loyal Listeners. Today I pause from my Supreme 3 Court roundup to address an anonymous 4 listener’s question posted over 6 months ago:

How exactly does the Declaration of Independence work? Is it considered part of the Constitution? Has it been used in cases? What does it do?

The very short answer is that the Declaration of Independence, while a momentous 5 document that defined this country, has little, if any, binding 6 legal effect.

The document that we now know as the Declaration of Independence was simply a document entitled “The unanimous Declaration of the thirteen United States of America,” and states in part:

When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel 7 them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving 8 their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence 9, indeed, will dictate 10 that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

The document then goes on to list some 30 grievances 11 against the King, and conclude “That these united Colonies are, and of Right ought to be Free and Independent States.” Powerful stuff, but nothing particularly unique. Most of the general notions of man’s freedom to govern himself and to eek out a free existence can be drawn 12 from Lockean philosophy.

But, an early question arose in constitutional law as to whether this Declaration was part of the Constitution itself, an ancillary 13 document that should be used to shed light on the meaning of the Constitution, or just a nice set of words that operated as a large middle finger to George III.

The Supreme Court has generally held that the Declaration does not have the force of law, and no words in the Declaration can give rise to legal rights independently. One major justification 14 for this view is that the Declaration’s purpose was to separate the United States from Britain, not to prescribe legal rights for the people living in the colonies.

However, the Declaration has been used in aiding the Court to interpret other laws. For example, in early constitutional law, the Court held that the Constitution was the supreme law of the land as the highest expression of intent of the people. The Court relied on the Declaration’s language about the rights of the “people,” as compared with the rights of the states. Another example, in an 1830 case, the Court, interpreting a wills and estates question of New York law, held that a child born in New York before July 4, 1776, and whose parents moved him to Britain, was not a citizen of the United States. That is, the Court determined 15 that July 4, 1776 was the date on which the sovereignty of Great Britain ceased.

Beyond these examples, and a handful of others, courts are generally hesitant to apply the Declaration as substantive 16 law. This is true of both those justices considered conservative and liberal, such as current Justices Scalia and Breyer.

However, the general principles have been utilized 17 by several political movements to support their positions.

In 1848, Elizabeth Cady Stanton penned the “Declaration of Sentiments,” declaring all men and women equal, and listed grievances against man in the same way the Declaration of Independence listed grievances against George III.

Abraham Lincoln cited the Declaration to support his argument that slavery was not legal, in part on the language that “all men” were granted certain inalienable rights. Proponents 18 of the Confederacy cited the Declaration to legitimize their secession from the Union, urging that they were simply following the example of the Revolutionaries, and parting ways with a government that had grown despotic and uncivilized.

However, after the Civil War, the 14th Amendment 19 to the Constitution was enacted 20, which expressly provides for equal protection under the law. Scholars and jurists no longer needed to cite to a pre-Constitution document for notions of equality because the Constitution itself then provided support.

Even so, the Declaration’s principles continued to resonate. The leaders of the American Civil Rights movement also cited to the Declaration for its broad notions of freedom and equality. Modern movements against abortion 21 claim that even an unborn fetus 22 has an inalienable right to life, as expressed in the Declaration. Some point to the Declaration’s recognition of God as support for the position that America is a Christian 23 nation.

Overall, the Declaration, while not a binding legal document, still serves as a cornerstone of our Republic’s dedication 24 to the high ideal of true freedom. And today, grill 25 something, have a cold one, light some firecrackers, and enjoy today as the birthday of this truly great nation.

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