The Declaration of Independence and the Force of Law

July 3rd, 2011

Exactly one year ago, I posed the question of whether the Declaration of Independence has the Force of Law. It was a question which I had considered for some time, but could not find an answer that satisfied me. I closed that post with this prediction: “Hopefully, by this time next year this post will have blossomed into something a bit more substantive.”

I am happy to report that this post blossomed into something much more substantive in much less than one year–more like 6 months. This past January I published Original Citizenship in PENNumbra, which sought to answer just this question–does the Declaration of Independence have the Force of Law.

Here is an excerpt from the piece:

While Americans are fond of celebrating the birthday of the Unit- ed States every year on July 4th, this date, as well as the Declaration, has no constitutional significance.7 Fireworks and barbecue aside, for legal purposes the practical starting date of the U.S. is 1789, when President Washington was inaugurated and the first Congress met.8 Our courts do not take cognizance of the Declaration. Yet to a mem- ber of the first Congress or a federal judge in 1789, the United States was not an infant, but was an old, familiar friend, and by 1789, such congressmen and judges had no doubt considered themselves to be U.S. citizens for quite some time. The Constitution merely represented a new form of government for a preexisting country. Article VII concludes that the Constitution was submitted to the states in the year “of the Independence of the United States of America the Twelfth.”9 The Constitution includes a direct textual and historical link to the Declaration and the year 1776.10

In the future, I intend to research further how the Declaration did not just broadly pronounce certain rights, and liberties, but actually established a nascent–albeit incomplete–form of government that enacted laws passed by the Continental Congress. As the concluding paragraph of the Declaration notes:

“…and that as free and independent states, they have full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent states may of right do….”

The United States, now a “free and independent state” had the power of such a state. What did this power include? Under the auspices of the Continental Congress–the provisional government of sorts–the United States could levy war, enter into a treat of peace, form alliances, establish trade and commerce, and “do all other acts and things which independent states may of right do.” What were these things that a state could do? What exactly did the Continental Congress, as a sovereign government, actually do?

The Supremacy Clause of our Constitution directly references “debts contracted and Engagements entered into, before the Adoption of this Constitution” and “all Treaties made . . .  under the Authority of the United States.” These are debts, Engagements, and Treaties made (past tense) before the ratification of the Constitution. While the clause about Debts and Engagements specifically references the Confederation, the clause about the Treaties does not. I hope, in future works, to explore how the framers of the Constitution viewed the effect of Treaties–and perhaps other types of laws–enacted by the Continental Congress.

A more complete understanding of the significance of the Declaration—and the laws that the Continental Congress and the states passed “in pursuance of” and “under the Authority of” the Declaration—sheds new light on the Constitution.209

209 The nature and scope of laws—in the words of the Supremacy Clause of Article VI—passed “in pursuance of” and “under the Authority of” the Declaration of Independence, will be analyzed in future works.

Additionally, in future works, I intend to address how a redefined understanding of the Declaration can impact our 9th, 10th, 11th, and 14th amendment jurisprudence, which I teased in the article:

Like “citizenship of the United States,” which is based on doctrines that emerged from our Independence, other portions of our Constitution are premised on powers and rights predating 1789—including a state’s reserved pow- ers,210 a state’s sovereign immunity,211 the privileges or immunities of United States citizenship,212 preexisting enumerated rights,213 and the rights retained by the people.214

210 See New York v. United States, 505 U.S. 144, 157 (1992) (“The Tenth Amend- ment confirms that the power of the Federal Government is subject to limits that may, in a given instance, reserve power to the States.” (emphasis added)).

211 See Alden v. Maine, 527 U.S. 706, 764 (1999) (Souter, J., dissenting) (“The American Colonies did not enjoy sovereign immunity, that being a privilege unders- tood in English law to be reserved for the Crown alone . . . .”); Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 470 (“In determining the sense in which Georgia is a sovereign State, it may be useful to turn our attention to the political situation we were in, prior to the Revolu- tion, and to the political rights which emerged from the Revolution.” (emphasis added)).

212 McDonald v. Chicago, 130 S.Ct. 3020, 3078 (2010) (Thomas, J., concurring) (“The Clause is thus best understood to impose a limitation on state power to infringe upon pre-existing substantive rights.” (emphasis added)); see also Josh Blackman & Ilya Shapiro, Keeping Pandora’s Box Sealed: Privileges or Immunities, the Constitution in 2020, and Properly Extending the Right to Keep and Bear Arms to the States, 8 GEO. J.L. & PUB. POL’Y 1 (2010) (encouraging originalists to embrace the clause); Alan Gura, Ilya Sha- piro & Josh Blackman, Extending the Right to Keep and Bear Arms: The Tell-Tale Privileges or Immunities Clause, 2009–2010 CATO SUP. CT. REV. 163, 164-68 (analyzing the interpretation of privileges or immunities clause in McDonald v. Chicago).

213 Dist. of Columbia v. Heller, 128 S. Ct. 2783, 2797 (2008) (“[I]t has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right.”).

214 See Troxel v. Granville, 530 U.S. 57, 91 (2000) (Scalia, J., dissenting) (“And in my view that right [of parents to direct the upbringing of their children] is also among the ‘othe[r] [rights] retained by the people’ which the Ninth Amendment says the Con- stitution’s enumeration of rights ‘shall not be construed to deny or disparage.’” (em- phasis added) (quoting U.S. CONST. art. IX)).

Please don’t forget, today is about much, much more than fireworks and barbecues. Now go blow some stuff up and grill some meat!