Constitional law scholars, lawyers: re the Declaration of Independence

Someone over in this thread suggested that by rescinding the Declaration of Independence we would automatically become British subjects, by virtue of laws passed since then on that side of the pond. While I strongly suspect that to be false, it still makes me ask whether the the D.O.I. has any legal siginificance, in the same way that the Constitution does. Could it be rescinded; i.e., is there anything in the legal sense that could be rescinded? In Constitutional law cases, do judges/justices ever say, in effect, that because the D.O.I. states such-and-such, the founding fathers intended such-and-such with a particular part of the Constitution?

The Declaration of Independence has no legal significance. The Constitution is the supreme law of the land, and since the Declaration was written by a body that no longer exists (the Continental Congress) I don’t see how it could be rescinded.

Justices have referenced the Declaration and other documents of the period (such as the Federalist papers) in order to aid their interpretations of the Constitution. But when they do so, it’s because they are attempting to ascertain the founding fathers’ intentions, not because those documents have any legal meaning.

Excellent answer, friedo. Concise and accurate.

These are so rare that they need to be pointed out when they do appear. :slight_smile:

This statement is true in the OP’s sense: the Declaration has no ongoing legal force “in the same way that the Constitution does.” And as friedo points out, it can’t be rescinded – partly because the body that adopted it has gone out of existence, but also because the Declaration was an act with one and only one legal consequence – independence – which once accomplished was irreversible. (There are certainly legal means by which the United States might lose its independence, but none of them would involve rescinding the Declaration – although some of them might involve abandoning the regime that the Declaration brought into being.)

But the Declaration is still the United States’ first organic document, senior even to the 1787 Constitution that is now the nation’s fundamental law. The Declaration is still the basis for the legal order under which the United States has existed since 1776 and that resulted in the 1787 Constitution. If you look at a copy of the United States Code, which codifies the laws “of a permanent and general character,” you might expect that it starts off with the Constitution. But the Constitution is actually the last of four documents that precede the statutes, of which the first is the Declaration. (The two in between are the Articles of Confederation and the Northwest Ordinance.) The Declaration is not positive law in the same sense as the Constitution – that is, law by which a modern court would be bound – simply because it is only a declaration. But that declaration is what made the subsequent positive law, including the 1787 Constitution, possible.

As I pointed out the last time this came up Supreme Court Justice Clarence Thomas believes the Declaration of Independence to be legally relevant.

Sure the Declaration of Independence is legally relevant. Any document, particularly one so historically relevant, is legally relevant in the sense that it can be used by a court as an aid to interpreting the law. In fact, those judges who subscribe to “original intention” like Justice Thomas find many historical documents of the period relevant in their legal analysis, particularly the Federalist Papers, which are cited much more frequently in Originalist legal analysis than the Declaration.

The fact that the Declaration is legally relevant does not mean it has any legal force or effect itself. Rather, from what you quoted it appears that Justice Thomas treats it as a relevant interpretative tool.

The Declaration of Independance holds the same legal strength in the US as the Magna Carta or the Ten Commandments - it might be a source of inspiration but it’s not a binding legal document.