Declaration of Independence Question

Does the Declaration of Independence actually create any law?

And what about…

“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.”

Does this document bind the government to this belief?

No, it is not law. It’s not binding. It does have the power of tradition and intent behind it, which is not trivial. ianal. Soon a real one will be along and explain this better.:cool:

Ianal either, but I know something about the colonial era, and DrDeth is exactly right. The most significant reason it’s not domestic law is that it wasn’t intended to be. But another is perhaps easier to understand.

The first point is what government? The United States did not exist until the 1781 ratification of the articles of confederation. IOW, there simply was no general “government” in 1776 that could be bound–just a continental congress, literally a convention of delegates from the states, discussing whether to create such a government. It couldn’t make law unless every state agreed.

Another point that makes this easier to understand is that the constitution itself was a revolutionary act–one that was inconsistent with prior law (it was not created by the amendment process set out in the articles of confederation–it was a new legal framework, unbound by prior law)

Hence, even if the declaration of independence created a law that bound the “government” in 1776 (as was in fact true of the articles of confederation, which did in fact create a general law that bound the states), it does not bind the government of 1789, or of 2009, because the constitution itself was a repudiation of prior legal structures. The articles of confederation do not apply to the modern united states–and the same reasoning would apply to any law that might have been created (even though none actually were) by the declaration of independence.

It is “law” – it is included as one part of the United States Code. But it is not a binding constitutional or statutory statement of government policy, except in its moral force, as DrDeth notes.

In other words, nobody can be arrested for violating a provision of the Declaration; nobody can sue someone else based on a provision in the Declaration; and nobody can claim it as the enabling provisions for some regulation or policy statement, except insofar as it summarizes the ideals on which the country was founded. Think of it as analogous to the Flag Code – that too is statute law, but has no enforcement provisions; its virtue lies in defining a standard for proper use and care of the flag, just as the Declaration defines the rationale for American independent government by, of, and for the people.


But that isn’t the definition of “law” under the constitution. Law is what is passed by two houses of congress and signed by the president (or one of the other ways of getting around that third step–eg a veto override). As far as I know, that has never occurred to the text of the declaration of independence.

Further, when I look at the US Code, both searching and by browsing, I can’t find the declaration of independence.

so while I believe your statement that that the DoI is in the US code books, that doesn’t make it a law. It isn’t a law because (1) it doesn’t appear to have satisfied the constitutional definition of a law (the US code is just a handy compilation of things that have been passed by congress–inclusion in the books does not make something a law if it has not been enacted by congress and signed by the prez), and (2) even if it is in the books, doesn’t appear to be listed as an official part of the US code.

So like duckster says, I’ll need a cite for the DoI being a law, or a part of the US code.

Er, I don’t think the Constitution repudiated all previous legal structures. The Confederation Congress’s Land Act and some of its other laws, like the one that specified requirements for statehood, continued to be enforced after ratification of the Constitution. Although maybe there was some kind of Act of Congress after 1787 that adopted the Continental Congress’s statutes.

After some searching, I stand corrected. As a non-lawyer, I don’t have access to a searchable USC, but it appears that it was, along with the Constitution and a couple of other documents, published in 1878 by Act of Congress as part of the United States Code Annotated. AFAICT, however, it is not itself a Chapter of the USC, as I had erroneously been given to understand.

As far as legal authority, the Declaration of Independance has the same weight as the National Anthem or the Pledge of Allegiance - ie none.

It did more or less by definition–because it did not fit into any of those structures. The constitution created a new government in a way that was not permitted under prior law–under british law, the colonies couldn’t create a constitution, and under the articles of confederation, the requirements for ratification weren’t met.

So when I say it repudiates the structures, it’s not even necessary for it to repudiate prior laws–it goes even deeper, to repudiate the prior structure within which laws exist. The whole point was to create a new nation.

Repudiated by Art. IV, Section 3–which specifies the requirements for statehood. If the state of utopia met the requirements under the convention, but not those of IV.3, it’s not a state. If the opposite is true, it is a state.

I don’t know specifically about the land act–but as I say earlier, my point isn’t that any particular law survived or was repudiated–but that the structure was repudiated. Anything that bound the new government was because (1) the new government consented, by law, or repassed it later, (2) consented in the constitution (see, e.g. the first section of article VI–making the US bound by the “debts and engagements” of the prior congress), or (3) didn’t object to it–but not simply because it was a law beforehand.

As well as what’s already been said, I’d like to point out that the purpose of the Declaration of Independence wasn’t to make law anyway. It was, as the name indicates, to declare independence, and to explain the justification for doing so.

Actually, I would suggest that the Declaration of Independence does have a legal effect - it sets the date of US independence as July 4, 1776. By contrast, in the United Kingdom, the date recognized by the courts for US independence was 1783, when the King agreed to the Treaty of Paris, which recognized US independence.

This difference in the dates played a role in some court cases in the US and in the UK after the war, when issues of citizenship and title to land (which in those days was linked to citizenship) came before the English and American courts.

On a side note I love when someone on talkradio (a caller or the host) says a law is unconstitutional by quoting the DoI

Just my very humble observation, but it seems to me that the Declaration impacts the Constitution and all other law insofar as it gives an ongoing, implicit moral underpinning for revolution. That is, the Constitution and the current government is not the be all, end all political arrangement for our people: always bear in mind that if it’s found that the established government doesn’t serve the interests of its people, we hold in reserve the inalienable right to destroy those existing political ties and create something new for ourselves. It doesn’t define the government of the United States: it addresses the far broader issue of what it means to be an American.

It has as much impact as legislative history does. Which means that if a law is unclear you can try to look through official documents of the Congress that passed it to see if that sheds light on the issue.

In Holy Trinity Church v. US, the Court uses the DoI to show that because the country has a rich tradition of believing in God, that Congress could not have intended for the law at issue to ban the importation of foreign Priests. A huge leap in logic, but that’s how the DoI would normally be used in a court case. If a statute or a clause in the Constitution is unclear to the Court, then it might use the DoI to shed some light on the issue. The DoI isn’t always relevant, but it’s possible that it could be. That’s why you need smart judges on the bench to know when it’s relevant and when it isn’t.

OK, but if the individual acts of the prior structures can survive the replacement of the prior structures, then the Declaration could have retained whatever force it had even once the Continental Congress was abolished.

While the Constitution was of course intended to replace the Article of Confederation, it recognized the acts of the Confederation as valid in a way that it did not recognize the acts of the previous English-governed colonial governments. The Confederation’s Treaty of Paris was recognized as binding, and we tried to meet our obligations and demand our rights under it. But King George’s Proclamation Line of 1763, reserving all the land west of the line for the Indians, we treated as so much waste paper. This suggests that there was a continuity recognized between the Confederation government and the Constitutional government that was not recognized between the royal government and the Constitutional government, although whether the dividing line was the independence resolution or the ratification of the Article, I don’t know.

This was actually argued at the time of the Civil War. The Southern states said that by calling the state conventions again and voting against ratification of the Constitution, they became independent again. But Lincoln argued that the Union existed before the Consitution did, so even if you had the power to unratify the Constitution, that still wouldn’t get you out of the Union.

Not repudiated, merely supplemented. The Northwest Ordinance of 1787 abolished the 13 colonies’ claims to the northwestern territories, carved them up into pieces that could apply for statehood, specified how many people they had to have before they were to be considered for statehood, and how many people they had to have to receive a territorial governor. All of which continued to be the law under the Constitution and was the actual process by which we added all our states right up to the Missouri Compromise. But checking it up, I see that the First U.S. Congress under the Constitution recognized the Northwest Ordinance by a formal vote, and arguably the Ordinance wouldn’t have been binding without that vote.

Well, I disagree that the acts of the continental congress would remain valid merely because of their prior status, as opposed to their prior status plus the consent of the congress/some other constitutional authority (as you note later, acts such as the NW ordinance were re-enacted–suggesting a need to do so on the part of the framers.)

The point I was trying to make was that even if ordinary laws could retain force, the Declaration is not a mere law–it is a framing document, creating a nation. My view is that such documents are exactly what the constitution’s creation of a new framing document repudiated, by creating a new structure for a nation without any regard to the prior legal structures (both in terms of substantive content because it was the prior law, and what (for example) the articles of confederation required to create a new framing document).

As has been said, it does carry considerable weight as Intent and legislative history goes, far more than those others you mention (which have none, afaik). Lakai has shown one case in which is was cited, there are others, iirc. Thus it has some legal authority, but it is not Law.

Lakai mentioned a case in which the Declaration of Independence was used to demonstrate people’s religious beliefs. That’s not giving the document legal weight; it’s just citing it as evidence of context. By the same token the National Anthem could be cited in a flag-burning case to demonstrate how important the meaning of the flag is to some people. But flag-burning could never be illegal based on the National Anthem.

You have to remember all the DoI says is that “men were created equal” it doesn’t say they were BORN equaL or they must be treated as equal.

There’s not need for smart judges to decide whether or not it’s relevant because the SCOTUS only uses it when it suits them. There’s no rhyme or reason to it. Just when they want to come to a conclusion and can’t figure anyway else to do it.

See this website for some particular cases re: Supreme Court and the DoI