In recent debates regarding the separation of church and state, I often see the Declaration of Independence used as a justification that the United States is a ‘Christian’ nation because it uses the term ‘Creator’. However, I don’t see the term ‘God’ or ‘Creator’ used in the Constitution.
My question is: Does the Declaration of Independence have any basis in law in the US? To my knowledge, and IANAL, is that the basis of law in the US is the Constitution and English common law.
If you have any questions about my question, please let me know and I’ll try to make it more clear.
The basis of law in the U.S. on the federal level is the Constitution, congressional statutes, the various rulings promulgated by the adminstrative branch and independent agencies,* and the judicial interpretations of same.
The Declaration of Independence is nice prose but has no legal standing. Our laws are certainly derived from English common law but have equally certainly divulged from it over the years.
Separation of church and state rests on the First Amendment. You are correct in that God does not appear in the Constitution. In fact, in two places people are specifically given the right to affirm rather than swear, making the Constitution explicitly areligious in its manifestations.
*You try telling the SEC, FCC, FDA, FTC, IRS, INS, ATF, and the rest that their rulings don’t have the force of law.
You are correct, urban1z. While the DofI is often cited in ideological arguments about the founding principles of the country, it has no legal status. The Constitution is the supreme law of the land, and all legal authority is subject to it, including, by the way, the English common law which we inherrited.
A quick read of the Deceleration will reveal that while it does contain some recitation of principles ("we hold these truths to be self evident…), it is for the most part a listing of grievances against the British crown and parliament. Some of the grievances are pretty petty, as the complaint that the King had moved colonial assemblies to inconvenient places. This is a reference to the Crown Governor of Mass. having the assembly meet in Cambridge (our fair city) rather than Boston in order to get it away from Sam Adams’s mobs which were terrorizing loyalists in Boston.
None the less, the statement of principles, while not law, have had great effect on the interpretation of the Constitution. Much of Lincoln’s reading of the objectives of the Constitution and the destiny of the nation was based on his reading of the self evident truths listed in the Deceleration. See, for example, Gary Willis’s book on the Gettysburg Address.
I have heard many Americans say that we have a “Rule of Law”. Since Law can’t rule but must be interpreted by someone and since here in the USA we have delegated that task to judges I tend to think of it as a “Rule of Judges”. Law is whatever a judge says it is. Unless a higher judge or panel of judges overrules that decision. The highest panel is the Supreme Court and according to one of them:
Thanks to all who responded. And also, thanks to reading my question as I should have asked it, rather than the way I did ask it. Of course, I should have said something like: Is any us law based on the Declaration of Independence.
All the answers confirm what I had suspected and I’ll have a ready argument the next time it comes up.
I said on the “federal level” specifically to exclude state laws. But if you want to include them, then the same qualification stands: they (mostly) are based on English common law, but have been changed so much from it that current state codifications would hardly be recognizable to anyone in the 16th century. And Louisiana’s law is based on Napoleonic (French) civil codes, which are very different from English civil law. Again, though, it has changed tremendously over time.
You are correct in that treaties are technically part of the federal law. The U.S. has long had a odd way of handling treaty law, unfortunately - we tend to ignore its existence whenever it suits our purposes.
What is frustrating (to me) is that very few Americans recognize “When in the course of human events…” as part of the Declaration od Independence so there’s no point in telling them it is not original to it.
I always liked the “abridge their king” part. It sounds like taken from Allan Sherman’s song “Louis the 16th” where he says "we’re gonna take you and the queen, down to the guillotine and shorten you a little bit.
The Declaration does not have the same force of law as does the Constitution, but it does clarify many things esp if you want to see what the founding fathers intended, as does the Declaration of the Causes and Necessity of taking up Arms from July 6, 1775. http://www.historyplace.com/unitedstates/revolution/causes.htm
Seems to me, that any Supreme Court Justice, any judge, any prosecutor, and any lawyer should be completely familiar with all 3 of these documents as well as all of the debates and opinions when these things were written and adopted.
What better way to understand what the Constitution really means?
How does one determine what the Constitution really means? By researching how judges have interpreted it. As Oliver Wendell Holmes Jr. said, the law is whatever judges in fact will do.
As for the idea that The Declaration of Independence expresses what what the Founding Fathers intended the Consitution to mean, it should be noted that Thomas Jefferson, the principal author of The Declaration of Independence, was, in fact, opposed to having a constitution.
As previous posters have noted, the Declaration is mainly a list of grievances against Great Britain. A prime reason given at the time for needing it was that it would be useful for diplomatic purposes when soliciting aid from foreign powers.
A comparative reading of The Declaration of Independence and The Constitution shows very little congruity. If The Constituion is “based” on The Declaration of Independence, then it is also “based” on The Ten Commandments, an idea examined on this board in the past week. And if The Constitution can be said to be “based” on both of these texts by somehow embodying their spirit, then it can just as fairly be said to be based on The Quran, The Upanishads, The Pledge of Allegiance, and The Little Engine That Could.
