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The Declaration of Independence is an essential element—the essential element—of our national identity. Abraham Lincoln put the point beautifully when he called it the “electric cord” that “links the hearts of patriotic and liberty-loving men together.” He was speaking then about Independence Day celebrations and the fact that every year, immigrants and the children of immigrants join in celebrating the founding despite the fact that their ancestors weren’t in the country in 1776. “[T]hey cannot carry themselves back into that glorious epoch and make themselves feel that they are part of us” by mere reflection on their ancestors, continued Lincoln. However, “when they look through that old Declaration of Independence [and] find that those old men say that ‘We hold these truths to be self-evident, that all men are created equal,’” they understand that they too are Americans. Recognition of the principle of political equality, not ethnicity or heritage, is what makes Americans. Thus, even such immigrants “have a right to claim it as though they were blood of the blood, and flesh of the flesh of the men who wrote that Declaration.”
But the Declaration is more than a statement of the ideals that bond patriotic and liberty-loving men together. It’s also a legal document (one of the “organic laws” of the United States) that plays an important role in our constitutional system—or ought to, if it were properly understood. Unfortunately, throughout American history legal theorists have often denied the significance of the Declaration as law.
The Declaration of Independence is law. It was voted on and approved by the Continental Congress—the governing body of the nation at that time—and it had, and still has, legal effect. It’s codified in the United States statutes, today, at page 1, volume 1, of the Statutes at Large and in a supplemental volume of the U.S. Code. The Constitution refers to the Declaration directly (it was signed “in the Year . . . of the Independence of the United States of America the Twelfth”) and indirectly, as when it refers to “the people of the United States”—the same “one people” identified in the opening line of the Declaration. In fact, the Declaration of Independence is a precedent to the U.S. Constitution and, as such, an understanding of the Declaration is vital to interpreting the Constitution.
For instance, the Declaration announces the principles on which national sovereignty is based. Its pronouncements that all men are created equal, and that they create government to secure their rights, reserving always the right to alter or abolish it, serve as the foundations for the Constitution. Indeed, these principles are why the people had any right at all to create a constitution (a point James Madison made in Federalist No. 40).
The Declaration also answers the question of whether sovereignty ultimately rests with the nation as a whole or with the states. Was the sovereignty that was seized from Great Britain in the Revolution inherited by the American nation or by the states separately? If sovereignty rests with the states, must they abide by the Constitution or the principles of liberty and equality that undergird it? These were crucial questions in the years surrounding the Civil War.
But that wasn’t the first time that such questions arose or that such debates raged. Even during the writing of the Constitution, when Maryland delegate Luther Martin claimed the states were sovereign, he was soundly rebuffed by Pennsylvania delegate James Wilson. The states, Wilson observed, had declared independence “not Individually but Unitedly,” and they had never engaged in “the great and distinguishing acts of Sovereignty,” such as foreign relations.
Siding with Wilson, the authors of the Constitution created a system that ensured that the “one people” of America were the basic source of political authority—and that such authority would be limited by the moral principles of equality and liberty as laid down in the Declaration.
What, then, of southern secession in support of slavery? As the nation careened toward civil war, John Quincy Adams—former president, confidant of the founding fathers, and then representative in Congress—made the Declaration’s relevance on this question clear. In his 1839 pamphlet, Jubilee of the Constitution, he explained that the Declaration provided that “not each Colony, but the United Colonies, in fact, and of right, [are] not sovereign, but free and independent states. . . . [B]y the principles laid down in the Declaration, the people, and the people alone, [are] the rightful source of all legitimate government.” Adams reminded his readers that the Declaration made Americans “one people” who had
renounce[d] . . . all claims to chartered rights as Englishmen. . . . [T]heir charter was the Declaration of Independence. Their rights, the natural rights of mankind. Their government, such as should be instituted by themselves, under the solemn mutual pledges of perpetual union, founded on the self-evident truths proclaimed in the Declaration.
The champions of slavery, in turn, were forced to renounce the Declaration entirely or find clever ways of reinterpreting it. John C. Calhoun of South Carolina claimed its references to equality and liberty were wholesale falsehoods. According to Calhoun, slavery was natural and normal, and the Declaration was simply misguided by an Enlightenment-era fixation on reason. What the founding fathers had really meant wasn’t individual rights or individual equality, but the equality of states: they meant that the states had the same power as Great Britain—and this meant they could decide what freedom to “give” people. “It is a great and dangerous error to suppose that all people are equally entitled to liberty,” said Calhoun. Freedom “is a reward to be earned, not a blessing to be gratuitously lavished on all alike.” His allies agreed. The Declaration, they said, was a “self-evident lie” and was at best obsolete in light of modern anthropology, which had proven that black people were inherently inferior.
Still worse, in 1857, the U.S. Supreme Court ruled in Dred Scott that black Americans, even if born free, could never be citizens of the United States. The authors of the Declaration, the Court claimed, thought black people had no rights at all, and in writing that all men are created equal, they really only meant white men.
Lincoln—who like many other antislavery politicians was an admirer of Adams—viewed these statements with alarm. The Declaration’s principles are “the definitions and axioms of a free society” in the same way that the axioms of Euclid are essential to geometry. Those who denied such principles were “the van-guard—the miners, and sappers—of returning despotism.” The Declaration did mean all people, everywhere, at all times. And to disregard the Declaration would mean cutting loose the Constitution, and the political authority it created, from its moral foundations. The locus of sovereignty would then shift to the states, and the limits on sovereignty established by the Declaration’s principles would evaporate. The continent would then be wracked by incessant civil war between tribes, each asserting an inherent and limitless right to enslave others.
Fortunately, the outcome of the Civil War proved favorable for liberty, and in 1868, the Constitution was amended to incorporate the Declaration’s principles into the nation’s fundamental law, in an effort to ensure that nobody would ever again deny the legal significance of those principles. The Fourteenth Amendment begins, “All persons born or naturalized in the United States . . . are citizens of the United States and of the state wherein they reside.” Paralleling the “one people” language in the Declaration, this makes clear that citizenship is a national, not a state, matter. And it proceeds to extinguish the states’ claim to sovereignty. The amendment continues, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” This means that the fundamental rights that belong to all Americans—including those established by federal law or those traceable to the common law or the natural law principles of the Declaration—cannot be taken away by state action. The amendment then forbids states from arbitrarily depriving people of life, liberty, or property, or from denying them the equal protection of the law. These provisions, write Kimberly Shankman and Roger Pilon, were designed “to constitutionalize the natural rights philosophy of the Declaration of Independence.” John Quincy Adams and others had thought it was already constitutionalized, but the amendment ensured there’d be no ifs, ands, or buts.
But things are rarely final in law, and today, some influential intellectuals still argue that the Declaration was nothing more than a rhetorical device, with no legal significance—and more: that it’s confined to its historical milieu, and that its authors didn’t really mean it anyway. Even Justice Thurgood Marshall, the first black justice on the U.S. Supreme Court, wrote that when the Declaration said all men are created equal, it really meant only white men. In other words, Dred Scott was rightly decided. “Legal positivists”—of both conservative and “liberal” varieties—deny that the Constitution has any moral direction to it, or that there are any limits on government power imposed by “the laws of nature” referenced in the Declaration. Moral objections to tyranny, they argue, are just matters of emotion, cultural tradition, or personal distaste.
Fortunately, we who recognize the sanctity of individual freedom have the law on our side. No law means anything without the willingness of the people to honor and enforce it—and that is true of the Declaration, as well. The Declaration, Lincoln said, should always be cherished for containing “an abstract truth, applicable to all men and all times” that could always serve as “a rebuke and a stumbling-block to the very harbingers of re-appearing tyranny and oppression.” As long as we understand it—not merely as a rhetorical exercise, but as a legal document that imposes meaningful boundaries on the power of government—it will stand as an essential part of our law of liberty.
To learn more about the legal role of the Declaration of Independence, check out:
- Storm over the Constitution and Original Intent by Harry V. Jaffa
- Our Republican Constitution by Randy Barnett
- “Reviving the Privileges or Immunities Clause” by Kimberly Shankman and Roger Pilon
- “The Higher Law Background of the Privileges or Immunities Clause” by Clarence Thomas
- The Conscience of the Constitution by Timothy Sandefur
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