Vail Law: Is the Declaration of Independence a legal document? | VailDaily.com

Vail Law: Is the Declaration of Independence a legal document?

Rohn Robbins
Vail, CO, Colorado

The 4th of July is just around the corner and you know what that means: beer, apple pie, fireworks over Nottingham Park, the Vail Valley’s own Lawn Chair Drill Team snapping smartly through town and, a celebration of… independence. Oh yeah, that.

What we refer to simply as the Declaration of Independence is more properly titled “the unanimous Declaration of the thirteen United States of America.” That lacks a little zest, though. I like the short and pithy D of I.

Most everyone knows how the story goes. The American colonists were sick and tired of being oppressed (and taxed) by Mother England and so determined to strike out on their own.

School kids, at least of my generation, could recite the stirring preamble to that most iconic of American instruments:

“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…”

But that’s not the beginning, really. It’s just where the fun stuff starts. The true ground zero is this:

“When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.”

It then details those “self-evident” truths, followed by the “grievances,” the raison d’etre of the Declaration. In all, it lists 30 grievances against the king and concludes, with bursting emotion, that (owing to the aforesaid list of gripes and woes), “That these united Colonies are, and of right ought to be, Free and Independent states.”

Pretty inspirational stuff.

But the question arises: is the Declaration of Independence legal? Well, yes. Of course. And no.

At the time that it was promulgated it was, in fact, wildly illegal, in violation of every precept of British law, and if you asked any loyal Brit, in contravention of every notion of probity and common decency imaginable. “What hooligans and ingrates!” must have gone the proper British thinking. After all, this declaration led to the bloody War of Independence – or secession – depending, I suppose, what side of the Pond you favored.

But once independence was won, the D of I became iconic, the parchment embodiment of Liberty. And by force of arms, the declaration – the founding instrument of modern democracy – became undeniably legal. But what places does it have in American law?

Very little, really.

An early question arose as to whether the declaration was part of the constitution itself (first adopted on Sept. 17, 1787), was ancillary to the Constitution and should be used like a bright desk lamp to shine light on the constitution, or whether it was, like the christening of a vessel on its maiden voyage, just stirring words that set the nation on its course.

The answer has generally been the latter. The Supreme Court has held that the declaration does not have legal force, at least as to the domestic laws of this nation. Neither does it confer any independent rights upon its citizens. Its purpose achieved, it had fulfilled its function. And, thereafter, the new nation established the rights of its citizens and its laws of governance.

But the Declaration has from time to time been trotted out by the court to help interpret other laws. Although early on, the court held that the constitution was the supreme law of the land, the court relied on the declaration to confirm certain the rights of the people as compared to those of the states. Generally, though, liberal and conservative justices alike have been reticent to bestow upon the declaration the status of substantive law.

Stirring? Yes. Visionary? Indeed. Accomplished in its purpose? Undeniably. Something to celebrate? If you value your freedoms, of course. But law? Well, not so much.

Have a safe and happy 4th.

Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley. His practice areas include: business and commercial transactions, real estate and development, homeowner’s associations, family law and divorce and civil litigation. He may be heard on Wednesday nights at 7 p.m. on KZYR radio (97.7 FM) as host of “Community Focus.” Robbins may be reached at 970-926-4461 or at his e-mail address: robbins@colorado.net




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