The Declaration of Independence as a Legal Document:
It is sometimes forgotten that the purpose of the Declaration of Independence was not only to declare independence from Great Britain, but to justify that political separation. To the colonists, it was not enough that the British had violated their rights. Every government violates the rights of the people from time to time and this was not thought sufficient to justify separation. Rather, it was that "a long train of abuses" led to the conclusion that the British government was engaged in something like a continued conspiracy to violate the rights of the colonists. But they felt they had to make out this case, which they did in the form of the Declaration.

It used to be an American tradition to gather on every Fourth of July and hear the Declaration read out loud. On the first day of Constitutional Law, I have my students read it aloud, complaint by complaint, to get a sense for the document that laid the theoretical groundwork for the Articles of Confederation and then the Constitution. The legalistic nature of the Declaration is evidenced by its often omitted first sentence, and is also reflected in the bolded text in entire next paragraph:
In CONGRESS, July 4, 1776

The unanimous Declaration of the thirteen united States of America,

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.

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. --That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. —Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain [George III] is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world. [To read the rest click "show"]

I'm not quite sure what the purpose is of insisting that the catalogue of the Crown's infringements of the Colonists' individual and collective rights were not "violat[ions]," but instead nothing more or less than "'abuses.'" We could bring down Roget's and Webster's to tease out the fine shadings of difference in the terms, but it would be pointless. Infringement of a negative right, violation of a negative right, and governmental abuse of a negative right all seem similar enough for our purposes to avoid distinction. And while the specific rights themselves aren't much listed, beyond the Lockean in the Preamble, any 1L can name the right being abuse[d] here: "For transporting us beyond Seas to be tried for pretended offences," to take just one example. Apparently it was "enough that the British had violated their rights," for the signers, anyway.

I'm just curious why it would be important for it not to be for the purposes of this post.
7.4.2005 1:58am
Joseph Steinberg (mail) (www):
Thanks for the opportunity to read this document again.

It's not just the difference between abuse or violation. It's the argument, that the British Crown was engaged in a conspiracy against all the colonies. According to my reading, the British Crown never perceived the 13 colonies as one unit, but as separate administrative units. The colonies themselves viewed each other through local and sectional animosities, which the British exploited. So, invoking a unanimous declaration hides a great deal of opinions purposefully to assume a unity against a government that purposefully tried to sow divisions.

The question, then, is was the British Crown purposefully trying to split the colonies for thereasons the Declaration mentions, or was it just incompetence built upon prejudice and lack of local information? Were the colonies themselves wrong in certain matters?

Even assuming the importance of the principles the Declaration espouses, the Declaration is not a pragmatic document which guides any government through tough choices.
7.4.2005 2:54am
Troy Hinrichs (mail):
Was there not a time when some like Franklin wanted the 13 to be subsumed into the United Kingdom as full members a la Scotland et al.?

I believe it was British short-sightedness (or stupidity) that led to the abuses and violations listed in the Declaration.

"Abuses" in my mind means ill will -- intentional maltreatment. People of good will sometimes violate laws or relationships (contractual, interpersonal), but there's a difference between being overzealous in pursuit of policy and being intentionally cruel, arbitrary, capricious, etc.

The Declaration is not a list of a few incompetencies -- it is a list of mistreatment of colonists by the Crown and while any one in isolation is not enough to justify revolution... the whole is sufficient justification. "...The continued conspiracy..." as Randy put it.

I start an undergrad class on Con Law on Tuesday -- we start with the the reading of the Declaration of Independence.
7.4.2005 4:18am
Joseph Steinberg (mail) (www):
Another point for Professor Hinrichs:

These abuses occurred over the course of the terms of more than a few British administrations and cabinet officers. Do you think this "British short-sightedness" resulted from the constitutional rotation of prime ministers and officers, and not some grand plan or conspiracy which although executed flawlessly, was based on flawed information and prejudice toward the colonists?

Could the Declaration be too hyperbolic? Working with Canadians, I hear the general argument, that Americans lacked loyalty, when the British were consumed with international committments and domestic problems. Could local, colonial problems have inflamed tensions at exactly the wrong time? If so, as a statement of legal principle, perhaps the Declaration has little tosy about how a government, or two governments, should handle a crisis.
7.4.2005 5:10am
Troy Hinrichs (mail):
I don't know about a grand plan to torque off the colonists... Most governments are too incompetent to put together such a grand conspiracy. Where gov't is concerned I almost always go for Incompetent as my default explanation (or luck or bad individual act) for behavior (says the former 10 year public servant and son of public servants).
7.4.2005 5:50am
The history of the Revolution is fascinating stuff. For one thing, it is pretty clear that although the colonists termed it tyranny, their government was pretty good by 18th-century standards. Sure, they lacked direct representation in Parliament, but D.C., Puerto Rico, etc. are in the same situation now, and it's hardly tyranny. What the colonial elites really lacked was access to the plum patronage positions of colonial oversight that went to persons of influence in London -- governorships, judgeships, and other appointments. See Bernard Bailyn, Politics and Social Structure in Virginia, in J.M. Smith, ed., Seventeenth-Century America, pp. 90-115 (Chapel Hill: University of North Carolina Press, 1959).

It is often assumed that the colonies grew increasingly apart from Britain in the years preceding the Revolution, but there is convincing evidence that the colonies were actually becoming more similar, not dissimilar, to Britain in terms of their culture and society. See T.H. Breen, "Baubles of Britain": The American and Consumer Revolutions of the Eighteenth Century, Past &Present, vol. 119, pp. 73-104 (May 1988). The more similar they became, the more it chafed that colonial elites were shut out from positions of power.

Of course the Declaration is a magnificent document that is justly celebrated, but the circumstances that led to it seem to me to be a fortuitous accident, rather than an inevitable revolt against an oppressive evil.
7.4.2005 11:17pm