The Declaration of Independence and the Force of Law
posted by Josh Blackman
At PrawfsBlawg, Eric Johnson writes that the Declaration of Independence ought to have the force of law. In at least one important ways, it does.
In order to be a Representative, or Senator, a person needs to be a “Citizen of the United States” for 7 years, and 9 years respectively. Who was a “Citizen of the United States” for 9 years in 1789 when the First Congress met? How did one constitutionally become a “citizen of the United States” prior to the ratification of the Constitution on June 21, 1788? For purposes of citizenship, and the Constitution, when did the United States of America begin? The answer to these questions begins in the year 1776.
In Original Citizenship, published in PENNumbra earlier this year, I looked at how the Declaration of Independence, and various theories of citizenship through consent that prevailed during the revolutionary era, might provide an answer to the constitutional requirements of Representatives and Senators.
The citizenship of those who lived in the United States before the Declaration was primarily determined under two doctrines that derived from Lockean social compact theory.17 The first theory postulated that by virtue of residing in theUnited States at the moment of independence and separation from Great Britain, a person automatically became a citizen, regardless ofwhether that person was a Yankee or a dissenting loyalist. The second theory contended that citizenship and allegiances could not be imposedon anyone, because to do so would be contrary to the spirit ofthe Declaration. Rather, following independence, a person could choose or “elect” whether he wanted to become a U.S. citizen.18 Alternatively, he could exercise his right of expatriation within a reasonable period of time, and thereby decline citizenship. For the most part, all states adopted a naturalization policy that mirrored one of these strands.
Additionally, I consider how these theories impacted early notions of citizenship of the United States at three critical junctures: before the ratification of the Constitution, during the first Congress, and following the first Congress.
First, in treason cases, in order to distinguish between a disloyal citizen and a foreign alien combatant, a court needed to determine if the accused was a U.S. citizen. Second, because “[e]ach House shall be the Judge of the Elections, Returns and Qualifications of its own Members,”19 early records of contested elections in the House and Senate help explicate the contours of the original understanding of U.S. citizenship for House qualifications. Third, in cases interpreting Jay’s Treaty,20 the courts needed to establish whether a claimant was a citizen at the time of the Revolution in order to determine if certain barriers to recovery existed.
This dynamic is not limited to the qualifications of Representatives and Senators 200 years ago. This early understanding of citizenship, and the legal authority of the Continental Congress to act as a sovereign over the colonies/states and new citizens, has direct implications on many aspects of modern constitutional jurisprudence–including the 9th, 10th, 11th, and 14th Amendments.
The Declaration of Indepedence, at least in this limited context, is a legal document, that has the force of law.
Cross-Posted at JoshBlackman.com.
July 5, 2011 at 12:03 pm
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Responses (12)
Blaise Pascal - July 5, 2011 at 1:37 pm
Wouldn’t, for legal purposes, the July 2nd, 1776 resolution of the Continental Congress (“Resolved, That these United Colonies are, and, of right, ought to be, Free and Independent States; that they are absolved from all allegiance to the British crown, and that all political connexion between them, and the state of Great Britain, is, and ought to be, totally dissolved.”) be a more significant date than when the Declaration was approved 2 days later?
Josh Blackman - July 5, 2011 at 1:43 pm
Blaise–
The date of the resolution, or the date when the Declaration was approved, or the date when the Declaration was read to the people of Philadelphia, or the date(s) when the Declaration was transmitted to the people of the newly formed states, are all important dates.
The reading of the Declaration to the members of the Continental Army seems especially poignant:
Joe - July 5, 2011 at 2:17 pm
The reply (2) is a bit confusing. I too think for the purposes of the discussion set forth in the main post, the actual declaration of independence (7/2), not the document itself (which by itself has no legal effect, though the arguments therein seem to me instructive of certain legal understandings, including natural law) is the key issue.
Why all the other dates (including when it was read) are LEGALLY “important dates” is unclear. The date to me that would count is when declaration was formally, legally, declared. When an explanatory document was read to the public doesn’t really seem legally too relevant.
Josh Blackman - July 5, 2011 at 2:24 pm
Joe,
The Declaration was drafted and agreed upon in total secrecy. Sure it was agreed upon on July 2, but who knew about it, other than the people in the room?
The Declaration did not have a ratification process in the states, like our Constitution did. In this sense, I pay attention to when people first learned about the Declaration, rather than when the ink dried on the parchment. Simply signing and “declaring” Independence is not enough. The impact and legal force of the Declaration emerged when people learned about it.
Joe - July 5, 2011 at 2:33 pm
Even today, certain things can be drafted and agreed upon in secrecy; the U.S. Senate was much less public in the early days. The “official date” would still be the same, even if it isn’t apparent right then and there to the public at large.
I don’t disagree that the DOI’s “impact” emerged over time. The true “legal force” on some level came when the peace treaty was signed and independence was no longer unilaterally recognized. But, as a matter of when to determine legal citizenship started, again, I’m not sure how all this matters.
Joe - July 5, 2011 at 2:37 pm
“Simply signing and “declaring” Independence is not enough.”
On this, basically, why not? The states delegated authority to the delegates of the Second Constitutional Congress, giving them the authority to declare independence on July 2.
Legally, that perfected things. The reality of the situation required popular acceptance and military success, but it’s like signing a law. The law can be null and void practicably if no one respects it or violations aren’t prosecuted, and maybe few people even KNOW about it. It’s still the law when signed.
Josh Blackman - July 5, 2011 at 2:40 pm
Joe,
I agree with everything you said. The delegates were sent to the Congress with the authority of their states to declare Independence.
In the essay, I explore how doctrines of citizenship were understood in the revolutionary era. Many contemporaneous thinkers relied on the July 4th date, or more precisely, when people learned about Independence, to demarcate citizenship. That is why these other dates are relevant, even if they post-date the actual date for legality’s sake.
A.J. Sutter - July 5, 2011 at 9:56 pm
I’m sorry, I think Joe’s line of argument, which seems persuasive even to you — that, as between the two events, it’s the little-d declaration of independence, not the big-D Declaration of Independence, that has force of law — negatives the first and last sentences of your post.
I’m not sure I follow the logic, though, of Joe’s comment, “The true ‘legal force’ [of the DoI] on some level came when the peace treaty was signed and independence was no longer unilaterally recognized.” The treaty refers neither to the July 4, 1776 date nor to the DoI itself. Given that the British had been fighting a war since 1775 with the former colonists, arguably they didn’t need the DoI to give formal notice of the colonists’ intentions. And one could also argue that independence wasn’t achieved legally until the treaty was signed (as was the case with Uruguay and some other Latin American states), though I admit that position is not likely to influence the USA’s self-understanding.
Josh Blackman - July 5, 2011 at 10:04 pm
A.J.
If the date is july 2, or July 4, or really any point in the summer of 1776, what difference does it really make to my broader thesis?
In my essay, I really don’t place a specific date on it for an important reason. We are not talking about legal effect in the modern sense (Congress passes a law, the President signs it into law, it becomes law at that time, etc.).
Rather, these doctrines of citizenship really emerged in a common law fashion based on Lockean theory of citizenship in various ways in various states at various times. What mattered to the people and judges who developed these theories is not something technical, like July 2 or July 4, but rather the broad pronouncement of Independence. All of these developments occurred long before the Treaty of peace, and really while the war was still raging.
A.J. Sutter - July 6, 2011 at 1:25 am
I’m not contesting your thesis about citizenship, just your statements about the status of the big-D Declaration. These seem to have been made to put some journalistic ‘zing’ into your writing, and to pull people into reading about your citizenship thesis, which may indeed be a worthy end. But the statements’ utility for that purpose doesn’t excuse their inaccuracy — and all the less so because they are so salient in your post, rather than minor factual fluffs made in passing.
Joe - July 6, 2011 at 7:41 am
AJ, I’m saying that until independence is recognized on both sides, “on some level,” it has limited practical effect.
The U.S. could recognize 7/2/76 (and since early on they were not necessarily fighting for independence, a formal notice had some value) as the date before that, but if GB still recognized its citizens as British subjects, it had limited effect.
A.J. Sutter - July 6, 2011 at 10:11 am
Joe, thanks for your reply. I agree with your most recent comment, which goes to the legal effectiveness of the small-d declaration. I had understood your earlier one as relating to the big-D, which is what had had me confused (since it seemed out of synch with your other comments). I’m getting to feel a little iterated-out on this topic, though, as I think Josh did a while ago!
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