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Monday, July 04, 2011

Happy 4th of July!

The Fourth of July is one of my favorite holidays.  And the fireworks are my favorite part of the day.  Here is a link to the premier celebration -- the Boston Pops Fireworks Spectacular.

Here is a link to the Declaration of Independence online at the Archives of the United States.

Here is a link to the webguide to the Declaration of Independence at the Library of Congress.

Abraham Lincoln understood the Declaration to have been more important than the Constitution.  He once likened the Declaration to an apple of gold set inside a silver frame that was the Constitution.  See Fragment on the Constitution and Union (1861).  Thus, I have always considered it passing strange that the SCOTUS has consistently considered the Declaration not to have the force of law in the way the Constitution has the force of law.  See Cotting v. Godard, 183 U.S. 79, 107 (1901).

Happy Independence Day!

Thomas E. Baker  



Posted by Thomas Baker on July 4, 2011 at 07:00 AM | Permalink


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Thanks. I understand your comments, of course. We might think of "the pursuit of happiness" as a general "right of privacy" or a libertarian form of liberty in the 5th and 14th amendments. Some Americans would celebrate that development and other Americans would flee from it.

By a useful comparison, the SCOTUS treats the Preamble -- which is part of the text of the law of the Constitution -- as neither creating any government power nor any individual liberty. Thus, the part of the Constitution that most Americans know by heart is dead letter, legally speaking.

Your mention of the Article of Confederation reminded me, however, of Justice Stevens' eccentric effort to invoke the Articles of Confederation as a basis for federal powers, i.e., as a viable source of legal authority and not merely as an historical document. See his concurring and dissenting opinion in New York v. United States, 505 U.S. 144 (1992). His argument was taken seriously enough by Justice Scalia for him to reject it and to repeat the rejection in Printz v. United States, 521 U.S. 898 (1997).

Finally, we should appreciate that the Declaration in fact has figured prominently in the interpretation of the Constitution, as a background historical document in numerous opinions and decisions of the SCOTUS.

Posted by: Thomas E. Baker | Jul 5, 2011 10:46:13 AM

The Declaration Independence precedes the Constitution. When the Declaration of Independence was passed, the 13 original states operated under The Articles of Confederation, under which each state was in independent nation. Each nation-state was free to disregard the Confederation's laws if it wished. Even then, the Declaration of Independence was not a law; rather, it was an explanation of why the 13 nation-states wanted to independent of the United Kingdom (the proper name for what we call England).

When The Constitution was ratified, the Declaration of Independence was not incorporated in the US Constitution; nor, has it been made an Amendment to the Constitution or a law. Even if the Declaration of Independence had been a law under The Articles of Confederation, it would not have have force of law because any laws under The Confederations ceased to have force of law upon ratification of The Constitution.

It is unlikely that the Declaration will ever be made an amendment to the Constitution or be made law because of what the Declaration of Independence states about the rights of the people if government becomes destructive to serving its citizens. If you are unfamiliar to what I am referring, read the sentences of the Declaration of Independence just after "life, liberty, and the pursuit of happiness." These sentences are the reason that more than a few US citizens consider the Declaration of Independence to be dangerous.

Posted by: CJT | Jul 4, 2011 8:07:30 PM

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