The Declaration of Independence was used as an instrument to approach foreign countries and interact on the world stage, prior to winning the Revolutionary War. Therefore, it was the ground on which the Confederation established loans, which were used to fund the war. As such, should it not be as valid, as the debts, for which it was used establish?
Why is the Declaration of Independence not held as legally binding, under Art VI, cl I, of the U.S. Constitution?
3What particular provisions of the Declaration of Independence are you thinking of? And what cases or issues did you have in mind?– SneftelMar 13 at 11:09
3Most of the Declaration is a litany of complaints. The last bit says “so we outta here, and we’re gonna be a country and do country stuff”. But you’d hardly have to look as far back as the Declaration of Independence to establish that.– SneftelMar 13 at 11:12
2I don't understand your logic. Just because the Constitution affirmed one particular type of action taken under the Articles of Confederation, why should that have the effect of affirming the entire Declaration of Independence (which is not even the same document and is itself not mentioned at all)? It's like saying that because I like quiche, I must therefore enjoy all of French cuisine.– Nate EldredgeMar 13 at 21:19
The declaration contains only one passage that purports to have legal effect:
We, therefore, the representatives of the United States of America, in General Congress assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the name, and by authority of the good people of these colonies, solemnly publish and declare, 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; and that, as Free and Independent States, they have full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which Independent States may of right do.
There are no credible challenges to any of this, so the question of whether it formally has legal force is not particularly consequential.
The passage at the beginning concerning rights of life, liberty, and the pursuit of happiness, among other concepts, is prefatory material serving to justify the colonies' claimed right to independence. In other words, it establishes the colonies' authority to make the declaration quoted above. It has no legal force in part because it does not purport to have legal force.
1Also, this appears to be a matter of international law, which at the time wasn't binding anyway.– MSaltersMar 13 at 12:02
2@MSalters is it now? I deliberately hand-waved the issue of the legal basis for US independence because even today there isn't a clear answer to the question "how does an independent country come into existence?" And that is the only legal effect that this document purports to have (ignoring its possible effect of binding the signatories to their promise, since they're all dead). It's certainly arguable that it continues to have this effect in the context of US domestic law, but it's an argument with little to no practical implication.– phoogMar 13 at 12:10
1Yes. The notion of "non-binding international law" finds its origin in treaties that states could ratify at will. But the development of Customary International Law and jus cogens in particular introduced the notion of non-derogatable, binding norms.– MSaltersMar 13 at 12:33
2@MSalters what purportedly binding international law purports to bind sovereign states to recognize another sovereign state, and what body enforces this? To the extent that one can say that there is binding international law in certain areas such as human rights, it seems to me that international law continues to reserve the right of recognition to individual sovereign states. How do you imagine it is different today? I don't think there is an international court that could require Serbia to recognize Kosovo, for example, and if there is, its power over Serbia also arises from a treaty.– phoogMar 13 at 13:28
5@MSalters - There's no such thing as binding international law... Just look at how the UK parliament is currently debating passing a bill that would be in flagrant violation of our international obligations on the treatment of refugees Mar 13 at 22:55
The Declaration of Independence was succeeded by the Articles of Confederation, which were succeeded by the Constitution. Thus, they have been replaced TWICE now by later, more inclusive, laws.
Has nothing to do with "international law", which is largely non-binding itself outside of treaties that more than one nation has agreed to and signed.