The other day Joe Carter linked to a BBC item about a debate that was held in Philadelphia, on the question whether the Declaration of Independence was “illegal.”  Evidently there were legal scholars on both sides, the British arguing that the Declaration (hence the American Revolution, hence the country that resulted from it) was illegal, and the Americans arguing that the Declaration was indeed legal.  The BBC’s online article, and the brief accompanying video that was presumably aired on the network, were both a bit sketchy in their account of the arguments made by the two sides.  But from what I can gather, the Brits probably mopped the floor with the Americans—the former’s bad arguments being less bad than the latter’s.

The strategic error of the Americans was the decision to defend the “legality” of the Declaration.  Of course the Declaration of Independence was illegal.  That was the whole point—that one could be driven to revolutionary action by standards of justice that are higher than the law, and against which the law is judged.  Of course the signers of the Declaration were committing treason, from the standpoint of British law.  They knew this perfectly well; remember that bit about hanging together or else hanging separately?

Yes, the Declaration itself uses the language of law (“the laws of Nature and of Nature’s God”), and excoriates the King and Parliament for violations of multiple legal norms.  But peaceful redress having become impossible by this point, the signers announce that they are sundering a legal relationship, in the name of “self-evident truths” about human equality and freedom.  The shooting having long since begun, it was well past the point of arguing that the Americans were acting “legally” in any meaningful sense.

The Americans’ tactical error in the recent debate was to appropriate the Declaration’s language of natural law and assimilate it to the “British tradition of the common law,” when the truth is the other way around.  In 1774, Thomas Jefferson wrote ” A Summary View of the Rights of British America ,” in which he argued from inside that tradition, while reconciliation still seemed possible.  But the Declaration of Independence no longer speaks of the rights of Englishmen, but instead of the rights of human beings. 

The British, for their part, cleverly borrowed Abraham Lincoln, whose argument against southern secession seemed to them to rebut the pretensions of the American “secessionists” of 1776.  If the Americans had been on their game, they could have turned the flank of this argument handily (if they did so, there is no evidence of it in the report linked above).  For the revolutionaries of 1776 were not seceding at all, because they were not justifying their behavior as lawful .  They were announcing a revolution, which is quite a different thing.  The southern secessionists of 1861 were claiming that their behavior was not an overturning of the Constitution, but lawfully consistent with it.  Lincoln exploded this as preposterous, demonstrating their behavior’s incompatibility with the Constitution, pointing out that if they really wanted to claim revolutionary grounds for action, they should have the courage to make that argument instead, and resting his own argument on the principles of the Declaration.  The Brits had Lincoln all wrong, but it appears that the Americans in this debate were in no position to point this out, because of the folly of their own position.

Next time, send the varsity.

 

Articles by Matthew J. Franck

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