Is the US Declaration of Independence Illegal?

[Kinyo]

http://www.bbc.co.uk/news/magazine-15345511

In Philadelphia, American and British lawyers have debated the legality of America's founding documents.

On Tuesday night, while Republican candidates in Nevada were debating such American issues as nuclear waste disposal and the immigration status of Mitt Romney's gardener, American and British lawyers in Philadelphia were taking on a far more fundamental topic.

Namely, just what did Thomas Jefferson think he was doing?

Some background: during the hot and sweltering summer of 1776, members of the second Continental Congress travelled to Philadelphia to discuss their frustration with royal rule.

By 4 July, America's founding fathers approved a simple document penned by Jefferson that enumerated their grievances and announced themselves a sovereign nation.

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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”

The Declaration of Independence
Called the Declaration of Independence, it was a blow for freedom, a call to war, and the founding of a new empire.

It was also totally illegitimate and illegal.

At least, that was what lawyers from the UK argued during a debate at Philadelphia's Ben Franklin Hall.

American experiment
The event, presented by the Temple American Inn of Court in conjunction with Gray's Inn, London, pitted British barristers against American lawyers to determine whether or not the American colonists had legal grounds to declare secession.

For American lawyers, the answer is simple: "The English had used their own Declaration of Rights to depose James II and these acts were deemed completely lawful and justified," they say in their summary.

To the British, however, secession isn't the legal or proper tool by which to settle internal disputes. "What if Texas decided today it wanted to secede from the Union? Lincoln made the case against secession and he was right," they argue in their brief.

A vote at the end of the debate reaffirmed the legality of Jefferson and company's insurrection, and the American experiment survived to see another day.

It was an unsurprising result, considering the venue - just a few blocks away from where the Declaration was drafted. But did they get it right? Below are some more of the arguments from both sides.

Just spotted this while having a read about Gaddafi. Pretty interesting and I imagine that since the USA has been formally recognised by other nations it renders the argument invalid. I'm probably wrong but then again im not always right.

[White Haven]

...Of course it was illegal. There's no such thing as a legal revolution, from the original ruling country's perspective. That's the entire point of it; when you run out of space within the law and still feel you need to act, you say 'fuck it' and keep going anyway. If you win, you get away with saying 'fuck that law,' and, in this case, 'fuck your entire legal system, we're on our own.'

Winning doesn't somehow retroactively make the act legal, it just means that you don't particularly have to care.

[Thanas]

The USA was an "illegal" country up until the treaty of Paris.

[Simon_Jester]

...Of course it was illegal. There's no such thing as a legal revolution, from the original ruling country's perspective. That's the entire point of it; when you run out of space within the law and still feel you need to act, you say 'fuck it' and keep going anyway. If you win, you get away with saying 'fuck that law,' and, in this case, 'fuck your entire legal system, we're on our own.'

Winning doesn't somehow retroactively make the act legal, it just means that you don't particularly have to care.

Yeah.

And yet try, just try to get people to believe this point regarding the Confederate States of America...

For some reason, some people just don't want to admit that their revolutionary ancestors broke the law in order to have a revolution in the first place.

[Ryan Thunder]

Yeah.

And yet try, just try to get people to believe this point regarding the Confederate States of America...

For some reason, some people just don't want to admit that their revolutionary ancestors broke the law in order to have a revolution in the first place.

I find their resistance to the idea bewildering. It's not like there's some kind of cultural meme where 'good guys don't break the rules', so that wouldn't explain it...

[Rogue 9]

Yeah.

And yet try, just try to get people to believe this point regarding the Confederate States of America...

For some reason, some people just don't want to admit that their revolutionary ancestors broke the law in order to have a revolution in the first place.

I find their resistance to the idea bewildering. It's not like there's some kind of cultural meme where 'good guys don't break the rules', so that wouldn't explain it...

I don't. To understand it you need to understand the history of the neo-Confederate movement, and understand that the effort to suborn education and political culture to legitimize the Confederate States dates all the way back to the end of the Civil War. Losing didn't make the Confederates give up on the idea of southern independence; they simply changed tactics. It's difficult to determine from their extant writings whether the secessionists truly believed secession was legal under the 10th Amendment or not, but whether they did or not doesn't matter. After 1865, they realized that to keep their movement alive and have any chance of bringing it to fruition in the future, they had to do two things, both to do with the upbringing of their descendants: First they had to instill the notion that it is a right of the states to leave the Union, and second that Lincoln was a tyrannical usurper for brutally using force to suppress them. Contrasting the writings of Jefferson Davis and Alexander Stephens pre-war, during the war, and post-war illustrates this clearly. The resistance to the idea that the Confederates broke the law isn't the result of a cultural meme about good guys not breaking rules and the notion that the Confederates were the good guys; it's the result of an intensive campaign by ex-Confederate Southern leaders during Reconstruction and the early Jim Crow years to create a sort of cultural brainbug wherein as many people as possible believe this was the case, because believing that secession is legal means someone in the future might try again when there's a President more like James Buchanan than Abraham Lincoln.

[CaiusWickersham]

This was really just an intellectual exercise set up for some publicity and I would like to see/have a written debate with a British barrister over the Declaration and the case it sets out. As I read it, and from what I've been taught about the Declaration, it comes down to this:

Parliament had repeatedly violated the separation of powers and the limits of government set out in British common law up to that point. Parliament then ignored the colonies and their cries for redress or tried to circumvent the objections by using pretextual means to accomplish unlawful ends. Benjamin Franklin's examination by Parliament in 1766 states the American arguments about taxation -- that internal taxes could only be levied by popular representation -- pretty succinctly for those inclined.

EDIT: Perhaps there's a member of the board who'd like to take this up in the Coliseum? We haven't had a good debate topic there in a long time.

[Alyeska]

The Declaration of Independence was a PR document. Nothing more. The US government doesn't even give the document legal standing.

[B5B7]

There is a simple rule about revolutions - if the revolution fails, it was an illegal uprising. If it succeeds, then WE (the revolutionaries) are the LAW. It is true of French, Russian, etc, Revolutions.
If there is a counter-revolution later, then if they wanted could declare the prior revolution illegal, but most in such circumstances have other concerns, and the previous event is literally just history.

[Count Chocula]

The Declaration of Independence
Called the Declaration of Independence, it was a blow for freedom, a call to war, and the founding of a new empire.

It was also totally illegitimate and illegal.

At least, that was what lawyers from the UK argued during a debate at Philadelphia's Ben Franklin Hall.

Of course it was illegal, in the eyes of the British Empire. That of course begs the question, how did the British Empire gain its legitimacy?

Power

The people of the Colonies (well a critical mass of them anyway) had the power to break away from the Empire, with some help from France along the way. To quote Darth Sidious out of context, the colonists said "I will MAKE it legal" and did so through military power. Might equals right, e pluribus unum!

The Confederates failed militarily. The Northern states defeated them. Again, might equals right.

[Simon_Jester]

Chocula, do you mean "might makes law," or "might makes right?" There's a difference, and I'd like to check.

[Count Chocula]

Simon, it's a transitive equation in the larger sense:

Might makes 'right.' A=B

'right' i.e. power makes law. B=C

So might makes law. A=C

Q.E.D. Wow, freshman philosophy has practical application! Whoddathunkit.

[Crateria]

Wasn't there some quote from a movie (Either The Patriot or 1776 I believe) that went

"When it's our revolution, it's legal, right and just. When it's THEIR revolution it's illegal and needs to be put down"?

[Vaporous]

It was 1776. They have Ben Franklin say to their villain-for-dramatic-purposes version of John Dickinson;

"Oh, Mr. Dickinson, I'm surprised at you. You should know that rebellion is always 'legal' in the first person, such as 'our rebellion'. It is only in the third person, 'their rebellion', that it is illegal."

On topic:

The USA was an "illegal" country up until the treaty of Paris.

sums it up, with "illegal" being in quotes to show that even then it was a matter of perspective. The only reason this gets any notice at all is because some people will fly into a frothing rage at the idea that there might have been something not entirely "proper" about the American Revolution, as if that makes any difference.

[Simon_Jester]

Simon, it's a transitive equation in the larger sense:

Might makes 'right.' A=B

'right' i.e. power makes law. B=C

So might makes law. A=C

Q.E.D. Wow, freshman philosophy has practical application! Whoddathunkit.

The problem here is that your "A=B" statement is very unclear. You didn't define "B." What do you mean by "right?" Are you using "right" to mean "the power to do things?"

Is that just a poetic thing? Or are you arguing that it is objectively correct in some sense for the more powerful group to enforce its will on the weaker?

I don't mean to be intrusive here, but I honestly can't tell...

[Crateria]

Simon, it's a transitive equation in the larger sense:

Might makes 'right.' A=B

'right' i.e. power makes law. B=C

So might makes law. A=C

Q.E.D. Wow, freshman philosophy has practical application! Whoddathunkit.

The problem here is that your "A=B" statement is very unclear. You didn't define "B." What do you mean by "right?" Are you using "right" to mean "the power to do things?"

Is that just a poetic thing? Or are you arguing that it is objectively correct in some sense for the more powerful group to enforce its will on the weaker?

I don't mean to be intrusive here, but I honestly can't tell...

I think he's saying that use of force (might) tends to be the truly deciding factor in setting laws because even if one side had the best laws EVOR but a weak military somebody who was despotic but strong could just crush them and set the laws. You probably already knew that.

"Right" I think he means as the idea shared by various people who adhere to the philosophy that if you crush somebody you get to control them.

[ComradeClaus]

one could apply this to libya's rebels right? w/nato's power backing them, they were victorious and 'just'.

of course britain's power was teh royal navy but their treatment of their subjects was as far from just as possible. ie irish potato & bengali famines