Many times in the past when I’ve written of the Declaration of Independence, I’ve emphasized that it is not law. The Constitution is law, but not the Declaration, which is a political document. This causes a lot of anxiety in people looking to cite the Declaration as though it were some kind of a trump card in an argument, and a wee bit of confusion.
After all, the Declaration was written by lawyers. The Continental Congress appointed lawyers from its ranks — from the initial motion by Richard Henry Lee to the committee of John Adams, Roger Sherman, Benjamin Franklin (the only member of the committee who was not a lawyer, to my knowledge), Robert R. Livingston, and its principal draftsman, Thomas Jefferson.
It’s a political document, albeit one written by lawyers. Just as culture is a foundation of law without being law itself, so too is the Declaration. John Adams wrote that the Revolution had already begun and was well underway by July 4, 1776, and the Crown had recognized the “open and avowed rebellion” before that date as well.
If it were anything like a legal document, it would be much more akin to a brief, a document of advocacy rather than adjudication. And what politics and law have in common is that they are about persuasion. And for that reason, it deserves study, for it exemplifies the manner of persuasion that prevails in courts to this day, on both sides of the Pond. [Continued at NaPP]