The Legality of the Declaration of Independence--and How to Determine Legality

This is a little off the business law track, so please indulge me. American and British lawyers recently debated the legality of the U.S. Declaration of Independence. The BBC News story, which excerpts some of the arguments is here and a story in the Wall Street Journal’s Law Blog is here.

The Wall Street Journal concludes “A vote at the end of the debate, held at Benjamin Franklin Hall, reaffirmed the legality of the insurrection.” Two things strike me as wrong about that comment.

First, the debate was held in Philadelphia. It’s hardly surprising that an American audience supported the Declaration of Independence. For a slighlty less biased reaction, check out the comments to the BBC story. I like the comment which states that the Declaration was completely illegal and its signers were traitors, then concludes “and it was the most wonderful event which ever happened in the history of the New World Colonies and for the American people.”

But what really bothers me about the Journal’s conclusion is the idea that a popular vote can determine whether something is legal. I’ve noted a disturbing trend, particularly in discussions of constitutional law, to equate majority opinion with legality. One reason we have the rule of law is to protect the minority from majority rule. An action that violates the law does not become legal just because the public approves. And an action within the law does not become illegal just because the public disapproves.

The Declaration of Independence was a wonderful action and it may have been legal, but no popular vote can ever make it so. And I suspect the Founders would agree with me.

-Steve Bradford