October 20, 2011
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.
Well said, Steve.
Posted by: Joshua Fershee | Oct 20, 2011 10:20:07 AM
"An action that violates the law does not become legal just because the public approves."
Even less so, when a judge or a panel of judges allows such an action. Have no fear, there is no danger of plebiscite.
Posted by: Anotherphil | Oct 21, 2011 7:41:29 AM
I'm not completely sure what you mean, but I think I have to disagree with the "even less so." For better or worse, someone has to determine the meaning of the law and I would rather have the decision made by an independent judge than by a majority of my fellow citizens. Judges err and judges sometimes succumb to public pressure, but many times they do not.
Posted by: Steve Bradford | Oct 21, 2011 10:40:18 AM