On the Law of the Declaration of Independence

There is no doubt that the Declaration of Independence was unlawful. At the very least it was sedition. Arguably it was much worse: treason. But to claim that it was against the law is not what is legally interesting about it. What is fascinating about the Declaration of Independence is that it was thoroughly grounded in and based on law. Its authors had drunk deeply from the well of the common law and expressed themselves in avowedly legal, even constitutional, terms. The Declaration of Independence was unlawful but it was none the less imbued with—saturated in—law. 

To a common lawyer with any sense of seventeenth-century constitutional history, the Declaration of Independence has a strong whiff of familiarity to it. Whether the aroma is welcome and reassuring or noxious and troubling depends on one’s political point of view—Whig or Tory, Commonwealthman or Royalist, Roundhead or Cavalier. But all sides would assuredly agree they had picked up this scent before. 

The core of the Declaration is a list of grievances against the crown, a raging at the machine. Such lists, whether we call them petitions, declarations, or bills, were a hallmark of the constitutional conflicts of the English seventeenth century. The Petition of Right (1628), the Nineteen Propositions (1642) and the Bill of Rights (1688) are all examples. Lawyers love a precedent and these authorities were wilfully copied and pasted by Jefferson and his colleagues, not only as to form but likewise as to content. The complaints against George III that assent had been refused to legislation, that laws had been wrongfully suspended, that representation had been denied, and that the judiciary had been undermined were all echoes of the parliamentary grievances voiced repeatedly against the Stuart kings of the seventeenth century. The cardinal complaint—that there ought to be no taxation without representation—had been urged in terms in the Petition of Right, in the Nineteen Propositions and in the Bill of Rights. Jefferson’s insistence on this principle was profound, but was hardly novel. 

To a common lawyer, it was all the more powerful for that. If the idea of “no taxation without representation” had descended from nowhere, it would have been all the easier to dismiss. Its potency lay precisely in the fact that it was grounded in legal right, not asserted out of the blue. 

Both the parliamentary opponents of the Stuart kings and the signatories to the Declaration of Independence believed that they were, at least in part, seeking to restore past values and practices of good governance as much as striving to instil new ones. The common lawyers in the parliaments that presented the Petition of Right and the Nineteen Propositions considered there to have been an ancient constitution, rooted in a long distant Anglo-Saxon past, predating even the Norman conquest, and codified in instruments such as Magna Carta (in 1215). It was the haughty Stuart monarchs (and their evil counsellors) who threatened this long-ago established order, not the zealous commonwealthmen and puritans of the House of Commons. To condemn the common law arguments of the parliament-men as self-serving myth-making misses the point. Whether it was fiction or truth—or a combination of the two—did not matter. What mattered was that the story was fervently believed. 

It was only after events in France in 1789 that the term “revolution” took on the meaning it has today. For the English parliament-men of the seventeenth century, and for the American authors of the Declaration of Independence alike, it meant “restoration”. Politics and government needed to turn—to revolve—away from recent misdeeds and back towards the values and principles of the past. It was tyranny that was new, the tyranny of taxing without consent, of suspending laws, and of imposing a militia on the people; and tyranny had to be resisted—not in the name of something new, but in order to return to and restore the true values of constitutional government. Given this framing, it is hardly surprising that the form and content of a common lawyer’s petition of grievance should be selected as the instrument of choice. 

Moreover, resistance to tyranny had been stitched into the very fabric of the story the common lawyers told themselves about government and power. You did not have to be a republican—still less a regicide—to consider that the king’s authority was properly constrained by law. It is true that there was an avowedly republican strain in English constitutional thinking, a strain derived from the Renaissance translations into English of the Roman historians (Tacitus, Livy, and Sallust) and of Machiavelli’s Discourses. The strain was taken up by Cromwell’s propagandists, by Marchamont Nedham and John Milton, and it was developed further by James Harrington. 

Jefferson knew this line of thinking well. But he also knew that the common lawyers had at the same time developed their own theory of resistance to tyranny. John Selden, Henry Parker, and (above all) Sir Edward Coke grounded their opposition to overweening royalism in what they took—in what they very selectively took!—from the medieval common lawyers, Bracton and Fortescue. Their mission was not to cut the king out of the constitution—still less to cut off his head—but to maintain his power firmly within, subject to, and under the law. This, above all, was the force of the great constitutional documents they helped write, the Petition of Right and the Nineteen Propositions among them. 

These two lines of authority, the one from the commonwealthmen and other from the common lawyers, were woven together by John Locke, in the crafting of his magisterial theory of resistance in the Two Treatises of Government (first published anonymously in 1690). Locke’s moment of triumph came nearly a century later, for never again after 1776 was his theory to recapture the immensity of influence it brought to bear on the Declaration of Independence. 

If the bulk of the Declaration’s text resembles a list of grievances against the crown, its opening lines display immediately their debt to Locke. That all men are created equal, that the laws of nature confer upon us inalienable rights, that government is created in order to secure these rights, and that it may be “necessary” to “dissolve the political bands” which have connected us when government subverts, rather than protects, these rights—this is all as Locke would have it (see, in particular, §§ 6, 131, 220 and 222 of the Second Treatise). 

Moreover, it is also how the English understood themselves to be governed. These were precepts not only of political theory but, it was claimed, of eighteenth-century constitutional law itself. Locke’s Second Treatise became the text which not only explained but justified the revolutionary English settlement of 1688, when James II was taken to have “vacated” the throne, leaving the path open for William III to be “invited” to assume it. This for example was the way in which Sir William Blackstone understood the Glorious Revolution in Book I, Ch 3 of his Commentaries on the Laws of England (1765). Again, the favoured common law technique of copying and pasting is evident. All that the authors of the Declaration of Independence claimed they were doing was to insist on the same inalienable rights and to exercise the same duty to resist which parliament had so successfully asserted in 1688 and which, by the middle of the eighteenth century, even Tory lawyers such as Blackstone appeared to accept lay at the root of the modern constitution. 

Except that this was sleight of hand. Blackstone was a far more slippery customer than this. His account of England’s constitutional history may have been Whiggish and indebted to Locke. But his account of what the law now required—and what little it permitted—was anything but. Ever alive to the power of precedent Blackstone sought to ensure that the events of 1688 could not and did not become one. He played the classic common lawyer’s trick (when confronting a precedent inconvenient to your case): he confined it to its facts, a trick more subtle and oftentimes more effective than bluntly overruling. The “law of redress against public oppression”, Blackstone wrote in the Commentaries, applies only when “any future prince” should endeavour to subvert the constitution, should violate the fundamental laws, and should withdraw himself out of the kingdom, as James II had done (Book I, Ch 7). Absent these criteria, Blackstone insisted, there is no power in the people to resist and, to the extent that Locke would go further, he “carries his theory too far”. This is the point, then, at which the Declaration of Independence departs from legal precedent and breaks new, and newly revolutionary, ground. 

In giving Locke his moment, it may look as though Blackstone is defeated and Locke triumphant. But such a conclusion would be premature, for Blackstone had a sting in his tail which was to prove so lethal that Locke’s theory would never rise again. Under Blackstone’s conservative influence the common law morphed from acting as a source which could justify resistance to an authority which firmly outlawed it. The genius of this move was that the common law did so not by giving up on political liberty, but by redefining it. 

We saw above that Locke wove together two strands of constitutional thinking which conceived of liberty as independence—a commonwealth (or republican) strand and a common law strand (the phrase “liberty as independence” I take from Quentin Skinner’s recent book of that title). Blackstone, for all the Whiggishness of his history, never understood liberty in these terms—and nor has any common lawyer since. For him, political liberty was not the right to resist. It was freedom from constraint. This view he took not from any of the republican or common law sources referred to above, but from Grotius, from Pufendorf, from Montesquieu and, above all, from Hobbes. It is this view which has prevailed in the law ever since—hence Locke’s 1776 victory over Blackstone being more apparent than real. And it is for this reason that we can insist, for all its grounding in the legal theories of resistance which had crystallized in the work of John Locke, that the Declaration of Independence was a moment in which not law, but lawlessness, prevailed. 

In the law as Blackstone understood it, and in the law ever since, there is no right to resist. Or, more accurately, if there is such a right it is so strictly confined to the unique circumstances of James II’s flight in 1688 that it can never be repeated: it sets no precedent. To flee is to abdicate and nothing that George III, his ministers or his parliaments had done came near to triggering a repeat of the revolutionary circumstances of 1688. 

Whither liberty in a constitutional order such as this? If there is no right to resist, are the people not shackled, unable to rid themselves of tyranny? Quite the contrary—at least, according to the law—for the British constitution after 1688 guaranteed liberty just as, much later, the amended US Constitution and its Bill of Rights was to do. If individual liberty is already baked into the constitution, as Blackstone (following Montesquieu) believed it to be in England, just as Americans believed for the United States after 1791, no right to resist needs to be recognised for liberty to be secure. Liberty is already secure—secure through the Bill of Rights, secure through the fact that neither parliament nor the crown could make law without the assent of the other, secure through the legal protection of individual liberties via an independent judiciary. 

This is the logic not only of an eighteenth-century Tory lawyer anxious to ensure, as David Lieberman put it, that “his own discussion of natural rights and the contractarian origins of political authority did not entail any revolutionary conclusions”. It is also the logic of our modern constitutional law, on both sides of the Atlantic—just take a look at Texas v White. States may exercise their sovereign right to accede to the Union but federal law recognises no constitutional right unilaterally thereafter to secede. Any Lockean counter-notion that the people somehow continue to enjoy a supreme power to remove their government whenever it violates the trust reposed in it “carries his theory too far”, as Blackstone gloriously put it. If there is a right to resist, it is not one our shared Anglo-American traditions of constitutional law any longer recognise. To declare independence from the authority of the constitution would be to act contrary to the law of the constitution. It would be to act unlawfully. Just as it was in 1776.