The Declaration of Independence: Our Foundational Document

In the early 1990’s my wife and I had the pleasure of being on tour in the old Soviet Union with John Brabner-Smith, founding dean of the International School of Law at George Mason University, along with his wife Daniela. (The pleasure was being with the Brabner-Smiths; the Soviet Union was another story, but we deal with that elsewhere.) Upon my return I sent him a copy of my article for the National Forum of Phi Kappa Phi on public education. He replied (from Oslo no less) as follows:


Your article in Phi Kappa Phi reaches the correct result, but on the wrong logic.The Constitution, our third form of government, produces nothing but the form of government–the by-laws of the USA corporation. The U.S.A. was chartered July 4, 1776, and this international corporation was based upon “the laws of nature and of nature’s God.” That God is our sovereign law giver is certified by the Congress and President signing our laws “in the year of Our Lord, 1990.”

We have been losing cases by arguing the Constitution. Lincoln argued tht the Declaration said all men are created equal and entitled to unalienable rights from God, not from the Constitution. Regent is the first law school, after mine, to go back to the charter!

To this, we might add the following.

The Constitution of 1787 is our second constitution. The first, the Articles of Confederation, proved not to be the the most perfect union, so it was replaced. It is entirely possible that this one will be replaced in due course, though as long as the activist judges can interpret anything as they please, following any constitution will be a real nuisance to them.

But without the Declaration of Independence, the United States of America would have had no existence and, without following its precepts, this country’s legitimacy is in serious peril. The U.S. was designed in part to rectify lacunae in British jurisprudence. That’s why the rights are derived from the Creator (without Whom there are no rights) such as “life, liberty and the pursuit of happiness” (the last of which includes absolute property rights) are so important.

To put this into fresh perspective, let’s compare this with France, a country our elites are enamoured with. Since they stormed the Bastille in 1789, they have had five republics, two empires, one restoration of the monarchy, and let’s not forget the Commune or Vichy either. The French Revolution itself went through several stages: first a constitutional monarchy with the Constituent Assembly, then the Constitution of 1791 with the Legislative Assembly, from there the Convention controlled by the radicals, then the Directory, which in turn led to the Consulate under Napoleon and from there the First Empire.

From a purely legal standpoint, the re-establishment of the Declaration of Indepdence, with its proclamation of God-endowed unalienable rights, as our true foundational document is the central issue, both for the present filling of the Supreme Court vacancy and for our legal system in general.  Getting our current elites, who cringe at the Declaration’s concept of “…the Right of the People to alter or to abolish it (the existing government,) and to institute new Government…” to go along with this is another matter altogether.

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