The Declaration of Independence and International Law

David Armitage

THE Declaration of Independence is among the most heavily interpreted and fiercely discussed documents in modern history: among other secular texts only statutes and constitutions have generated greater amounts of commentary on comparable numbers of words. Yet the Declaration was neither a statute nor a constitution. It was originally irrelevant to domestic law, however often its ideals may have since been invoked.1 It was, like "the Gettysburg Address, another piece of war propaganda with no legal force" and could not therefore be part of the fundamental law of the United States.2 It may have helped to constitute American ideals of "life, liberty and the pursuit of happiness," but it was not intended to become a document of constitutional law, despite its popular association (reaching back at least to Abraham Lincoln) with the Constitution and in particular with the Bill of Rights as a statement of basic political principle. It is therefore inappropriate to call it "America's most fundamental constitutional document," "the real preamble to the Constitution of the United States," or even the key to constitutional interpretations in light of a natural rights philosophy, if by that it is understood to be a document equivalent in legal standing to the Constitution itself.3

1

The Declaration would seem to be a unique and unclassifiable text, without historical precedent for its enduring principles and with few contemporary parallels for its place in a national mythology. This is an illusion generated by traditions of interpreting the Declaration that do not reflect the intentions of its framers and would have been largely incomprehensible to its original audiences. Those aims and audiences have been revealed by the historical study of the Declaration, which began only at the turn of the twentieth century.4 Studies of the Declaration's reception, the various histories of how it was made and re-made in 1776 and thereafter, have excavated the changing status of the Declaration in American life.5 They have done little, however, to examine its reception beyond the United States, whether in 1776 or since. The parts of the Declaration that have been found most compelling in the United States for the last half century--above all, the "self-evident truths" of its second paragraph regarding individual rights "to life, liberty and the pursuit of happiness"--have been taken as the core of its meaning for its drafters and as its enduring contribution to political philosophy. This may seem obvious or unavoidable to commentators living amid the resurgence of "rights talk" since the Second World War and the 1948 Universal Declaration of Human Rights, but that does not mean it has always been so.6 In fact, the Declaration only became an object of reverent exegesis in the early nineteenth century, when a civil religion of national patriotism sanctified it as "American Scripture," a status it has held consistently and continuously only since the Civil War.7 That status is unique to its place in American national life. The Declaration has also been excerpted, imitated, and even occasionally revered in places other than the United States, but nowhere else does it possess such an aura of sanctity.

. . .