...the Declaratory Charter of Our Rights...

This is my current favorite hat. I’ve had a few throughout the years, but I never had one that acknowledged the link between three things so intrinsic to the history of a people, and as odd as it sounds, I usually get a chill when I grab it to put it on. Not a chill like the tingle Chris Matthews gets whenever he hears his master’s voice, or catches sight of him somewhere, but a small dose of the awe and wonder of a heritage unmatched by any other people on the planet.

1776. The mere mention of it raises that feeling in the small of my back. A time when much of this continent was still wild, and settlements up and down the eastern seaboard represented the outposts of civilization. A blend of the better parts of the old world bound up with the promise and anticipation of the new. A time when brave men of means and accomplishment gathered in the city of Philadelphia to reject an earthly sovereign and to cast off his myriad injustices and tyrannies which were no longer acceptable to men who’s lungs were full of the freedom and independence that distance from the crown and the confidence of having met life on their own terms and made something of their own is likely to create. And also a time when leaders, and farmers rose up, and took up arms against the crown that ruled them from afar.

These images, and others are evoked every single time I read the Declaration of Independence. As a citizen, I own the points of contention with the King of England, not because I suffered under his rule, but because as a citizen of this country born a few scant years before the bicentennial of this document, part of my soul is inflamed by the idea of any person acting in such a fashion toward my countrymen. And this has always made it feel like such a conundrum to me. Even as I was learning to be a lawyer, I struggled with how to identify the role of the Declaration of Independence in today’s world. Many of my classmates would readily identify it a historically significant; indeed there would be no United States of America without it, but at the same time, their analysis would end there. To them, it was a dead document. Historically significant, but legally inoperative. Yet this analysis always ate at me. Surely the right to “life, liberty, and the pursuit of happiness” was not removed from our birthright? Surely the conviction and simplicity of Jefferson’s words still rang out as part of our national character, rather than an echo of a “less complex time”, as some were eager to assert.

Maybe it’s that part of me that has found no satisfaction in these types of answer that has been seeking out the history of this nation’s founding from a perspective of trying to recognize the full nature of the founders…not from the “modern” perspective of seeking every flaw, and every innuendo. It doesn’t hurt to remember that for all of their truly great accomplishments, they were still men, but it does little to breathe meaning into the words that have persisted long after the echos of their footsteps have faded from the halls they walked. And it does less to explain the legal history of the country prior to the 1940s, a legal history promulgated by intellects every bit as sharp as those of our founding Fathers.

This has led me to start reading books I would not have dreamt of perusing when I was a know-it-all political science student, safe and warm in the bindings of academia, and its agenda-driven teachings. Starting a year or so ago with a very large book that had been out of print for more than one hundred years, I began to realize that there is much of our history that is no longer taught to us. This lead me to question why that might be, and with much reading, and sharing with friends, I came to understand at least one reason why this is, and why without an awakening of sorts, this is not likely to change any time soon.

For my birthday this year, received two books. The first, The 5000 Year Leap, is one I have not yet started. The other, Faith of Our Founding Fathers, I started last Sunday afternoon. Earlier this week, I was reading it before my morning shower, and I read the following:

The Declaration, according to constitutional attorney Michael Farris, was “the Charter of our nation.”  It makes clear what most citizens of the colonies believed – that they were establishing a new nation based soundly on the laws of God.  The opening paragraph of the Declaration of Independence reads:

“When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the Powers of the earth, the separate and equal station to which the Laws of Nature and Nature’s God entitle them, a decent respect to the opinions of mankind requires that they declare the causes which impel them to the separation.”

Commenting on the relationship of the Declaration of Independence to the Constitution, Farris stated:

“By basing our right to be a free nation upon God’s law, we were also saying (by implication) that we owed obedience to the law that allowed us to be a separate country.  The last paragraph of the Declaration is the most important part, for that is the part which actually declared that the United States was a separate nation.”

“We, therefore, the Representatives of the United States of America, in General Congress, assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the name, and by the authority of the good people of these colonies, solemnly publish and declare, that these United Colonies are, and of Right ought to be free and independent states; that they are absolved from all allegiance to the British Crown, and that all political connection between them and the state of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full power to levy war, conclude peace, contract alliances, establish Commerce, and to do all other acts and things which Independent States may of right do. And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our lives, our fortunes and our sacred honor.”

The Declaration of the United States is our Charter.  It is the legal document that made us a nation like all the other nations of the world.  It doesn’t tell us how we are going to run our country – that is what our Constitution does.  In a corporation, the Charter is higher than the By-laws and the By-laws must be interpreted to be in agreement with the Charter.  Therefore, the Constitution of the United States must be in agreement with the Declaration of the United States (more commonly known as the Declaration of Independence).  The most important statement in our Declaration is that we want to operate under the laws of God.

Why is all of this important?  Because today, when the courts are deciding what the Constitution  means, they should remember our Charter – the Declaration of the United States.  The Constitution doesn’t specifically mention God, but it doesn’t have to, because the Declaration is a higher document.

The Declaration says that we are a nation under God’s laws.  Therefore, all other laws of our country should be consistent with the law of god or they violate our national charter. [Emphasis Added.]

This set my thoughts alight.   Finally, I understood why this document still speaks with such authority. And yet, because I had never heard it referred to that way, I couldn’t accept it at face value.  I got out my handy-dandy Webster’s Encyclopedic Unabridged Dictionary of the English Language (1996 Edition), and looked it up:

1. a document, issued by a sovereign or state, outlining the conditions under which a corporation, colony, city, or other corporate body is organized, and defining its rights and privileges.

2. (often cap.) a document defining the formal organization of a corporate body; constitution: the Charter of the United Nations.

4.  a grant by a sovereign power creating a corporation, as the royal charters granted to the British colonies in America.

So far, I couldn’t just dismiss the idea yet.   When I got to work, I looked up the word “Charter” in my legal dictionaries and my legal thesaurus.

From my Black’s Law Dictionary, Sixth Abridged Edition:

An instrument emanating from the sovereign power, in the nature of a grant, either to the whole nation, or to a class or portion of the people, to a corporation, or to a colony or dependency, assuring to them certain rights, liberties, or powers.  Such was the “Great Charter” or “Magna Charta,” and such also were the charters granted to certain of the English colonies in America…

A charter differs from a constitution, in that the former s granted by the sovereign, while the latter is established by the people themselves.

From Barron’s Law Dictionary:

A document issued by the government [sovereign] establishing a corporate entity. 

In earlier law, the term referred to a grant from the sovereign guaranteeing to the person or persons therein named certain rights, privileges, and powers.  Thus, the earlier American colonies were recognized by charters granted by the King of England.

The Magna Charta or The Great Charter, granted by King John to the barons of England in 1215, established the basis of English constitutional government.

From the Legal Thesaurus, edited by William C. Burton, Second Edition:

CHARTER (Declaration of rights) announcement, constitution, decree, official announcement, proclamation, promulgation, pronouncement, public announcement, public statement, publication, writing

So by now, my skepticism was waning, and I started to think that the book had it right.  So now I decided to throw the question out to my friends, some of whom went through school before I did, and may have actually be taught that the Declaration was indeed a charter.  The responses were not encouraging.

“Legally, the Declaration of Independence strikes me as the opposite of a charter. It rejects the royal charters establishing the colonies, but does not really set the ground rules for any new organization.”

“The DoI strikes me not as a charter, but simply that, a declaration. And it formed no government. It merely stated that the existing governments of the 13 colonies were soveriegn and seperate from the crown.”

“Black’s, 4th ed., p. 298.

Conventionally, a charter emanates from a sovereign and conveys a grant of authority, normally subject to prescribed rules and limitations. E.g., corporate charters granted by the states today.

The DoI does not do anything like that. It is a polemic explaining why 13 separate colonies believe the tyrannies of the British sovereign have entitled them to secede. It did not establish any type of new federal authority or government. It’s just a joint statement by 13 colonies.”

“What legal significance does the DoI have? None in today’s courts. And that’s as it should be. Even if it had significance at the time of the declaration, that would have been superseded by the Articles and later the Constitution.”

“So I guess that anyone who thinks that it is a charter is an idiot.

Bingo!”

Except that I wasn’t ready to give up on the concept just yet.  So I spent several hours researching it further.  I found an interesting statement in this article at the Heritage Foundation: 

This Fourth of July marks the 225th anniversary of the Declaration of Independence. This occasion is a great opportunity to renew our dedication to the principles of liberty and equality enshrined in what Thomas Jefferson called “the declaratory charter of our rights.”

It caught my attention, but the author, Matthew Spaulding, failed to cite the source of the quote.  I concluded that it must be available, and continued my research.  When I refined the search term, I found this:

The Declaration of Independence… [is the] declaratory charter of our rights, and the rights of man.

Thomas Jefferson, letter to Samuel Adams Wells, May 12, 1821.

 

Of course, now I wanted to see if the letter was available online.  It was:

 

Why the signature of Thornton, of New Hampshire, was permitted so late as the 4th of November, I cannot now say; but undoubtedly for some particular reason, which we should find to have been good, had it been expressed. These were the only post-signers, and you see, sir, that there were solid reasons for receiving those of New York and Pennsylvania, and that this circumstance in no wise affects the faith of this Declaratory Charter of our rights, and of the rights of man.

At this point, I doubted the efficacy of arguing with the ghost of the Charter’s principal author, and indeed, decided that the Declaration of Independence is a charter, albeit a unique one in that the authors recognized the rights granted by a sovereign not bound in flesh and blood, and used such rights to justify the break from the rule of an earthly sovereign.  However, what I was not prepared for was having the United States government agree with me that it is a Charter.  However, that’s exactly what I found when I went to the US Archives Website, which lists the Declaration of Independence along with the Constitution and the Bill of Rights under the aegis of “Charters of Freedom.”

 

 

So, I can practically hear you say “So why does it matter, BiW?  So it’s a charter.  So what?”

 

Because if it is to be considered a charter of our rights as men, then it is still relevant today, and should guide not only decisions by the Courts, but also of the legislature, as observed in this article:

 

If you were asked the most important document in American History, what would be your answer? The Constitution or the Declaration of Independence? Perhaps to some, the Constitution is what has survived and in the minds of many is the determining factor of the founding of this nation. Yet, when we look no further than the Preamble of the Declaration, we begin to understand the thought process and the reasoning of these men who founded this nation we call the United States of America. It is from the Declaration of Independence that we became a nation and the Constitution only established the form of government that was to guide us through generations to follow.

There can be little question that I believe that perhaps the wisest of all of our founders was Thomas Jefferson. His uncanny ability to address issues of the day in a manner that is timeless in meaning and depth was unquestionable even today. It is always in our best interest to look back and glean the guidance from our founders as we look to issues of the day. When we do, we are better capable of making decisions to preserve the intent of our founding documents and to preserve this republic in it’s form as intended in 1776 and beyond. When we approach the issue of rights, one question comes to mind. Where in the Constitution does your “rights” as an American come from?

Ah, a rhetoric question you say! We often hear the phrase “my Constitutional right” as something that is cast in stone. Yet, as you read the Constitution, no where are you going to find “your rights” spelled out OTHER than to say that the government shall make no law depriving you of your “rights” in the first 10 Amendments to the Constitution. So where DO your rights, that government isn’t supposed to deprive you of, come from exactly? Let’s turn to Jefferson and see exactly the thought processes he had in his writings:

 “The Declaration of Independence… [is the] declaratory charter of our rights, and of the rights of man.”

–Thomas Jefferson to Samuel Adams Wells, 1819. ME 15:200

Go read the whole thing.  It is an excellent explanation why the latest actions of Congress are a betrayal of our founding ideals.

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