As we recognize the semiquincentennial of the Declaration of Independence, I will address three questions that might be at the forefront of any discussion about the document. Why did the Founding Fathers address the document to the king rather than to Parliament as it was the actions of Parliament that ignited the anger of the Colonies? What are the facts and philosophical ideas that shaped the language of the Declaration? Finally, does the language of the Declaration have any relevance in philosophical and political discourse in 2026?
There is a facially simple answer to the first question. All of the American Colonies were established by charters. These charters were granted by the king of England. Up until the Colonies declared independence, the inhabitants of the American Colonies considered themselves English citizens, entitled to the rights and privileges of English citizenship. Specifically, the Colonists objected to being taxed and subjected to acts of Parliament when the Colonists had no voice in Parliament as English citizens in England, Scotland, and Wales had. As such, the Colonists initially appealed to the king to address the perceived abuses being imposed upon them by Parliament. There were two written appeals (one by each of the two Continental Congresses) to the king prior to July of 1776 seeking a redress from the actions of Parliament. In this context, the Declaration was addressed to the king when the Colonies reached their breaking point concerning various acts of Parliament. This is a straightforward position that has superficial appeal. However, the circumstances of the Colonies' creation and the history that followed made such a position legally dubious. As noted above, the Colonies were created by charters granted by the king, and as such, they were the property of the King and ruled by the King. By 1776, most of the charters had been revoked for various reasons. Also, the authority of the monarchy to rule, both in England and in the Dominions and territories around the world, had changed. For this reason, the Founding Fathers did not rely solely on an argument under English constitutional law to explain the righteousness of the severance of the relationship with England. The history of the authority of the British monarchy is set forth below.
To understand how the parties (the Colonies, the king, and Parliament) came to their respective positions in 1776, we must look first to Magna Carta. In June 1215, a number of barons in England forced King John to sign a document resolving their disputes with the monarchy. The barons extracted concessions from the king concerning multiple issues. Chapter 39 of Magna Carta is the provision that is relevant here. The remaining chapters principally concern the rights of the barons and economic issues. Chapter 39 states: “No free man shall be seized or imprisoned or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him or send others to do so, except by the lawful judgment of his equals of by the law of the land.” This language is the birth of the concept of the rule of law. The words on their face refer to the rights of free men. In 1215, “free men” were approximately 10% of the population. Nonetheless, this limitation of the monarch's authority was a major change in both practical power and the philosophy of governance. The Declaration of Independence can be viewed as an extension of this concept in Magna Carta.
The next important event took place in January of 1649 when Parliament tried and executed King Charles I. The importance of this development lies in the relationship between the monarchy and the Dominions and territories of the Crown. Despite the restrictions placed upon the authority of the king to rule England, Scotland, and Wales, there were numerous other lands, known as Dominions and territories, that were the property of the Crown. The American Colonies fell into the category of a Dominion of the Crown. The king exercised absolute authority over those lands. When the king was executed, the ownership of the Dominions and territories became a question. Parliament stepped into the void and passed the British Commonwealth Act. This statute stated, in part, that England consisted of “the People of England, and all of the Dominions and Territories thereunto belonging”. Parliament, with this enactment, transferred the authority to rule the Dominions and territories to itself, as there was no king. The American Colonies had their own legislatures. The Colonial legislatures did not object to or endorse the Commonwealth Act at that time.
In 1660, Parliament invited Charles II to assume the throne and reinstate the monarchy. Charles II accepted the invitation. Charles II died in 1688, and he was succeeded by his brother, James II. James had a tumultuous relationship with Parliament, and he was forced to flee the country to avoid the same fate as Charles I. This is the Glorious Revolution. Parliament invited Mary, the eldest daughter of James II, to assume the throne with her husband, William of Orange. William and Mary became co-monarchs of England. Parliament drafted the oath that William and Mary took to assume the throne. That oath stated, in part, that William and Mary agreed to govern the people of the Kingdom and the Dominions in accordance with the statutes in Parliament agreed on and the laws and customs of the same. Parliament, with this oath, considered the issue settled as to whether Parliament had authority to enact laws impacting the internal affairs of the Dominions and territories. As far as Parliament was concerned, the Commonwealth Act gave Parliament authority over the Dominions and territories. This new oath, accepted by William and Mary and all of their successors, was an acknowledgement by the Crown of the authority of Parliament over the Dominions and territories. Not all of the Dominions accepted this position.
Ireland had been a Dominion of the king. As far back as 1641, the Irish Parliament raised a constitutional question that challenged the authority of the English Parliament to legislate on matters solely concerning the Irish. Ireland was conquered by England, but it had its own Parliament in Dublin. Ireland acknowledged that, as a result of England's military victory, Ireland owed fealty to the Crown, but the Irish Parliament denied that the English Parliament had the authority to pass or enforce statutes affecting Ireland's internal affairs, absent approval by the Parliament in Dublin. The American Colonies made this argument in the Declaration of Independence when referencing attempts by Parliament to extend “unwarrantable” jurisdiction over the Colonies. The common line of thought by the Irish and the Americans was that the Crown had authority to govern the Dominions, but Parliament did not. Thus, the Americans initially petitioned the king to redress their grievances regarding Parliament’s actions. Parliament’s position was straightforward. When the monarchy was terminated with the execution of Charles I in 1642, Parliament assumed authority over the lands formerly belonging to the king by establishing the British Commonwealth. As far as Parliament was concerned, if there was any dispute about Parliament’s authority, that was extinguished with the oath taken by William and Mary upon ascending the throne. The Irish constitutional dispute was never resolved, as either the English or the Irish avoided a final resolution whenever the matter was raised by compromise.
Both Continental Congresses were populated by many lawyers. It is not surprising that the Colonists voiced the constitutional argument, as many of the delegates considered themselves to be English subjects and thus entitled to constitutional protections under the English Constitution. It was thus logical that the Colonists, in their effort to justify the righteousness of their cause, asserted that Parliament overstepped its authority by enacting statutes that impacted the internal affairs of the Colonies. Hence, the reason for submitting two petitions to the King asking for relief in light of the asserted unconstitutional actions of Parliament. This constitutional argument was weak, for the reasons stated above. Additionally, the Americans could not rely upon the Irish example for support, as that challenge to the power of Parliament was never brought to a head prior to 1776. For these reasons, the delegates of the Second Continental Congress turned to the laws of nature and of the Creator for support of their separation from the Mother Country.
As to the relevance of the language of the Declaration of Independence in 2026, the Supreme Court has made clear that the Declaration is not “law” and does not create enforceable rights. However, the language of the Declaration proclaiming the right to life, liberty and the pursuit of happiness, along with the pronouncement that the right to govern arises from the consent of the governed, is universally regarded as stating concepts which gave birth to American democracy. (The Fourth and Fifth Amendments to the Constitution did identify life and liberty and rights to be protected by the Constitution, and to that extent, those concepts are the law of the land. The pursuit of happiness is not mentioned in the Constitution, or the mendments thereto, and as such is not “law”.) These foundational concepts still resonate today. They are crucial to any discussion about the limits of government infringement upon the activities of its people. Advocacy concerning the parameters of these rights is important to the continued health of our democracy. This is as true today as it was in 1776. Thus, the spirit and language of the Declaration of Independence is relevant to political discourse in 2026 in debating the rights of individuals subject to U.S. law. Examples of the Declaration being used to support important issues in American history are numerous. Abraham Lincoln often cited the Declaration when advocating for the abolition of slavery. The Suffragette movement also referred to the Declaration in support of women's right to vote. More recently, Dr. Martin Luther King, Jr. frequently cited the Declaration in his advocacy for equal treatment of African Americans under the law. His most notable references were in his famous “Letter from a Birmingham Jail” in 1963 and in his “I Have a Dream” speech. Other examples, both in the United States and around the world, of the Declaration’s language being used to support positions on human rights are too numerous to list here. They all point to one thing: The ideals set forth in the Declaration have struck a chord in the hearts and minds of humanity. Hence, the language of the Declaration is crucial to any discussion about the degree to which the various governments within the Republic, that is, the United States of America, may enact laws that impose upon the people who populate this country. While the language of the Declaration is not the “law” of this land, its concepts embody the heart and soul of the democratic ideals needed to sustain the experiment we call the United States of America.
Francis T. McDevitt, Esquire, is a founding member of Naulty, Scaricamazza & McDevitt, LLC and is of counsel in the firm’s Marlton, New Jersey office. He is the immediate past president of the Villanova Law J. Willard O’Brien American Inn of Court.