Why the Declaration of Independence Is Not Law–And Why It Could Be – Article by Frederick Schauer

From Volume 89, Number 3 (March 2016)

The Declaration of Independence, or at least one authoritative version of it, lies under several inches of glass at the National Archives in Washington. So too does the Constitution of the United States. Yet although the two documents are located side by side in the same building and honored in what appears to be much the same way, the Constitution is universally understood to be law, and the Declaration of Independence is widely (even if not universally ) understood not to be. But why is this so? My goal in this Article is to explore this question, arguing that both the legality of the Constitution and the current presumed non-legality of the Declaration are matters of contingent empirical and sociological fact rather than being functions of anything more formal, more logical, or more legal.



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