My favorite LH post of the day

[LPC]

As jg has already pointed out, declaring that something is true does not make it so. The Declaration of Independence did not make the United States independent. It was the surrender of General Cornwallis at Yorktown that made the United States an independent and sovereign nation, and not a press release by the Continental Congress.

The surrender of Cornwallis did no such thing, since Great Britain still had over 30,000 soldiers in the American colonies after the surrender. The surrender only led to the fall of the North government and the installation of a peace party.

It was the Treaty of Paris, 1783 that brought the war to a close and granted American independence and recognition by Great Britain as an independent nation.

I think that we're disagreeing over terminology in areas were there are often lots of grey.

My point was that the Declaration of Independence did not make the United States independent or sovereign. What made the United States independent were the "facts on the ground," the most important of which was Cornwallis's surrender.

You say that it was the Treaty of Paris that "granted American independence," but the Treaty of Paris was only the formal recognition of American independence by Great Britain. The US could have been independent in fact even if Great Britain did not recognize it. (For example, the failure of the US to recognize Red China as a sovereign nation independent of the government of Taiwan did not mean that Red China was not in fact independent of Taiwan.)

[The Observer]

I think that we're disagreeing over terminology in areas were there are often lots of grey.

My point was that the Declaration of Independence did not make the United States independent or sovereign. What made the United States independent were the "facts on the ground," the most important of which was Cornwallis's surrender.

You say that it was the Treaty of Paris that "granted American independence," but the Treaty of Paris was only the formal recognition of American independence by Great Britain. The US could have been independent in fact even if Great Britain did not recognize it. (For example, the failure of the US to recognize Red China as a sovereign nation independent of the government of Taiwan did not mean that Red China was not in fact independent of Taiwan.)

If I understand you correctly, you are asserting that regardless of whether there was continued occupation or conflict going on within the 13 colonies, the United States should have been considered independent at some point in time. But then I am not sure why Cornwallis' surrender should be considered the moment that independence was achieved. I am sure for the citizens of Boston and New York that had to endure British occupation until after the signing of the Treaty of Paris, independence had not been reached by any means. And for some areas of the colonies where Tory support for continued colonial status with Great Britain was strong, Yorktown would have only been seen as a temporary setback.

The point being is that independence (nor peace) is not a singular moment in time. It is a evolutionary process and cannot be recognized until it is finished. There were too many "ifs", "ands", and "buts" immediately after Yorktown that did not guarantee that American independence was a certainity.

Your example of China and Taiwan does not quite meet the mark since American recognition of either country is not required in the sense that the US was not maintaining either country as a colony. Both countries view each other as a rebellious territory of each other and has caused a lot of legal and diplomatic issues throughout the world because of the situation.

This is why we have peace treaties and go through a legal process to secure the agreement/recognition of independence or peace. It helps when people put their signature on the dotted line and state their intentions towards each other. Otherwise it allows enemies to reignite the fires from the past and stir up new conflicts.

[Weston White]

And that is precisely why the Declaration of Independence has legal bearing, in the same manner as the Federalist Papers or other such recorded transcripts. It perfectly depicts the "original intent", the scope, the purpose, the reason, the desire, of those making the declaration. It defined how the people of this new Nation were to be thereafter perceived and revered. The Constitution merely serves to stipulate how that, which was so established is to be carried out in a defined and clarified manner though the government of those now "free" people. Sure they had to fight to retain their freedom, which they did and they won, through the course of organized militias.

Our country was founded in 1776, the government of our country was decreed in 1781 as a Confederation [Confederacy] to be named the United States of America, and in 1788 our government was merely perfected, (on the same day the Confederation was repealed, the republic was thereafter established; simply a perpetual Union was made to be more perfect, under a republican form of government).

However, the first official sign of what was to come, occurred in 1774 under the 'Articles of Association'.

[Imalawman]

And that is precisely why the Declaration of Independence has legal bearing, in the same manner as the Federalist Papers or other such recorded transcripts. It perfectly depicts the "original intent", the scope, the purpose, the reason, the desire, of those making the declaration. It defined how the people of this new Nation were to be thereafter perceived and revered. The Constitution merely serves to stipulate how that, which was so established is to be carried out in a defined and clarified manner though the government of those now "free" people. Sure they had to fight to retain their freedom, which they did and they won, through the course of organized militias.

Weston, you are confused as to what the "law" is. You are confusing legal authority for law. The constitution can be, in some limited sense, legal authority. But you must keep in mind the hierarchy of legal authority. At the very top of the pyramid you have the constitution. Period, end of story, no debate can be had on this point. Then SCOTUS opinions which interpret a section of the constitution, then statutory law, and then case law that has precedential value within the jurisdictional area in which the action or legal issue arises. These are all "binding" authorities, meaning they constitute the law which must be obeyed, up until the highest court in the jurisdiction. Now, the list continues with persuasive legal authority. In this schema you start out with various legal writings. We elevate certain persuasive authority above others and it largely varies with the jurist. Scalia would put the declaration and federalist papers pretty high on the scale, others may put contemporary treatises or published works higher on the scale.

But you see, the declaration falls into the persuasive category, not the authoritative or binding category - simply put, it is not "law". Understand?

[Weston White]

I am not saying that it is literally "the law". I am saying that it does have legal bearing and relevance. I am saying that the Declaration of Independence served as the basis for creating our Nation and subsequently defined it, it is in that the Declaration of Independence has legal significance, ( even to date). Also the meaning, intent, purpose, and spirit of the U.S. Constitution does not chance, it transcends time, (except though the amendment process). Justice Scalia stated it himself, the Constitution is not a "living" document. Words used therein do not change to take on the definitions of words as used at a later time.

Fundamental Law:

The law which determines the constitution of government in a state, and prescribes and regulates the manner of its exercise; the organic law of a state; the constitution.

[Ultimately, what determined the Articles of Confederation and the U.S. Constitution... the Declaration of Independence.]

Organic Law:

The fundamental law, or constitution, of a state or nation, written or unwritten; that law or system of laws or principles which defines and establishes the organization of its government.

Organic Act:

An act of congress conferring powers of government upon a territory.

A statute by which a municipal corporation is organized and created is its "organic act" and the limit of its power, so that all acts beyond the scope of the powers there granted are void.


I believe it would work in the same manner as the U.S. Constitution, the enumerations within the U.S. Constitution have no actual application on their own, that is not until such powers are utilized through ratified acts and resolutions of the Legislature, it is then they serve as "the law". Meaning that such powers are not implied directly, until placed in practice use. Moreover, the Articles of Confederation and U.S. Constitution, were created solely upon the principles established for within the Declaration of Independence.

[LPC]

I am not saying that it is literally "the law".

Yes, you were saying that.

So now you're lying.

[Weston White]

I am not saying that it is literally "the law".

Yes, you were saying that.

So now you're lying.

Um, no I was not. I thought you were suppose to be some big shot legal scholar that is capable of interpreting contextual artifacts and whatnot in a single bound and pick out coordinating curtains in the blink of an eye? So what happened?

[Dezcad]

I am not saying that it is literally "the law".

Yes, you were saying that.

So now you're lying.

Um, no I was not.

I have to agree with LPC. In a post above you wrote:

Also, the Declaration of Independence is a legally relevant document it has not been canceled out or anything else of that kind, it serves as our Nation's fundamental law.

(bolding added)

To me, that is a pretty clear statement by you the the DOI is "the law".

[The Operative]

Weston,

You are misinterpreting Black's definition of fundamental law.

Fundamental Law:

The law which determines the constitution of government in a state, and prescribes and regulates the manner of its exercise; the organic law of a state; the constitution.

What the definition is saying is fundamental law is the law which establishes a government and provides and limits its power.

Fundamental law: The constitution of a state or nation; the basic law and principles contained in federal and state constitutions that direct and regulate the manner in which government is exercised. - West's Encyclopedia of American Law, edition 2. Copyright 2008.

Organic law: The fundamental law or constitution of a particular state or nation, either written or unwritten, that defines and establishes the manner in which its government will be organized. - West's Encyclopedia of American Law, edition 2. Copyright 2008

The Declaration of Independence, while a great document and important in the history of our country, is neither fundamental law or organic law.

[Weston White]

Fundamental Law:

The law which determines the constitution of government in a state, and prescribes and regulates the manner of its exercise; the organic law of a state; the constitution.

NOTICE: "The law which determines the constitution of government in a state"

That indicates prior to, before hand... now of course most terms have more than one meaning, such as "capitation taxes" for example.

Now when our Forefathers began creating the Articles of Confederation, they had to have a hypothesis, a model, something to run check and balances on, something to measure from... what was that? What could that have been? That is correct, the 'Declaration of Independence'. Now fundamental law is not "the law", I never said that, fundamental law itself has no legally binding application per say, you can't say you are in violation of Article I, Section 8, clause 4 so you are going to be punished.... umm, OK, so what is my punishment? Oh well we don't really know, because we have yet to have created in definitive statute prescribing a punishment for such violation. Oh, OK, so I guess you can't punish me than! Fundamental law is simply the founding, the supporting documents for our Nation. They are fundamental to our existence, our reason for existing as our own Nation. What was the original intent? As they say do not forget where you came from or one day you just might discover that you can never find your way back.

[The Operative]

Fundamental Law:

The law which determines the constitution of government in a state, and prescribes and regulates the manner of its exercise; the organic law of a state; the constitution.

NOTICE: "The law which determines the constitution of government in a state"

That indicates prior to, before hand... now of course most terms have more than one meaning, such as "capitation taxes" for example.

Now when our Forefathers began creating the Articles of Confederation, they had to have a hypothesis, a model, something to run check and balances on, something to measure from... what was that? What could that have been? That is correct, the 'Declaration of Independence'. Now fundamental law is not "the law", I never said that, fundamental law itself has no legally binding application per say, you can't say you are in violation of Article I, Section 8, clause 4 so you are going to be punished.... umm, OK, so what is my punishment? Oh well we don't really know, because we have yet to have created in definitive statute prescribing a punishment for such violation. Oh, OK, so I guess you can't punish me than! Fundamental law is simply the founding, the supporting documents for our Nation. They are fundamental to our existence, our reason for existing as our own Nation. What was the original intent? As they say do not forget where you came from or one day you just might discover that you can never find your way back.

As I said, you are misinterpreting Black's definition. The word, 'constitution' has several meanings. One of those meanings is "the act or process of constituting; establishment". The Declaration of Independence did not ESTABLISH the government of the United States. The Constitution ESTABLISHED the government of the United States.

Saying the founding fathers had to have a model from which to write the Constitution is false. There did not have to be a model for the Articles of Confederation or the Constitution. I am certain that the framers of the Constitution used their knowledge and experience to help structure the Constitution, but they did not use the Declaration of Independence as a model. They could have made the Constitution similar to the documents establishing another country. Would that mean the other country's document is fundamental law for the U.S.? No, it would not have. If they HAD to have a model for the Constitution, and that model is the Declaration of Independence, what was the model for the Declaration? Or is it turtles all the way down?

The Declaration of Independence is a document that provides insight into the attitudes, concerns and thoughts of the time. The Federalist Papers provide a similar function. As others have said, the Declaration of Independence can be used as a moral guide, but it is not law. It is not fundamental law.

Also, if the Constitution makes an act illegal but does not state a punishment, that doesn't mean you can't be punished until there is a statute prescribing a punishment. In the absence of a statute prescribing a punishment, the courts can prescribe a punishment for a crime and subsequent rulings would probably be consistent with the first court's decision on punishment. If the legislature disagrees with the court's amount of punishment, it can enact a statute prescribing the punishment it feels is adequate for all subsequent cases involving that crime.

[Weston White]

Yes otherwise why separate, what was the point? Could it be that they were not happy with their way of live and wanted to live under true freedom? So they gave their lives for their beliefs, for their posterity?

Though you are sort of getting it, it did not establish the government it gave the reason, the purpose, for having the government, it defined and identified what type of government that was to be, it defined the spirit and minds of the people to be governed. And the constitution
served the purpose of carrying out such provisions in a more precise fashion.

Again it is not the law, it is however, fundamental law... for it played an essential rule in the creation of our Nation. Wow most of seem to be very scared of these founding documents, aren't you now? You so want them to hold or bear zero value or meaning.

Here is a question how many of you would support a ConCon and for what purposes, exactly?

The Declaration of Independence, ratified July 4 1776...

Simply put love it or leave, you try to change it, we shall make you beat it, but only after you eat it! A little poem for you.

[Weston White]

This is actually sort of funny about one year ago I got into a long debate with some moron that kept telling me I did not know what I was saying when I referenced that the U.S. Constitution was "fundamental law"... and he was suppose to be a college graduate, in the nuclear field, that originally majored in law, but did not like it so went into nukes, graduated, did not like that so went into computer networking... yea like I believe all of that, there I was debating with Mr. Jack of All Trades over there, right!

Anyways now here I am and you are all telling me I still have it wrong, ROFL. Well, darn, I just can't anything right now can I... it must be a wonder how I tie my shoes each morning.

[The Operative]

This is actually sort of funny about one year ago I got into a long debate with some moron that kept telling me I did not know what I was saying when I referenced that the U.S. Constitution was "fundamental law"... and he was suppose to be a college graduate, in the nuclear field, that originally majored in law, but did not like it so went into nukes, graduated, did not like that so went into computer networking... yea like I believe all of that, there I was debating with Mr. Jack of All Trades over there, right!

Anyways now here I am and you are all telling me I still have it wrong, ROFL. Well, darn, I just can't anything right now can I... it must be a wonder how I tie my shoes each morning.

That only means that at one time, you had it right. However, you now have it wrong. The Constitution is fundamental law. The Declaration of Independence is not.

Simply because a person is a college graduate does not mean they understand law or the government. A nuclear engineering degree has little, if any, courses in American government or law. A LAW degree, on the other hand, has EXTENSIVE training in law and in understanding law.

BTW, just to be clear, I do NOT have a law degree. I do have several other degrees. However, I am fairly sure that I have a better understanding of American government and the structure of the tax laws than you do. Additionally, there are a half dozen or so lawyers who have posted to this thread already and I am sure one of them would have corrected me if I was in error about any of my statements thus far. Forgive me if I give their statements more weight than I do yours.

[LPC]

The point being is that independence (nor peace) is not a singular moment in time.

Agreed.

[ASITStands]

A simple reading of the sentence structure will show that 'The Operative' is correct.

Fundamental Law:

The law which determines the constitution of government in a state, and prescribes and regulates the manner of its exercise; the organic law of a state; the constitution.

Fundamental Law is that law "which determines the constitution of government ..."

You cannot separate the noun, "constitution," from its prepositional phrase, "of government."

You cannot emphasize the first, as though it refers to the "Constitution of the United States," without considering the other, "constitution of government," or how a government is constituted. 'The Operative' was correct in saying, "constitution" has several meanings.

This is another example of reading a text correctly. It's reading comprehension, and we all sometimes chastise others for their lack of it, but it's important to be precise with words.

I'm not chastising Weston for his error but merely pointing out that his understanding does not meet the normal standard of English grammar. It is as 'The Operative' stated.

Remember, 'Wes' cited how the Supreme Court viewed the Declaration as a moral guide.

[Weston White]

The question is then, what is the U.S. Constitution? It is our "constitution", also called fundamental law, is it not correct to state that fundamental law would contain more than simply a singular element?

So what is "constitution" in is ordinary sense, it is the established customs and laws, the principles of a government or nation... So where could have those established customs and laws derive from? Could that have been the Declaration of Independence? I say without any doubt, absolutely!

Moreover, the Bill of Rights is and addendum of sorts to the U.S. Constitution, thus it is party to our Nations fundamental law. They all play a necessary part in determining further laws and evolving laws... similarly as does the Declaration of Independence, for it was this document itself, in which all others thereafter were founded in spirit and principle.

But that seems sort of silly to use the word constitution within the definition of the word being defined... sort of 26 USC 1 works.

[grixit]

The customs and laws derived from centuries of development in England.

[Weston White]

Of course to a point, though if that were absolutely the only relevant truth, there would have been no rebellion, the people would have remained entirely subservient and loyal to the crown. Case in point America, unlike England, is not a monarchy or kingship nor was it at any point. It was a form of government which derived is core principles from Rome and Greece as much as it did from their own upbringing. Our model of government is nothing new, as much as some would like to belief that to be the case. Though it would seem that the ancient attempt was much more successful than the current day attempt.

What is strange to me is the obvious distinctions between Canada and America, considering that it was offered at a specific point for Canada to be considered a Union State for the purposes of the Confederacy.

[notorial dissent]

The “Bill of Rights” is NOT as you say “and addendum of sorts”, to use your quote, it is part and parcel with that constitution. The “Bill of Rights” is a specific group of amendments to that constitution, that upon ratification became an integral part of the constitution just as if they had been written into the original document.