Lee J Strang is an American legal scholar, professor of law, and executive director of the Salmon P. Chase Center for Civics, Culture, and Society at The Ohio State University. Prior to joining Ohio State, Strang served as the John W. Stoepler Professor of Law & Values and director of the Institute of American Constitutional Thought & Leadership at the University of Toledo. He was a visiting scholar at the James Madison Program at Princeton University and the Georgetown Center for the Constitution. Professor Strang holds an LLM from Harvard Law School.
***
What does the 250th anniversary of the Declaration of Independence mean to a legal scholar?
One of the things I’m reminded of whenever I come to Europe is how young the United States is. The oldest things on the East Coast date back to the early 17th century, but here in Budapest we went to one of the museums in the Citadel, and we’re going back to, like, AD 800 or 900. A lot of these events are fresh in Hungarians’ minds, so for a country as young as the United States, to have a 250th anniversary is really unusual. It doesn’t have as many historical experiences as the Hungarian nation does, so the few that we have, we have to uplift and really focus on. The Declaration is a really important part of our history, and it’s an opportunity to celebrate it.
If we look at the whole Thomas Jefferson story, they were so brave to do this, and, in the end, a state was born.
All Americans agree that it marks the point of American independence. It’s a statement of American political theory about what the United States is. It’s a country of individuals who have natural rights given to them by God, who are equal, and whose government has to respect those rights. But when it comes to the legal debate about what role the Declaration plays compared to the US Constitution, there are scholars who say that the Declaration should play an important role in interpreting the Constitution. Then there are also scholars—and I happen to fall into this latter camp—who say that the Declaration is a statement of political principle, but not a statement of binding law.
250 years ago, by the British legal standards and laws, was the founding of the new state a legal and legitimate process?
One of the things I’ve come to realize over time is that the American founders—the people who drafted and adopted the Declaration, and who later drafted and adopted the Constitution—were thoughtful people. They were not firebrands.
‘It’s a statement of American political theory about what the United States is’
As the Declaration of Independence says, these people had been subjected to many abuses before establishing a new form of government. In my view, the Americans were very patient. They proceeded step by step, methodically, and ultimately came to the conclusion that revolution was justified. It was something they did reluctantly because, by 1776, Americans had been British subjects for about 150 years. That was all they knew.
So it was a really dramatic change, and it’s one of the reasons why, when I look at the American legal system in 1777 or 1789, and thereafter, I see a legal system that was, at its core, very similar to the British one. We continued to have a common law system, and we retained the tripartite structure of government, with a legislature, an executive, and a judiciary. So we carried forward many British legal traditions because it was a reluctant revolution.
During the last decade, there were about three legal debates between British and American scholars over whether the Declaration had been a legal and legitimate document at the time. Not surprisingly, the British legal scholars said it had not, while the Americans argued that it had.
I can think of another, related situation. Canada, by the time of the American Revolution, was a British colony, and many of the Americans had invited the Canadians to join the Revolution, but they stayed in the Empire; and many Americans who were loyal to the Empire moved up to Canada. So Canada continued, and of course continues today, to be part of the Commonwealth.
But in 1982 Canada ‘repatriated’ its constitution from the United Kingdom to Canada, and it was a consensual process. In the British scholars’ eyes, that was a legitimate legal change. For them, of course, the American Revolution, which was not consensual, would be illegitimate. But the American signatories of the Declaration of Independence were thoughtful people who had sound reasons to support their position. They were people who put a lot of time into maintaining and building a relationship with the United Kingdom and reluctantly came to the conclusion that they needed to create their own country.
Some arguments from the British side were that colonial leaders who had sworn allegiance to the king did not have the right to place themselves outside the British legal system and establish a new jurisdiction for themselves. They also argued that the Founding Fathers had resorted to natural law and the so-called ‘social contract’ theory for lack of constitutional arguments. What’s your comment?
So the argument is that, within the British legal system, what the American patriots did was illegal? I’m not aware of a legal system that gives those subject to it the ability to rebel against the legal system.
‘American signatories of the Declaration of Independence were thoughtful people who had sound reasons to support their position’
That was treason, right?
That’s what we normally call it, right? As a matter of historical fact, if the Americans had lost the Revolutionary War, as the Declaration says, the framers had pledged ‘their Lives, their Fortunes and their sacred Honor’, and they would have been hanged as traitors. So it’s right to say that, within the British legal system, what the Americans did was illegal. But the Americans were appealing to the political principles set out in the Declaration of Independence as a justification for acting outside the laws of the United Kingdom. I think they were protecting their natural rights as individuals and their ability to establish a government that respected those natural rights.
One American argument is that the principles of the Declaration were right: equality of rights, popular sovereignty, and the right to self-determination. Thomas Jefferson and his associates also referred to British constitutional documents, such as the 1689 Declaration of Rights. What about that?
I think what that scholar was referring to is that, in British legal history itself, there are many moments that seem revolutionary in nature. There was Magna Carta, when the nobles at Runnymede forced King John to grant them the Great Charter. Or there was the Glorious Revolution, when Parliament overthrew the Stuart monarchs and invited William of Orange to take the throne. The king had promised them a series of rights in the Declaration of Rights. So what this scholar is referring to is that the American revolutionaries were not something unusual or alien to the British legal tradition. The British legal tradition did have these significant changes, or perhaps even revolutionary changes, because deposing your king in the UK is a revolutionary change.
So the American scholars are saying that the American patriots were part of that tradition. I think what the British Parliament did when it deposed the king was inconsistent with the British constitution at the time. There was no law authorising people to create revolutionary moments in the British system, although the British did so on a fairly frequent basis.
The Founding Fathers listed 18 grievances against the British king, but British lawyers say they were all trivial. Were those 18 accusations strong enough to justify calling him a tyrant?
The Americans were relying on the principles of natural law and natural rights to justify their actions. They listed abuses by the king that violated the legal norms identified in the introduction to the Declaration, and then there’s the conclusion. What’s the conclusion? That the American states here and henceforth are free and independent states.
They identified the different illegalities committed by King George, and I’m not sure who the British person is who said they were trivial, but much of the current American Constitution actually incorporates responses to those abuses. For example, one of the things the king had done was quarter soldiers in the American colonies, and our Third Amendment prohibits the quartering of soldiers. Another thing the king had done was that, instead of Americans being tried in their local county, which was the norm in the Anglo-American legal system, they were shipped to the United Kingdom and tried in courts of admiralty without juries. The right to trial by jury is something the US Constitution explicitly protects.
‘What’s the conclusion? That the American states here and henceforth are free and independent states’
Maybe the British scholar was saying they were trivial because the king did the same things to the British people, and English subjects in the United Kingdom were used to abuses of power. But that’s not a sound position.
What role have the Declaration and the Constitution played throughout the history of liberty struggles in America over the past 250 years?
We in America don’t have a common religion, we don’t have a common ethnicity, we don’t have a common language, and we don’t have the kind of common history that Hungarian people do. But what we do have are foundational documents that almost all Americans think are really important. I think the Declaration of Independence is a statement of political principles that the American republic should follow, and that the Constitution is a practical implementation of those statements of political principle.
What’s amazing to me is that, in a country with this deep pluralism, we have these commitments in the Declaration and the Constitution that have allowed us to live well together for these 250 years. It’s worked really well for us.
What are the major challenges of American constitutional life today?
One of the challenges we’re facing today is that, when you think of the United States, we’re a geographically enormous country. We have 50 states, and people in different states have different ideas about how to live well together. People in California want to live differently from the folks in Utah or the folks in Ohio, where I’m from.
One of the unique contributions of the American Constitution is the concept of federalism: you have one large national government and then many individual states that can govern themselves differently. Think of one of the issues we debate a lot about in the US: abortion. One way to resolve the challenge of how people with different views can live well together is through a federal solution. California and New York have very liberal abortion laws, while states like Utah or Iowa have relatively restrictive ones.
If you want people with fundamentally different views to live together as one country, I think our biggest challenge in America is trying to push issues down from the national level. Don’t have the Supreme Court, Congress, or the President decide abortion—have each state decide it. I think there are many issues on which Americans would live better together if we didn’t try to have everything decided at the national level.
What is the importance of having a written constitution for a state?
For America, it’s crucial because we don’t have many other things in common that hold a lot of countries together. I was in Japan two years ago. Beautiful country, wonderful people. And one of the things that struck me the most was how important tradition is to Japanese people, how they live individually, how they live collectively. We Americans have some traditions, but nothing to the degree that Japanese folks do. So what’s the importance of having a written constitution? It’s like, as Lincoln said, our civil religion. It’s the thing that Americans look to for how we live together as Americans. And so it really plays a quasi-religious role in American life. And I think that if we didn’t have our Constitution, the United States would have turned out much less well.
‘What’s the importance of having a written constitution? It’s like, as Lincoln said, our civil religion’
What are the dangers of changing the Constitution?
James Madison, the father of the American Constitution, spent a lot of time thinking about why republics fail prior to the American Constitution. He put a lot of time into it and played a major role in drafting the Constitution, including the Bill of Rights and the famous Federalist Papers. He talked about how there is a need for veneration of the Constitution, which would come with time and only with time. He knew that it would take years, decades, and generations for the American Constitution to come to hold the place that it holds in America’s hearts today.
I think what was really important for the American system is that the Constitution was adopted in 1789, then they adopted a number of amendments, including the Bill of Rights, shortly thereafter in 1791, and for the most part, we have made very few amendments to the Constitution. There can, of course, be good reasons to amend constitutions, but if you amend them too frequently, it becomes hard for them to play the role of a constitution for the people.
Watch the full podcast below:
Related articles:
At a time when public debate is increasingly polarized and superficial, Hungarian Conservative remains committed to depth, intellectual honesty, and independent conservative thought.
Producing high-quality journalism requires resources. Your contribution helps us expand our coverage, reach new audiences, and keep our content accessible.
Please consider supporting our mission.
