Friday, October 21, 2011

British and American lawyers debate: Was the US Declaration of Independence legal, or not. WTF?

The BBC (British Broadcasting Corp) recently ran a news magazine article about a debate, held at Philadelphia's Ben Franklin Hall, over the legality of the U.S. Declaration of Independence.  Was it legal for America to declare itself independent or not.  It's interesting to think about this in the context of current events with the Arab Spring and now the Occupy Wall Street movements where the population is standing up to demand change.

To start with there can easily be a WTF reaction to there even being a question whether the Declaration of Independence is illegal or not.   (if you don't know what WTF means, you simply don't get out enough)  Let's start there … how could there even be a debate on this.  The U.S. is a fully legal country, recognized as a country everywhere, so how could there be a question that its founding moment was illegal.

The British case against the Declaration of Independence goes thusly: (Is the US Declaration of Independence illegal?)

The Declaration of Independence was not only illegal, but actually treasonable. There is no legal principle then or now to allow a group of citizens to establish their own laws because they want to. What if Texas decided today it wanted to secede from the Union?

Lincoln made the case against secession and he was right. The Declaration of Independence itself, in the absence of any recognised legal basis, had to appeal to "natural law", an undefined concept, and to "self-evident truths", that is to say truths for which no evidence could be provided.

Further they claim the grievances cited by the Founding Fathers were pretty minor things.  That's the British point of view mind you, and while I'm not entirely in agreement it does give interesting food for thought.

If a population has proper grievance against their rulers, what are they to do?  Lodge a complaint with the powers that be?  Vote them out of office come next election?  Run a recall election to boot them out of office right away?  Rise up in mass protest to demonstrate the ruler has no support and should therefore resign?  Pull your guns out of the closet and start fighting?

Those are a number of possible reactions and you can surely think of a few examples of each path.  For example Arnold Schwarzenegger became Governor of California when a group of citizens started a recall effort against Gray Davis, booted Gov. Davis out of office, installing Schwarzenegger in his place.  In Egypt the Mubarak regime was toppled by a mass protest that was relatively peaceful.  However in LIbya the Qaddafi regime required a massive civil war, fighting from city to city, bloodshed, and outside intervention, before the regime fell. (http://politics.7gen.com/2011/10/libya-real-us-drone-war.html and http://politics.7gen.com/2011/10/will-economic-hitmen-undo-political.html)

I suppose from the viewpoint of the leaders of Egypt, the massive protests that ended up toppling the Mubarak government were illegal and perhaps treasonous.  From the viewpoint of the protesters, it was the government that was illegitimate, brutal, dictatorial, and had to go.  Would there have been a "legal" way for the Egyptians to change their government?  Apparently there wasn't because that government rigged the system to disallow any change.

In the case of Libya that leadership promised to crush any its own population who dared defy the regime.  Clearly Qaddafi thought the Libyan protesters (rebels) were illegal and treasonous.  Hence the Libyans who sought change had no choice but to battle for change, because Qaddafi wasn't going to allow peaceful change.

In other words it's all nice and proper to say populations who secede from their rulers are illegal and treasonous, what is a population to do when the rulers in question give no meaningful method for the population to peacefully create change?