Chapter 5. “That These Colonies Are . . . Free and Independent States”

Abstract

Even if the Declaration were a legal document announcing the independence of the United States, according to revolutionary constitutional theory no independent state could exist without fundamental law, in this case a constitution of some sort that was ratified by the people. The Revolutionaries agreed that constitutions must precede and empower governments, or the fundamental rule of consent of the governed could not be followed. Congress did not have such a foundation. The last paragraph of the Declaration thus served as a miniature prototype constitution until such time as a more substantial document could be prepared and ratified. The powers that the Declaration gave to the United States, to wage and conclude wars, regulate commerce, and all the other powers that independent states “may of right do” were the very definition of sovereignty. As it happened, they were the most valid factual claims the Declaration made, for Congress were already doing all of them.