A group of lawyers gathered in Philadelphia’s Benjamin Franklin Hall Oct. 18 to participate in a debate about the legality of the United States’ Declaration of Independence. The Chronicle’s Shucao Mo interviewed Law School Dean David Levi about his role in the debate and beliefs about the U.S. legal system.
The Chronicle: Why did you decide to participate in the debate?
David Levi: The Temple American Inn of Court is a creation of the last 30 or 40 years, and their purpose is to help young and senior lawyers to discuss common issues of some importance. When I was a judge, I helped to found an Inn of Court at the University of California at Davis. So the Temple University Inn of Court asked me to participate in this [debate]. They told me that it would really be fun—which it was—and my two teammates would be three distinguished judges and attorneys.
TC: What arguments did you rely on?
DL: Heard under the Oxford Union rule, [the debate] began under the proposition that “this House finds the Declaration of Independence was an illegal document.” The way we framed it was, first of all, that the question itself only makes sense if you understand it as whether the Declaration of Independence is justified under the theories of government that applied at that time. Because it clearly was an active rebellion. From the point of view of British law, it was illegal—but from the point of view of Americans, it was an entirely legal document that acknowledges that the United States was sovereign. Therefore, the question of whether it is justified and legal under higher principles was [what we were focusing on]. The argument was threefold. First, we mainly relied on the British constitutional tradition. There is a well established tradition that there are certain rights that people have and that cannot be denied to them by the legislative power. Even at that time in the 19th century in which notions of parliamentary sovereignty was at its height, there was still the idea that if parliament invaded certain fundamental rights, those acts were void and illegal. Second, it was well established in the British tradition that government depended upon representation, particularly true in the area of taxation. If you look at Magna Carta, the Petition of Right, the Declaration of Right and the English Bill of Rights—these documents that come out of periods of rebellion in England—all of them in some sense are about taxation and representation. [Taxation with representation] is the principle of British Constitution. One of the interesting things as I reflected upon it was that the British never tried to address that problem. The typical response to the question why Britain never came up with some mechanism for colonial representation in parliament was that a lot of people in Britain didn’t have representation either—because we are imperfect and unfree, we shouldn’t complain about your being unfree. It wasn’t a very compelling argument. Our final theoretical point was that the writings of John Locke and other contract theorists within the British tradition argued that all government depends upon the consent of the people.
TC: What’s the most convincing counterargument? How did you respond to that?
DL: The opponents were very clever and brilliant. But their arguments are quite thin. I think they sensed that if the American Revolution was illegal, [they had to argue that] the independence movement in India, Magna Carta, the Glorious Revolution and every [other] freedom movement were also illegal? They mainly argued that Americans were simply acting out of self-interest, that they had benefited from the British support during the French-Indian war, that the British reasonably asked the Americans to contribute to the cost of defense and that the rhetoric of the Declaration simply masked the petty self-interest of the colonists. That was to say that these natural law principles were irrelevant because the problem was that the middle and upper class colonists simply didn’t want to pay their share of the cost of empire and protection of government. There is some power to the argument, but it’s not particularly compelling. The revolutionaries were fighting over principles, not over an actual tax issue. [The revolutionaries] were steeped in a British radical tradition, in which they were very suspicious of acts of government whether by the king or parliament. They were very concerned that any acts would lead into slavery themselves. They were very determined to be free. It wasn’t really about money; it was about liberty.
TC: What’s larger purpose of this debate? How is it relevant in our contemporary context?
DL: We want to create something of interest to high school students, to have them think through those political theories that underlie a democratic government. Those are important questions that young and senior lawyers should [also] think about. [Ultimately,] I think it is important to remind ourselves that we live under systems that we inherit and that we are fully capable of changing them. We have that power, right and sometimes even obligations. Things aren’t just given. How much change we are willing to accommodate? That’s always a question. Because we also value our traditions. Anytime we have a discussion about why it is that we do things in a certain way, we look back at the founding: Were we right in being so insistent upon representation, the Declaration of Independence? What is the meaning of that today? These are important questions.
TC: America did subsequently rid off the monarchy. Do you think that they fulfilled the promise they meant to guarantee individual rights?
DL: With all of its faults, we have a robust democracy. People say that democracy is not perfect but it is better than all other forms [of government]. I think we still believe in [democracy], and we have the right to do so.
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