White Guys Rule?

A deeper look at the Declaration of Independence and its ‘lawfulness’

By A.J. Wagner

Artist John Trumbull's "Declaration of Independence, July 4, 1776" depicts the signing of the Declaration of Independence in what is now called Independence Hall in Philadelphia.

Artist John Trumbull's "Declaration of Independence, July 4, 1776" depicts the signing of the Declaration of Independence in what is now called Independence Hall in Philadelphia.

It is not uncommon to hear a presidential candidate mix up the Constitution with the Declaration of Independence. For instance, here is what Herman Cain said about a month ago: “We don’t need to rewrite the Constitution of the United States of America, we need to reread the Constitution and enforce the Constitution. And I know that there are some people that are not going to do that, so for the benefit of those that are not going to read it because they don’t want us to go by the Constitution, there’s a little section in there that talks about life, liberty and the pursuit of happiness.” He then added, “Because that’s what it says when any form of government becomes destructive of those ideals, it is the right of the people to alter or abolish it.”

Herman Cain isn’t alone. More than 235 years after the signing of the Declaration of Independence, many have come to believe it is the law of the land. It is not. The Constitution is the law of this land and it is worth noting the difference. Especially in light of the recent U.S. Supreme Court decision in the case of Walmart v. Dukes.
The Declaration of Independence is a declaration of war against the Crown of Great Britain. Like any declaration of war, it was designed to stir people to action. It was a call to arms, which had to produce a willingness of ordinary people to sacrifice their lives.

The Declaration stakes a claim on who we are or who we should be – our ideals. Thus, the Declaration says: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.”

After the signing, the war was on and the Revolution was won. Yet, like the weapons of mass destruction in Iraq, we still have not found that promised equality that moved many to war. We have had several shots at true equality but it has never been achieved.

The Constitution is the law. It was drafted and signed by some of the same signers of the Declaration of Independence and has a lofty Preamble in which we are promised justice, and, “the Blessings of Liberty to ourselves and our posterity.” Then we are given the approval of slavery by making slaves three-fifths of a person and by providing for quick return to their owners should they escape into another state.

Slavery was eventually abolished, following the deadly Civil War and the Constitution was amended to state, “nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Yet, women were denied the right to vote, polls taxes were instituted and “whites only” practices were given approval by the Supreme Court in Plessy v. Ferguson.

The Constitution was amended again to be clear that women could vote, the 1964 Civil Rights Act was passed and affirmative action became the rule of law. Affirmative action is a thing of the past, yet women are consistently denied equal pay, equal opportunities to promotion and any right to redress has been recently curtailed by the Supreme Court in Walmart v. Dukes.

The Walmart case, decided on June 20, eviscerates the ability of those discriminated against on any basis – race, religion, age, gender preference, sex – to bring a class action. Discrimination, going forward, must almost always be proved in each individual case. Even if a person can prove the defendant always discriminates, such proof, though previously allowed, is now held for naught.

All of the justices hearing the case agreed the case should be sent back for further proceedings for procedural reasons. In an act of judicial activism, however, the 5-4 majority felt the need to add conditions, which slam the door on this, and many other discrimination cases pending throughout the country.

The Declaration of Independence is not the law. Celebrate it anyway as a beautiful notion that may yet someday come to fruition.

I’m sure Walmart and other large companies will be celebrating like it’s Christmas in July – a white Christmas to be sure.

Disclaimer: The content herein is for entertainment and information only. Do not use this as a legal consultation. Every situation has different nuances that can affect the outcome and laws change without notice. If you’re in a situation that calls for legal advice, get a lawyer. You represent yourself at your own risk. The author, the Dayton City Paper and its affiliates shall have no liability stemming from your use of the information contained herein.

A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at AJWagner@DaytonCityPaper.com.


Side Bar

Decisions of interest from the Supreme Court of Ohio and the Second District Court of Appeals

The Supreme Court and the Second District Court of Appeals issue case summaries for the convenience of the public, the bench and the bar. They are a brief statement of the holding of the court in the matter noted. They are not to be considered headnotes or syllabi. Readers may obtain copies of an opinion from the particular county’s clerk of courts. The full text of each opinion is also available at the Ohio Supreme Court Website at www.sconet.state.oh.us


From the Supreme Court

State ex rel. Striker v. Smith, Slip Opinion No. 2011-Ohio-2878

A municipal court clerk was not required to provide access to certain court records in the possession of a judge. Attorney fees and statutory damages are denied.

State v. Mbodji, Slip Opinion No. 2011-Ohio-2880

When a complaint and affidavit are signed by a private citizen but are not reviewed by a reviewing official before filing, the defect is not jurisdictional but may be the subject of a motion before trial.

Pula v. Pula-Branch, Slip Opinion No. 2011-Ohio-2896.]

Domestic relations courts are authorized to decide cases brought under the Uniform Interstate Family Support Act UIFSA.

Williams v. Ohio Dept. of Job & Family Services, Slip Opinion No. 2011-Ohio-2897

When employment is expressly conditioned upon obtaining or maintaining a license, the employee agrees to the condition, and the employee is afforded reasonable opportunity to

comply, failure to meet the condition is just cause for termination.

In re C.B., Slip Opinion No. 2011-Ohio-2899

When a trial court denies a children’s services agency’s motion to modify temporary custody to permanent custody, terminates the placement of temporary custody with the agency, and awards legal custody to a parent, the order is final and appealable.


From the Second District Court of Appeals

Thomas A. Gisslen v. Karen M. Gisslen, Montgomery App. No. 24414

Trial court did not err in denying motion to disqualify opposing counsel, without a hearing, made after most of the evidence had already been presented at trial, and without any showing that opposing counsel had likely been in a position to receive confidential information from another lawyer in his firm whom the movant had briefly consulted, several years earlier.

Trial court did not abuse its discretion in suspending father’s child visitation pending father’s receipt of “some professional intervention,” when there was evidence that father had been exercising his parental visitation in a manner that was detrimental to the interests of the children.

Trial court did not err in its division of marital property. Although there was evidence that wife had loaned her mother $10,000 during the marriage, the evidence reflected that this loan had been repaid before the divorce hearing. There was no evidence in the record requiring the trial court to find that the wife had diverted $10,000 in marital funds to her own account, as a result of the loan to her mother and its repayment.



A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at AJWagner@DaytonCityPaper.com.

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