From Volume 89, Number 3 (March 2016)
This Article explores the use of the Declaration as a law-making ritual, an example of what Richard Primus calls a “continuity tender”: “[A]n inherited ritual formula that one repeats to affirm a connection to one’s predecessors,” but not necessarily “to endorse the content of that statement as one’s predecessors originally understood it.” This Article progresses in three parts: Part I explains why the Declaration is not law in a positive sense. Part II suggests that the Declaration is not law, but is rather a continuity tender. Building on the work of Primus, this Part introduces the concept of continuity tenders and explains their operation during periods of consensus and conflict. Part III explains how the Declaration functions as a continuity tender in American legal culture. This Part concludes that the Declaration is frequently invoked as a way of breaking with deeply entrenched social and legal institutions in a way that makes the break appear, not a break at all, but the natural extension of the previous legal order. As example, this Part discusses the Declaration as a continuity tender with respect to the Thirteenth and Fourteenth Amendments. It explains that while freedom and liberty—the F and E values of the Declaration’s moral calculus—can and have been incorporated (with various levels of success) into the Thirteenth and Fourteenth Amendments, those values are disciplined by the enforcement structures of those amendments.