The ideal of diversity so pervades American public life that we now speak of diversity where we once spoke of equality. Yet we seldom pause to consider the costs that have accompanied this shift. In Grutter v. Bollinger, the Supreme Court held that a public university’s use of racial preferences in student admissions will not violate equal protection if the challenged admissions policy is narrowly tailored to achieve the university’s compelling interest in student body diversity. Rather, however, than quieting public controversies about affirmative action, the decision has been a frequent target of legal and political attack. Grutter and the Court’s subsequent decisions in Fisher v. University of Texas at Austin have established the dominant legal conception of diversity, but they have also left many questions unanswered concerning the applicability of Grutter’s diversity rationale outside of the educational context. This Article rejects Grutter’s rationale, but not the relevance of diversity to the goal of equal opportunity.
In summer of 2013, the National Security Agency (“NSA”) rocketed into headlines when Glenn Greenwald, a reporter at the Guardian, broke a stunning, Orwellian story: pursuant to top-secret court orders, Verizon and other major telephone service providers had granted the NSA blanket access to their American customers’ call records. These companies, Greenwald claimed, were providing the NSA with telephony metadata—general information about each of their customers’ calls, such as phone numbers, call lengths, and call times. In the face of the ensuing public outcry, the American government acknowledged the existence of the telephony metadata program. In doing so, however, it was careful to assert that the program, while secret, was nonetheless constitutional, and that the court orders had been issued pursuant to the Foreign Intelligence Surveillance Act (“FISA”).
The scholarship on “politics as markets” reveals that dominant political parties use “lockups” to control the political system. So stronger, process-oriented judicial review is necessary to disrupt existing lockups. This Note comparatively applies this scholarship to campaign finance laws in the United States and United Kingdom. It shows that these countries’ campaign finance regimes function as lockups that permit the major parties to dominate their countries’ politics. Lockups allow these parties to control elections and the national discourse. These campaign finance lockups raise significant normative concerns because they restrict alternative voices’ political participation. This challenges democracies’ need for varied, pluralist free speech. In both nations, judicial review has disrupted the system and weakened these lockups, but this disruption has been more extensive in the United States. Finally, this disruption may bring its own costs by giving wealthy elites further, disproportionate speechmaking power.
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.
Scholars across the ideological spectrum have argued for a unique role for the Declaration of Independence in constitutional interpretation. These scholars’ arguments fall into two general categories: (1) the Declaration is the “interpretive key” to the Constitution’s text’s meaning ; and (2) the Declaration is itself part of the Constitution. In this Article, I argue that, from an originalist perspective, the Declaration is not part of the Constitution. I first articulate the analysis that originalists should utilize to identify what the Constitution is and second argue that the Declaration is not part of the Constitution.
I argue that originalism’s subject matter—that which originalism interprets—is and is only the document in the National Archives that begins “We the People of the United States,” along with canonical amendments. Therefore, even though the Declaration is a rich data source for the Constitution’s original meaning, it is not itself a subject of constitutional interpretation.
This Article is important for two reasons. First, there is little discussion in the literature on what analysis originalists should utilize to ascertain the subject matter of interpretation—it is nearly always assumed. Originalists typically presume that only the written Constitution is the subject matter of interpretation, and this Article makes express that assumption. More importantly, doing this provides an opportunity to respond to a criticism of originalism: that originalism is incorrect because it is inconsistent with our normative constitutional practice, which identifies more than the written Constitution as the Constitution.
Second, the application of this analysis will provide an additional reason why the Declaration—though an important piece of evidence of the Constitution’s original meaning —does not play a unique role in constitutional interpretation. This more theoretical claim complements historical claims I have made elsewhere.
The Declaration of Independence is one of the paradigm texts of American history. It was originally written for a time-specific purpose. But it also has spoken to a broader audience across time, as an icon representing American ideals. After describing how the Declaration has been given both historical and iconic meaning by judges, presidents, and public figures, this Article considers the relevance of these two forms of meaning to current debates over constitutional interpretation. Originalists generally privilege the historical meaning of texts. Yet originalist Justices on the Supreme Court have acknowledged that iconic meaning also exists and can sometimes be more relevant. In Pleasant Grove City v. Summum, 555 U.S. 460 (2009), originalist Justices turned to the iconic meaning over the historical meaning, endorsing dynamic interpretation of public monuments—even those containing texts. Ironically, then, they found fluidity in the meaning of texts that are literally carved in stone. This Article closes with a discussion of the interpreter’s dilemma: the tension between fidelity to the past (served by historical meaning) and affirmation in the present (served by iconic meaning).
Part I of this Article observes that, surprisingly, the Constitution provides little guidance on many of the basic issues in immigration law, such as which governmental institutions have the authority to create the rules regarding who may come to the United States, the limits on governmental power to exclude or remove noncitizens (if any), and the degree to which noncitizens within the United States are protected by the U.S. Constitution (if at all). Part I then describes how the Declaration of Independence explicitly and implicitly addresses some of these questions.
Part II explains how the Declaration’s espousal of universal rights, as well as its special solicitude for immigrants, has led the Supreme Court to conclude that the Constitution protects noncitizens from laws seeking to regulate their conduct. Part II focuses on the Supreme Court’s groundbreaking decision in Yick Wo v. Hopkins, in which the Court held for the first time that the Constitution applies to noncitizens living in the United States—a decision based, in part, on the universalist philosophy of the Declaration of Independence. A few years later, the Court extended Yick Wo’s rationale to provide constitutional protection even to those noncitizens found illegally in the United States. Yet during the same time period, the Court declined to adopt this expansive view of the Constitution when it came to determining noncitizens’ rights to enter and remain in the United States.
Part III argues that granting noncitizens constitutional protection from laws regulating their conduct is of little practical value when they have no such protection from laws restricting their ability to enter or remain in the United States. To give just one example, granting noncitizens the constitutional right of free speech means little when noncitizens may be deported for that same speech. Furthermore, as a matter of constitutional theory, it is hard to reconcile the universalist view of the Constitution’s scope with a membership approach that excludes noncitizens from that protection when it comes to laws selecting them for admission. If the Declaration’s universalist philosophy is to be taken seriously, the government’s selection process must be cabined by the same constitutional restraints that apply to laws that regulate the lives of citizens and noncitizens alike.
The Article concludes by noting how the plenary power doctrine is slowly eroding, albeit without ever being explicitly disavowed by the Court or the executive branch. Professor Hiroshi Motomura has observed that courts often strive to avoid interpreting federal immigration laws in ways that conflict with the Constitution, even though Congress is mostly free from constitutional constraints when legislating rules of admission. He labels these constitutional influences “phantom norms.” This Article argues that the Declaration’s universalism and its inherent embrace of the right to immigrate are phantom norms that also appear to be influencing the development of immigration law.
Perhaps the most famous sentence in the Declaration of Independence, for twenty-first century readers, is its statement of the “self-evident” truth that “all Men are created equal,” and that they are “endowed by their Creator with certain unalienable Rights,” which include “Life, Liberty, and the pursuit of Happiness.” Equally famous is the Declaration’s explanation that the very purpose of organized government is “to secure these [unalienable] Rights” through political forms that “deriv[e] their just Powers from the Consent of the Governed.” But that is not the end of the sentence. Jefferson goes on to assert that it is equally “self-evident” “[t]hat whenever any Form of Government becomes destructive of these Ends”—that is, of securing unalienable rights—“it is the Right of the People to alter or to abolish it, and to institute new Government, laying its Foundation on such Principles, and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness.”
The notion that governments have a responsibility to protect fundamental human rights seems as self-evident to many today as it was to Thomas Jefferson and his colleagues. Around the world, people have been socialized to believe in universal human rights; Jefferson’s famous language resonates far more broadly and deeply now, in the twenty-first century, than it ever did in 1776.
But what about the rest of this famous sentence? Is it equally clear that any group that designates itself as a “People” has a self-evident right “to alter or to abolish” “any Form of Government” that it believes has become “destructive” of its rights or the rights of its members? Is it a self-evident truth that members of the public, both around the world and in the United States, have the right to overthrow their government if they feel it is not sufficiently protecting their rights? The Declaration’s use of the word “any” suggests that no government is immune from the right to alter or abolish.
The right of a people to throw off their government is not confined to a single sentence in the Declaration. The idea pervades the entire document, especially its first and last paragraphs. The first paragraph asserts that “it [has] become necessary for one People to dissolve the Political Bands which have connected them with another, and to assume among the Powers of the Earth, the separate and equal Station to which the Laws of Nature and of Nature’s God entitle them.” The last paragraph “[d]eclare[s], [t]hat these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political Connection between them and the State of Great-Britain, is and ought to be totally dissolved.”
As scholars have long observed, the Declaration of Independence serves as one of the principal points of popular engagement with constitutional meaning. In particular, the Declaration’s introductory passages regarding liberty and equality provide a key entry point for the general public in engaging with the purpose and meaning of those core constitutional values. As such, claims about the Declaration’s meaning—and appropriation of its terms—have long pervaded public debates over core areas of constitutional contestation.
This Article suggests that this unique role of the Declaration may render it an especially useful subject of study for understanding shifts in popular constitutional understandings. To the extent that popular invocations of the Declaration have shifted over time, these shifts may signal broader changes in public understandings of how the Constitution should be understood. Moreover, to the extent that one credits popular constitutionalism as a descriptive theory (i.e., a theory of how, ultimately, constitutional law evolves), such shifts may provide an important bellwether of the redirection of constitutional doctrine.
This Article explores this idea in the context of a historical examination of shifting invocations of the Declaration of Independence in the context of affirmative action. As such a historical account demonstrates, invocations of the Declaration’s equality principles in the context of affirmative action have shifted profoundly over time, from the early years, when such invocations were found predominantly in the context of pro affirmative action statements, to the present, in which such invocations are largely made in opposition. This shift has accompanied broader shifts in the equality discourse of both proponents and opponents of affirmative action, shifts that have profoundly changed the dominant discourse of affirmative action’s relationship to equality. The Article concludes by discussing the troubling implications for proponents of a particular constitutional project of its disassociation from popular understandings of equality and liberty as represented by the Declaration.
I distinguish three ways by which references to the Declaration of Independence might enter into American legal argument. In primary-legal mode, the Declaration ranks as supreme law beside or above the Constitution, setting mandates as the Constitution does for other purported exercises of legal authority, from Acts of Congress on down. In interpretive-contextual mode, the Declaration provides informative historical context for determinations of the meanings of the Constitution and other laws. In creedal mode, the Declaration serves as a canonical marker for axiomatic principles of good or right government. Creedal uses of the Declaration are common and benign. Interpretive-contextual uses invite debates like those attending other uses of history in legal interpretation. A supreme-law status for the Declaration finds little support in our legal history, nor is there good reason to press in that direction.