Tag: Constitutional Law

The Declaration of Independence as Bellwether – Article by Katie R. Eyer

From Volume 89, Number 3 (March 2016)
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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.

 

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The Ghost of the Declaration Present: The Legal Force of the Declaration of Independence Regarding Acts of Congress – Article by Frank I. Michelman

From Volume 89, Number 3 (March 2016)
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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.

 

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The Declaration of Independence as Introduction to the Constitution – Article by Alexander Tsesis

From Volume 89, Number 3 (March 2016)
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Throughout the course of United States history, the Declaration of Independence has played an outsized role in constitutional development. For each generation of Americans, the document has reflected the historical reason for independence and the idyllic statement of representative government. On the one hand, it is not part of the formal Constitution, on the other, it informs constitutional interpretation. For a time, until ratification of the Fourteenth Amendment, it was the nation’s only formal acknowledgment of human equality. Justice Goldberg put the point succinctly in a concurrence: “The Declaration of Independence states the American creed,” which “was not fully achieved with the adoption of our Constitution.” The values and ideals it espouses do not include the compromises the framers included in the original Constitution, which contains several clauses that protected slavery. Some of the clauses of the 1787 Constitution “reflected a fundamental departure from the American creed.”

Goldberg’s conception of the Declaration of Independence was remarkably close to one expressed by Samuel Adams, the renowned revolutionary, more than 150 years before. Speaking to the Massachusetts legislature, while serving in the role of acting governor, Adams asserted that when “the Representatives of the United States of America” averred that “all men are created equal, and are endowed by their Creator with certain unalienable rights,” they proclaimed “the doctrine of liberty and equality” to be the “political creed of the United States.” The creed was a guiding force in constitutional theory even though it did not grant any office of government specific powers.

The Constitution’s departures from the ideals of independence were partly rectified, as I point out in my article contribution to this Symposium, after the Civil War with the addition of amendments to the Constitution securing universal freedom, birthright citizenship, due process, equal protection, privilege or immunities of citizenship, and manhood suffrage. Even then, the country was a long way from universal equality in its legal treatment of women as well as various national and racial groups. The ideals of unalienable rights, innate equality, and representative democracy, all of which appear in various paragraphs of the Declaration of Independence, remain, almost two-and-a-half centuries after independence, the highest aspirations of nationhood.

The Supreme Court has paid scant attention to the Declaration’s overarching statement on national governance and its mandates to protect individual rights while securing the people’s “Safety and Happiness.” Those relatively rare cases that do make mention of the founding document often give no more than a nod to the Declaration’s statement of national independence. These passing statements often demonstrate only a glimpse into the document’s importance to the framers. For instance, in Faretta v. California, a case dealing with pro se defendants, the Court discussed early state constitutions, passed shortly after the Declaration of Independence’s adoption, which contained the right to represent oneself at trial. Another case discussed the creation of the postal service the year before the Declaration. The historical record was far richer than the Court’s few passing examples. In fact, some of the earliest state constitutions adopted the Declaration into their bills of rights.

 

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Why the Declaration of Independence Is Not Law–And Why It Could Be – Article by Frederick Schauer

From Volume 89, Number 3 (March 2016)
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The Declaration of Independence, or at least one authoritative version of it, lies under several inches of glass at the National Archives in Washington. So too does the Constitution of the United States. Yet although the two documents are located side by side in the same building and honored in what appears to be much the same way, the Constitution is universally understood to be law, and the Declaration of Independence is widely (even if not universally ) understood not to be. But why is this so? My goal in this Article is to explore this question, arguing that both the legality of the Constitution and the current presumed non-legality of the Declaration are matters of contingent empirical and sociological fact rather than being functions of anything more formal, more logical, or more legal.

 

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The Declaration of Independence and Constitutional Interpretation – Article by Alexander Tsesis

From Volume 89, Number 3 (March 2016)
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This Article argues that the Reconstruction Amendments incorporated the human dignity values of the Declaration of Independence. The original Constitution contained clauses, which protected the institution of slavery, that were irreconcilable with the normative commitments the nation had undertaken at independence. The Thirteenth, Fourteenth, and Fifteenth Amendments set the country aright by formally incorporating the Declaration of Independence’s principles for representative governance into the Constitution.

The Declaration of Independence provides valuable insights into matters of human dignity, privacy, and self-government. Its statements about human rights, equality, and popular sovereignty establish a foundational rule of interpretation. While the Supreme Court has rarely parsed the significance of the Declaration of Independence, several judicial predicates exist to provide guidance to courts and scholars for developing constitutional doctrines arising from the founding values of independence. The principles espoused by the document should inform substantive constitutional interpretation in matters of pressing legal concern, such as voting and marriage equality.

 

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The Declaration of Independence and Contemporary Constitutional Pedagogy – Article by Mark Graber

From Volume 89, Number 3 (March 2016)
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The judicial opinions in Dred Scott v. Sandford debated whether the Declaration of Independence expressed an American aspiration to some form of racial equality. Chief Justice Taney insisted that the simultaneous American commitments in 1776 to the principles of the Declaration and to maintaining African Americans in human bondage demonstrated that the persons responsible for the Constitution of the United States did not regard persons of color as having any natural rights that “the white man was bound to respect.” “[I]f the language” of the Declaration, “as understood in that day, would embrace [persons of color],” Taney stated, “the conduct of the distinguished men who framed the Declaration of Independence would have been utterly and flagrantly inconsistent with the principles they asserted; and instead of the sympathy of mankind, to which they so confidently appealed, they would have deserved and received universal rebuke and reprobation.” Justice Benjamin Curtis disagreed. His dissent insisted that the Declaration in 1776 articulated an American commitment to recognizing that persons of color had fundamental human rights.

 

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Between the States and the Signers: The Politics of the Declaration of Independence Before the Civil War – Article by Bernadette Meyler

From Volume 89, Number 3 (March 2016)
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It is almost impossible to conjure the thought of the Declaration of Independence today without also raising the specters of the signers. Commonplace invocations of “John Hancock” stand in for the prototypical signature, and elementary school children throughout the country learn details about the lives of the signers. The signers did not, however, authorize the Declaration simply for themselves. As Jacques Derrida wrote in 1986, “[t]he signature invents the signer,” meaning that the signatures affixed to the Declaration in the name of the “People” created the very people whom the document invoked. But simply invoking this People does not answer many questions about its identity; who constitutes the People temporally and spatially continues to trouble political theorists. ? The problem is far from new. The circumstances surrounding the initial articulation of the Declaration already indicated some uncertainty about how the people would be identified and how the relevant people might be organized. In particular, as Danielle Allen has explained, there were four different official versions of the Declaration, only the last of which included the signatures that have now become synonymous with the document. John Trumbull’s famous painting of the signing of the Declaration demonstrates another difficulty surrounding the identity of those who authorized it; for painterly as well as pragmatic reasons, Trumbull’s representation includes not only some of those present at the signing, but also others who voted for the Declaration yet did not sign it.

This Symposium Article tells the story of the relationship between the emergence of focus on the signers and arguments about the “People.” At the same time as autograph collectors began accumulating the signatures of the signers, the political contest over the “People” of the United States drew the Declaration into its arguments. Controversy focused, in particular, on whether this People was united from the Declaration onwards or consisted in the people of the several states.

 

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Eighth Amendment Presumptions: A Constitutional Framework for Curbing Mass Incarceration – Article by William E. Berry III

From Volume 89, Number 1 (November 2015)
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The Supreme Court’s conceptualization of the Eighth Amendment over the past decade has focused on narrow exceptions to the ability of the states to punish criminal offenders, excising particular punishments based on characteristics of the offender or crime. What is missing, however, is a set of broader guiding principles delineating the line between acceptable and impermissible punishments. The Court itself, in Kennedy v. Louisiana, acknowledged as much, describing the case law as “still in search of a unifying principle.” In light of this vacuum, this Article proposes a new approach to the application of the Eighth Amendment.

The absence of regulation of excessive and disproportionate punishments by state legislatures over the past two decades has resulted in the largest prison population in the history of the human race. Instead of merely being a tool that removes a few types of offenses and offenders from the purview of state legislatures, the Eighth Amendment should also serve as a more robust guide to shape state and federal penal practices.

To that end, this Article argues for the development of a series of Eighth Amendment presumptions—guiding principles that would govern the punishment practices of legislatures without excluding them from the conversation. Currently, the Eighth Amendment serves to identify the constitutional “exceptions” to the “rules” promulgated by legislatures. This Article’s approach would reverse that status quo, with the Court articulating general rules and legislatures then developing (and justifying through careful study) the exceptions to those rules. Indeed, a careful examination of the Court’s Eighth Amendment cases suggests that this “presumptive” sentiment is already implicit in much of the thinking of the Court.

 

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