Thursday, July 18, 2013

Clarity about the Declaration of Independence

This time of year those of us who are historically inclined tend to turn our thoughts towards the Declaration of Independence.  But there's a lot of confusion out there about what the Declaration is and what it isn't.  In my day job, I've published on the non-binding legal character of the Declaration, and over at the Law & Liberty blog Greg Weiner has published a helpful post reinforcing that point by pointing out the nature of the document: What the Declaration Doesn't Say. In words that echo the fundamental insights of men like Russell Kirk and M.E. Bradford, Weiner writes:
[T]he Declaration must be properly contextualized. It is a founding document but not a framing document, which is to say it does not have legal standing in the same way the Constitution does. When Justice Brennan, for example, grounded his activist jurisprudence partly in the ideals of the Declaration, he imported a document into constitutional law that simply has no place there. But this is not a liberal trope alone. As Ralph Rossum has shown, the Declaration plays a prominent role in Justice Thomas’ jurisprudence as well: the Constitution, in his understanding, was meant to fulfill the aspirations of the Declaration.
While there is no question that the Declaration is a key document in American history and expresses in a unique and almost sacred way the key principles of the American Revolution, it is not a constitutional document. It is a pre-constitutional one, establishing the conditions upon which the American Republic could frame its fundamental legal charters -- first the Articles of Confederation and then the Constitution of 1789.  While the Constitution builds upon many of its insights (particularly in the due process clauses of the 5th and the 14th Amendments), the Declaration is not a legally authoritative document.

2 comments:

Jonathan Rowe said...

Mark,

Very good post, although a can of worms opened.

My blogfather Timothy Sandefur, publishing in the same journal you did, explored the worms here:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=656136

He then wrote a book about it which I have yet to read.

Mark in Spokane said...

Thanks, Jon! I'll give it a look.