:: welcome to


:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

-- Eve Tushnet

"Frankfurter was born too soon for the Web, but I'm sure that, had it been possible, there would have been the equivalent of Ninomania for Frankfurter."
-- Mark Tushnet
(I agree, and commented here.)

"The preeminent Scalia blog"
-- Underneath Their Robes

 Subscribe in a reader

Site Feed

Also please visit my opera blog, Box Five!

    follow me on Twitter


    Above the Law, by David Lat



    Duncan's Con Law Course Blog

    Eve Tushnet

    Eye of Polyphemus, by Jamie Jeffords

    How Appealing

    Hugh Hewitt

    Justice Thomas Appreciation Page

    Legal Theory Blog

    Lex Communis

    Opinio Juris


    Paper Chase (from JURIST)

    Point of Law (Manhattan Inst.)

    Professor Bainbridge

    Public Discourse

    Redeeming Law, by Prof. Mike Schutt

    SCOTUS Blog

    Volokh Conspiracy

    WSJ Law Blog

    Other fine sites:

    Alexander Hamilton Inst. for Study of Western Civilization

    Ave Maria School of Law

    Center for Thomas More Studies

    Family Defense Center

    The Federalist Society

    The Founders' Constitution

    George Mason University School of Law

    Immigration and Refugee Appellate Center

    Judged: Law Firm News & Intelligence


    Law Prose (Bryan Garner)

    Liberty Library of Constitutional Classics

    National Lawyers Association (alternative to ABA)

    Supreme Court decisions

    The Weekly Standard

    Something I wrote about marriage

    lawyer blogs


    :: Sunday, July 04, 2010 ::
    A declaration on the Declaration

    The United States is -- is, is, is: yes I know "states" is plural, but what part of "united" don't you understand? -- the only country I know of that dates its independence from the day it announced it, rather than from the day it won it on the battlefield (for us that would be October 19, 1781), or the day its independence was definitively agreed upon with the mother country (May 12, 1784 -- day of the exchange of the ratification instruments of Treaty of Paris; btw I'm supposed to know something about international law, but I confess I've never seen a "ratification instrument": is it like a vuvuzela?), or the day its constitution went into effect (sometime in mid-1788, since Virginia and New York put us over the 9 threshold at nearly the same time -- Prof. Gary Lawson has written on "when the Constititution was ratified -- and why it matters").

    This focus on sheer declaration, as opposed to other perfectly reasonable yardsticks for independence, is really kind of kick-tush, if you think about it. Very American.

    It's all the more remarkable because the Declaration didn't (don't look now, but it didn't) create the national entity called the United States of America that I insisted on at the beginning of this post. That came later, as the fruit of bitter experience in the War of Independence and under the Articles of Confederation. What the Declaration brought into existence -- and it could not possibly have been clearer about this -- was thirteen "free and independent states." They might just as well have been designated "sovereign nations in alliance," to quote Margaret Thatcher's formula for what the nations of the European Union ought to be, rather than the federal blob they are.

    This fact has consequences for another bit of misguided piety that I hear quite often from constitutionalists and philosophers who are otherwise, i.m.o., among the wisest: viz., that the Declaration is our "charter" and the Constitution is our set of "by-laws."

    How one can profess to admire the U.S. Constitution and at the same time relegate it to the piddling status of "by-laws" is quite beyond me. But even passing over that difficulty, the "charter"/"by-laws" theory cannot possibly have merit. A polity that sets up one document as its charter and another as its by-laws has to show some intention of doing so, or at least awareness that it is doing so. As we have seen, the Declaration did not even set up "the United States of America" as a single entity; from its point of view, no "by-laws" were needed, beyond what each state would legislate in its complete sovereignty.

    That objection could be overcome if the record of the debates on the drafting and ratification of the Constitution were replete with evidence that the Framers unfurled their copies of the Declaration and said "OK now, what by-laws do we need to make this work, better than the ones we have?" Afaik, the record is devoid of the least intimation of any such conception by the Framers that this is what they were doing.

    And who can blame them? The Declaration is not a charter for government, even at the most general level. Its famous second sentence states ideals whose depth can never be plumbed (and whose meaning can never be agreed on -- another ground for caution). But -- well, maybe Justice Kennedy is right and not all of us can read the Constitution at one sitting like he can. but all of us should be able to read the Declaration, and if you thought the specifications that follow the "candid world" clause give substance to the theory of rights that you find or think you find in Sentence Two, I hope you will soon learn better.

    My point is not that the numerous "He has" clauses are without meaning -- only that their meaning is about Who Decides, not about Individual Rights.

    Go on -- read them. You will find very few that specify individual rights that are beyond the reach of democratic government (which is what the Supreme Court, on and off since the 1880s, along with most of its academic courtiers, thinks rights have to be). Instead, you will find affirmations that democratic government, located among the American people and not the British, and using familiar Common Law principles rather than new-fangled gobbledigook "unacknowledged by our laws," is the only legitimate mechanism of decision.

    This opens up one avenue for holding that the Constitution does "implement" the Declaration, in a sense. It answers "Who Decides" questions: it allocates jurisdiction. But it does so within a newly-created quasi-federal system ("neither wholly national nor wholly federal," as Madison would later explain) that was not at all what the signers of the Declaration were trying to accomplish.

    The Constititution was a great idea anyway, but it's not what we celebrate on the Fourth of July, and we don't have to build artificial links between the Declaration and the Constitution to make the Declaration worth celebrating. It announced, unprecedentedly, a severance between a mother country and colony; it announced (with inevitable sacrifice in terms of precision) a political philosophy broad enough to include the wide range of beliefs (from Puritan to Enlightenment, with a few Catholics too) within the American leadership class; and it made some stern Who Decides pronouncements.

    Not a bad day's work, even if the great achievement of the Constitution came -- entirely -- later.

    :: David M. Wagner 5:33 PM [+] ::

    Site Meter
    This page is powered by Blogger. Isn't yours?