Lee J. Strang (Chase Center for Civics, Culture, and Society; Ohio State University (OSU) – Michael E. Moritz College of Law) and Christopher R. Green (Ohio State University (OSU)) have posted The Declaration of Independence’s Continuing Allure as Constitutional Law on SSRN. Here is the abstract:
Like most Americans, we have always had a high opinion of the Declaration. So, when we began our scholarship on constitutional interpretation back in the early 2000s, one of the questions one of us investigated was the Declaration’s role in constitutional interpretation. That article concluded that the Declaration did not possess continuing legal significance today, nor did it play a unique (much less special) role in constitutional interpretation. We both remain confident in those conclusions. Yet, many Americans, including many scholars, wish to make the Declaration perform more work than these conclusions allow. They contend that the Declaration either is some form of law in its own right, or that it has special influence on the Constitution’s meaning. What accounts for this disjunction? Paradoxically, other scholars have highlighted what they see as the sheer contingency of the Declaration’s non-legal status, as if the Declaration is just any old document that, but for an arbitrary choice by Americans centuries ago—or a choice today—would have legal status today. We think both of these perspectives on the Declaration are evidence of one of the key contributions of the natural law tradition to American jurisprudence: that both law’s facticity and its point are necessary to a fulsome picture of America’s legal system. In the language of Aquinas, it is essential to recognize how law is both an “an ordinance of reason for the common good”—its point—as well as something “made by him who has care of the community, and promulgated”—its contingent existence as a coordinating mechanism today. In this Essay we make four moves. First, after summarizing the variety of views on the Declaration’s legal status, we recount why the Declaration of Independence does not have a special role in constitutional interpretation. Second, we summarize the reasons why the Declaration is not currently American law either in its own right or through its influence on the Constitution’s meaning. Third, we argue that it was and is practically reasonable for the Declaration to not have legal status because it does not have the capacity to coordinate Americans well. Fourth, we argue that the Declaration’s continuing allure as law shows that the natural law tradition’s both-and approach to law—law is both the product of social facts and that it has a point—is sound.
Highly Recommended!
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