Loyola University Chicago, School of Law
LAW eCommons
Faculty Publications & Other Works
2016
e Declaration of Independence and
Constitutional Interpretation
Alexander Tsesis
Follow this and additional works at: h(ps://lawecommons.luc.edu/facpubs
Part of the Constitutional Law Commons, Jurisprudence Commons, and the Legal History
Commons
THE
DECLARATION
OF
INDEPENDENCE
AND
CONSTITUTIONAL
INTERPRETATION
ALEXANDER
TSESIS*
ABSTRACT
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.
*
Professor
of
Law,
Loyola University,
Chicago,
School
of
Law.
Thanks
to Samuel Dykstra,
Amanda
Frost,
Darrell
Miller,
Elizabeth
Sepper,
Jonathan
Sheffield,
and
Evan
Zoldan.
SOUTHERN
CALIFORNIA
LAW
RE
VIEW
INTRODUCTION:
THE
DECLARATION
OF
INDEPENDENCE
AS
THE
NORMATIVE
AND
STRUCTURAL STATEMENT
OF
CONSTITUTIONAL
LAW
The
Declaration
of
Independence
is
often
regarded
as
a
historical
relic-one
that
the
American
public
celebrates on the
Fourth
of
July
but
typically
leaves
out
of
its
constitutional
discourse.
This
perspective
dismisses
the
many
clauses
of
the
Declaration
that
overlap with
those
of
the
Constitution.
The
two texts,
in
fact,
establish
complementary
constitutional
values.
Several
of
the Declaration's
paragraphs clarify
the
founding
generation's
meaning.
The
document
is
therefore
a
constructive
tool
for
parsing
the
meaning
of
the
Constitution.
Furthermore,
the
Declaration
contains
fundamental
principles
for
fulfilling
the aims,
duties,
and
functions
of
government.
Those
principles
place
limits
and
impose
obligations
on
public
officials,
rendering unconstitutional
any actions,
policies,
or
laws
to
the
contrary.
Its
statements about
human rights,
equality,
and
self-government
establish
what
Senator
Charles
Sumner
called
a
"sovereign
rule
of
interpretation."
1
I
By
declaring
independence,
the
people
announced
their
sovereignty
and
the
government's
duty
to
constitute
institutions
in
order
to
secure
inalienable
rights.
A constitutional
state
is
one
that
must
abide
by
normative
and
written
limits
on
its
uses
of
power
for
the
people's
safety
and
happiness.
Both
the
Declaration
and
Constitution
establish mandates
of
government, violations
of
which
constitute
arbitrary
rule.
Both
set
the
normative
terms
for
limited
government.
The
original
Constitution
contained
clauses,
which
protected
the
institution
of
slavery,
that
were
irreconcilable
with
the
moral
commitments
the
nation
undertook
at
independence.
The
Reconstruction Amendments
were
meant
to
set
the
country
aright
by formally
incorporating
the
Declaration's
principle
of
representative
governance
into the
Constitution.
That
principle
had
been
foundational
to
the
nation's
ethos from
its
founding
in
1776,
but
by
protecting
slavery,
the
1787
Constitution
violated
the
Declaration's
mandate that
government
secure
liberal
equality
for
the
common
good.
The
Reconstruction
Amendments
were
a
major
step forward
because
they
empowered Congress
to
enact
legislation
conducive
to
a
society
of
free
and
equal
individuals.
2
1.
CONG. GLOBE,
42d
Cong., 2d
Sess.
828
(1872)
(statement
of
Sen.
Charles
Sumner).
2.
Even
the
Reconstruction
Amendments
proved
to
be
insufficient
during
the
nineteenth century
for
wiping
out
inequalities
based
on
characteristics
such
as
sex
and
national
origin. See
ALEXANDER
TSESIS,
WE
SHALL OVERCOME:
A
HISTORY
OF
CIVIL
RIGHTS
AND
THE
LAW
164-67
(2008)
(discussing
anti-immigrant
sentiments
during the
Gilded
Age);
Alexander
Tsesis,
Gender
Discrimination
and
the
[Vol.
89:369
2016]
THE
DECLARATION
AND
CONSTITUTIONAL
INTERPRETATION
371
In
this Article,
I
demonstrate
the
Declaration's
interpretive
value
as
a
substantive
statement
of
rights
and
representative
structures.
Part
I
parses
paragraphs
of
the
Declaration
in
relation
to
analogous normative
and
structural clauses
of
the
Constitution. That
Part
also
analyzes
how
Supreme
Court
Justices
have adopted
portions
of
the
Declaration
into
constitutional
interpretations
about
privacy,
human
dignity,
and
self-governance.
Part I
ends
by
demonstrating
the
commensurability
between
the
Declaration's
and
Constitution's
statements
about
self-government
and
representative
democracy.
Part
II
evaluates
how
the
Constitution
fell
short
of
the
Declaration's
ideals.
That
Part
also
explains,
however,
that
after
the
Civil
War,
ratification
of
the
Reconstruction
Amendments
firmly
incorporated
the
Declaration's
values,
which
has
broad-ranging
interpretive
implications.
I.
TEXT, NORMS,
AND
STRUCTURE
The
text
of
the
Constitution
plays
an
incontrovertibly
important role
in
adjudication.
It
is,
in
fact,
tautological
to
say
that
courts draw
on
specific
clauses
of
the
Constitution
to
decide
cases. This
proposition
applies
to
judicial
evaluations
of
Article
III
powers,
cases
concerned
with legislative
powers
under
Article
I,
and
cases
involving
executive powers
under
Article
II.
There
is
rarely,
however,
any
reflection
on,
and
even
more
rarely
any
analysis
of,
whether
the
Declaration
of
Independence
has
aught
to
say
about the
legitimacy
of
a
policy,
government decision,
or
resolution
of
case
or controversy.
This
is
most
unfortunate
because,
as
this Part demonstrates,
there
are
a
significant number
of
clauses
in
the
Declaration
that
are
precisely
on
point.
They
yield
not
only
historical insights,
valuable
no
doubt
to
originalist
and
other
historical
forms
of
interpretation,
but
also
provide
a
normative framework for
a
living
constitutional interpretation.
A
variety
of
passages
from the
Declaration
sound
in
the
lexicon
of
constitutional
interpretation.
This
Part
considers
the historical
and
structural aspects
of
the
Declaration
that
make
it
closely
related
to
and,
arguably,
indispensable
to
constitutional interpretation.
Later
in
the
Article,
Thirteenth
Amendment,
112
COLUM.
L.
REv.
1641,
1672-79
(2012)
(detailing the effects
of
the word
"male"
being
used
in
Section
2
of
the
Fourteenth
Amendment,
and
First
Wave
Feminists'
responses
and
activism
to
undermine
its
negative
impact
on
women's
rights
efforts).
For
a
discussion on
the
original
federalist meaning
of
the
Fourteenth Amendment
and
congressional
powers,
see
Robert
J.
Kaczorowski,
Congress's
Power
to
Enforce
Fourteenth
Amendment
Rights:
Lessons
from
Federal
Remedies
the
Framers
Enacted,
42
HARV.
J.
ON
LEGIS.
187,
263
(2005)
("[T]he
framers
of
the
Fourteenth
Amendment...
understood
the
Fourteenth Amendment,
at
a
minimum,
as
a
delegation
to
Congress
of
the plenary
power
to
define
and
enforce
in
the
federal
courts
the
substantive
rights
of
U.S.
citizens
that
they
had
just
exercised
in
enacting the
Civil
Rights
Act
of
1866.").
SOUTHERN
CALIFORNIA
LA
W
RE
VIEW
I
examine
whether
the
Declaration's
statements
of
national
purpose
influenced
the
founding
and
reconstruction
generations'
understandings
of
core
national
commitments
to
liberty
and
equality.
Constitutional
clauses
carry
meaning
that
can
readily be discerned
by
ordinary
people.
3
Textual
interpretation
of
the
Constitution
and
the
Declaration
provides
a
starting
point
for
identifying
whether
they
are
related.
As
it
turns
out,
there
are
many
overlapping
and
complementary
passages
of
the
Declaration
and
the
Constitution.
When
its
text
is
understood
in
the
context
of
history
and social mores,
the
Declaration
contains
a
wealth
of
substantive
provisions
for
lawmaking,
adjudication,
and
enforcement
of
constitutional
principles.
A.
NORMATIVE
AND
STRUCTURAL
OVERLAP
The
Declaration
is
both
a
statement
of
national
independence
and
a
foundational
guarantee
of
individual
rights
and
popular
self-government.
The
document
is
the country's
original
written
statement
of
national
principle,
purpose,
and
sovereignty.
The
framers later
sculpted
the
detailed
powers
to
carry
out the
purposes
of
the
Declaration,
first
by the
ratification
of
the
Articles
of
Confederation
and
then
by the
Constitution.
Inclusion
of
broadly
understood
natural
rights
principles
in
the Declaration
may
help
to
explain
why the
original
Constitution
lacked
a
bill
of
rights.
James
Madison,
for
example,
initially
opposed
its
inclusion
in
the
Constitution
because
he
was
concerned
that
it
might
be
interpreted
to
only protect
enumerated
rights
and
thereby
leave
other
natural rights
unprotected
against
government
overreaching.
4
Alexander
Hamilton,
in
his
Federalist
No.
84,
likewise
cautioned
against
trying
to
provide
an exhaustive
list
of
constitutionally
protected
rights.
5
He
explained
that
while
in
the
past
kings
had
granted
bills
of
rights
to
their
subjects,
the
power
of
American
government
came
from
the
people,
who
did
not
need
to
reserve
rights
3.
I
accept here,
without
analyzing,
Philip
Bobbitt's
assertion that
textual
modality
of
constitutional
interpretation
can
be
"attributed
to
arguments" that
an
"average
person"
would
understand
from
"the
text
of
the
Constitution."
PHILIP
BOBBITr,
CONSTITUTIONAL
INTERPRETATION
14
(1991).
Unlike
Larry
Solum,
I
do
not
think,
at
least
in
difficult cases, that
interpretation
of
text
can,
nor
should
be,
done
separately
from
constructing
its
meaning.
See
Lawrence
B.
Solum,
Originalism
and
Constitutional
Construction,
82
FORDHAM
L.
REV.
453,
456-57,
459, 472
(2013).
While
space
limitations
do
not
permit
me
to deal
with
this
issue
in
this
Article, for
more
information,
see
ALEXANDER TSESIS,
CONSTITUTIONAL
ETHOS
(forthcoming
2016)
(manuscript
at
chapter
7).
4.
See Letter
from James
Madison
to
Thomas
Jefferson
(Oct.
17,
1788),
in
11
THE
PAPERS
OF
JAMES
MADISON
295, 297
(Robert
A.
Rutland
&
Charles
F.
Hobson
eds., 1977)
("My
own
opinion
has
always
been
in
favor
of
a
bill
of
rights;
provided
it be
so
framed
as
not
to
imply
powers
not
meant
to
be
included
in
the enumeration.").
5.
THE
FEDERALIST
No.
84,
at
510-15
(Alexander Hamilton)
(Clinton
Rossiter
ed.,
1961).
[Vol.
89:369
2016]
THE DECLARATION
AND
CONSTITUTIONAL
INTERPRETATION
373
explicitly
because
they
"surrender
nothing"
by
ratifying
the
Constitution.
6
That
is,
they
surrendered
none
of
those rights
already
asserted
to
be
inalienable
in the
Declaration.
This
is
not
to say
that
the
Declaration
was
itself
a
substitute
for
the
Bill
of
Rights,
but
rather
that
Thomas
Jefferson,
who
drafted
the
document,
and
the
Second Continental
Congress,
which
voted
for
it,
regarded
the
Declaration
to
be an
official
statement
of
the
national
government's
obligation
to secure
the
people's
inalienable
rights.
In
modem
language,
we
might
say
that
rights
are
not
grants
of
the
government
as
in
England,
where
rights
had been
endowed
by
the
King,
7
but
intrinsic
to
human
dignity.
When
the Bill
of
Rights
was
ratified,
fifteen
years after
the
adoption
of
the
Declaration,
the
decision
to
include
the
Unenumerated
Rights
Clause
of
the
Ninth
Amendment
demonstrated
the
framers'
persistent
belief
that
inalienable,
natural human
rights
were
not
the
creation
of
the state,
but
the
birthright
of
the
people.
One
of
the best-known
phrases
of
American
culture,
taught
to students
from
their
formative
years
in
grammar
school,
parses
the
rights
retained
by
the
people
against
the abuses
of
government.
The
Declaration
unequivocally
asserts
that
all
people are
"endowed
by
their
Creator
with
certain
unalienable
Rights,
that
among
these
are
Life,
Liberty,
and
the
pursuit
of
Happiness."
8
The
clause
creates
no
explicit
rights
but
makes
clear
that
from the
nation's
independence,
the
people
imposed
on
government
the obligation
to
safeguard
human
dignity.
By
referring
to
the
"pursuit
of
Happiness,"
Jefferson
erected
a
broad
platform for
future
generations
to
advance
civil
rights
and
civil
liberties,
even
though
he
and his
contemporaries
were
unable
to
fathom
all
of
its
implications.
That phrase
embodied
a
variety
of
guarantees, including
those
for
the
protection
of
personal
safety,
public
security,
and
private
property.
9
Jefferson
worked
in
the
milieu
of
eighteenth
century
political
philosophers
who
understood
"Happiness"
in the
context
of
the
benefits enjoyed
by
6.
Id.
at
513.
7.
THE
DOCUMENTARY
HISTORY
OF THE
RATIFICATION
OF THE
CONSTITUTION:
RATIFICATION
OF
THE
CONSTITUTION
BY
THE
STATES, PENNSYLVANIA
383-84
(Merrill
Jensen
ed.,
1976)
(recounting
statements
made
by
James
Wilson
during
the
debates
of
the
Pennsylvania
Convention
on
November
28,
1787
and
published
in
the
Pennsylvania
Herald)
(stating
that while
the
Magna
Carta regarded
the
declared
liberties
to
be
"the
gift
or
grant
of
the
king,"
the
Constitution,
on
the
other
hand, was
a
grant
of
power
to
government
from
the people,
who
retained
their
natural
liberties).
8.
THE
DECLARATION
OF
INDEPENDENCE
para.
2
(U.S.
1776).
9.
See
PAULINE
MAIER,
AMERICAN
SCRIPTURE:
MAKING
THE
DECLARATION
OF
INDEPENDENCE
134 (1997).
2016]
THE
DECLARATIONAND
CONSTITUTIONAL
INTERPRETATION
375
documents
are
clearly
not
identical.
The
First
Amendment
deals
with
the
rights
of
the
press,
free
exercise
of
religion,
and
assembly,
as
well
as
prohibiting
the
establishment
of
an
official
religion.
None
of
these appear
in
the
Declaration.
The
constitutional
value
of
the
latter should
not,
however,
be
dismissed.
The
Declaration's
statement
on
petitioning
clarifies
the
meaning
of
the
First
Amendment
phrase. The
Declaration
makes
evident
that
merely
allowing
people
to
petition
their
leaders
is
not
the
sole
interest
the
people
sought
to
protect through
independence.
Instead,
the
Petition
Clause
of
the
First
Amendment
should
be
understood
to
mean
the
right
to
effective
petition,
where
effectiveness
of
petitioning
is
measured
by
the
degree
of
government
commitment
to
seriously
responding
to
the
people's
demands
for
the
redress
of
public
grievances.
And
the
responsiveness
of
government
to
the
people's
petitions
of
grievances
is
a
judicially
reviewable
predicate
of
the
Preamble's
mandate
that government
act
for
their
general
welfare.
Guarantees
of
rights
are
not
the
only
similarities
between
the
Constitution
and
Declaration.
They
also
contain
several
overlapping
structural
features
of
government,
although
the
Constitution
fleshes
those
out
in
greater
detail
than
its
predecessor.
In
their
basic
forms,
both
documents
establish
mandates
for
representative
governance.
The
Constitution
and
Declaration
announce
a
system
of
government
in
which
policies
and
practices
should
be
judged
against
the
normative
public
mandate
to
protect
human dignity
and
the
common
good
of
constitutional
society.
From
the
nation's
founding,
thirteen
years before
the
ratification
of
the
Constitution,
the
people
asserted
their
sovereignty,
equality,
and
inalienable
rights
to
"Life,
Liberty,
and
the
pursuit
of
Happiness."
'1
7
The
political
philosophy
of
self-government,
adopted
into
the
Constitution,
advances
the
Declaration's
demand
that authority
be
used
for
the
public
good.
This can
be
done
only
where the
individual
is
respected
as
a
political
and
private
actor
who
can
effectively
participate
in
public
policy
through
elections
and
lobbying
efforts.
The
Declaration
makes
clear
the centrality
of
self-
government
to
nationhood.
The
very
act
of
adopting
the
Declaration
was
done
in
the
name
of
"the
Representatives
of
the
united
States
of
America"
under
the
"Authority
of
the
good
People
of
these Colonies,"'
18
not,
as
the
Confederate
government
wrongly
claimed,
by
the
authority
of
the
states.
The
Declaration
explains
that
part
of
the
cause
for
revolution
was the
17.
Id.
para.
2.
18.
Id.
para.
32.
SOUTHERN
CALIFORNIA
LAW
RE
VIEW
King's
refusal
"to
pass
other
Laws
for
the
Accommodation
of
large
Districts
of
People,
unless
those
People
would
relinquish
the
Right
of
Representation
in
the
Legislature."
' 19
The
legislature
was
thought
to
be
a
protector
of
the
people's
rights,
which
the
King
violated
by,
betimes,
dissolving
colonial
houses
of
representatives.
20
The
Declaration
committed
the
country
to
a
republican
government,
where
people
from all
segments
of
the
population
could
participate
in
self-
governance,
2 1
empowered
to
create
institutions
for
public
safety
and
happiness.
22
That
statement
of
purpose translated
into
a
variety
of
clauses
in
the
Constitution
elaborating
on
the
three
branches'
powers
to
operate
for
the
general
welfare.
23
The
later
document
was
no
mere
restatement,
but
a
development
and
elaboration
born
from
the
experiences
with
the
faulty
Articles
of
Confederation
and
the
need
for
more
robust
national
government,
24
the
powers
of which
extended
to
matters like
interstate
commerce
and
taxing
and
spending
for
the
general
welfare.
2
5
Both
the
Declaration
and
Constitution
assert
that
the
fundamental
power
of
governance
resides
in
the people.
The
cornerstone
of
government
provides
the
people
with
power
over
their
destinies
by
retaining
innate
individual
entitlements
and
community
standards
for public
actions.
26
The
Declaration
posits
that
the
people
retain
authority
to
organize
government
according
to
principles
most
likely
to
secure
their
safety
and
happiness.
2
7
Contemporaries
understood
that
the same
"[s]ages,
who
penned
the
19.
Id.
para. 5.
20.
Id.
para.
7.
21.
See
Frank
I. Michelman,
The
Supreme
Court,
1985
Term-Foreword:
Traces
of
Self-
Government,
100
HARV.
L.
REV.
4,
40-42,
74
(1986)
(associating
self-government
with
citizen
participation
in
political activity).
22.
See
Edmond
N.
Cahn,
Madison
and
the
Pursuit
of
Happiness,
27
N.Y.U.
L.
REV.
265,
265
(1952)
("The thesis
is
that
Madison's
political
philosophy
of
republicanism corresponds
to
the
ethical
doctrines
and
convictions
which
are
epitomized in
a
single
phrase
of
the
Declaration
of
Independence.
And
the
phrase
is
'the
pursuit
of
happiness."').
23.
U.S.
CONST.
pmbl.
24.
See
William
P.
Marshall,
National
Healthcare
and
American
Constitutional
Culture,
35
HARV.
J.L.
&
PUB.
POL'Y
131,
145
(2012)
("One
of
the
primary
motivating
concerns animating
the
adoption
of
the
Constitution
was...
that
the
Articles
of
Confederation
created
a
national
government
with
insufficient
authority
to
meet
the
demands
of
a burgeoning
nation.").
25.
U.S.
CONST.
art.
1, §
8,
cls.
1, 3.
26.
See
Speer
v.
Sch.
Dirs.,
50
Pa.
150,
160
(1865)
("The pursuit
of
happiness
is
our
acknowledged
fundamental
right,
and
that,
therefore,
which
makes
a
whole
community
unhappy,
is
certainly
a
social
evil
to
be
avoided
if
it
can
be.").
27.
See
THE
DECLARATION
OF
INDEPENDENCE
para.
2
(U.S.
1776)
("[W]henever
any Form
of
Government
becomes destructive
of
these
Ends,
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.").
[Vol.
89:369
20161
THE
DECLARATION
AND CONSTITUTIONAL
INTERPRETATION
377
Declaration
of
Independence,
laid it
down,
as
a
fundamental
principle,
that
government
derives
its
just
powers
from
the
consent
of
the
people
alone."
28
One
author, writing
for
a
Philadelphia
newspaper,
asserted
what
had
in
short
order
become
common
lore:
"[i]t
is
a
general
maxim
that government
was
instituted
for
the
protection
and
happiness
of
the
people."
29
The
Constitution
was
actually
a
greater
application
of
popular
sovereignty
than
the
Declaration,
since
the
public
at
large
had
not
weighed
in
on
the
1776
document
before
its
passage,
while
constitutional
conventions
made
up
of
ordinary
citizens,
debated
the
text
of
the
Constitution
from
1787
to
1789.30
The
Preamble
to
the
Constitution
asserts
that
government
is
created
by
the
people
and
is
given
authority
to
"promote
the
general
Welfare,
and
secure
the
Blessings
of
Liberty
to
ourselves
and
our
Posterity.
3
1
The
Declaration
also
announces
the
importance
of
an
independent
judiciary.
Take,
for
instance,
the
Declaration's
condemnation
of
the
British
monarchy
for
depriving
Americans
"of
the Benefits
of
Trial by
Jury."
32
The
Sixth
and
Seventh
Amendments
guarantee
trial
by
jury.
33
This
entitlement
was
so
important
that
the
colonists
asserted
jury
trials
to
be essential
even
before
the
Revolution.
34
In
1776,
after
the Declaration
was
issued,
ordinary
commentators
understood
that
trial
by
jury
was
a
key
component
of
the
unwritten
Bill
of
Rights.
35
Independence
from
Great
Britain,
therefore,
meant much
more
than
national
sovereignty;
to
Americans,
it
implied
the
ability
to
be
judged by
and
to
serve
on
a
jury
of
their peers.
The
Sixth
and
Seventh
Amendments
then
adopted
that
concept
and,
adding
to
the
Declaration,
made
clear
that
the
right
to
a
jury
trial
applied
to
both civil
and
criminal
cases.
Judicial
independence
also
appears
in
the
Declaration.
The
colonists
28.
American Intelligence,
FREEMAN'S
J.
(Phila.),
Aug.
24,
1791,
at
2.
29.
A
Ploughman,
To
the
People,
INDEP.
GAZETTEER
(Phila.),
Oct.
5,
1782,
at
1.
30.
See
American
Intelligence,
SALEM
MERCURY,
Apr.
7,
1789,
at
2.
31.
U.S.
CONST.
pmbl.
32.
THE
DECLARATION
OF
INDEPENDENCE
para.
20.
33.
U.S.
CONST.
amends.
VI,
VII.
34.
Even
before
the
Declaration
was
drafted,
the
First
Continental
Congress
had
asserted
that
the
right
to
trial
by
jury
was
a
colonial
right.
David
L.
Ammerman,
The
Tea
Crisis
and
Its
Consequences,
Through
1775,
in
A
COMPANION
TO
THE
AMERICAN
REVOLUTION
195,
198
(Jack
P.
Greene
&
J.
R.
Pole
eds.,
2000).
See
also
William
Gordon,
For
the
Independent
Chronicle,
Letter
V.
to
the
Inhabitants
of
the
Massachusetts-Bay,
INDEP. CHRON.
(Bos.),
Oct.
3,
1776,
at
I
(asserting that
"Trial
by
Jury
has
ever
been
deemed
by Britons
the
palladium
of
liberty").
The
Supreme
Court,
in
Jones
v.
United
States,
526
U.S.
227,
246
(1999),
recognized
that
jury
trials
are
woven
into
the
fabric
of
U.S.
citizenship.
35.
See,
e.g., Casca,
To
the
Freemen
of
Pennsylvania,
PA.
EVENING
POST,
Oct.
31,
1776,
at
546
(stating
that
the
unwritten
Bill
of
Rights
should "include the
natural
rights
of
every
freeman, and
the
essential
principles
of
free
government,
such
as
liberty
of
conscience-annual
elections-freedom
of
the
press-trial
by
jury-rotation
of
offices-equality
of
representation,
&c.").
2016]
THE
DECLARATIONAND
CONSTITUTIONAL
INTERPRETATION
379
Clearer and
more
expositive
judicial
statements
on
the
Declaration
are
necessary
to
connect
the
document
to
a
variety
of
precedents
that
recognize
human
dignity
has
a
substantive
constitutional
value.
44
Because "human
dignity"
is
not
used
in
the
Constitution,
some
commentators
have
attacked
holdings
relying
on
that
principle
for
lacking
textual
anchors.
45
The
Unalienable
Rights
Clause
of
the
Declaration
offers
the
logical
locus
for
a
response.
Relying
on
it in
future
opinions
would
help
anchor
dignity
as
a
constitutional
entitlement.
The
constitutionality
of
the
Declaration's
Pursuit
of
Happiness
Clause
is
on even
firmer
ground.
The
Court
has
explicitly-albeit
rarely
and
in
passing-found
it
to
be
a
substantive
safeguard
of
liberty,
holding,
for
example,
that
it
encompasses
the
right
to
parental
autonomy.
46
In
a
different
opinion,
which
struck
down
a
neutrally
drafted
municipal
ordinance
that
a
city
was
administering
in
a
discriminatory
manner
against
Chinese
immigrants,
47
the
Court
recognized
the
Declaration's
statement
of
rights
to
be
constitutionally protected:
"fundamental
rights
to
life,
liberty,
and
the
pursuit
of
happiness, considered
as
individual
possessions,
are
secured
by
those
maxims
of
constitutional
law
which
are
the
monuments
showing
the
victorious
progress
of
the
race
in
securing
to
men
the
blessings
of
civilization
under
the
reign
of
just
and
equal
laws."
48
44.
Of
late,
the
Supreme Court
has relied
on,
although
never
fully
parsed,
the
relationship
between dignity and
constitutional
rights.
Most
recently,
in
Obergefell
v.
Hodges,
135
S.
Ct.
2584
(2015),
the Court
discussed
human
dignity
without
noticing that
the
Declaration
of
Independence
provides
a
clear guarantee
of
that
interest.
In a
case
dealing with procreation
rights, Justice Sandra
Day
O'Connor
stated that "marriage,
procreation, contraception,
family
relationships,
child
rearing, and
education"
involve "choices central
to
personal dignity and
autonomy." Planned
Parenthood
of
Se. Pa.
v.
Casey,
505
U.S.
833,
851
(1992).
Concurring
in
part
in
the
case,
Justice
John
Paul
Stevens
asserted
that
"[t]he
woman's
constitutional
liberty
interest
also
involves her
freedom to
decide
matters
of
the
highest
privacy
and
the
most
personal
nature."
Id.
at
915
(Stevens,
J.,
concurring
in
part
and
dissenting
in
part).
In a
separate
case,
in
which
the
majority struck
a
state
statute
prohibiting
intimate
homosexual
contact,
the
Court reasoned
that
the
statute had
detrimental
effects
on
human
dignities.
Lawrence
v.
Texas,
539
U.S.
558,
575
(2003).
Expounding
on
the
dignity
of
marriage,
the
Court held
that
the
history
and
text
of
a
federal
statute
defining marriage
to
be
only
between
a
man
and
a
woman "demonstrate
that
interference with
the
equal
dignity
of
same-sex
marriages,
a
dignity
conferred
by
the
States
in
the
exercise
of
their
sovereign
power,
was
more than
an
incidental effect
of
the federal
statute." United
States
v.
Windsor,
133
S.
Ct.
2675, 2693
(2013).
Even
limits
on
personal
mobility,
including
legitimate
prison regulations,
cannot
violate "the essence
of
human
dignity inherent
in
all
persons."
Brown
v.
Plata,
131
S.
Ct.
1910,
1928 (2011).
45.
See,
e.g.,
Steven
G.
Calabresi,
A
Critical
Introduction
to
the
Originalism
Debate,
31
HARV.
J.L.
&
PUB.
POL'Y 875,
882
(2008).
46.
See,
e.g.,
Meyer
v.
Nebraska,
262
U.S.
390,
399
(1923)
(holding
that
parental
rights
are
among
those
"essential
to
the orderly
pursuit
of
happiness
by free
men").
47.
Yick
Wo
v.
Hopkins,
118
U.S.
356,
374
(1886).
48.
Id.
at
370.
SOUTHERN
CALIFORNIA
LA
W
REVIEW
[Vol. 89:369
The
"pursuit
of
Happiness"
is
not
an
empty
phrase,
but
carries
meaning
for
those
seeking
to
vindicate
their
rights.
49
Lower
state
and
federal
courts
have generally
understood
the
pursuit
of
happiness
to
refer
to
a
slew
of
fundamental rights,
including
the
right
to
marry,
50
"to
try
to
earn
a
living,"
51
and
privacy.
52
Travel
is
also
critical
to
a
person's
enjoyment
autonomy
and happiness.
The
Court
has
recognized
that
[the
Privileges
and
Immunities
Clause]
gives
[citizens]
the
right
of
free
ingress
into
other
States,
and
egress
from
them;
it
insures
to
them
in
other
States
the same
freedom
possessed
by
the
citizens
of
those States
in
the
acquisition
and
enjoyment
of
property
and
in the
pursuit
of
happiness;
and
it
secures
to
them
in
other
States
the
equal
protection
of
their
laws.
5
3
During
the
twentieth
century, the
Court
developed
an
expansive
substantive
due
process
doctrine
that
went
well
beyond
"property.
54
In
a
49.
See
Charles
L.
Black,
Jr.,
Further
Reflections
on
the
Constitutional
Justice
of
Livelihood,
86
COLUM.
L.
REV.
1103, 1115
(1986)
("In
a constitutional
universe
admitting
serious
attention
to
the
Declaration
of
Independence,
a
malnourished
child
is
not
enjoying a
'right
to
the
pursuit
of
happiness."').
50.
Campaign for
S.
Equal.
v.
Bryant,
64
F.
Supp.
3d
906,
924
(S.D.
Miss.
2014);
State
v.
Thompson,
782
N.E.2d
688,
691
(Ohio
Ct.
App.
2002).
51.
Habron
v.
Epstein,
412
F.
Supp.
256,
266
(D.
Md.
1976)
(Watkins,
J.,
dissenting)
("[T]he
right
to
try
to
earn
a
living
is
a
fundamental
right,
associated
with the right
to
the
pursuit
of
happiness.").
52.
Winfield
v.
Div.
of
Pari-Mutuel
Wagering,
Dep't
of
Bus. Regulation, 477
So.
2d
544,
546
(Fla.
1985)
(citing Olmstead
v.
United
States,
277
U.S.
438,
478
(1928)
(Brandeis,
J.,
dissenting)).
53.
Hicklin
v.
Orbeck,
437
U.S.
518,
524
(1978)
(emphasis
added)
(quoting
Paul
v.
Virginia,
75
U.S. (8
Wall.)
168, 180
(1869)).
In a
concurrence,
Justice Joseph
P.
Bradley
reversed
this
argument,
asserting
that
"property"
encompassed
the
"pursuit
of
happiness."
By
that portion
of
the
fourteenth
amendment
by
which
no State
may
make
or
enforce
any
law
which
shall
abridge the
privileges
and
immunities
of
citizens
of
the
United
States,
or take
life,
liberty,
or
property,
without
due
process
of
law,
it
has
now
become
the fundamental
law
of
this
country
that
life, liberty, and
property
(which
include
"the
pursuit
of
happiness")
are
sacred
rights, which
the
Constitution
of
the
United
States guarantees
to its
humblest
citizen
against oppressive
legislation,
whether
national
or
local,
so
that
he
cannot
be
deprived
of
them
without due process
of
law.
Bartemeyer
v.
Iowa,
85
U.S.
(18
Wall.)
129,
136
(1873)
(Bradley,
J.,
concurring).
In
a dissent
in
a
different
case, he
equated "property"
with
"pursuit
of
happiness,"
noting
that
"[r]ights
to life,
liberty,
and
the
pursuit
of
happiness
are equivalent
to
the
rights
of
life, liberty, and
property."
Slaughter-House
Cases,
83
U.S.
(18
Wall.)
36,
116
(1872)
(Bradley,
J.,
dissenting).
54.
In
developing
a
dynamic
understanding
of
substantive
due
process,
the
Supreme
Court
has
examined
"our
Nation's
history,
legal
traditions,
and practices." Washington
v.
Glucksberg,
521
U.S.
702,
710
(1997).
Elsewhere,
the
Court
spoke
of
the
"emerging awareness that
liberty
gives
substantial
protection
to
adult persons
in
deciding
how to
conduct
their private
lives."
Lawrence
v.
Texas,
539
U.S.
558,
572
(2003).
The
Court
has
further
explained
the balancing
intrinsic
to
court
proceedings
to
identify
substantive
liberties:
"[i]n
determining
whether
a
substantive
right
protected
by
the
Due Process Clause
has
been
violated,
it
is
necessary
to
balance
'the
liberty
of
the individual'
and
'the
demands
of
an
organized
society."'
Youngberg v.
Romeo,
457
U.S.
307,
320
(1982)
(quoting
Poe
v.
Ullman,
367
U.S.
497,
542
(1961)
(Harlan,
J.,
dissenting)).
2016]
THE
DECLARATIONAND
CONSTITUTIONAL
INTERPRETATION
381
notable
case,
the
Court
identified
the
liberty
to
marry
to
have
"long
been
recognized
as
one
of
the vital
personal
rights
essential
to
the
orderly
pursuit
of
happiness
by
free
men."
55
The
pursuit
of
happiness
is
taken
to
be
an
axiomatic
right
that
was
a
component
of
the
decision.
Likewise,
in a
landmark
case adopting
the
right
of
substantive
due
process,
the
Court
identified that
the
right
of
the
individual
to
contract, to
engage
in
any
of
the common
occupations
of
life,
to
acquire
useful
knowledge,
to marry, establish
a
home
and
bring
up
children, to
worship
God
according
to
the
dictates
of
his
own conscience,
and generally
to
enjoy those
privileges
long
recognized
at
common
law
as
essential
to
the
orderly
pursuit
of
happiness
by
free
men.
5
6
As
the
Court
came
to
understand
the
values
encompassing
substantive
due
process,
it
found
an
axiomatic
connection
between
the
Declaration's
Pursuit
of
Happiness
Clause and
the
Fifth
and
Fourteenth
Amendments'
guarantees
of
liberty.
Elsewhere,
the
Court
has recognized
that
the right to
privacy
is
not
a
property
right
but
is
necessary
for securing
"conditions
favorable
to
the
pursuit
of
happiness."
57
A
heretofore
unidentified
link
can
be traced
between
the
unenumerated
right
of
privacy,
the
Declaration,
and
the
Bill
of
Rights;
the
Declaration
condemns
the
King for
"quartering
large
Bodies
of
Armed
Troops
among
us,"
58
and
the
Third
Amendment
of
the
Constitution
adopts
the
condemnation
into
an
injunction
against
the
quartering
of
soldiers
in
any
house
at
a
time
of
peace
without
an
owner's
consent,
or
"in
time
of
war,
but
in
a
manner
to
be
prescribed
by
law."
59
The
implications
of
these
two
prohibitions
against
abuses
of
authority
and
the
preservation
of
personal
space
run
deep.
In
Griswold
v.
Connecticut,
the
majority
found
that
the
prohibition
against
quartering
is
a
"facet
of
that
privacy"
that
runs
throughout
penumbras
of
the Bill
of
Rights.
60
Other
provisions
of
the
Bill
of
Rights,
such
as
the
Fourth
Amendment's
prohibition
against
illegal
55.
Loving
v.
Virginia,
388
U.S.
1,
12
(1967).
56.
Meyer
v.
Nebraska,
262
U.S.
390,
399 (1923).
See
also
Schwarzman
v.
Schwarzrnan,
388
N.Y.S.2d
993,
997
(Sup.
Ct.
1976)
(citing
Meyer,
262
U.S.
at
399-400).
57.
Rakas
v.
Illinois,
439
U.S.
128,
166
(1978)
(White,
J.,
dissenting)
(internal
quotation
marks
omitted)
(quoting
Olmstead,
277
U.S.
at
478 (Brandeis,
J.,
dissenting)
(arguing
that
Katz
v.
United
States,
389
U.S.
347
(1967),
was
based
on
the
Pursuit
of
Happiness
Clause).
See
also
Olmstead,
277
U.S.
at 478
(Brandeis,
J.,
dissenting)
("The
protection guaranteed
by
the
Amendments
is
much
broader
in
scope.
The
makers
of
our Constitution
undertook
to
secure
conditions favorable
to
the
pursuit
of
happiness.").
58.
THE
DECLARATION
OF
INDEPENDENCE
para.
16
(U.S.
1776).
59.
U.S.
CONST.
amend.
iI.
60.
Griswold
v.
Connecticut,
381
U.S.
479,
484
(1965).
SOUTHERN
CALIFORNIA
LAW
REVIEW
searches and seizures,
61
add
to
the
penumbral
source
of
the
unenumerated
right
to
privacy that
is
implied
in
both
documents.
The
significance
of
this
underlying
commitment
to
preserve
the
right
to
make
characteristically
volitional choices
against intrusion
by
official
powers
cannot
be
overstated.
Beginning
with
the
implied right
to
privacy,
the
Court inductively
inferred
the right
to
privacy
in
matters
of
reproductive autonomy
62
and
sexual
liberty.
63
The
full
implication
of
these
implied
privacy
statements
was
not
evident
to
the
framers;
however,
later
generations
understood
that
the
specific injunctions
against
certain
uses
of
governmental
power,
powerfully
protected
by
the
Unalienable
Rights
Clause
of
the
Declaration
64
and
the
Unenumerated Rights
Clause
of
the
Ninth Amendment,
65
implied
something
deep
about
the
enumerated
powers.
The
specifics
in
both
documents were
starting points;
the
more
general
provisions
gave each
succeeding
generation
the
space
to
construct
constitutional
meaning
with
greater
refinement.
In
its
most
recent
term,
the
Supreme Court
demonstrated
a
greater
willingness
to
draw
on
the
Declaration
for
meaning
of
constitutional
self-
government.
In
Arizona
State
Legislature
v.
Arizona
Independent
Redistricting
Commission,
writing
for
the
majority,
Justice
Ruth
Bader
Ginsburg
recognized
that
sovereignty
over representative
legislation
remains
in
the
hands
of
the
people.
66
"Our
Declaration
of
Independence,
2,
drew from
Locke
in
stating:
'Governments
are
instituted
among Men,
deriving their
just
powers
from
the
consent
of
the
govemed."'
67
This
potentially
important
interpretive
development
was
dulled,
however,
because
the
opinion
lacked
any
clear
statement
about
how lower
court
judges
should
regard
the
Declaration
in
future
cases.
Justice
Ginsburg relied
on
the
quoted
historical
point
to
support
her
holding
that
the
people
are guaranteed
a
role
in
lawmaking, including
the
ability
to
check
abuses by
legislators
and
to
participate
in
drawing
the
borders
of
federal
congressional
districts.
68
One
of
the
most
important
unanswered
questions
is
whether
the
Declaration
can
be
used
to
help
judges
arrive
at
substantive
holdings
or
only
to
develop
reasoning
in
dicta.
A
more
61.
U.S.
CONST.
amend.
IV.
62.
Roe
v.
Wade,
410
U.S.
113,
164
(1973).
63.
Lawrence
v.
Texas,
539
U.S.
558,
578
(2003)
(recognizing
a
right
to
sexual privacy
for
adults
in
same-sex
relationships).
64.
THE
DECLARATION OF
INDEPENDENCE
para.
2
(U.S.
1776).
65.
U.S.
CONST.
amend.
IX.
66.
Ariz. State
Legislature
v.
Ariz.
Indep.
Redistricting
Comm'n,
135
S.
Ct.
2652,
2675 (2015).
67.
Id.
68.
Id.
[Vol.
89:369
2016]
THE
DECLARA
TION
AND
CONSTITUTIONAL
INTERPRETATION
383
robust
message
is
needed
from
the
Court,
one
that
recognizes
the
Declaration
as
part
of
our constitutional
law
and
relevant
in
matters
involving
government
structures,
civil
rights, representative
democracy,
and
the
public
trust.
Justice
Ginsburg's
opinion
leaves
uncertain
how
and
whether
the
Declaration
can
be
distinguished
from
other
historical
documents
such
as
John
Locke's
Two
Treatises
of
Government,
which
she
cited alongside
the
Declaration.
69
The
duty
to
safeguard
the
liberty
and
equality
of
persons
is
not simply
a
philosophical
construct
but
a
constitutional
obligation.
Violation
of
that
principle
renders
any
law-be
it
the
Three-Fifths
Clause
70
or
a
state
segregation
law-violative
of
the
foundational
structure
of
U.S.
democracy.
The
Declaration's
statements about
individual
rights
place
certain
obligations
on
government
to
create institutions
and
regulations
likely
to
empower
the
people
to
pursue
their
unique
visions
of
happiness.
The
Declaration
is
not
merely
idealistic,
but
pregnant
with heuristic
value
for
decisionmakers. Moreover,
unlike
historical
treatises
by
influential
theorists
like
Locke,
the
Declaration
was
officially adopted
by
an
organ
of
the
United
States
as
a
statement
of
national
purpose
and
independence.
The
specific
and
general
terms
of
the
Declaration
establish
certain
mandates
that
are
so
binding
on
public
servants
that
the people
retain
the
right
to
abolish
despotic
governments.
71
There
is
certainly
no
similar
right
to
abolish
a
government
that
is
committed
to
Lockean
social
contract
ideas.
Just
as
Justice
Ginsburg
recognized
the
structural
value
of
the
Declaration
to
democratic
self-representation,
Justice
Clarence
Thomas,
writing
a
dissent
to
a
different
case,
added
an
understanding
about
the
Declaration's
mandate
of
human
dignity.
He
disagreed
with
the
Court's
ruling
in
Obergefell
v.
Hodges
that
"the
right
to
marry
is
a
fundamental
right inherent
in
the
liberty
of
the
person,
and
under
the
Due Process
and
Equal
Protection
Clauses
of
the
Fourteenth
Amendment
couples
of
the
same-sex
may
not
be
deprived
of
that
right
and
that
liberty.
72
Justice
Thomas
believed
the
majority
had
rejected "the
idea-captured
in
our
Declaration
of
Independence-that
human
dignity
is
innate
and
suggests
instead
that
it
comes
from
the
Government.
7
3
Justice
Thomas
was
certainly correct
that
the
foundations
of
rights
in
the
Constitution
are
predicated
on
the
innate
human
dignity
asserted
in
the
69.
Id.
70.
U.S.
CONST.
art.
I, §
2, cl.
3.
71.
THE
DECLARATION
OF
INDEPENDENCE
para.
2
(U.S.
1776).
72.
Obergefell
v.
Hodges,
135
S.
Ct.
2584,
2604
(2015).
73.
Id.
at
2631
(Thomas,
J.,
dissenting).
SOUTHERN
CALIFORNIA
LAW
REVIEW
Declaration.
74
As
he
stated,
those
held
in
slavery
certainly
retained
their
dignities
despite
their
torments.
75
The
same
could
be
said
about
Japanese
citizens
retaining
their
dignity
rights,
despite
the
oppression
of
World
War
II
internment.
Much
as
Justice
Thomas
was
correct
about
the
normative
value
of
the
Declaration,
he
failed
to notice
that
James
Obergefell's
claim
to
the
dignity
to
marry could
have
been
based
on
the
Declaration's
statement
of
innate
rights,
incorporated
through
the
Due
Process
and
Equal
Protection
Clauses.
Had
Justice
Thomas
reflected
on
the
relevance
of
the
Declaration
to
Obergefell's
claim for
marriage
equality,
he
might
have balanced
Obergefell's
interests
against
other dignitary
interests
involved,
which
he
seems
to
think
are
the
dignities
of
persons
who
voted
against
marriage
equality,
76
and
also scrutinized
the
strength
and
fit
of
public
interests
in
legally
secure
marriages.
This type
of
balanced
scrutiny
would
have
likely
identified
the
invidious
discrimination
of
refusing
to
recognize
Obergefell's
claim
of
equal
rights
as
the
surviving spouse.
Instead,
Justice
Thomas's
opinion
curiously ignored
the
clear
pertinence
of
the
Declaration's
general
statement
of
innate
rights
to
the
equal
enjoyment
of
marriage.
Even
though
the
Declaration's
protection
of
human
dignity
is
squarely
on
point
with
Obergefell's
constitutional
claim,
Justice
Thomas
paid
it
no
attention.
The
Supreme
Court's
uses
of
the
Declaration
have,
therefore,
been
uncommon
and
irregular.
When
the
Court
has
found it
relevant
to
constitutional
interpretation,
the
document
has only
provided
some
preliminary
guidance; further
expansion
is
necessary
to
reflect
more
fully
the
Declaration's
interpretive
value.
C.
NORMS
AND
A
REPRESENTATIVE
DEMOCRACY
The
normative
and
structural
similarities
between
the
Constitution
and
Declaration
indicate
the
extent
to
which
the
earlier
document
influenced
the
cultural,
political,
and
legal
memes
about
just
government
within
which
74.
While
the
term
"human
dignity"
is
not
used
in
the
Declaration,
it
is
certainly
an
accurate
statement
of
present-day meaning,
given international human rights
instruments.
Furthermore, while
it
was
unfortunate that
Justice
Thomas
used
the
term
to
defend gender
inequality
in
marriage,
he
probably
captured
the correct
understanding
of
original
meaning
because, by
1776,
"human
dignity"
had
been
in
common
use
for
over
a
century,
appearing
in
well-known
works such
as
John
Milton's
1645
Tetrachordon.
See,
e.g.,
JOHN
MILTON,
TETRACHORDON:
EXPOSITIONS
UPON
THE
FOURE CHIEF
PLACES
IN
SCRIPTURE,
WHICH
TREAT
OF MARIAGE,
OR
NULLITIES
IN
MARIAGE
32
(London,
s.n.
1645). The
term
was
also in common use
in
colonial
writings.
See,
e.g.,
Entertainment,
N.Y.
MERCURY,
Jan. 1,
1753,
at
1.
75.
Obergefell,
135
S.
Ct. at
2639
(Thomas,
J.,
dissenting).
76.
Id.
[Vol.
89:369
2016]
THE
DECLARA
TIONAND
CONSTITUTIONAL
INTERPRETATION
385
the
framers
worked.
The
documents
are
congruous
in
their
presentation
of
a
structure
of
government
beneficial
to
the
people
and
aimed
at
the
public
good.
As
the
foundational
statement
of
national
principle,
the
Declaration
speaks
of
"all
Men"
being
"created
equal,..,
endowed
by
their
Creator
with
certain
unalienable
Rights,
that among
these
are
Life,
Liberty,
and
the
pursuit
of
Happiness."
77
Integrating
this
statement
with
the
safeguard
in the
Constitution's
Preamble
for
the
general
welfare
creates
a
dual
obligation
of
private
and
public
mindedness:
government
is
instituted
by
the
people
to
safeguard
individual
and
public
efforts
to
live
freely
and
happily.
It
constitutes
a
full-throated
condemnation
of
oppression
against equal,
natural
liberties.
The
doctrine
of
inalienable
rights continues
to
be
a
constructive
ideation
of
national
government
because
of
the
value
of
humanity
it
espouses,
not
because
the
framers
adopted
it.
Their
own
prejudices
need
not
weigh
down
the
construction
of
its
text.
The
recognition
of
inalienable
human
rights
is
not
confined
to
any
particular
group,
but asserted
in
universal
terms.
Being
members
of
the
human
family,
each
person
is
an
equal
in
relation
to
others
and
in
the
eyes
of
the
law.
This
doctrine
comprises
the
essential
facet
of
American
republicanism.
The
sine
qua
non
of
state
power
is
the
maintenance
of
a
legal
scheme
that
is
"likely
to
effect
[the
people's]
Safety
and
Happiness."
78
By
1776,
Americans
generally
believed
that
a
republican
government
was
necessary
to
safeguard
natural
rights.
The
Declaration
provides
a
simple
catalogue
of
some
of
those
natural
rights-life,
liberty,
and
the
pursuit
of
happiness-that
were
thought
to
be
equally
and
innately
shared
by
all
humans.
79
To
the civic
world
in
the
period
between
adoption
of
the
Declaration
and
ratification
of
the
Constitution,
"a
truly
Republican
empire"
meant,
"[a]ll
mankind
should
by
their
natural
rights,
enjoy
equal
liberty,
except
in
such
cases
which
tend
to
the
injury
of
their
neighbours;
therefore
they
should
have
a
government
endued
with sufficient
power,
to
check
the
progress
of
the
wicked
and
to
protect
the
virtuous."
8
The
commitment
to
republican
government
conceived
of
a
people
with
mutual
interests,
linked
by the
desire
to achieve
a
common
good
by
constituting
government.
8
'
Put
into
historical
relief,
the
Declaration
is
a
mixed
77.
THE
DECLARATION
OF INDEPENDENCE
para.
2
(U.S.
1776).
78.
Id.
79.
See
FOUNDING
THE
REPUBLIC:
A
DOCUMENTARY
HISTORY
37-38
(John
J.
Patrick
ed.,
1995).
80.
Foreigner,
To
the
Opposers
of
the
Federal
Constitution,
Number
I,
INDEP.
GAZETrEER
(Phila.) Nov.
2,
1787,
at
2.
81.
GORDON
S.
WOOD,
THE
CREATION
OF
THE
AMERICAN
REPUBLIC,
1776-1787,
at
57-58
(1969)
("What
made
the
Whig conception
of
politics
and
the
republican
emphasis
on
the
collective
SOUTHERN
CALIFORNIA
LA
W
REVIEW
statement
guaranteeing
inalienable
rights and
the
people's
authority,
and
prohibiting
illegitimate
uses
of
authority.
Even
before
the
Constitution
came
into
operation,
contemporaries
understood
that
independence
had
created
a
republican
form
of
government,
the
legislators
of
which
were
obligated
to
abide
by
principles
conducive
to
constituents'
liberties.
82
The
close
relationship
between
country
and structure
of
government
was
clearly
stated
by
the
selectmen
of
Marblehead,
New
York
to
the
visiting
George
Washington:
"The
blessings
of
independence
and
a
republican
government
must
ever
excite
our
gratitude
and
affection
to
so
eminent
a
supporter
of
the
public
liberty, whose
wisdom
and
valor
have
so
successfully defended
the
rights
of
his country.
83
II.
CONSTITUTION
AND
RECONSTRUCTION
A.
ILLEGITIMATE
COMPROMISE
If
the
premise
is
correct
that
the
Declaration
set the
mandatory
aspiration
for
national
government
and
the
Constitution
set the
mechanisms
for
its
administration,
then
the
earlier
document retained
its
authority,
even
after ratification.
Yet
contrary
to
the
Declaration's
premises,
the
Constitution
set
express
barriers
against
the
universal
enjoyment
of
innate
human
rights. What
is
more,
as
the
great
abolitionist
Frederick Douglass
pointed
out,
the Constitution
was
internally
contradictory
because the
clauses
protecting
slavery
violated
the
Preamble;
84
that
evil
institution
was
incompatible
with
the Preamble's
general statement
of
the
"Blessings
of
Liberty"
for
which
"We
the
People"
ordained
and
established
a
Constitution
for
the
United
States.
8
5
Several
clauses
of
the
Constitution
structurally
protected
the
institution
of
slavery.
The
Importation
Clause
prohibited
Congress
from
abolishing international
slave
trading
prior
to
1808.86
The
Three-Fifths
Clause enabled
the
South
to
increase
its
political
power
beyond
the
persons
welfare
of
the
people
comprehensible
was
the
assumption
that
the
people..,
were
a
homogenous
body
....
Since
everyone
in
the
community
was
linked
organically
to
everyone
else,
what
was
good
for
the
whole
community
was
ultimately
good
for
all
the
parts.").
82.
See,
e.g.,
Copy
of
a
Letter
from
Frederick,
March
14,
1787,
MD.
J.
&
BALT.
ADVERTISER,
Mar.
30,
1787,
at
2;
Philadelphia,
April
22,
N.Y.
DAILY
GAZETTE,
Apr. 30,
1789,
at
422.
83.
Selectmen
of
Marblehead,
United
States,
N.Y.
PACKET,
Dec.
15,
1789,
at
2.
84.
Frederick Douglass,
Oath
to
Support
the
Constitution,
N.
STAR
(Rochester),
Apr.
5,
1850,
reprinted
in
GLENN
M.
LINDEN,
VOICES
FROM
THE
GATHERING
STORM:
THE
COMING
OF THE
AMERICAN
CIVIL
WAR
40,40-41
(2001).
85.
U.S.
CONST.
pmbl.
86.
U.S.
CONST.
art.
I,
§
9,
cl.
1.
[Vol.
89:369
2016]
THE
DECLARA
TIONAND
CONSTITUTIONAL
INTERPRETATION
387
capable
of
voting
in
elections
or
truly
represented
in
Congress.
87
Congress's
power
to
call
up the
militia
in
order
to
"suppress
insurrections"
granted
legislators
the
power
to
put
down
slave
rebellions.
88
The
Fugitive
Clause
was
understood
to
empower
Congress
to
pass
necessary
and
proper
laws
for
the return
of
runaway
slaves.
89
And
Article
V,
which
requires
two-
thirds
of
both
congressional
houses
to
propose
an
amendment
and
three-
fourths
of
state
legislatures
or
conventions
to
ratify
it,
90
made
it
impossible
prior
to
the Civil
War
to
propose
any
changes
to
the
Constitution
adverse
to
slavery.
Slavery
was
the
original
Constitution's
greatest
downfall
because
it
violated
the
constitutional
principle
of
inalienable,
equal
human
rights.
Clauses
meant
to
shield
slavery
were at
odds with
the
most
basic
concept
of
republican
government.
So
internally
incongruous
were
the
nation's
binding
ideals
from
slavery-protecting
portions
of
the
original
Constitution
that
the
friction
eventually
led
to
the
Civil
War,
which
became
a
battle
for
the unity
of
constitutional
values.
In
1787,
a
foreign
observer
remarked,
"Though
the
federal
power
should
not
interfere
in
the
internal-management
of
the
states;
yet
some
extraordinary
affairs
demand
an
exception."
91
He
referred
specifically
to
maintenance
of
"negro
slavery,"
arguing
that
bringing
about
its
demise
should
be
"a
federal
object
....
A
man
who
exercises
absolute
power
over
some
hundred
fellow
creatures,
although
he
should
not
abuse
it,
cannot
easily
have
a
heart-felt
sensibility
of
the
equal
rights
of
mankind,
the
moderation
of
a
republican,
and
a
genuine
love
of
liberty."
92
Contrary
to
the
claims
of
a
variety
of
historians,
9
3
many
in
the
revolutionary
generation
understood
that
slavery
was
incompatible
with
the
maxims
of
the
Declaration.
Writing
in
1776,
a
British
attorney
condemned
slavery
for
being
"inconsistent
with
all
ideas
of
justice"
and
a
87.
U.S.
CONST.
art.
I, §
2,
cl. 3.
Article
II,
Section
I,
Clause
2
granted
each
state
presidential
electors
whose
numbers
were
equal
to
the
state's
combined
number
of
senators
and
representatives.
U.S.
CONST.
art.
II,
§
1.,
el.
2.
Those
added
electors
were
essential
in
securing
Thomas
Jefferson's
election
over
John
Adams
in
the
1800
presidential
election.
Paul
Finkelman,
The
Color
of
Law,
87
Nw.
U.
L.
REV.
937,
971
(1993)
(reviewing
ANDREW
KULL,
THE COLOR-BLIND
CONSTITUTION
(1992)).
88.
U.S.
CONST.
art.
I,
§ 8,
cl.
15.
89.
U.S.
CONST.
art.
IV,
§
2,
cl. 3.
90.
U.S.
CONST.
art.
V.
91.
An
Essay
on
the
Means
of
Promoting
Federal
Sentiments
in
the
United
States,
by
a
Foreign
Spectator,
INDEP.
GAZETTER
(Phila.),
Sept.
17,
1787,
at 2.
92.
Id.
93.
See,
e.g.,
DAVID
ARMITAGE,
THE
DECLARATION
OF
INDEPENDENCE:
A
GLOBAL
HISTORY
17
(2007);
MAIER,
supra
note
9,
at
160-64,
213-15.
SOUTHERN
CALIFORNIA
LAW REVIEW
"crime...
[that
is]
monstrous
against
the
human
species."
94
Continuing
in
words closely
resembling
the
Declaration, he
asserted that
slavery
was
"no
little,
indirect attack upon
the safety and
happiness
of
our
fellow
creatures,
but
one
that
boldly
strikes
at
the
foundation
of
all
humanity
and
justice."
9
5
Five
years after
the
adoption
of
the
Declaration,
the
great
American
abolitionist Anthony
Benezet
relied
on
the
Declaration's
statement
that
"all
Men are
created
equal"
and
endowed
with
the
rights
to
"Life,
Liberty,
and
the
pursuit
of
Happiness"
96
when
he
stated
that
the
Declaration
established
national moral
commitments
that
"apply
to
human nature
in
general,
however
diversified
by
colour
and
other
distinctions."
97
Even
earlier,
in
1778,
Benezet
wrote that
the
Declaration
was
a
binding resolution
of
the
national
recognition
of
rights
and
should
be
read
as
a
condemnation
"against
the
slavery
of
the
Negroes."
98
In
April
1787,
a
month
before
the
Constitutional Convention
met,
a
Pennsylvanian
abolitionist
society
petitioned
for
the
end
of
slavery
on
the
basis
of
the
"truth"
founded
by
"the
Act
of
Independence."
99
A
pastor
in
New Haven,
Connecticut
relied
on
the
second
paragraph
of
the
Declaration
in
a
sermon
condemning
racial
slavery.'
00
A
similar
idea
appears
in
a
1793
petition
by
a
Delawarean
Quaker,
Warner Mifflin.
Quoting
the same
portion
of
the
document,
he
condemned
the
"despotic
tyranny"
of
augmenting
power
by
suppressing
"helpless
victims"
by
means
of
"enslaving
and
exercising
an
imperious
lordship."'
'
Later
abolitionists
picked
up
this
theme but
were more
adamant
in
their
condemnation
of
the
Constitution
for
adopting
provisions
directly
opposed to
the
principles
of
1776.
Theodore
Parker,
who
hid fugitive
slaves
but did not
live
to see constitutional
abolition, noted
that
the
Declaration's
94.
Letter
from
Thomas
Day
(1776),
in
Fragment
of
an Original
Letter
on
the
Slavery
of
the
Negroes,
FREEMAN'S
J.
(Phila.),
Sept. 8,
1784,
at
2.
95.
Id.
96.
THE
DECLARATION
OF
INDEPENDENCE
para.
2
(U.S.
1776).
97.
ANTHONY
BENEZET,
SHORT
OBSERVATIONS
ON
SLAVERY
2
(Phila.,
Joseph
Crukshank
1781).
98.
ANTHONY
BENEZET,
SERIOUS
CONSIDERATIONS
ON
SEVERAL IMPORTANT SUBJECTS
28
(Phila.,
Joseph
Crukshank
1778).
99.
PA.
ABOLITION
SoC'Y,
THE
CONSTITUTION
OF THE
PENNSYLVANIA
SOCIETY,
FOR
PROMOTING
THE
ABOLITION
OF SLAVERY,
AND THE
RELIEF
OF
FREE
NEGROES,
UNLAWFULLY
HELD
IN
BONDAGE
21
(Phila.,
Francis Bailey
1788).
100.
James
Dana, Pastor, First
Cong.
Church
in
New
Haven, The African
Slave Trade:
A
Discourse, Address
Before the
Connecticut
Society
for
the
Promotion
of
Freedom (Sept.
9,
1790),
in
DOCTOR
DANA'S
SERMON
ON
THE
AFRICAN
SLAVE
TRADE
28
(New Haven,
Thomas
&
Samuel
Green
1790).
101.
WARNER
MIFFLIN,
A
SERIOUS
EXPOSTULATION
WITH THE
MEMBERS
OF THE
HOUSE
OF
REPRESENTATIVES
OF
THE
UNITED
STATES
9-10
(Poughkeepsie,
Nicholas Power
1794).
[Vol.
89:369
2016]
THE
DECLARATION
AND
CONSTITUTIONAL
INTERPRETATION
389
assertion
of
the
people's
right
to
create
a
government
"which shall
secure
their
safety
and
happiness"
never
mentioned
color.
10 2
William
Lloyd
Garrison,
an
uncompromising
advocate
of
immediate abolition,
famously
branded
the
Constitution
"a
covenant
with
death,
and
an
agreement with
hell."'
1 3
In
contrast,
Garrison
praised
the
Declaration
of
Independence's
statement
about "human
equality
and
freedom."'
1 4
Contrary
to
the
banner
of
"the
self-evident
truths
of
the
Declaration
of
Independence,"
Garrison
asserted
in
another
speech,
"to
swear
to
support
the
Constitution
of
the
United
States,
as
it
is,
is
to
make
'a
compromise
between
right
and wrong,'
and
to
wage
war against
human
liberty.
It
is to
recognize
and
honor
as
republican legislators,
incorrigible
men-stealers,
MERCILESS
TYRANTS,
BLOODTHIRSTY
ASSASSINS
....
"'O
Remaining true
to
his
message,
Garrison
time
and
again
charged
that
"the
present
national
compact
...
was
formed
at
the
expense
of
human liberty,
by
a
profligate
surrender
of
principle."
10 6
The
American
Anti-Slavery
Society,
of
which
he
was
president,
argued
that
it
was
"unlawful
for
freemen to
take
the
oath
of
allegiance"
to
the
Constitution
because
it
favored
slavery
and
oligarchy.
1
0 7
He was
certainly
not
the
only
one
to
hold
that
sentiment;
many
abolitionists
spoke
of
the
Declaration
in
the
context
of
republican governance
and
the
"cruel,
unjust
and
unreasonable
distinction"
made
"against
the
color
of
the
skin."'
' 08
Abolitionists
built
on
a
tradition
of
debate
consistent
with
the
Declaration's
assertion
that government
must
be adapted
to
the
people's
safety
and
happiness,
109
but
added
to
it, condemning
slaveholding
on
the
102.
Theodore
Parker, The
Relation
of
Slavery
to
a
Republican
Form
of
Government,
Address
Before
the
New
England
Anti-Slavery
Convention
(May
26,
1858),
in
THE
RELATION
OF
SLAVERY
TO
A
REPUBLICAN
FORM
OF
GOVERNMENT:
A
SPEECH
13
(Boston, William
L.
Kent
&
Co.
1858).
103.
The
Meeting
at
Framingham,
LIBERATOR
(Bos.),
July
7,
1854,
at
106
(internal
quotation
marks
omitted).
The
assertion
that
the
Constitution
was
"a covenant
with
death,
and
an
agreement
with
hell" was
not
new
to
abolitionists.
See,
e.g.,
Alonzo
P.
Jaques,
Our
Inhuman
Religion,
LIBERATOR
(Bos.),
Dec.
23, 1842,
at
202.
104.
The
Meeting
at
Framingham,
supra
note
103,
at
106.
105.
William
Lloyd Garrison,
Address
to
the
Friends
of
Freedom
and
Emancipation
in
the
United
States,
LIBERATOR
(Bos.),
May
31,
1844,
at 86.
106.
William
Lloyd Garrison,
President,
Exec.
Comm.
of
the
Am.
Anti-Slavery
Soc'y,
Address
to
the Friends
of
Freedom
and
Emancipation
in
the
United
States
(May
20,
1844),
in
12
ANTI-SLAVERY
EXAMINER
3,
4
(1845).
107.
Id.
108.
Anecdote,
LIBERATOR
(Bos.),
Aug.
13, 1831,
at
131
(quoting
a
letter
to
the
editor
from
the
editor
of
the
Worcester
Yeoman).
See
also
Constitution
of
the
American Anti-Slavery
Society,
LIBERATOR
(Bos.),
Jan.
11,
1834,
at
5;
Lane
Seminary:
Important
Anti-Slavery
Document,
LIBERATOR
(Bos.),
Jan.
3,
1835,
at
3.
109.
See,
e.g.,
Ass'n
of
Christian Ministers,
To
the
Public,
PA.
PACKET,
Jan.
21,
1788,
at
3;
John
Hancock,
A
Proclamation,
for
a
Day
of
Public
Thanksgiving,
MASS.
GAZETTE,
Nov.
2,
1787,
at
2;
George
Washington,
By
the
President
of
the
United
States
of
America:
A
Proclamation,
N.Y.
PACKET,
Oct.
15,
1789,
at
3.
SOUTHERN
CALIFORNIA
LA
W
REVIEW
basis
of
universal
principles.
Another
group
of
immediatist
abolitionists, known
as
the
Radical
Abolitionists,
argued that
slavery
was
prohibited
by
the
Declaration
and
unprotected
by
the
Constitution.
For
instance,
Lysander
Spooner,
in
The
Unconstitutionality
of
Slavery,
wrote
that
the
Constitution
in
no
way
denied
the
self-evident
truth that
all
men
"have
a
natural
and
inalienable
right
to
life, liberty and
the
pursuit
of
happiness."
' 10
Because
the
Declaration
was
meant
to
end
slavery and
the
Constitution
nowhere
specifically
mentions
slavery, Spooner argued
that
the
nation's
founding documents
did
not
create the
institution,
despite
contrary
practices."'
Another Radical
Abolitionist,
Gerrit
Smith,
wrote
that
the
Constitution
and
the
Articles
of
Confederation
could only
derive
their
authority
from
the
Declaration.
From
this
premise,
Smith drew the
following
conclusion:
"[T]he
Declaration
of
Independence
is
the
very
soul
of
every
legitimate
American Constitution-
the
Constitution
of
Constitutions-the
Law
of
Laws
....
[I]f
there
was
legal
slavery
in
this
land
before
the
Declaration
of
Independence
was
adopted,
there,
nevertheless,
could
be
none
after.""
2
He
admitted that those
men
who
had adopted
the
Declaration
had
brought
the
document
into
disrepute
by
allowing
slavery
to
expand, but
argued
that
they
expected
the
institution
to
die,
shrivel
up,
and
vanish
shortly
after
independence,
13
When
placed
side
by
side
with
provisions
of
the
Constitution
that
Southerners
and
Northerners
regarded
to
protect
slavery,
the
Radical
Abolitionists'
arguments
were
unconvincing
to
the vast
majority
of
congressmen
and
judges.
4
Ending
the
institution
and
empowering
the
federal
government
to
act
in
accordance
with
the
universal
values
of
the
Declaration would
require
formal
constitutional
change.
B.
RECONSTRUCTION
OF
THE
DECLARATION'S
IDEAL
Those
who
claimed
that
the
terms
of
the
Declaration
were
included
in
the
original
Constitution
had
to
gainsay
the
presumption
that
the
latter
superseded
the ideals
of
1776.115
For
example,
it
could
be
said
that
the
110.
LYSANDER
SPOONER,
THE
UNCONSTITUTIONALITY
OF
SLAVERY
44
(Bos.,
Bela
Marsh
1845).
111.
See
id.
at
66-70.
112.
Representative
Gerrit
Smith,
Speech
on
the
Nebraska
Bill
(Apr.
6,
1854),
in
SPEECHES
OF
GERRIT
SMITH
IN
CONGRESS
113,
130-31
(N.Y.C.,
Mason
Bros.
1856).
113.
See
id.
at
132,
135-36.
114.
See WENDELL
PHILLIPS,
REVIEW
OF
LYSANDER
SPOONER'S
ESSAY
ON
THE
UNCONSTITUTIONALITY OF
SLAVERY
75
(Bos.,
Andrews
&
Prentiss
1847)
(reviewing
SPOONER,
supra
note
110)
(stating
that
Lysander
Spooner's
work
claimed
"the
Supreme
Court
is
authorized
to
set
free
the
slaves
in
the several states"
and
concluding
that
his
arguments were
"utterly weak,
fanciful
and
unsound").
115.
The
most
famous
statement
of
this
type
came from
Rufus Choate,
a
renowned conservative
[Vol.
89:369
2016]
THE DECLARATION
AND
CONSTITUTIONAL
INTERPRETATION
391
Fifth
Amendment's
prohibition
against depriving
anyone
of
"life,
liberty,
or
property, without
due
process
of
law"
'
1
6
had
some
of
the
same
elements
as
the
Unalienable
Rights
Clause's
safeguards
for
"Life, Liberty,
and
the
pursuit
of
Happiness,"
117
but
"Happiness"
is
more
sweeping
in
its
implication
than
"property."
One
available
reply
was
that
the
Declaration
and
Constitution
were
consistent
with
each
other:
While
the
"Happiness"
provision was
not
included
in
the
Due
Process Clause
of
the
Fifth
Amendment,
it
was
implied
there.
18
Others argued
the
right
to
pursue
happiness
was
articulated
by
the
Unenumerated Rights
Clause
of
the
Ninth
Amendment
19
or
the
General
Welfare
Clause
of
the
Preamble.
120
By
the
time
of
the
Civil
War,
however,
politicians
came
to
understand that
the
Declaration's
principles
needed
to
be
placed
on
firmer constitutional
ground
than
they
had
been
at the
nation's
founding.
The
ratification
of
the
Reconstruction Amendments incorporated
the
second
paragraph
of
the
Declaration
into
the
Constitution.
The
original
Constitution's
compromises
with
slavery had deviated
from
the
Declaration's
universal principles. Concessions
the founders
had
made
for
the sake
of
national union
delayed
the
possibility
of
forming
an
egalitarian
republic,
where
every
person
could enjoy
the
pursuit
of
inalienable
rights
and
the
general
welfare
of
stable
government. Instead,
the
country became
a
racial
oligarchy,
where
slavery
and
many forms
of
injustice
were
diametrically
opposed
to
the
nation's
founding
statement
of
purpose.
Only
during
the
course
of
the
Civil
War
did
the opponents
of
slavery
gain
sufficient
congressional
influence
to
put
an end
to
the
institution
lawyer
and
former
senator
from
Massachusetts,
who
in
the
1850s
derided
efforts
to
end
slavery.
Choate
castigated
anti-slavery
politics
for
being
predicated
on
premises extraneous
to
the
Constitution, dubbing
them "the
glittering
and sounding generalities
of
natural
right
which
make
up
the
Declaration
of
Independence."
Letter
from
Rufus
Choate to
E.
W.
Farley,
Aug.
9,
1856,
in
1
SAMUEL
GILMAN
BROWN,
THE WORKS
OF
RUFUS
CHOATE
WITH
A
MEMOIR
OF
His
LIFE
(1862).
For
the general
canon
of
supplementary interpretive construction,
see
City
of
Chicago
v.
Envtl.
Def.
Fund,
511
U.S. 328,
347
(1994)
(Stevens,
J.,
dissenting.).
116.
U.S.
CONST.
amend
V.
117. THE
DECLARATION
OF
INDEPENDENCE
para.
2
(U.S.
1776).
118.
U.S.
CONST.
amend.
V.
See
G.
W.
F.
MELLEN,
AN
ARGUMENT
ON THE
UNCONSTITUTIONALITY
OF
SLAVERY
410
(1841)
(connecting
the
Pursuit
of
Happiness
Clause
to
portions
of
the
Constitution,
such
as
the
Due
Process
Clause).
119.
For
the
nineteenth
century
argument
that
the
Declaration
established
a
beneficent
government
prohibited
from
interfering with enumerated
rights,
see
For
the
U.S.
Telegraph,
reprinted
in
POLITICAL
REGISTER
570, 576
(D.C.,
Duff
Green
1832)
and
J. G.
Hertwig,
Religious
Liberty,
3
AM.
J.
POL.
430,
431
(1893).
120. U.S.
CONST.
pmbl.
For
an
example
of
a
nineteenth
century
statement
connecting
the
Declaration
and
the
Preamble
to
the
Constitution,
see
THOMAS
POWER, AN ORATION DELIVERED
BY
REQUEST
OF
THE
CITY
AUTHORITIES,
BEFORE
THE
CITY
OF BOSTON
ON
THE
SIXTY
FOURTH
ANNIVERSARY
OF
AMERICAN
INDEPENDENCE,
JULY
4,
1840,
at
24
(Bos.,
John
H.
Eastburn
1840).
SOUTHERN
CALIFORNIA
LAW
REVIEW
through
constitutional
amendment.
Advocacy
for
passage
of
the
Thirteenth
Amendment
began
to
build
after
Lincoln
issued
his
Emancipation
Proclamation
on
January
1,
1863.
That
same
year,
the
National
Convention
of
German
Radicals
announced
their
chief
aim
to
be
the
"[a]bolition
of
slavery...
[and
r]evision
of
the
Constitution
in
the
spirit
of
the
Declaration
of
Independence."'
121
They
considered
the
"[p]roclamation
of
equal
human
rights
by
the
Declaration
of
Independence"
to
be "the
only
true
fundamental
law
of
republican
life."'
122
Similarly, about
two
months after
the
Thirteenth Amendment
had
been
introduced
in
Congress
by
Representative
James
M.
Ashley
of
Ohio,
123
the
Freedom
Convention
met
in
Louisville
and
adopted a
resolution
on
the
need
to
amend
the
Constitution
to
end
slavery
in
order
"to
secure
freedom
to
every
person"
in
keeping
with
"the
principles
of
freedom
announced
by
the
Declaration
of
Independence
and
the
Federal
Constitution.'
' 124
Garrison's
Liberator
asserted
that
by
superseding
the
proslavery
clauses
of
the
Constitution,
"[s]uch
an
amendment..,
will
give
completeness
and
permanence
to
emancipation,
and
bring
the Constitution
into
avowed
harmony
with
the
Declaration
of
Independence."']
2
5
The
Abolitionists'
sentiments
were
shared
by
many
in
Congress,
who
understood
the
Reconstruction
Amendments
to
incorporate
the
Declaration's
fundamental
principle
of
equal inalienable
rights.
Senator
John
P.
Hale
of
New
Hampshire
called
on
his fellow
citizens
to
"wake
up
to
the
meaning
of
the
sublime
truths"
that
the
nation's
"fathers
uttered
years
ago
and which have
slumbered
dead
letters
upon
the
pages
of
our
Constitution,
of
our
Declaration
of
Independence,
and
of
our
history."'
126
"Our
ancestors,"
asserted
Senator John
B.
Henderson
of
Missouri,
had
paved
the way
to
civil
war
by
hypocritically
preserving
their
own
"inalienable right
of
liberty
unto
all
men," and "came
to
refuse it
to
others"
under
the
guise
of
expedience.'
27
Participants
in
the
debates
on
the
Thirteenth
Amendment
made
clear
121.
The
German
Radical
Convention,
CLEVELAND
DAILY
HERALD,
Oct.
24,
1863,
at
3.
122.
Id.
123.
Representative Ashley
introduced
the
proposal
for
the
Thirteenth
Amendment
on
December
14,
1863.
CONG.
GLOBE,
38th Cong.,
1st
Sess.
19
(1863).
Representative
John
Henderson
of
Missouri
introduced
the proposal
on
January
13,
1864.
CONG.
GLOBE,
38th
Cong.,
1st
Sess.
145
(1864).
124.
The
Eastern
News:
To-day's Dispatches,
DAILY
EVENING
BULL.
(S.F.),
Feb.
25,
1864,
at
2.
125.
Universal
Emancipation,
LIBERATOR
(Bos.),
May
6, 1864,
at
1
(reprinting
an
extract
from
an
April
8,
1864
speech
delivered
in
the
United
States
Senate
by
Senator
Charles Sumner
of
Massachusetts).
126.
CONG.
GLOBE,
38th
Cong.,
1st
Sess.
1443
(1864)
(statement
of
Sen.
John P. Hale).
127.
Id.
at
1461
(statement
of
Sen.
John
B.
Henderson).
[Vol.
89:369
2016]
THE
DECLARATION
AND
CONSTITUTIONAL
INTERPRETATION
393
that
the
modification
to
the
Constitution
would
grant Congress
the
power
to
pass
civil
rights
legislation
in
keeping
with
the
principles
of
the
Declaration.
The
Head
of
the
House
Judiciary Committee,
Representative
James
F.
Wilson
of
Iowa,
believed
the
Thirteenth
Amendment
would
create
power
in
the
federal
government that would
be
inspired
by
the
revolutionary
proclamation
of
"human
equality"
drawn
from
the "sublime
creed"
of
the
Declaration.
128
In
the
reformed
nation,
"equality
before
the
law
[was]
to
be
the
great
corner-stone"
that
the
states
and
the
judiciary
would
be
unable to
undermine.
129
Representative
Isaac
N.
Arnold
of
Illinois
called
for
"incorporating
into
our
organic
law
the
glorious
prohibition
of
slavery"
directly
from
the
Declaration.
130
Likewise,
a
meeting
of
the
Southern
Loyal
Convention
called
for
the
South
and
North
to unite
"under
the
roof
of
the
time-honored
hall,
in
which
the
Declaration
of
[I]ndependence...
inspires us
with
the
animating
hope
that
the
principles
of
just
and
equal
government which were
made
the
foundation
of
the
republic
at
its
origin,
shall
become
the
cornerstone
of
the
Constitution."'131
A
common thread among many
groups
supporting
constitutional
abolition
was
how
it
would
more clearly incorporate
the
Declaration's
humanistic principles
into
the
Constitution.
While
most
debates
occurred
on the
stage
of
national
politics,
the
significance
of
the
Thirteenth
Amendment
was
not
lost
on
an
international
audience.
An
attorney
from
Manchester,
England
wrote
a
friend
in
support
of
ratifying
the
constitutional
amendment
to
abolish
slavery:
"Then
will your
first
great
Declaration
of
Independence
become
indeed
a
solid,
enduring,
noble
REALITY,
securing freedom
as
the
birthright
of
all
men."
132
He
continued
that
returning
to
the
nation's
founding
principles
would
help
secure
liberty
as the
human
birthright
to
go
hand-in-hand
with
"the
precious heritage
of
liberty-equal
rights
and
privileges
of
citizenship.
133
The
great
philosopher
John
Stuart
Mill
wrote
a
letter
from
England
to
a
friend
calling
for
ratification
of
the
Thirteenth
Amendment
and
the
necessity
"to
break
altogether
the
power
of
the
slaveholding
caste"
as
necessary
for
"the
opening words
of
the
Declaration
of
Independence"
to
no
longer
be
"a
128.
Id.
at
1319
(statement
of
Rep.
James
F.
Wilson).
129.
Id.
at 2989
(statement
of
Rep.
Isaac
N.
Arnold).
130.
Id.
(statement
of
Rep.
Isaac
N.
Arnold).
131.
Resolutions
of
the Southern
Loyal
Convention,
VT.
WATCHMAN
&
ST.
J.,
Sept.
14,
1866,
at
1.
132.
Letter
from
Thomas
H.
Barker
to
William
Lloyd Garrison
(Mar.
4,
1865),
in
Letter
from
Thomas
H.
Barker,
Esq.,
LIBERATOR
(Bos.), Mar.
31,
1865,
at
50.
133.
Id.
SOUTHERN
CALIFORNIA
LAW
REVIEW
reproach
to
the
nation
founded
by
its
authors."
' 1
34
Congressional
supporters
for
ending
slavery
by
amendment
had
no
doubt
about
the
need
for
constitutional
change.
For
them,
Chief
Justice
Roger
B.
Taney's
claim
that
the
Declaration
applied
only
to
whites
was
a
figment
of
his
erroneous
account
of
history
and
emaciated
view
of
national
citizenship
in
Dred
Scott.
135
Contrary
to
Chief
Justice
Taney,
Republican
leaders, especially
those
in
the
Radical
Republican
camp,
believed
the
Declaration
"must
be
heeded,"
having
been
"whispered
into
the
ears
of
this
nation
since
first
we pronounced
life,
liberty,
and
the
pursuit
of
happiness
to
be
the
inalienable rights
of
all
men."'
136
Awakening
to
"true
and
real
life
the
moral
sense
of
the
nation,"
the
people
would
undo
those
sections
of
the
Constitution
that
were
"anti-republican."
137
A
Maryland
representative
to
the
House,
speaking
in
Chicago,
saw
constitutional abolition
to
be
a
critical
step
in
formulating
a government
under which
"colored
people" would
have
access
to
the
ballot
box
and
stated
that
"[t]hen all
the
principles
of
the
Declaration
of
Independence
will
be
executed;
this
government
will
rest on
the
rights
of
individual
liberty
and
the
right
of
every
man
to
bear
a
share
in
the
government
of
the
country."'
1
3
8
The
connection
between
abolition
and
representative
government
was
also
clearly stated
in
contemporaneous
statutes
enabling
the
people
of
the
territories
of
Nevada
and
Colorado
to
adopt
a
constitution
and
join
the
Union.
Congressional
conditions
for
the
states
to
gain
admission
included
134.
John Stuart
Mill,
Bos.
DAILY
ADVERTISER,
June
8,
1865,
at
2
(reprinting
an
excerpt
of
a
letter
written
by
John
Stuart
Mill)
(internal
quotation
marks
omitted).
135.
Dred
Scott
v.
Sandford,
60
U.S.
(19
How.)
393
(1857).
In his
judgment,
Chief
Justice
Taney
brashly claimed
that
when
the
Declaration
was
adopted
and
the
Constitution
was
ratified,
persons
of
the
"negro
African
race"
were
"considered
as
a subordinate
and
inferior
class
of
beings,
who
had
been
subjugated
by
the
dominant
race."
Id.
at
404-05,
406.
Blacks
were
so
unfit
for association
with
whites
that
"they
had
no rights which
the
white
man
was
bound
to
respect."
Id.
at
407.
Abraham
Lincoln
regarded
Dred
Scott
as
a
departure
from
the
nation's
core
values.
Lincoln
proclaimed
that
Chief
Justice
Taney's
judgment
did
"obvious
violence
to
the
plain, unmistakable
language
of
the
Declaration."
ABRAHAM
LINCOLN,
From His
Speech on the
Dred
Scott Decision,
Springfield,
Illinois
(June
26,
1857),
in
SPEECHES AND
LETTERS
OF ABRAHAM
LINCOLN,
1832-1865,
at
61,
66
(Merwin
Roe
ed.,
1919).
He
further
asserted
that
the
framers' structural
outline
was
still
binding:
I
think
the
authors
of
that
notable
instrument intended
to
include
all
men,
but
they
did
not
intend
to declare
all
men
equal in
all
respects
....
They
meant
to
set
up
a
standard
maxim
for
free
society,
which should
be
familiar
to
all
and
revered
by
all,--constantly
looked
to,
constantly
laboured
for, and,
even
though
never
perfectly
attained,
constantly approximated,
and
thereby
constantly
spreading
and
deepening
its
influence,
and
augmenting
the happiness
and
value
of
life
to
all
people
of
all
colours
everywhere.
Id.
136.
CONG.
GLOBE,
38th
Cong.,
1st
Sess.
1202
(1864)
(statement
of
Rep. James
F.
Wilson).
137.
Id.
at
1200
(statement
of
Rep.
James
F.
Wilson).
138.
Henry
Winter
Davis
on
Negro
Suffrage,
VT.
WATCHMAN
&
ST.
J.,
July
14,
1865,
at
2
(intemal quotation marks
omitted).
[Vol.
89:369
2016]
THE
DECLARATIONAND
CONSTITUTIONAL
INTERPRETATION
395
the
requirement
that
their
constitutions
be
"republican,
and
not
repugnant
to
the
constitution
of
the
United
States,
and
the
principles
of
the
Declaration
of
Independence."'
139
This
provision
was
further
defined,
in
part,
to
require
Nevada
and
Colorado
to
prohibit
slavery.
140
It
showed
how
ending
the
peculiar
institution,
republican
governance,
the
values
of
the
Declaration,
and
constitutional
change
had
become
interwoven
after
the
Civil
War.
1
4
1
Radical
Republicans,
who
in 1864
and
1865
held
leadership
positions
on several
prominent
congressional
committees,
142
believed
the
freedom
amendment
would
put
into
effect
the
"spirit
of
our
fathers"
who had
been
careful
not
to
"introduce
any
discrimination
of
color"
into
the
Declaration,
Articles
of
Confederation,
or
the
Constitution.
143
During
congressional
debates
on the
Fourteenth
Amendment,'
44
Representative
William
Windom
of
Minnesota
argued
that
the Enforcement
Clause
of
the
Thirteenth
Amendment
granted
Congress
the
power
to
pass
civil
rights law
"to
give
practical
effect
to
the
principles
of
the
Declaration
of
Independence."'
1
45
This
sentiment
left
no
doubt
that
Representative
Windom
considered
the
Declaration
to
be
of
substantive
value
to
constitutional
governance.
According
to
Representative
John
L.
Thomas,
Jr.
of
Maryland,
by
enacting
the
Civil
Rights
Act
of
1866,
with
its
prohibitions
of
discrimination
in
contractual
agreements
and
property
ownerships,
Congress
had
"for
the
first
time
in
the
history
of
this
Government,"
made
"good
the
averment
in
the
Declaration
of
Independence
that-'All
men
are
endowed
by
their
Creator
with
certain
inalienable
rights,
among
which
are
life,
liberty,
and
the
pursuit
of
happiness."
'
146
These
and
other statements,
such
as
those
of
Senator
Charles
Sumner
of
Massachusetts,
about
the
power
of
Congress
to
pass
the
Civil
Rights
Act
of
1866
pursuant
to
Section
2
of
the
Thirteenth
Amendment,
were
widely
understood
to
increase
national
legislative
authority
to
enforce
laws
needed
"to
establish
equality
of
civil
rights
in
all
the
States" in
keeping
with
the
Declaration
of
Independence's
universal
139.
Colorado
Enabling
Act
of
1864,
Pub.
L.
No.
38-37,
§
4,
13
Stat.
32,
33;
Nevada
Enabling
Act
of
1864,
Pub.
L. No.
38-36,
§
4,
13
Stat.
30,
31.
140.
Colorado
Enabling
Act
§
4;
Nevada
Enabling
Act
§
4.
141.
See
CONG.
GLOBE,
39th
Cong.,
1st
Sess.
734
(1866)
(statement
of
Sen.
Charles
Sumner).
142.
Alexander
Tsesis,
Principled
Governance:
The
American
Creed
and
Congressional
Authority,
41
CONN.
L.
REv.
679,
706
n.165
(2009).
143. CONG.
GLOBE,
38th
Cong.,
1st
Sess.
2246
(1864)
(statement
of
Sen.
Charles
Sumner).
See
also
CONG.
GLOBE,
39th
Cong.,
1
st
Sess.
569-71
(1866)
(statement
of
Sen.
Lyman
Trumbull).
144.
Representative
John
A.
Bingham
of
Ohio
first raised
the
Fourteenth
Amendment
in
Congress
on
January
9,
1866.
CONG.
GLOBE,
39th
Cong.,
1st
Sess.
158
(1866)
(statement
of
Rep.
John
A.
Bingham).
145.
Id. at
1159
(statement
of
Rep.
William
Windom).
146.
Id.
at
2094
(statement
of
Rep.
John
L.
Thomas,
Jr.).
SOUTHERN
CALIFORNIA
LA W
REVIEW
statements.
147
When
it
came time
to
debate
passage
of
the
Fourteenth
Amendment,
the
sentiments
were
symmetrical
with
those
expressed
about
the
Thirteenth
Amendment.
Speaking
on
the
floor
of
the
House, Representative
Shelby
M.
Cullom
of
Illinois
advocated
passing
the
Fourteenth
Amendment
to
achieve
the culmination
of
those
"self-evident"
truths
"our
fathers"
included
in
the
Declaration
and
the
Constitution,
which
together
proclaimed
the
"paramount
objects
of
govemment"--being
"[u]nion,
justice,
domestic
tranquility,
the
general
welfare,
the
securement
of
the
blessings
of
liberty
to
themselves
and
their
posterity."
148
Cullom
expressed
the
mainstream
view
in
1866
that
the
Fourteenth
Amendment
was
meant
to
set
the
Constitution
aright
with
the
premises
of
the
Declaration.
Representative
George
F.
Miller
of
Pennsylvania
also
spoke
in
this
vein,
contending
that
no
one
could
object
to
Section
l's
prohibition
against
depriving persons
of
life,
liberty,
or
property
without
due
process
of
law,
which
was
"so
clearly
within
the
spirit
of
the
Declaration
of
Independence."'
149
The
Citizenship
Clause,
as
Indiana
Lieutenant
Governor
Conrad
Baker said
in
an
extensive
speech
in
favor
of
ratifying
the
Fourteenth
Amendment,
would
entitle
all
citizens
equally
to enjoy
their
natural
rights
which
are
defined..,
by
our
own
Declaration
of
Independence,
to
be
the
right
to
life,
liberty
and
the
pursuit
of
happiness.
And
it
is
just
because
the
rebels
in
the
South
and
their
allies
in
the
North,
destroy
these
natural
and
absolute
rights
of
men
by
State
legislation
that
this amendment
has
become
a
necessity.
1
5
0
Contemporaries
perceived
the
Fourteenth
Amendment
to
directly empower
federal
government
to
safeguard
the
human
entitlements
declared
in
the
nation's
statement
of
purpose.
For many
congressmen,
like
Representative
John
F.
Farnsworth
of
Illinois,
universal
suffrage
was
needed
to
put
in
practice
the
Declaration's
self-evident
truths
about
republican
government.
151
The
key
to
self-
government
was
that
"all
persons,
negroes
included..
.
shall
be
admitted
to
a
participation
in
the
Government,
to
a
voice
in
the
management
of
public
affairs"
in
"observance
of
the principles
of
the
Declaration
of
147. Id.
at
1228
(statement
of
Sen.
Charles
Sumner).
148.
CONG. GLOBE,
39th
Cong.,
1st
Sess.
app.
253
(1866)
(statement
of
Rep.
Shelby
M. Cullom).
149.
CONG. GLOBE,
39th
Cong.,
1stSess.
2510
(1866)
(statement
of
Rep.
George
F.
Miller).
150.
A
Great
Union
Meeting
of
Daviess
and
Knox
Counties,
at
Wheatland-Speech
of
Lieutenant
Governor
Baker
on
the
First
Section
of
the
Constitutional
Amendment-It
Does
Not
Confer
the
Right
of
Suffrage,
INDIANAPOLIS
DAILY
J.,
Aug.
15,
1866,
at
2.
151.
CONG.
GLOBE,
39th
Cong.,
1st
Sess.
2539
(1866)
(statement
of
Rep.
John
F.
Farnsworth).
[Vol.
89:369
2016]
THE
DECLARATION
AND
CONSTITUTIONAL
INTERPRETATION
397
Independence."'
52
For
those
like
Senator
Richard
Yates
of
Illinois,
who
regarded
the
Reconstruction
Amendments
to
be
national
statements
of
human
rights,
disenfranchisement
on
the
basis
of
race
was
illegitimate.
The
Fourteenth and
Fifteenth
Amendments
were
realizations
of
"the
surest
way
by
which
we
shall
accomplish
our
purpose...
to
assert
that
which
the
Constitution
of
the
United
States
meant
to
assert. It
meant
to
assert
the
principles
of
the
Declaration
of
American
Independence."'
53
Senator
Sumner forcefully
and
emotionally asserted
in
support
of
the
Fifteenth
Amendment
that
it
would
restore
the
safeguards
of
equal
political
and
civil
rights "which
by the
Declaration
of
Independence, and repeated
texts
of
the
national
Constitution,
are
under
the
safeguard
of
the
nation"
against
local
prejudices.'
54
The
widespread
sentiment
perceived
the
end
of
racial
discrimination
at
the
ballot
box
to
be
essential
"to
put
the
great
words
of
the
Declaration
of
Independence
in
the
Constitution
itself.'
'155
Incoming
Vermont
Governor
Peter Washburn echoed
national
sentiments
in
his
inaugural
address
to
the
state
House
of
Representatives.
Washburn
asserted
that
[adoption
of]
the
proposed Fifteenth
Amendment
of
the
Constitution
of
the
United
States
...
[would]
give reality
in
fact
to
the
truth enunciated
in
the
Declaration
of
Independence,
and
incorporated
into
the
Constitution
of
Vermont,
that
'all
men
are
created
equal,' and
will
preserve
inviolate
the
public
faith
pledged
to
the
National
freedmen.
1
56
Incorporation
of
the Declaration
was
the
only
way
to
live up
to
the
founding statements
of
republican
government
committed
to
the
people's
sovereignty
for
the
protection
of
their
inalienable,
equal
rights.
152.
Id.
at
3525
(statement
of
Sen.
Willard
Saulsbury)
(mocking
those
congressmen
who believed
that
the
Declaration
was
tied
to
universal
suffrage).
153.
CONG.
GLOBE,
40th
Cong.,
3rd
Sess.
1004
(1869)
(statement
of
Sen.
Richard Yates).
For
a
similarly nationalistic understanding
of
the
Declaration
of
Independence
and
its
applicability
to
suffrage,
see
id.
at
93
(statement
of
Rep.
Benjamin
F.
Whittemore).
154.
Id.
at
902
(statement
of
Sen.
Charles Sumner).
155.
Id.
at
725
(Statement
of
Rep.
Glenni
W.
Scofield).
See
also
id.
at
652
(statement
of
Rep.
Shelby
M.
Cullom).
156.
Peter T.
Washburn,
Vt.
Governor,
Inaugural
Address
(Oct.
16,
1869)
(transcript
available
at
the
Vermont
Secretary
of
State
website),
https://www.sec.state.vt.us/media/49078/Washbuml869.pdf
(last
visited
Feb.
21,
2016). The governor
of
Missouri
made
a
similar statement
to
his
state's
senate
the
day
prior
to
his
state's
ratification
of
the
Fifteenth Amendment.
See
also
JOURNAL
OF THE
SENATE
OF
MISSOURI
AT
THE
ADJOURNED
SESSION
OF
THE
TWENTY-FIFTH
GENERAL
ASSEMBLY
26
(Jefferson
City, Horace Wilcox
1870)
(asserting
that "humanity
and
good
faith in
vindicating
the
truth
that
'all
men
are
created
equal"'
required
ratification
of
the
Fifteenth Amendment).
SOUTHERN
CALIFORNIA
LA
W
REVIEW
CONCLUSION
The
Declaration
of
Independence
set
republican
principles
for
self-
governance.
Those ideals
existed
in
the
American
legal
ethos
from
the
nation's
founding
and
were
later
interpolated
into
the
Constitution
through
the
Reconstruction
Amendments.
Even
in
the
original
Constitution,
a
variety
of
clauses
are
parallel
to
paragraphs
of
the
Declaration.
More
importantly,
the
Constitution
built
institutions
for
achieving
the
representative
structure
set
out
in
the
Declaration. The
great failing
of
the
original
Constitution
was
the
inclusion
of
clauses
protecting
slavery, which
were
diametrically
opposed
to
the
universal
statement
of
rights
found
in
the
Declaration.
Section
5's
supermajority
requirement
for
amending
the
Constitution
made
it
impossible
until
the
Civil War
to
bring
that
document
in
line
with
the
nation's
founding
mandate
of
human equality.
After
the
Civil
War,
the
nation
was
reborn.
Using
the
moral
compass
to
reconstruct
the
country,
Radical
Republicans secured
ratification
of
the
Thirteenth,
Fourteenth,
and
Fifteenth
Amendments.
The
ending
of
slavery,
safeguarding
of
citizenship,
due
process
and
equal
protection,
and
securing
of
franchise
brought
the
nation more
in
line
with
its
founding
mandate
of
liberal
equality
for
the
common
good.
Debates
on
the
Reconstruction
Amendments
make clear
that
the
Declaration's
second paragraph
is
incorporated
into the
reconstructed
Constitution.
The
values
of
innate
rights
and self-government
mandated
by
the
Declaration
for
the
nation
as a
whole
are
constitutionally
binding
by
this incorporation
and
should
be
used
as
deciding
values
in
cases
involving
human
dignity,
such
as
Obergefell
and
Arizona
Independent
Redistricting
Commission.
[Vol.
89:369