Is the Declaration Our Law?

30:30At the federal level, we say, Congress may legislate only within a set of delegated powers, which demark its proper jurisdiction. At the state level, however, states have a general police power. But if that general power is treated as a power to do anything a legislative majority can be persuaded to do, as the police power has been treated since at least the 1930s, this comes into conflict with the law contained in the Declaration of Independence. A government instituted to secure these rights cannot be presumed to possess authorities to subvert or destroy the very rights it exists to secure. And this is where the idea of supposed or presumed consent did crucial work at the founding and into the 19th century.

31:20If government authority rests not on expressed consent, none of us sign the Constitution or expressly consents to legislation that's passed supposedly in our name, but on a kind, if it rest instead on a kind of supposed or presumed consent, then the scope of legitimate legislative power must be limited to what can rationally be presumed. As John Locke put it, quote, it cannot be supposed that individuals should, quote, give to anyone or more an absolute arbitrary power over their persons and estates and put a force into the magistrate's hand to execute this unlimited will arbitrarily upon them, unquote.

32:02Why not? Because, Locke answered, this would be, quote, to put themselves in a worse condition than the state of nature, unquote. Applying this to the lawmaking power, Locke wrote, quote, the power of society or legislative constituted by them can never be supposed to extend farther than the common good because, quote, no rational creature can be supposed to change his condition with intent to be worse. When the consent of the individual is not expressed but supposed or presumed, then this supposition or presumption has its limits. Now listen to the continuity of this idea across the American tradition.

32:47In his opinion to President Washington on the constitutionality of a national bank, Edmund Randolph, our first Attorney General, wrote, quote, a legislature instituted even by a written constitution, but without a special demarcation of powers, may perhaps be presumed to be left at large as to all authority which is communicable by the people, notice it's communicable by the people, and does not affect any of those paramount rights which a free people cannot be supposed to confide even to their representatives. The same point about general legislative power was made by Justice Samuel Chase, not to be confused with Chief Justice Salmon Chase, in Calder v.

33:30Bull, where Chase wrote, quote, it is against all reason and justice for a people to entrust a legislature with such powers, he had given a list before the sentence, and therefore it cannot be presumed that it has done so. Then there is Lysander Spooner in his own Sharper Register, quote, all governments that profess to be found on the consent of the governed and yet have authority to violate natural laws are necessarily frauds. It is not a supposable case that all or even a very large part of the governed can have agreed to them. Justice is evidently the only principle that everybody can be presumed to agree to in the formation of government.

34:11Now, whatever one thinks of these thinkers. The shared structure is unmistakable. When legitimacy depends on supposed or presumed consent, there are things that cannot be presumed and cannot be supposed to have been surrendered. When combined with the Declaration, the limits of presumed consent has direct implications for the police power of states. If rights are regulable liberties, then the police power must be understood as a power to regulate the exercise of liberty in ways that secure rights, protecting others from force and fraud, preserving the conditions of public order, and pursuing genuine public goods within the moral jurisdiction of government's just powers.

34:54The power to regulate how a right may be exercised is not the power to subvert or deny that right. So on the declarations theory, which is the American theory, there is a limit on legislative power that is not optional, not merely prudential. A government created to secure rights lacks the just power to destroy them. And if legitimacy rests on presumed or supposed consent, it cannot be presumed that the people authorize their own subjugation. What is needed is a conception of the police power that Thomas Cooley, the most prominent legal scholar of the late 19th century provided in his 1868 treatise aptly entitled, A Treatise on the Constitutional Limitations Which Rest Upon the Legislative Power of the States of the American Union.

35:42There, Cooley defined the police power of states as, quote, its system of internal regulation by which it is sought not only to preserve the public order and to prevent offenses against the state, but also to establish for the intercourse of citizen with citizen those rules of good manner and good neighborhood which are calculated to prevent a conflict of rights and to ensure to each the uninterrupted enjoyment of his own rights so far is reasonably consistent with the like enjoyment of rights by others. The Declaration presses toward a more serious account of what the police power is for and what it is not for, an account that functions at the state level in a way analogous to the enumerated powers at the federal level, not a list of specific subjects, but as a theory of jurisdiction, what counts as the common good, what counts as securing rights, and what crosses the line into subversion.

36:39The Declaration's law does not give a judge a free hand. Indeed, a judge is required to place the principles adopted as law by the Declaration above his or her own political convictions. The Declaration supplies legally obligatory premises about what government is for and what powers can be justified. These legal premises in turn shape the rules of construction, burdens of justification, and the boundaries of legitimate governance. Without the law provided by the Declaration, we have a free-floating constitutional text unmoored from the moral principles that give it the legitimacy required to bind the people in conscience.

37:21Thank you.

37:27Thank you very much for the invitation to appear here. And many thanks to Randy for his excellent talk and paper on which it's based. I fully appreciate that Randy has studied this subject far more than I have. I've focused in very small corners of American law. Randy has ranged far more broadly, and I'm always hesitant to disagree with him on such matters. And there's indeed, I think, a considerable amount that we would agree on. But in the interest of keeping things interesting, I thought I would focus on some ways in which I would take at least a different approach to such things. So let me start by talking about what the Declaration is, talk about what I think it isn't, and then ask to what extent can it be a guide for applying other legal principles, which I take to be Randy's key point.

38:22So what is the Declaration? It is several things. It is a political platform. It is an announcement. We are, you might imagine it like a party platform, although a well-armed party eventually. We stand for the following things. And if you follow us, this is what we will deliver. That's a very important thing, and it bears on law, because after all, the goal would be to create a society governed by a particular kind of set of legal rules. But it is not itself there for long. It's also an attack ad. It's a political attack ad. It's one that's aimed at domestic audiences and foreign audiences. Just to give an example, he has erected a multitude of new offices and sent hither swarms of officers to harass our people and eat out their substance.

39:13I wouldn't recommend a modern political candidate to use precisely those words today, but you can imagine a few changes. This could be an ad you hear on the radio. This is what the other guy has done, throw the bum out. It is certainly legally significant as a declaration of independence that had some significance, among other things, as I understand it in the law of nations at the time, because it led people, led foreign countries to conclude, yes, now here there's this entity that is at least claiming to be an independent nation. whether or not it succeeds and that remains to be seen, but at least it is now asserting a particular legal status.

39:56It also intentionally captures what supporters of independence believed to be right and believed many of their listeners would support. It certainly articulates a particular vision that is useful for us to know that this was something that was very much in the air at the time and at least at some level of generality thought to be the right thing by many people. Again, both by the people who wrote it, but also the very fact that they were presenting it as a political argument suggested that they thought there was a constituency for that as well. It also unintentionally conveys certain implicit understandings of proper government behavior.

40:33Let me turn to one that occasionally comes up in First Amendment debates, Establishment Clause debates. Constitution talks about not just the creator or nature's God in the opening paragraph, which suggests a certain role for references to religion in governmental life. But in the closing paragraph, it talks about appealing to the supreme judge of the world and firm reliance in the protection of divine providence. This is no longer just sort of the deist watchmaker god, as some people have suggested, or some sort of abstract god as nature or some such. No, this is a god who is a judge and a god who is a protector.

41:12very much the Christian God, no reference to Jesus, but perhaps God the Father, at the risk of being heretical, I'm not sure that's exactly how most Christian denominations would articulate it, but basically, at the very least, it is a document that the very fact that it unselfconsciously talks about religious, or uses religious rhetoric, may be read to suggest that in fact we too should not be that hesitant about seeing religious rhetoric from government entities. So that has been used as an argument, for instance, against kind of a broad reading of a no endorsement rule under the Establishment Clause.

41:54One could of course agree or disagree. Obviously the Establishment Clause was still a decade plus in the future. So it's a complicated matter. But you could certainly imagine somebody today saying, look, we need to understand other government actions around that era, understand how we should interpret them, we should look at kind of the implicit understandings that we can draw from the way these words were written. It is certainly also an inspiration to future generations, as all founding documents of successful and some of unsuccessful nations have been. The examples given by Randy at least show that.

42:36Now, Randy argues they show more. They show that it was treated as law. Maybe, maybe not. But at the very least, they show it was inspiration. Likewise, the examples given by Tino Cuellar shows that in the early 1900s, it was also seen as inspiration for a very different kind of perspective. And I think we see that in our lives today as well. It influences future lawmaking, such as in the enabling acts, as noted by Clint Bolick yesterday. It was itself influenced by past lawmaking, as Clint Bolick also identified. So it's a very important document. But so far, none of these things, I think, establish that it is law, and some suggest that it goes in the other direction.

43:20So in particular, what is it not? I don't think it is a law that was made by a body authorized to make it—excuse me. That sentence would have been too complicated. I don't think it was a law that was made by the Continental Congress to govern its behavior or that of state governments. The Articles of Confederation, which were proposed by the Continental Congress, I believe, the year after and ratified by the states, in a way the declaration was not directly, some years after that, those were law. law, unsuccessful law in some respects, but they were law. I am hesitant to say that the mere fact that Continental Congress had the power to do that and had the power to create a Declaration of Independence as a Declaration of Independence should lead us to take that act of writing the Declaration of Independence as an act that had legal consequence for either what the federal or what the future federal government could do or what states could do.

44:31It's also, I don't think, a statement of permanent principles, for example. Some of those we might see as permanent. Some of them might not. It talks about the colonies as independent states. Very shortly after, with the Constitution, we see they're not independent states. They may be quasi-sovereign in various ways, but it's pretty clear the Constitution is a means of making clear that they're not independent. And, of course, this might be just sort of time and experience shows that, you know, we needed a closer union than that of just the model of independent states. But, again, it's just a reminder that at least some of these principles are not permanent.

45:08And maybe if some are, that's for reasons other than they just articulated in the Declaration. It's not an attempt to elucidate legal principles. So, for example, here's this passage fault in King George III. He has refused his assent to laws the most wholesome and necessary for the public good. So the president must also give his assent to laws. Now, mind you, he doesn't have a categorical right to reject laws. His veto can be overridden. But still, it is a power to refuse assent to laws that would have legal consequence. I don't think anybody would suggest, or at least maybe some would suggest, I don't think I would accept, that it's illegal for the president to veto a law because the law is wholesome and necessary for the public good.

46:02At the very least, we wouldn't make that a subject of judicial review, I think. But even independently of that, if I think the president is vetoing a law for what I think are bad reasons, I might say that. I think that veto is unjustified. I might say if the veto is unjust, I at least wouldn't say it's illegal, because the law set forth by the Declaration is that that is not something that a supreme executive may do. Nor is it an attempt to reconcile competing concerns, which, after all, is the function of much law, right? So, for example, it talks about imposing taxes on us without our consent.

46:46or it says governments derive their just powers from the consent of the governed. And this, of course, echoes taxation with representation as a slogan, which is also, I believe, on the D.C. license plates, because at least the D.C. government thinks that that is a bad feature of the current system, that in fact D.C. and historically the territories as well, and today, of course, the territories that remain, do not consent, at least through normal voting processes, to federal government action. But that's because the Constitution has deliberately tried to balance various factors. On the one hand, concerns about democracy and self-government.

47:32On the other hand, for instance, the sense that the seat of government, because of its potentially disparate influence on the federal government, ought to be not represented. We may agree or disagree, but I don't think it's illegal for the Constitution to say that, nor do I think it's really a contradiction to the principles of the Declaration, because the Declaration articulated general principles without sort of explaining how they might play out differently in different situations. Or let's look at quartering the prohibition, or not prohibition, excuse me, not the prohibition, the complaint about quartering large bodies of armed troops among us.

48:10Of course, that has in some measure become law in the Third Amendment. But no, the Third Amendment says that soldiers cannot be quartered in private homes in time of peace or in time of war except as allowed by law. Well, that's a more nuanced restriction because you can condemn quartering while recognizing that in some situations may be called for. Or how about endeavoring to prevent the population of these states and cutting off our trade with all parts of the world. One of the things that I found particularly interesting about Tino Cuellar's paper is his observation that Franklin Roosevelt appealed to the Declaration, even in a time of heavy tariffs and immigration limits.

48:56And I think if you were to bring him back from the dead and say, President Roosevelt, how could you do this? What about the law set forth by our Declaration? He might or might not agree that it was law, But in any event, he would say, yes, the Declaration discussed this as an important factor in the 1770s, when the sense was that the tariffs were too, tariffs, restrictions on trade were too broad, and immigration was particularly necessary. But there are, of course, reasons that one might want to have restrictions on trade and immigration. We're in a different time. We need to balance these factors in a different way.

49:40That makes a lot of sense with a political platform, but further, I think, points to why it's not law. Finally, let me just close with unalienable rights, among which are life and liberty. Of course, life and liberty play a very important role in American law, but if you look at the due process clause of the Fifth and Fourteenth Amendments, it talks about life and liberty, but actually says they cannot be denied without due process of law. So they are maybe not quite unalienable, that may have meant something particular in the political culture of the time, but they certainly can be taken away.

50:12People can be executed. People can be locked up, so long as it's with due process of law. Again, the constitution, which is law, felt the need to, or the drafters felt the need to, reconcile competing concerns rather than just talk about one thing. So let me just close with asking, can it be a guide for applying other legal principles, which I think is the core kind of payoff of, yes, can it be used as a guide for applying other legal principles, which I think is the core payoff of Randy's proposal. Well, I think it might be, but I think chiefly, and perhaps really only when supported by other specifically legal sources, such as perhaps the Ninth Amendment, in part because it is those sources that really help explain what it can mean as law.

50:59And therefore it may be that it's a strengthener of those sources but not really much of an independent source. So for example, Randy says the Declaration assumes the natural rights it invokes are pre-existent liberty rights, rights to act or refrain from acting, rather than claims of entitlement to particular goods. Well, I am generally not a fan of reading the US Constitution as securing positive rights, except in a few situations I will get to in a moment. But I'm not sure that the Declaration really makes that clear, because after all, even if liberty is seen as just liberty in the sense of negative right to act or refrain from acting, what about pursuit of happiness?

51:40Right? Well, in principle, you could say I can't pursue happiness if I'm starving to death, can't pursue happiness if I'm homeless, can't pursue happiness if I'm dying of some disease. So, you look at the Declaration, it seems quite consistent with the notion that there would be these positive rights. Again, I think that's not how we should read our Constitution. That's not how we should read a sort of common law backdrop, but it's because of other things we know about those, and not because of the Declaration that we know that. So, likewise, the Declaration actually talks about other rights, right?

52:14The right of the people to alter or abolish it and institute new government. That's not just a negative right, that's a positive political right. The right of representation in the legislature, right to throw off such government and provide new guards for their future security. It's just a reminder that it has a lot of, it's talking about a lot of things, including things beyond just negative rights. Indeed, if you look at the Constitution, the preamble actually talks about things that relate to positive protections. Establish justice, ensure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity.

52:57That certainly does mean set up a government that doesn't unduly trample our rights, our negative rights, but it also means a government that provides positive protection. The clearest way is simply that we have to recognize liberty is threatened not just by our government, it's threatened by foreign governments, which suggests that we're seeking, even if it's not legally enforceable, a positive right to protection from foreign intrusion. It can also be infringed on by criminals. A criminal who kidnaps me is interfering with my liberty. A criminal gang that sets up its own law and its own taxation and its own tariffs within a territory is interfering with liberty.

53:40And one of the things we seek from the government has positive protection against that.

53:48So, actually, if you look at the Bill of Rights, there are a few positive rights there. The right to trial by jury in civil cases, that's a right protected to plaintiffs as well as defendants. The presupposition is that people have a right to sue

54:05over civil wrongs done by them, and the government has to provide a forum. State constitutions of that era make that even clearer. in open courts provisions. The contracts clause, I agree with Randy that it's been quite under enforced, but the contracts clause is a positive right. It's a right to have the government enforce your contracts and not just to outlaw particular kinds of contracts. Finally, Randy says a government instituted to secure these rights cannot be presumed to possess authority to subvert or destroy the very rights that exists to secure. Well, at that general level, I think that may be right, but the whole question is whether a particular action by the government is subversion or destruction, or is instead promotion, and who decides which is which.

54:53That is a question that might be answerable with reference to other bodies of law, such as the Constitution, such as the Ninth Amendment, such as the legal backdrop, the common law backdrop that the Ninth Amendment may have been meant to in some measure constitutionalize. but I don't think the Declaration of Independence by itself really tells us that much. And I'm not sure it even adds that much except to perhaps a certain amount of rhetorical heft to those other sources that we could turn to. So that is what I hope is my loyal opposition to Randy's assertions. Again, there's no doubt that the Declaration of Independence is tremendously important in American political and legal culture in many ways.

55:35but that's why the claims of declaration as law leave me somewhat skeptical. Thank you.

55:44There's an awful lot there. I'm not going to be able to get into all of it. A lot of it I do agree with, but you would have, Justices Scalia and Barrett would be very proud of you, Eugene. You just, you did hold up their view. You did articulate their view extremely well and importantly. A couple of things. first of all as to whether they would have thought that this was law in any sense it's hard to prove this one way or the other but in my talk I did quote from John Hancock's cover letter his transmittal letter in which he transmits the declaration to the colonies and he says it should be considered the ground and foundation of all future government that sounds like it should be considered the ground and foundation of all future government which which then subsequently enacted in the forms of the Articles of Confederation, and then the Constitution.

56:35So that's at least one individual sense in which they thought it was foundational, which is all I'm arguing that it was foundational. And at the end, what was the thing you said we agreed about at the very end? How did you put it? That's tremendous significance, kind of rhetorical significance. No, before the rhetorical part, you said something else I did a thumbs up to, but I can't remember exactly how you put it. Well, it actually should influence the way we read the text that we are called upon to read, right? I mean, it's not how you said it. I won't attribute it. I wish I could play back the tape because I can't remember.

57:11Because I thought whatever it was you said was pretty much the ballgame, and now I wish I could quote it back to you. Let me just talk a little about this due process of law argument you made about how you can deprive people of due process of law because the same principles that I was talking about comes back in figuring out what that means. So the argument that you're making, and the argument that's very conventionally made by most conservatives too, and that is that the Due Process Clause said you can deprive people of life, liberty, and property as long as it's by due process of law. But then the issue is what is meant by due process of law.

57:44Well, there is a general consensus across this disagreement I'm about to describe that it refers to a judicial process, that due process of law is about a judicial process. And the judicial, so before an individual person can have their life, their liberty, or their property taken away from them, they need to be able to go in front of a neutral tribunal of justice, a judge, to adjudicate whether this law, whatever it is, is correctly applied to them. So that's a consensus. Everybody thinks it's about judging. It's about the role of judges. But then the question is, what does due process of law mean?

58:20and is assumed and asserted that the due process of law to make it a deprivation according to law, then there's simply a legislative due process. That is, the law was enacted properly. This is what Justice Thomas thinks. This is what lots of people think. Law must have been passed by a majority in each house and signed into law by the president, or if the president vetoes it, overridden by a supermajority, and that makes it a law. But that's not necessarily what due process of law meant. Due process of law, I think, meant a valid law, a law that was appropriately called a law. In a different talk, if I had more time I would have put it in this talk, there was a distinction explicitly drawn by John Marshall, for example, in McCulloch v.

59:05Maryland between an act, because I cannot, an act and a law. And when he was talking about the law at issue in McCulloch v. Maryland, he said the question is whether it was an act, a mere act of legislation, or whether in fact it was a law. In Calder versus Bull, Justice Chase says an act, because I cannot call it a law, is X. Well, what's the difference? A legislative act is properly enacted, but it's only a law if it is capable of binding in conscience, if it actually passes some moral threshold, if it actually serves the rights retained by the people and doesn't subvert or deny the rights retained by the people.

59:43So there is actually, it is the due process of law standard in the text of the Constitution under this reading, which I understand is contested, but under this reading that brings the very same principles I was bringing in through the Ninth Amendment into the text of the Constitution into this amendment. Now, into this provision, which is the Fifth and Fourteenth Amendments. So where does the declaration stand with respect to that? It helps inform the meaning of these things. And how is it implemented? It's not implemented as a general writ in which judges say, okay, here's the declaration, now I get to do X.

1:00:16It's done by implementing doctrines of the kind when you have to decide what the presumption is. Is there going to be a presumption of guilt? Is there going to be a presumption of innocence? Is there going to be a presumption of liberty? There's going to be a presumption of constitutionality. These are crucial legal questions. Whole cases turn on who bears the burden in these cases. Nothing could be more legal than that. And the declaration as formally enacted set of principles, I think establishes which way the presumption should run. That was Salmon Chase's argument in a court of law, in two courts of law, in a district court and in the Supreme Court of the United States, and then in the U.S.

1:00:54Senate. That was his argument, and I still think the argument stands. The last thing I'll just say, because we'll leave it open to questions, is about the negative liberty versus positive liberty. In some respects, you're right to seize upon that. I was doing something very quickly, and I want to elaborate on what I actually think about that. There's no doubt that when you leave the state of nature and enter into civil society, you receive in return for doing so. The whole reason for doing so is that you get civil rights in exchange for your natural rights, or at least civil rights to protect your natural rights.

1:01:29The natural rights don't go away. They are the standard by which you judge civil government, but you get certain civil rights. These are positive rights. There is affirmative duty. The first duty of government is to protect the rights retained by the people. That is an affirmative positive duty. You were right to focus on the jury trial as a positive right. It is not a natural right. It was not thought to be a natural right. It's a right that results, in Madison's words, it's a right that results from the compact. But he says it's essential to protecting the liberties of the people as any of the pre-existent rights of nature.

1:02:02So I just want to immediately agree with you that there's lots of positive rights in that sense. A very much more limited point I was making, and I still think is true, and that is the life, liberty, and the pursuit of happiness, the inalienable rights of life, liberty, and pursuit of happiness is a reference, number one, it's a reference to individual rights, not to collective rights. And number two, it's a reference to liberty rights, and not the rights to secure any particular good. And then we would have a much longer discussion about what the pursuit of happiness means as an activity as opposed to the recipient of a certain state of being, a certain state of welfare.

1:02:39So the last thing I'm just going to say is that I think what is fundamentally the root of the disagreement between myself and you and Justice Barrett and Justice Scalia is the role that natural law plays in this picture. I have been a natural law person since before I was a libertarian. I have been a natural law person before I ever heard of natural rights. and I remain an Aristotelian Thomist style natural law person to this day. And I think the issue here when it comes to law is not whether a law is a positive law or not. We can both agree when we see certain kinds of positive law, but whether positive law is capable of binding in conscience such that there's a duty to obey it.

1:03:18And for that, for a law, for a statute to have that quality, then the quality must go in to a statute before the law goes on, which was an old advertising slogan for Ford Motor Company. The quality goes in before the name Ford goes on. So the quality must go into the statute before the legally binding label of law goes on the statute. And that is where the background principles of justice, natural rights, and the background on principles of law, which natural law, which is the duties that we have and the responsibilities that we have to flourish. What are the grounds of flourishing? One last thing, so I don't get confused.

1:04:03I don't confuse anybody. I distinguish between the natural law and natural rights. Natural rights divide the boundaries or space within which individuals can pursue the good according to the natural law. So these are not the same things, but natural rights bears a relationship to natural law because it provides the structure or jurisdictional space within which each one of us can pursue happiness, in the words of the Declaration of Independence. So now I'm getting kind of technical and probably too technical for this discussion, but I do think that's at root our basic disagreement, that I do see a role for background natural law and natural rights, and this approach of yours and Justice Scalia and Justice Barrett do not see a role for that.

1:04:48This has been a special presentation from Stanford Legal. I'm Pam Carlin. See you next time.