Wednesday, July 04, 2012
Teaching the Declaration of Independence in Constitutional Law
This fall, I am teaching constitutional law after a hiatus of five years. I plan to begin as I always begin, by assigning for the first day a set of basic 17th and 18th century documents that, I believe, form the foundations for the U.S. Constitution. The five documents that make the cut are the English Bill of Rights of 1689, the Bill of Rights of the 1780 Massachusetts Constitution, the Articles of Confederation of 1781, and the Declaration of Independence. The point of reading the documents is to ask about the relationship of institutional rules to individual and collective self-government.In particular, do any or all of these documents suggest that institutional rules should protect individual self-government (aka "individual rights") only through mechanisms of collective self-government (aka "majority rule")?
Here's one hypothesis that I offer about the Declaration of Independence: The Declaration recognizes that individuals have "certain unalienable rights" but assumes that it is "the right of the people," not the individual, to determine whether their "form of government" secures these individual rights. In this sense, it is the 'right of the people" collectively to define individual rights -- presumably (but not necessarily) by majority vote. Moreover, I also hypothesize that the Declaration's mechanisms for securing rights are federalism and separation of powers, not judicial review: All of the "repeated injuries and usurpations" of which the King is accused are essentially violations of norms of federalism and separation of powers, in that the King deprived colonial assemblies of legislative authority (a breach of separation of powers by the executive) or "combined with others [i.e., Parliament] ... to subject us to a jurisdiction foreign to our Constitution and unacknowledged by our laws, giving his assent to their acts of pretended legislation" (a breach of the norms of federalism in the British Empire).
After making the suggestion that federalism and separation of powers, not judicial review, are the central mechanisms for protecting the rights of the people, I conclude with this question: Was it intelligible at all to the framers of the Declaration that a legislature elected by the right-sized constituency could ever violate anyone's rights? Or would the legislature's judgment, reflecting the "right of the people" to determine whether rights have been violated, always be conclusive evidence of what one's rights were? I have found that this assignment on the first day works pretty well in sparking discussion and forms an entry point to the further question of whether the U.S. Constitution of 1789-91 contains any anti-majoritarian rules. (Contrary to John McGinnis, I propose that the only anti-majoritarian rules in the Constitution are contained in Article I, section 10: The allegedly anti-majoritarian rules in the rest of the Constitution restrained only the federal government, leaving the states -- the only truly majoritarian level of government according to 18th century conventional wisdom -- untouched).
Anyway, I am curious, on this Fourth of July, about whether anyone else out there spends some time in their constitutional law course on the Declaration of Independence. The Declaration is, after all, Lincoln's "apple of gold" in the Constitution's "silver frame," so it might not be crazy to give it pride of place in a class on constitutional law.
Posted by Rick Hills on July 4, 2012 at 12:02 PM | Permalink
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Depending on how you want to frame the discussion, it might be interesting to explore the implications of the section referencing the Quebec Act ("For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies"). Insofar as the rest of the Declaration seems to be talking about local self-government, I have always found it odd that Jefferson et al would be so opposed to self-government in Quebec. It's easy to reconcile from a realist perspective—the American colonists had expected their victory in the Seven Years War to mean their domination of the former New France—but I am not sure that it can be reconciled on a theoretical level, in much the same way that "all men are created equal" cannot be reconciled with the continuing existence of slavery.
Posted by: Charles Paul Hoffman | Jul 4, 2012 12:48:16 PM
I am not sure that American dislike of the Quebec Act is inconsistent with their praise for local self-government. The Quebec Act, after all, was a pretty poor excuse for local self-government: It did not provide for any elected provincial assembly, and it authorized the use of Civil Law institutions for private relationships, meaning that trial by jury would not govern civil cases. Americans opposition to these two aspects of the Quebec Act are, I think, perfectly consistent with Americans' support for colonial assemblies and juries.
Against this apology for American opposition to the Quebec Act, however, one might cite Protestant Americans' intense opposition to allowing Catholics to hold civil service positions, which the Quebec Act permitted. The Boston Committee of Correspondence invited the Quebecois to send delegates to the Second Continental Congress and, citing the example of the Swiss confederation, urged that the Quebecois' Catholicism should be no obstacle to a federal alliance. But the private instructions of the Committee to their agent, one John Brown, stated that a Catholic established church could not exercise the same prerogatives over Protestant residents of Quebec that the Congregationalist establishments of Massachusetts and Connecticut exercised over other sects. Forcing good Protestants to contribute to a Catholic establishment was simply too offensive to Yankees, even though they permitted their own establishments to force Catholics to pay assessments.
Indeed, the Act was pressed by Guy Carleton, the arch-reactionary governor of Quebec.
Posted by: Rick Hills | Jul 4, 2012 5:01:51 PM
These are valid points, but you downplay the importance to the French population of the reinstatement of the civil law. The imposition of the common law had been seen as a step too far by the local population (esp. given the international law norm that conquerors permit local laws to stay in force). So while the Quebec did not create an elected assembly, it did go a long way to recognizing the principle that the French population should be governed by its own laws. Also, the change to permit Catholics to hold positions with the government really opened things up for the French majority, who had since 1763 been almost totally shut out of having any influence in government. But, as you say, the Quebec Act on its own was a poor excuse for self-government—it was rather the bare minimum needed to assuage the fears of the French majority.
Getting back to the Declaration, though, I do find it interesting that the complaints re the Quebec Act come down to (1) French law was reinstated in the province and (2) the province was given back some of the territory stripped from it in 1763. There was simply an intense belief that the French of Quebec should not be permitted to be governed by their own law and that their lands should be opened up for English settlement, rather than left to the natives and voyageur traders.
Posted by: Charles Paul Hoffman | Jul 4, 2012 8:48:16 PM
I have a new book and article about the relevance of the Declaration of Independence to constitutional interpretation:
For Liberty and Equality: The Life and Times of the Declaration of Independence (Oxford University Press, 2012, Kindle & NOOK 2012).
Self-Government and the Declaration of Independence, 97 Cornell Law Review 693 (2012)
I also developed a syllabus for a seminar on the Declaration of Independence that I'd be happy to send you. Just e-mail, and I'd be glad to share.
Posted by: Alexander Tsesis | Jul 5, 2012 4:31:04 PM
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