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Monday, July 04, 2011

Happy Fourth of July

Declaration_of_Independence_200pxOur annual patriotic celebrations are centered on the occasion of the completing of work on a legal document. I kind of like that. Very civilized.

It suits me better than commemorating the day a riotous crowd destroyed a prison. I'm not trying to pick on France. If we had had a granddaddy prison-break as an option for our big patriotic day, you know, who knows, maybe we would have gone for that. But the completion of a legal document is a very calm corner of the calendar upon which to pin a patriotic celebration. And I think that's cool.

Now, following up on Howard Wasserman's post about how the centrality of the Declaration of Independence, and mindful of Tun-Jen Chiang's careful-what-you-wish-for advice about novel constitutional arguments, I must say that I would like to see the U.S. Supreme Court recognize legal force to the words "pursuit of happiness." I think the Declaration of Independence ought to and does have continuing legal force. I mean, really, it has to. Whether it is or is not more extensive than the Bill of Rights and the 14th Amendment is a different question. But after all, the Declaration of Independence is a lot of things – beautiful prose, a memorialization of a historical moment, a hortatory summons – but it's also a legal document. And, of course, I like that.

Posted by Eric E. Johnson on July 4, 2011 at 09:43 PM in Constitutional thoughts, Current Affairs | Permalink


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I've posted a new article on SSRN about the contemporary legal relevance of the Declaration of Independence. You can find it at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1874505. Legal scholars typically treat the Declaration of Independence as a purely historical document, but I try to explain its significance to legislative and judicial decisionmaking.

The article first sets out a theory about the interconnection between the Declaration of Independence and the Constitution. It then discusses the document in the context of civil rights and campaign finance related matters.

Posted by: Alexander Tsesis | Jul 5, 2011 2:41:06 PM

In at least one limited context--with respect to who was a "Citizen of the United States for 9 years" in 1789 when the First Congress met--the Declaration of Independence does have the force of law. See http://www.concurringopinions.com/archives/2011/07/the-declaration-of-independence-and-the-force-of-law.html

Posted by: Josh Blackman | Jul 5, 2011 12:17:19 PM

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