The Structural Declaration of Independence

Pam Karlan: This is a special episode of Stanford Legal, a recording from one of the many special discussions that take place here at Stanford. Keep following the feed for our regular programming

Michael McConnell: Welcome to The Declaration at 250, a special series from the Stanford Constitutional Law Center, presented by Stanford Legal. I’m Michael McConnell. We tend to think of the Declaration of Independence as a revolutionary manifesto or a philosophical statement about human rights, and it is both those things, but it’s also something more, a blueprint for government.

In this episode, Tino Cuéllar, who recently stepped down as president of the Carnegie Endowment for International Peace and is a former justice of the California Supreme Court, argues that we’ve overlooked the Declaration’s structural dimensions. Alongside its ringing assertions about natural rights and equality, the document outlines a practical theory of governance, how government should be accountable to citizens, how it should manage political conflict across diverse regions, and how a new nation should establish legitimate authority in the international order.

The Declaration’s authors weren’t just revolutionaries. They were nation builders who wanted to establish workable institutions once the nation had thrown off the yoke of British rule. Recognizing this structural dimension offers a fuller understanding of what the Declaration meant then and what its governing principles, however challenging, still mean for us today.

To engage with Justice Cuéllar’s ideas is former Stanford Law Dean Larry Kramer, now president of the London School of Economics, and himself a scholar of democratic constitutionalism. Let’s explore the Declaration’s architecture. 

So I hope everyone had a restful night and and some delicious breakfast. I do apologize that the weather isn’t very good here at Stanford, but I guess we have to live with it. It’s my pleasure to start off today’s sessions with a particularly interesting duo. Both of them have been they have done almost everything but especially what they have in common is that they both used to be l- law professors here at Stanford Law School.

Larry Kramer after his clerkship with Justice Brennan, has taught… First, he and I taught together at University of Chicago, and then he flitted off to University of Michigan and somehow got stolen away by NYU, and next thing I knew, he had been recruited as dean of Stanford Law School. And I think most people would tell you that he was of our, the deans in human memory he was probably the most consequential dean.

He had accomplished so much in terms of changing the Stanford Law School and, helping propel it to the position it is now in. He left there to become head of the Hewlett Foundation. I gather what they do is give away money. That must be hard to do ’cause who would be willing to accept money?

I… One thing I know for sure about his achievements there is he didn’t give me any money. And then he… And about two years ago, I guess it was he left Hewlett and became president and vice chancellor of the London School of Economics. And so we’re particularly happy that he is willing to fly back not just across the pond, but another continent to to join us today.

And with him on the podium is al- another former colleague Tino Cuéllar who again, taught here at Stanford and left to become justice on the California Supreme Court after a distinguished period on that court. It’s probably the most important state supreme court in the country.

Yesterday, we heard a little bit about a state constitutional law and Tino could have been up here contributing to that, but he has something else to talk about today. And so he, And then he a few years ago left the California Supreme Court to become the president of the Carnegie Endowment.

So both he and Larry have been in the in the foundation world as well, and I’m happy to say, I think it’s now publicly known that Tino is coming back to Stanford Law School and to some other roles in at Stanford University. So I welcome Larry and Tino to the podium, and they are going to be talking about the structural declaration of independence.

 Mariano-Florentino Cuéllar: Good morning. It’s great to see everybody. It’s a real honor to have this many people here on a Saturday morning to talk about the Declaration of Independence. A theme of the conference to my mind, of what I was able to hear yesterday and the essays I was able to read, is about the connection between constitutional law and the Declaration of Independence.

We’re here to talk about the Declaration, but since the Constitution is not entirely absent, I wanna start with two key principles of constitutional law from my perspective. Probably the most important, the first one is when Professor Michael McConnell asks you to do something, you do it, so here I am. Second, if you have to share the stage with Larry Kramer, speak first.

So thank you. That got an even better laugh. I appreciate it. Picture a train, September 1947. The train is painted red, white, and blue, pulling a string of exhibit cars through the American landscape. Inside the cars, behind glass, sit roughly 130 of the most important documents in American history: the Bill of Rights, the Emancipation Proclamation, and in its own case, with Marines on twenty-four hour guard, Thomas Jefferson’s rough draft of the Declaration of Independence.

Now, the train is going to spend the next four hundred and thirteen days touring the country. Three and a half million Americans will board it in three hundred and twenty-two cities across all forty-eight states. I’m reading this because I want you to give me extra credit for the statistics. And the entire premise of the exhibit, written into the contract by the American Heritage Foundation, blessed by Attorney General Tom Clark, is that the viewing must be racially integrated.

Black and white Americans must stand in front of Jefferson’s draft together, or no one stands in front of the draft at all. In Memphis and Birmingham, the local officials say no. They want segregated viewing hours, and so the Freedom Train, as it came to be called, carrying the documents that reflect the heritage of America and its present, as well as its past, perhaps, does something extraordinary.

It refuses to stop. Hold that image because it’s the argument of the talk that I wanna give you in a single frame, in effect. The text on the train says one thing, the administration of the territory the train is rolling through says another. The friction between the universal sentence that is so famous in the Declaration of Independence, “We hold these truths to be self-evident,” and the reality of a country that is in some sense partitioned, administered, run by governments that are real, that people fight to control, that tension is real, and I want to argue it is central to the story of the Declaration of Independence.

And it’s central to the story of America. Throughout our history, but in particular, I want to zero in on a period that is particularly important in the story of the American governmental structure, and that’s the period between roughly 1890 and 1950. I focus on it for two reasons. Number one, because this is the period during which the American population went up by two point four times so more than doubled.

But the size of the federal workforce between 1890 and 1950 went up twelve-fold. You don’t see that pattern before or after. Something happened to America in that time, for some a very good thing, for others, something troubling. But in the end, it was the moment where I would argue America became what it is today, a complicated, nationally administered government with sovereign states, but also a geopolitical power that could project power around the world.

I also focus on that period because I know something about that period, unlike some others in American history. But it’s also important to think about this document and what it represents in that period because not only is there this tension between the reality of administered America and the text, but there’s also state building.

This state building period that I’m describing, I would argue is related to the Declaration of Independence because whatever else the Declaration was, and it is many things. It is a beautiful piece of prose. It is an inspiring statement about rights and about what is timeless. But it is also, I would argue, a state building project, one that reflects the reality that the founders were creating a government.

They were effectively protesting The king, George III. They were enumerating a set of failures that go on and on. Failure to enforce just laws, failure to permit con-consent to taxation, failure to maintain a functional judiciary, failure to protect the colonies from invasion. So the declaration is not only a manifesto of rights, it’s a critique of bad administration, and I would argue an argument for replacing that with a sovereign that can actually function domestically and abroad.

Plenty of the Declaration of Independence is what’s the connection between America and the world? What migration are we gonna have? Who’s gonna defend us from invasion? Now, the image of the train is also about state building. Railroad tracks, railroad companies, public investment, a public-private partnership to get the Declaration of Independence seen in all these different cities.

A government that can set the terms of when and how people are going to see those documents or not. A powerful Department of Justice that helped sponsor that freedom train. So here’s the claim in a nutshell. In this period, at least for sure, something I know something about, but probably in all the other periods too, to some extent, the Declaration of Independence, important though it is not a settlement because the key structural realities that it’s gesturing towards, a government that will do what?

How will equality be enforced and implemented? Who counts as equal? All those things are not entirely resolved by the document. How could they be? It’s difficult enough to get this drafted, and Jefferson did quite a remarkable job with his little committee, but these other pieces of what would become America, the question of what its governmental structure would be and what its relationship to the rest of the world would be, are gestured at in the declaration, but not worked out, were siphoned off to other committees of the Continental Congress to think about, as Jack Rakove tells us.

So what’s left is a powerful document, but in a way, a mechanism to channel, I would argue, structural disputes. Not one that is infinitely malleable or adaptive but one that does have play in the joints and ultimately turns into a set of ideas and structural implications that different actors in different decades use to specify whose equality counts, whose consent is required, at what scale, and with what structure of power and state capacity behind that promise.

The state-building area I’m– e-era I’m talking about, 1890 to 1950, is the period when this becomes operationally explicit, I would argue, because that is the period when the federal administrative apparatus grows large enough to do the sorting and administering at the level of practice that people have even more of an incentive to fight over and to contest, ultimately.

And a power to sort and classify, to enforce border controls, for example, and make immigration law real, but at the same time also the power In principle at least, to vindicate the universalism that the founding text proclaimed. So let me walk you through a few moments in this period, 1890 to 1950, where you see some of these dramas and tensions playing out.

And I’m not suggesting that added all together they reflect one reading or one sense of what the declaration’s about, but I think they give you a sense of the structural conflict that I argue is at the heart of what the declaration was kinda gesturing towards, implying, dealing with, but also trying to elide because it was trying to be a unifying document for the people who counted at the time.

So let’s go to Harpers Ferry, August 1906. W.E.B. Du Bois writes a powerful text that is read at the second meeting of the Niagara Movement on the very ground of John Brown’s raid, so controversial ground, and he rejects the notion of accommodation and too much gradualism. He writes, “We will not be satisfied to take one jot or title less than our full manhood rights.

We claim for ourselves every single right that belongs to a free born American, political, civil, and social.” His sharpest move is a kind of rhetorical inversion. He warns that the country is becoming, in his phrase, false to its founding, and turns the national anthem, written by Francis Scott Key, in a way against itself.

So that feels to me like a reading of the Declaration of Independence, and this is not the only example of people pointing this out as a kind of creditor’s instrument, a promissory note. Where is the payment, he’s asking. When are we going to get the full promise? And I think it reveals that the document’s universal language is being conscripted into protest because in some sense the world and the country are living in a kind of partitioned reality.

So the progressive state is growing in some sense, but so is at some level the gap between text and territory, as it were. 1914, July 4th, Independence Hall. Woodrow Wilson, progressive president, has already begun segregating the federal civil service, something he delegated as administrative authority to his southern cabinet members.

But here he stands at the very table where the Declaration of Independence was signed and tells the country that what he is reading is, quote, “Not a Fourth of July oration.” It is, he observes, a vital piece of practical business, not a piece of rhetoric. This is the state building reading that I’m suggesting has some logic to it.

And he argues that the question is how to take that notion of a state that can vindicate the needs of the states and to translate it to the particulars of I quote the bi– he, it demands a bill of particulars of the year nineteen forty. So what do we mean by these goals but translated into nineteen fourteen?

So he’s reading the declaration, I would argue, as a state building document, and he’s noting that the original bill of particulars against George III is an inventory of administrative failures, and that Jefferson’s t-text is in a sense a warrant for a sovereignty that can do better. And so he’s asking for what our administrative agenda looks like today in some sense, a modern state, the Federal Trade Commission, the Federal Reserve, and so on.

That’s what he answers with. Now, some are troubled by this and some are accepting of it. The declaration recast in effect is almost a managerial mandate to be specified by administrators. Hard to ignore that risks permitting the administrators to specify whose universalism counts. In a way it’s a move towards taking the idealism and translating into a kind of administrative discretion and some degree of executive authority And yet the same speech in which Wilson locates the declaration’s meaning as practical business is delivered by a president whose practical business is including pushing Black Americans out of federal employment.

So the state building reading of the declaration becomes, in a sense, an engine for administration, but also for some kind of partition. Let’s go to Cornell, 1922. Here’s Carl Becker, a distinguished scholar, writing what I would argue perhaps at the time, as best I can tell, is one of the more important Analyses of the Declaration of Independence at the time, and he’s going full historicist.

He’s saying the best way to understand what this document is not really as a statement of timeless truths, but as a reflection of what ideas were going to have currency at that particular moment in history. He says, “The question of whether the philosophy of the declaration is true or false is,” and I quote, “an essentially meaningless question.

What matters is the climate of opinion at the time.” This is academia’s full embrace of a kind of historicism, a kind of move from treating the declaration as a work of philosophy to treating it as a work of subject to anthropological analysis, as it were. But here’s a little bit of an irony.

So in some ways, Carl Becker, who took that view and very strongly defended it in nineteen twenty-two, had to contend with history and the global scene making the world more complicated by the time you get to World War II. And in his later writings, you could see he wrestled with whether the rise of German nationalism and World War II effectively made his position more troubling to him.

And he backtracked a bit and began to embrace the idea that there were some truths or some ideas that might be a little bit more timeless and against which one could measure the failures or successes of the state. Let’s go to Philadelphia, July fifth, nineteen twenty-six. Calvin Coolidge, whom Professor McConnell mentioned yesterday, he plants the flag against what Becker was saying, at least in nineteen twenty-two, and makes a case that the better reading of the Declaration of Independence is, in fact, as a timeless set of truths.

He writes, “If all men are created equal, that is final. If they are endowed with inalienable rights, that is final. If governments derive their just powers from the consent of the governed, that is final.” And he grounds these propositions, it seems to me, not only in a kind of enlightenment philosophy, but in a kind of religious conviction.

And he notes that these roots of what’s in the document are in religious conviction and evokes a kind of concern that if religious conviction perishes, then so will the the elements of the document that people wanna hold on to, in effect. But when is he speaking? He’s speaking at a time when the US is engaged in a project of making concern and anxiety about migration to the US real as an administrative matter and implementing it in a set of routines and practices that actually are going to police who can come to America and who can become American.

So the Johnson-Reed Act has been on the books for two years. It’s installing these national origin quotas designed to engineer the demographic composition of the country I would argue at granular administrative detail. So on one stage, in one speech, we have this almost cosmically universal premise delivered in the language of finality, while the administrative state concurrently is engineering to deny some of that to people who are just trying to come to the country.

This is not an argument against borders, it’s just to note that there are some tensions and contradictions there as well. And Coolidge is certainly not the first one to be speaking in such universal terms at a moment where the US in practice is making these divisions and sorting. We talked about W.E.B. Du Bois. But I think in some ways his passion for describing what’s in the document in such universal and final terms highlights the contradiction a little bit more starkly. You’ve got this universality, and then you’ve got borders, and you’ve got Wilson’s segregation of the civil service, which had not been completely undone, and you’ve got the Bureau of Indian Affairs, you’ve got Mexican repatriations in the 1930s.

That’s the reality. Washington, January 11th, 1944. I’m almost done. So here’s now Franklin Roosevelt taking the door that Wilson cracked open and opening it much more widely, making the case in the State of the Union that the values of the country have not changed. The reality the country faces globally, an industrial economy a complicated world requires something different from what was previously understood to be the American guarantee.

So he notes the pursuit of happiness, alludes to it, and then proposes effectively a second Bill of Rights: employment, housing, medical care, education. In some ways, his move is conservative, right? Or at least rhetorically he’s trying to say, “I’m trying to keep the faith with the values of the past.”

But his reality is substantively more provocative, right? Noting that what the founding required is different and what the post-war state needs to deliver as World War II is on the verge of winding down, is going to be something different, requiring a more capacious federal state that is capable of providing not only wartime mobilization, but welfare some administrative capacity to deal with the integration of a national economy, and so on How could we end this discussion of this period without thinking a little bit about what’s happening globally?

And so I’m gonna go to Hanoi. Why not? September 2nd, 1945. In the months after Yalta an estimated half million people gather at Ba Dinh Square, and among those half million people are almost certainly OSS officers precursors to CIA agents, coming to listen to someone they had worked closely with to push back against the Japanese presence in Vietnam, and of course, that person is Ho Chi Minh.

And he opens his Declaration of Independence of the Democratic Republic of Vietnam with verbatim Jefferson, basically. And then he performs a move that perhaps many American architects of the post-war order feared the most, which is to say, “If all men are created equal, then all nations are created equal, and certainly if that guarantee works for Americans, it should work for us.

And certainly if that’s the case, then we deserve a world without colonies.” And that universal premise he tries to generalize to other nations. Now, his activities will give rise to an authoritarian regime, but at the time, he was trying to mine the founding text of America for a set of principles that had repeatedly, included by Calvin Coolidge, been framed in profoundly universal terms.

The Truman administration’s non-response is what you could call a primary source, These moves don’t stay separate. I think in, in, my coda is in the years 1945 to 1950, you see the document operating in two registers at once during this period. Register one is the story America tries to tell to itself and to the world about itself.

So this is Truman’s Committee on Civil Rights, the report issued in late 1947. I think he got it in nine– October, and it was issued in December. The title of it, To Secure These Rights, lifted directly from the text of Jefferson’s draft and ultimately the final document. And presenting the report, he talks about the importance of making sure that America is responsive to the needs of all of its people.

The Freedom Train that I opened with, the same idea. There you are. How is America telling its story to itself and to the rest of the world? You could connect that eight months later at the Palace of Chaillot in December 1948 with Eleanor Roosevelt’s advocacy for the Universal Declaration of Human Rights, which is basically Jefferson’s sentence in Article One of the Universal Declaration, stripped of any limitation, implicit or otherwise, of citizenship.

But register two is the critiques of how all this was being implemented in practice, and let’s go back to Du Bois because he drafted the NAACP’s appeal to the world in October 1947, saying, “In this post-war era, where all this talk of human rights is percolating up and where America’s playing a leading role in that conversation, can we just pause for a moment to see how we Americans are doing?

And I look around and I see segregation, I see structural inequalities in education, in housing, in healthcare, in voting. I see plenty of examples of lynching that’s happened in the last few years, and why not present that to the United Nations, knowing that over there in the UN we have somebody who’s literally on the board of the NAACP, Eleanor Roosevelt, who surely might receive this in a positive way and make a case for why, yes, America could both talk about how the world needed to do better on human rights, but also accept that it needed to do better.”

Eleanor Roosevelt does nothing of the kind. She’s very frustrated by this and is… if you followed this history you know she thought this was just a ploy to allow the Soviet Union to have some propaganda victories, and there you have it. A juxtaposition of the period in some ways in miniature.

The same US that sponsors the Universal Declaration of Human Rights maintains Jim Crow. The same Eleanor Roosevelt who chairs the Commission on Human Rights blocks in some sense or does not support this petition. The Freedom Train that carries Jefferson’s draft to three and a half million Americans skips the cities that refuse to integrate the viewing.

I think the legacy of the Declaration of Independence is too big and complex for any of us to just talk about in one speech. But I will say, to my mind, two things I wanna leave you with is that first This period reinforces that we’re not talking about a fixed body of doctrine, to my mind, from the declaration.

It’s a structure of debate, in a sense, carried out within a state that becomes powerful enough to make the outcome really matter. The document gave the modern American state, and through it, the post-war international order, a powerful indication of what is going to be required to ground its values, words, promises, values.

But also, at the same time, was being used and debated in a context where there was always going to be a risk of a gap between administration and practice and implementation and words and values. That is the Coolidge era juxtaposition, and it remains, in some sense, with us to this day. But I think the second legacy, which to my mind is just as interesting and often lost in our veneration appropriately for the we hold these truths sentence, is the legacy of the declaration as at least partly a document that intersects with state building.

It was, in some sense, an appeal to the international order. It was, in some sense, a cataloging of administrative and executive failures and an implication that we could do better. The closing pledge, which is so powerful about how the signers pledged our lives, our fortune, our sacred honor, was a wager that a self-governing nation could function at home and abroad.

So this is the period, 1890 to 1950, when all this state building finally gets cashed in with a share of problems and perhaps opportunities to match. The same capacity that allowed the state to engineer national origin quotas, segregate the civil service, was the capacity that allowed it to sponsor the Universal Declaration of Human Rights and to have that be taken at least seriously in some parts of the world, and to try to keep the freedom train integrated.

In other words, the declaration is certainly not a settled document entirely. It’s not just a creed. It’s an instrument of governance, contestable at the origin, requiring a state of some kind of indicate. That’s what makes it complicated, and that’s what makes it worth keeping at the core of the American story.

Thank you very much.

Larry Kramer: So I’m also gonna speak from notes here, although I’ll preface this with the following. When I, became dean here and I did my first talk, and many people here knew, I’m sure, Barbara Babcock, who was easily one of the best speakers ever, all the time, and I finished my first big speech and I came off the stage and she came up to me and she said, “Larry, when you speak, you have two choices.

You can speak from the heart or you can speak from notes. You should speak from notes.” So I have done that ever s- that’s a true story. I’ve done that ever since. Eh, but it really, it’s a pleasure to be here and a special pleasure to have the opportunity to comment on Tino’s really interesting paper on the Declaration.

W- when I was asked to do this, I wondered what the conference would be like and whether anyone really could find anything new to say about the declaration. And so it wasn’t with just interest, but honestly, a sense of relief that I read Tino’s contribution ’cause I was gonna have to comment on it which builds on, as he notes, work he’s been doing across his whole career on the formation of the modern American state.

I will say where he then focuses most of it– The paper covers a lot, and it covers not just the period of, say, 1880 to 1950 but he focuses on that in the talk, and I’m gonna focus on the period I know, which is more the revolutionary and early republic period. Now as Tino’s paper notes at the outset, most scholarship and commentary about the declaration focuses on it as a statement of political theory.

Or as he puts it, quote, “A powerful expression of timeless truths and a bold articulation of equality as a civic value.” But rather than treat the declaration as a reflection of the Enlightenment understanding of rights and equality, Tino highlights its relevance as a text revealing the American founders’ understanding of a pop- of a proper republican government’s structure.

And to that end then, in the paper, he offers an explication of what he describes as structural themes in the declaration. And those, he implies, resonated with and were subsequently picked up in the various constitutions written in the States, as well as in the first failed and then later successful effort to craft a constitution for the nation.

That is say, the Articles of Confederation and then the Constitution. As or maybe more important, as he emphasized here those themes are picked up by later political leaders and have been used in arguments about the proper structure and function of government across American history offering grounds to justify building a modern administrative state for some later politicians, grounds to oppose it for others grounds to justify various moves and actions that have been part of more modern history in governance.

So I wanna offer two comments on the paper. My first and main point will be a historical one about the way in which ideas about structure are or are not truly in the declaration. That is about the sense in which and extent to which the declaration would have been seen as making such claims in its original context.

And then the second is a brief reflection about what the evidence Tino offers of how the declaration has subsequently been used by political leaders tells us about the nature of such texts more broadly. First, Tino begins by analyzing the declaration to show how and where it reflects a set of discernible commitments about the structure and powers of government.

He lays the groundwork for this in the paper by noting that Jefferson and the committee of five that was delegated to, to write the r- declaration were concerned with more than just making a philosophical statement to justify the act of abrogating allegiance to the crown. They were, he notes, creditors and merchants and planters and lawyers with very practical political and economic interests and concerns in mind, which is why they wrote a statement Tino says, that, quote, “Reads as a summary of concrete concerns rather than a purely philosophical meditation on values.”

And that is definitely true enough. What I wanna suggest, though, it misses what I actually think is the most important construct framing the declaration and explaining why it took the shape it did, which was neither political philosophy in the abstract, nor specific economic and material concerns. It was law.

And we need to recall the distinctly legal background that shaped both the basis for colonial resistance in the run-up to the declaration and the way the document was crafted to justify the break with England. There’s a tendency among historians of the American Revolution, including legal historians, and even more so among political scientists who studied the era, to treat law as epiphenomenal at best.

It’s either entirely irrelevant or simply a second-order tool used to rationalize actions driven by other kinds of material interests or intellectual commitments. In fact, the leaders of the American Revolution based their resistance from the outset on legal claims drawn from the British constitution under which they believed their governments operated, including the home government in London.

That there was a British constitution nearly a century old at the time of the revolution and that Americans were committed to it is… That’s well known. I won’t go into that at length. For present purposes, we need simply note that like our Constitution today, the British Constitution of the 18th century, sometimes described as such as a constitution, sometimes described as fundamental law, reflected the terms on which governments were empowered to regulate and act.

It was a complex set of interrelated understandings reflecting the complex nature of the British Empire. So there was a set of constitutional provisions applicable to internal English government. There was another set governing each component of the British Empire, say each colony. And then there was yet another set that regulated the terms on which England could regulate the component parts, as well as how those parts could interact with each other.

The British Constitution was not contained in, obviously, in a single centralized text Nor though was it completely text not text-based. It consisted of a set of settled understandings, some found in custom, some found in parts of the common law, some found in certain statutes, and some in a range of texts that were rel- recognized as relevant.

So some common law doctrines, like the right to a trial by jury, were also part of the fundamental law. They were constitutional. While other parts, say the rule in Shelley’s case were not. Some statutes and acts of Parliament, say the Acts of Settlement that were adopted after the Glorious Revolution, were treated as part of the fundamental law, while most acts were not.

Some extra-legal texts like Magna Carta and some treatises like Grotius and Pufendorf provided bases for understanding fundamental law or constitutional law, and others did not. Now, it can be hard for us today just reading this stuff to clearly discern what was and what was not fundamental law because it was not laid out anywhere exactly.

That itself was a matter of customary law. And you see that today, that we don’t see the… My favorite illustration of the way in which it’s hard for us is if you follow the Supreme Court’s debate over whether the sovereign immunity background or the Eleventh Amendment was or was not just ordinary common law or was constitutional law.

But for people at the time, the differences were pretty clear, and they acted accordingly. Unlike our written constitutions today, this customary constitution was not s- very detailed or specific, and it had relatively few terms. Most of them focused either on the prerogative powers of the Crown or the separation of church and state, which had been the issues that dominated in the periods in which British constitutional law had been formed.

And because it was based so heavily on custom and practice and drawn from so many disparate sources, its terms were not particularly clearly specified. As such, and as Americans and Englishmen discovered in the 1760s, there was a great deal of room for fundamental differences in understanding what the Constitution did.

The key thing to note, though, is that these were differences in understanding the meaning and scope of a constitution, and in that sense were seen and treated like the differences we deal with today under our more specific written constitution. The resistance of Americans in the years 1763 through 1776 was, in practically every instance, based on claims that England was violating the constitutional rights, the legal rights of the colonies and colonists, whether by taxing them without representation or exercising executive power in ways inconsistent with what was constitutionally authorized.

And the answers that came back from England likewise sounded in legal and constitutional arguments about the reach and meaning of the empire’s fundamental charter. As interesting, the forms of resistance Americans resorted to were similarly grounded in British customary constitutionalism, from reliance on petitions to the use of grand juries and petty juries to carefully prescribed forms of crowd action.

Take the argument about taxation. I think this one’s familiar to lots of people. Americans argued that the Constitution permitted taxation only by bodies in which those who were taxed were electorally represented. The British didn’t answer by simply denying that. They argued that the Constitution also permitted England to tax for purposes of regulating trade among the component parts of the empire.

To which Americans answered by drawing a legal distinction between internal and external taxation and arguing that the taxes England was imposing were internal, meaning not to regulate trade, but were simply to raise revenue and therefore were unconstitutional, and so on. The debate went on back and forth.

Likewise, when American mobs exceeded the legally permitted forms of crowd resistance, for instance, when Stamp Act rioters went beyond just burning the stamp paper and marched down to Governor– Lieutenant Governor Thomas Hutchinson’s house and wrecked his house they paid damages to Hutchinson.

The leaders in the mob paid damages ’cause that, it was– They didn’t pay damages for burning the stamp paper. That was okay. But wrecking the house was not. Or my favorite instance, when the Tea Party rioters went to get the tea and dump it in the harbor, which was within their constitutionally permitted rules, but had to break locks on the holds in order to get to it, they compensated for the locks Now I want to emphasize the point because it is rather remarkable, especially by modern standards, just how much the American Revolution and American revolutionaries were in fact motivated by law and legal understandings, and how much their actions and their writings were shaped by those same understandings.

The generation that created this nation had a commitment to the importance of their constitution and a willingness to put themselves at risk to defend it that our generation seems sadly to have lost as we see more and more each day Now read through that lens, the Declaration looks rather different from the usual take on it.

First, the Declaration is not primarily a document based on natural law or political philosophy. There is an invocation of natural law in the opening passages, which is the only place you find it, and that passage itself was conventional wisdom at the time, and not really seen as particularly interesting or important compared to the list of grievances that follow and also in the opening passages, the idea that you could break allegiance.

The Constitution– and here’s the idea. There’s an inv– As I say, there’s this invocation in the opening, but it’s the invocation of natural law. It’s closely tied to understandings about constitutional law. The Constitution embodies an agreement between the people of a nation and their government.

It prescribes legally permitted terms on which that government can tell the people what they can and cannot do, and the people are duty-bound to respect that. But if a government persists in violating and overstepping its legally prescribed boundaries, especially if it does so despite multiple and repeated efforts by the people to protest and hold the government within its legally permitted authority, then a natural right arises in the people to rebel and declare themselves no longer bound.

That’s the extent of natural law in the Declaration. Having laid that principle out, the Declaration then offers the list of twenty-seven grievances outlining the ways in which the King and Parliament had been persistently violating the Constitution that defined the scope of their authority to govern the people in the colonies.

Now, we tend to read this list of grievances today, and I don’t think they fit the idea of soaring rhetoric. Actually, they’re kinda tedious to read. We tend to read them as claims of unjust or outrageous conduct, and they were that. But they were also, and had been claimed to be in the preceding years, acts beyond the legal and constitutional authority of the government in England.

Every one of the items listed was understood by the American colonists to be a violation of the British customary constitution. Okay. So you may be wondering, what does that have to do with Tino’s paper and the argument about the structural themes he finds present in the Declaration? I think it matters because when– unlike when Americans sat down later to write new constitutions, in drafting the Declaration of Independence, they were not setting out or making arguments about how they thought a government should be structured.

They were rather making arguments that reflected their existing understanding of how the government was already structured. To the extent one finds, in Tino’s words in the paper, commitments about the powers or structure or role of government in the Declaration, they’re not normative claims because the Declaration wasn’t seen as or meant to be a structure-creating or justifying document in that sense.

They are rather the background for the Americans’ argument that the King and Parliament had been engaged in a persistent and prolonged campaign of overstepping their legal authority Which is why they’re implicit rather than explicit in the text. They’re assumptions, things taken for granted about the government Americans are defending.

Now, compare that with the subsequent actions in the states and in Congress of writing new constitutions. There we do find explicit thinking about novel structures that reflect new understandings and commitments for a republican government. Of course, Americans didn’t draft and ratify constitutions because they suddenly discovered or decided to create a new concept of written constitution.

On the contrary, they were firmly committed to the constitutions they already had, which they had just fought a revolution to preserve. But the Declaration abrogated much of those constitutions. Specifically, it abrogated the structural parts, legislatures, executives, judiciaries, that had derived their authority from the Crown.

Having repudiated the source of authority for those parts of their governments forced the revolutionaries to do something to fill the gaps that were thus created. Unable to wait around and let a new constitution evolve by custom as the old one had, they invented a process to write and secure popular approval for them.

This itself was and was understood by them to be a truly novel and remarkable innovation. That they were gap-filling, however, rather than creating some new concept or creating constitutions that occupied the space explains why, for instance, not every state adopted a bill of rights and why the Philadelphia Convention didn’t initially include one, because the individual rights in their preexisting constitutions weren’t granted by the Crown and so weren’t abrogated by the Declaration.

Now, as we all know, some states did include bills of rights in their constitutions, but they did so not because they believed they wouldn’t have such rights without them, but because the turmoil of the revolutionary period had exposed significant differences that the new written constitutions were meant to clarify and settle That’s why we have the Ninth Amendment.

This same understanding of the need for creating a written constitution also explains why, for instance, Rhode Island and Connecticut didn’t write new constitutions after the Declaration of Independence. They didn’t need to do so because in both states, the existing constitutions were already grounded in popular consent and an earlier grant of independence from the Crown.

But states that did write new constitutions used the opportunity to make changes, to experiment, and to innovate in crafting their governments, adopting all sorts of new structures drawn from the 18th century opposition Whig literature that was so popular in the colonies. Now again, my point in highlighting the contrast is simply that I don’t think one can read implicit assumptions made in the Declaration’s Bill of Particulars about the structure and powers of governments to reflect any kind of normative statement about the future American system.

If we do wanna understand what those commitments are for that founding generation, it’s found in the later work where they did make changes and did explicitly think about how structure should relate to the purposes and goals of government. Which, to come to the rest of Tino’s paper, is not to say that later politicians didn’t do that.

And that brings me to my second point. As Tino points out, political leaders and commentators have often turned to the Declaration as authority supporting changes they wanted to make or changes they wanted to resist in the structure and powers of our federal system. Now here it’s notable i-in Tino’s talk as well, the shift now is away from the list of grievances and implicit structural themes, more to the larger ideas of equality and political theory in the document, but it’s still looking back to the Declaration as authority for that purpose.

And they do that because the Constitution, the Declaration has come to be seen as a foundational ex- text that expresses something fundamental about the nature of our republic Which, as I say, you might think that’s difficult in the case of the Declaration, since mostly it really is a list of grievances, and grievances that mattered to Americans in 1776 but have no particular relevance today, like quartering soldiers.

And which is why attention today is paid almost exclusively to those opening two paragraphs, and really to just the short passage about the reason for and purpose of government. Now again, those passages were just a restatement of familiar Enlightenment ideas, and so not what the people at the time thought important.

But focusing on those general passages is a way of reading the document that makes it possible to reinvent and apply it over time. And as Tino notes that’s what’s been done with the Declaration. And I just wanna pick up on that and extend that point, because I wanna say that’s how all foundational texts are ultimately treated.

They’re not fixed guardrails. They don’t lock things down in ways that are permanent, but neither are they incidental and functionally irrelevant in shaping later outcomes. They are rather always devices that help frame subsequent debates as a nation changes and evolves over time. They play a critical role in establishing things at the point of origin, but after that, they serve mainly as reference points that help shape, without determining, responses to the challenges, changing conditions, and unforeseen problems the people of a nation must grapple with A system is established, right?

And for a time, and usually a pretty short time, it works as it was expected. But in our dynamic societies, conditions change, people change, our economies change, our needs and expectations change, and as that happens, our systems change inevitably and unavoidably, as we have to decide– And we have to decide as that happens whether to embrace the changes, reject and try and undo the changes or modify them.

We are, as a result, constantly called upon to reinterpret our foundational texts in light of the changes that are taking place. Just as our choices about what changes we can and should consider making are to some extent shaped by our evolving understanding of the foundational text. And it’s in this sense that constitutional law is inevitably and inescapably a form of customary law always, of understandings about foundational commitments that are embodied in real but constantly evolving institutional arrangements.

The task we continuously confront is one of doing our best to maintain consistency between our actual practices and our understandings of what those practices are supposed to be, but they fall out from each other because of the way things evolve and change. When tensions arise between our practices and our understandings, we have a choice.

We can change the practice to conform to an existing understanding, or we can reinterpret the understanding to conform to the existing practice. And sometimes we do one, and sometimes we do the other, and having resolved the tension, we move forward until some new tension arises, and then we go through that process again.

Now, this is explicitly how the British customary constitution works even today, but it is also how the American Constitution works. The only difference being that in the American case, the evolving customary law is refracted through the text, which is itself being constantly reinterpreted and reshaped to fit the needs and conditions of the day.

And as much as they might wanna deny it, this is no less true for people who claim the mantle of originalism than it is for anyone else, as their interpretations of what the history calls for evolves in ways that make it possible to continue producing coherent responses to changing circumstances. It’s not surprising then, but only natural, to find political leaders turning to the Declaration in just the same way as a foundational source of arguments to justify addressing a contemporary problem in a particular way.

The Declaration, like the Constitution, doesn’t give us answers, but it does supply a source upon which to draw to help frame and structure arguments as each generation works to figure out how to make the ever-evolving system it inherited work best for the problems and challenges it faces while retaining some sense of legitimate connection to the past.

Thank you.

Pam Karlan: This has been a special presentation from Stanford Legal. I’m Pam Karlan. See you next time.