Is the Declaration Our Law?

Michael McConnell: It’s my privilege to introduce the next duo of Professor Randy Barnett and Professor Eugene Volokh. They are both s- I’m sure familiar figures to, to most if not everyone in the room. Randy is the founder of the Georgetown Constitutional Center, but also is been one of the most important figures in the growth of both originalism as a methodology, but also in tying it to the broad civil libertarian tradition of the United States.

And some of his work, he’s written s- so many books and articles that I can’t even i’m not going to begin to describe, and actually that describes both of them. These are two of the most prolific legal scholars in the country sitting in front of you. But Randy, I…

the thing that Randy has contributed that always sticks in my mind is the idea that that liberty is, should not be understood as an island in a great sea of governmental power, but quite the opposite, that liberty is the central pre- premise of the system. And Eugene has recently come here to Stanford.

He is the Thomas M. Siebel Senior Fellow at the Hoover Institution. He came here from UCLA, where he taught for, oh, I don’t know, so many years. I first met Eugene- 30 … 30 years. I first met Eugene when he was clerking for S- Justice Sandra Day O’Connor, and I tried to recruit him to the University of Chicago Law School.

That didn’t quite happen because he went home. He grew up by… He grew up in, in in Ukraine and came to this country at the age of, I think, seven and was a math prodigy. He was one of these kids that, that that could do, you know- graduate-level work in fourth grade. And he and his father and brother were very early participants in the in the tech industry.

And after exhausting that and making a pile of money Eugene decided to go into law, and he has been a major figure. I think that the principal areas that he focuses on are freedom of speech and Second Amendment rights to keep and bear arms. He is the founder, along with his brother, of one of the leading legal blogs one of the most interesting of them called the Volokh Conspiracy.

If you don’t follow the Volokh Conspiracy, you should because it is truly one of the most important places for exchange of ideas about constitutional law and and a few other related areas. He’s also the founding– the– He founded an on- online law review for First Amendment free speech articles that has been flourishing and is a way to have a peer-reviewed, actually professionally peer-reviewed journal on a timely basis and with a serious and I think a successful attempt to keep out any ideological barriers so that it’s a place where scholarship is judged on the basis of scholarly merit only and not point of view, which is a pretty unusual thing in this day and age.

The two of them are going to be talking about the question, Is the Declaration our law? So Randy, take it away.

Randy E. Barnett: Thank you Michael for that introduction. Michael and I have known each other since we were both junior professors. I was a junior professor at the Chicago-Kent College of Law, and Michael was just starting at the University of Chicago Law School, and I invited him into a symposium I was doing for the Chicago-Kent Law Review, and he graciously agreed.

Certain unpleasantries, unpleasantness happened after that with his commentator, Soterios Barber which Mi- Mike and I have not talked about since it happened some 40, 45 years ago, whenever it was. But we’ve known each other… What’s that? Oh, that’s good. That’s good to hear. I sh- I should have asked you about this.

He was extremely … Barber was extremely insulting towards Michael, something that’s, sometimes happens, even recently. At any rate he- he’s doing remarkable things here at at Stanford, and only Michael could get me on an airplane to come out here and give a talk the day before the Originalism Summer Seminar starts at Georgetown, where we have eigh- 80 students coming in, and it’s a week-long very draining seminar.

And this would’ve been an automatic no for anyone else but Michael. But he said, “Say yes”, and so when he says, “Say yes”, I say yes. And here I am. So the qu- we’re tasked with saying something new about the Declaration. We were fortunately not asked to say something wise or good or insightful about the Declaration.

I’m taking this ta- task extremely literally. And we’ll be presenting something new about the Declaration. But let me begin in a Cincinnati courtroom in 1838 with a young woman named Matilda. Matilda was a light-skinned … was light-skinned and the daughter of her enslaver, who brought her on a long trip through free territory while presenting her as his white daughter.

On that trip, she tasted freedom. She pleaded with her father for a certificate of emancipation. He refused, so she did the only thing left. She fled into Cincinnati’s small free Black community, found refuge there, and eventually came into the employ of James Birney as a maid. Birney, a lawyer by training, was the publisher of the anti-slavery newspaper, The Philanthropist.

After slave catchers located and seized Matilda, Birney enlisted a 29-year-old lawyer named Salmon P. Chase to seek her release. Only months earlier, during the Cincinnati riots of 1836, a mob had gathered at the Franklin House intending to force its way in and hunt for Birney. Chase placed himself in the doorway and refused to let them pass, calmly but resolutely giving his name and telling them they could find him wherever they wished.

That small physical act of defiance marked a turning point. Chase later remembered it as the moment, it as the moment he became, in earnest, an opponen- opponent of slavery and the slave power. From then on, his public life would be increasingly bound up with the cause of human freedom for all In his defense of Matilda, prepared with Birney’s help, Chase p- primary- Chase’s primary argument was based on enumerated powers.

He argued that the Fugitive Slave Act of 1793 was unconstitutional. While this- while the f- Article 4’s fugitive slave clause imposes a duty on states, it delegates no enforcement power on Congress. Chase pressed the local judge with a blunt textual challenge, quote, “Does this clause confer any power on government or on any officer or department of government?

Clearly not. It says nothing about the government or its officers or its departments.” Unquote. To make the contrast vivid, Chase pointed to another clause in Article 4 that does add an explicit congressional power, the Full Faith and Credit Clause, and insisted that this difference in the text matters.

The judge ruled against Matilda, sent her down the river, where her fate is unknown to us. But what makes this case revealing for our purposes is the plea Chase made at the end of his very long argument. In the closing section, which I’ll now read to you at length, Chase told the court, quote, “I have not asked, and I do not a- now ask, on behalf of my humble client, deliverance from imprisonment because that imprisonment is against natural right, but because it is against the Constitution and against the law.

I claim, however, in her behalf, that it be borne in mind that there is such a thing as natural right, derived not from any civil constitution or civil code, but from the constitution of human nature and the code of heaven. This court, I am sure, need not need not be reminded of the original paramount truth, whereupon- written upon the hearts of all men by the finger of God, the same in all ages and all climes and destined to no change, proclaimed by our fathers in the Declaration of Independence to be self-evident and reorder- and reiterated in our state constitutions as its fundamental axiom that all men are born equally free.”

Chase then explained how this axiom of the Declaration should affect the burden of proof in a legal proceeding Quote, “If the petitioner at the bar cannot expect here the full benefit of this fundamental truth, if her right to freedom must here be vindicated upon narrower grounds, let her have at least this advantage from it.

Let her be regarded as free until it be shown by the fullest and clearest evidence that her case falls within some exception to the universal law of human liberty. Let the proceedings by which she is now, without the accusation of crime and without the suspicion of guilt, deprived of freedom and given us…

and driven a suppliant to this bar be narrowly scrutinized. Let every provision unfavorable to liberty, whether legal or constitutional, receive a strict and rigorous interpretation. And if, when thus scrutinized, these proceedings shall be found insufficient, and especially if they shall be found to be warranted by no law and repugnant to the most vital principles of our social system.

If when thus interpreted, these provisions which exclude a certain class of persons from the benefit of these vital principles shall be found not broad enough to reach the case of this petitioner, I demand her discharge in the name of justice, of liberty, and of our common humanity.” This is not rhetoric decorating a legal argument.

This is a legal argument. The Declaration supplies the baseline, universal liberty, so that any claimed exception requires fullest and clearest evidence, and any anti-liberty provision is to be read strictly and rigorously. Now fast-forward five years from 1837 to the next major stage of Chase’s anti-slavery practice, the Van Zandt case.

In 1842, John Van Zandt was prosecuted under the Fugitive Slave Act for assisting fugitives by giving him- them a ride in his wagon. In Chase’s published brief to the United States Supreme Court, the Declaration returns as a canonical statement of first principles that shapes how constitutional provisions and federal statutes should be read.

In his brief, Chase explicitly addresses the legal status of the Declaration. Quote, “This declaration was put forth to the world as an expression of the deliberate judgment of the American people. It was adopted and recognized as its own act by every colony which acceded to the Confederation. It’s not going too far to hold this declaration to be an authentic promulgation of the common law of the Union in respect to the inviolability and inalienability of personal liberty.”

So in Van Zandt, the Declaration is not merely a fine polemical statement of principle. It is treated as part of the Union’s common law background concerning personal liberty. Background law that presses hard against any reading that would nationalize slavery’s claim. Once again, Chase offers this in defense of a clear statement rule of construction.

Quote, “It is certainly incumbent then on those who claim that by the Con- Constitution, the general law and presumption in favor of liberty are set aside to make out a clear case and produce express words.” Now, jump to 1850, when Chase is no longer a court- merely a courtroom lawyer. Given the futility of fighting slavery in the courts, he has shifted his energies to political action.

He led the founding of the single-issue anti-slavery Liberty Party, followed by the broader Free Soil Party. By 1850, he was a United States senator from Ohio as a Free Soiler, but that’s not where his story ends. In 1854, he would be instrumental in forming the Republican Party. In 1855, he was elected the first Republican governor of Ohio.

In 1861, Lincoln would name him Secretary of the Treasury, and in 1864, Lincoln would appoint Chase to succeed Roger Taney as Chief Justice of the United States. In every one of these capacities, his primary mission was to end slavery and establish a government in which all persons, Black and white, male and female, are politically equal.

In 1850, Chase took to the floor of the US Senate to oppose the Compromise of 1850, a package meant to avert sectional rupture by admitting California as free, allowing Utah and Mexico territories to permit slavery, and most explosively enacting a brutal new Fugitive Slave Act. Chase’s speech was widely reprinted as a pamphlet entitled Union and Freedom without Compromise.

In it, Chase began– again treated the Declaration as an authoritative foundational premise for American government. This time, he quoted the transmes-mission letter sent by John Hancock, the President of Cong- of the Congress, along with the Declaration to the Colonies. In his letter, Hancock stated that the Dec- that the Declaration is, quote, “To be considered the ground and foundation of future government,” unquote.

Chase then described the origin of the United States this way, “One spirit pervaded, one principle controlled all this action. A spirit of profound reverence for the rights of man as man, the principle of perfect equality of men before the law. When the American Congress resolved on independence, they solemnly announced the great doctrine of inalienable rights as the basis of the national political faith and the foundation of all just government across these three moments, Matilda in the 1830s, Van Zandt in the 1840s, and in his 1850 speech to Con- to the Senate, Chase is not saying because the Declaration is morally inspiring, judges should do what they think is right.

He is saying something narrower and more lawyerly. Constitutional actors, be they in Article One, Article Two, or Article Three, should follow the fundamental law established by the Declaration. Before judges conclude that the Constitution authorizes a deprivation of liberty, they should demand clear textual warrant, what he calls the fullest and clearest evidence, before adopting an anti-liberty interpretation.

Now to be clear, Chase was not inventing the idea of liberty-protecting clear statement rules out of thin air. Here is John Marshall’s classic formulation in the 1805 case of United States versus Fisher. Quote, “Where rights are impinged, where fundamental principles are overthrown, where the general system of laws is departed from, the legislative intention must be expressed with irresistible clearness to induce a court of justice to suppose a design to effect such objects.”

This passage was elevated to the consciousness of the anti-slavery movement by Lysander Spooner in the 1840s and reiterated time and again by Frederick Douglass and other anti-slavery constitutionalists. That sentence, irresistible clearness, became a staple because it does something powerful and modest at the same time.

It allows that a legally valid law might be unjust, but it insists that if the law really means to do something that overturns fundamentals, it must say so unmistakably. Whatever one thinks about Chase’s ultimate constitutional conclusions, what is striking is how naturally he speaks as if the Declaration can operate as a law, or as law I should say.

A principle that justifies a rule of construction inside ordinary legal reasoning, not outside, inside But that’s not how many modern lawyers, and even some self-identified originalists talk about the Declaration today. In Troxel versus Granville, Antonin Scalia in dissent put this, put it this way when discussing whether the unenumerated right to raise one’s own children is a constitutionally protected right.

This is about the right to raise one’s own children. Quote, “In my view, a right of parents to direct the upbringing of their children is among the unalienable rights to which the Declaration of Independence claims– proclaims all men are endowed by their Creator. The Declaration of Independence, however, is not a legal prescription conferring powers upon the courts.”

More recently, Amy Coney Barrett took the same position. When asked during her confirmation hearings what role the Dec– by Senator Ben Sasse, what role the Declaration plays in interpreting the Constitution, she answered, quote, “The Declaration of Independence is an expression of our ideals, expression of our desire to be free from England.

It is not law, however. The Constitution is our foundational law and our governing document. And while the Declaration of Independence tells a lot about history and about the roots of our republic, it isn’t binding law.” If what Justices Scalia and Barrett mean is that the Declaration does not authorize judges to enforce whatever they decide to be natural rights, they’re correct.

But they’re wrong in thinking that this is because the Declaration isn’t binding law. As we’ve seen, Chase’s use of the Declaration provides an alternative approach. The Declaration can function not as judge-made license, but as providing a binding principle that justifies a disciplined rule of construction, a liberty-protective clear statement principle operating alongside enumerated powers and ordinary legal method.

The Declaration has this function because the Declaration is our law. By law, I mean something broader and older than whatever a court will enforce tomorrow. Publicly adopted authoritative public acts and principles that constitute and govern political authority, that fix its purposes and limits and supply legally relevant reasons for officials.

What both Justice Scalia’s Troxel dissent and Justice Barrett’s testimony share is an overly narrow conception of what counts as law. To be part of our law, the Declaration need not create a standalone cause of action. It can operate as foundational and higher law that bears on both constitutional interpretation and constitutional construction, or what we might just call implementation.

The Declaration is part of American public law in the foundational sense. It is a formally adopted public act that announces the terms on which political authority is justified. The Declaration, not the Constitution, is our founding document. It was carefully drafted, debated, and unanimously enacted by the Continental Congress on behalf of the American people.

It justified formal separation from the British Empire by announcing an American theory of government. And that American theory of government is that governments are instituted among men to secure the people’s inalienable rights, and that political authority is justified only insofar as it exercises what the Declaration calls the just powers of government.

The Declaration officially adopts the end object or purpose of the constitutional project that followed After the articles, the Constitution was the Articles of Confederation. The Constitution was our second attempt to design institutions capable of achieving that end, securing the people’s preexisting rights through the exercise of just powers.

And two years later, that same ed, the protecting, protecting inalienable rights retained by the people was reaffirmed by the Ninth Amendment. This understanding of the Declaration as our law does not require the additional claim that the natural rights and civil– and civil equality would be binding higher law had– even had they never been authoritatively enacted.

That contested question can be left to one side because the Declaration was authoritar-authoritatively enacted. The Declaration also clarifies what kind of rights are, in the words of the Ninth Amendment, retained by the people. The Declaration assumes that the natural rights it invokes are preexisting liberty rights to act or refrain from acting, rather than claims of entitlement to particular goods.

Now, of course, legislatures may create entitlements that extend beyond natural rights, and liberty rights may be regulated to serve the common good, and a subject I’m gonna return to. But such regulation must remain within the moral jurisdiction of government’s just powers. Any regulations must be executed through the procedures and limits the people later adopted in the Constitution.

This is also why the law provided by the Declaration matters not only to constitutional theory, but to constitutional method. The Declaration supplies the officially adopted, publicly available founding-era context that enriches the Constitution’s original public meaning. Original public meaning is thicker than bare semantic meaning.

It is informed by the linguistic, legal, and political understandings that reasonable readers would have brought to the text at the time of the adoption. That context– that contextual enrichment bears directly on interpretation. For example, what it means to speak of rights retained by the people in the Ninth Amendment.

And where even this enriched public meaning runs out, where the written Constitution remains vague, underdeterminate, or otherwise non-decisive, constitutional implementation or construction should be guided and constrained by the Declaration’s account of governmental ends and its just powers. In this way, the original meaning of the Declaration informs both interpretation, the act of identifying the communicative content of the text, and construction, the act of putting that content into effect To be sure, just as the Ninth Amendment did not create the rights retained by the people, the Declaration did not create the rights that form the basis of its political theory.

It declared their existence. But by declaring these rights in a written public and formally enacted manner on behalf of the people, it reaffirmed the standing of these rights within American public law. This view fits comfortably with it– with the tradition of natural rights reasoning that informed constitutional thinking and common law argument from the founding era through the nineteenth century until the ascendancy of progressivism and the twentieth-century legal realism movement pushed natural rights reasoning to the margins of constitutional argument.

If all this is right, then the flat modern claim that the Declaration isn’t law is at best incomplete. The Declaration may not confer powers on courts in a way a jurisdictional statute does, but it can still function as law in the older, more fundamental sense. As the publicly adopted act that gives the Constitution its purpose, fixes the ends of legitimate power, and supplies legally relevant premises, especially premises that shape rules of construction when liberty is at stake Now before closing, let me offer two concrete examples of how the American theory of government officially and unanimously adopted by the Congress of the United States in the Declaration of Independence can affect important doctrines.

The first focus out– focuses on the famous footnote four of US v. Carolene Products. Footnote four sketches an architecture for judicial review. Ordinary legislation gets a presumption of constitutionality, and that presumption weakens only in certain special circumstances. And the first example footnote four gives of when the presumption weakens is this, when, quote, “legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments,” unquote.

Later on, the Court in Williamson v. Lee Optical made this presumption of constitutionality effectively irrebuttable by accepting a conceivable, any conceivable basis for a legislative restriction of an un-enumerated liberty to satisfy what it calls a rational basis test, rational basis scrutiny. Here’s the problem.

Footnote four assumes that constitutional rights function primarily or even exclusively as text, as specific textual prohibitions. On that picture, judges are on solid ground when a law collides with an enumerated right, but otherwise the default is deference. But the Ninth Amendment specifically says that the inalienable natural rights retained by the people expressly affirmed in the Declaration of Independence shall not be denied or disparaged on the ground that they are not enumerated in the Constitution.

But the text of the Ninth Amendment does not stand alone as our law. It stands with the Declaration of Independence. If the Declaration and the Ninth Amendment are both law, I think we’d have to concede the Ninth Amendment at least is law. Even the doubters would have to concede that. Then they require a different rule of construction than does footnote four, a rule that is closer to what Chase urged in Matilda.

Liberty is the baseline. Restrictions on liberty require justification. And where the Constitution does not speak with precision, courts should not must not construe enumerations to deny or disparage others retained by the people. When combined, the Declaration and Ninth Amendment cast doubt on the doctrinal architecture that treats enumerated rights as the sole legitimate trigger for narrowing the presumption of constitutionality.

But wait, there’s more. The second example concerns the scope of the police power of the states on an unenumerated power, I should say, not mentioned in the text of the Constitution. Suppose we accept the premise, one that I’ll not defend here, but will merely assume, that natural rights are best understood as regulable liberties, a term that Jud Campbell has now brought to our attention and I think is very felicitous.

I’ve now adapted it to myself. Natural rights are best understood as regulable liberties. On this account, liberties may be regulated for the common good, most especially to protect the rights of others, but these liberties may not be subverted or denied. On this view, the question is not whether government may ever regulate liberty.

The question is what distinguishes regulation that secures liberty rights from regulation that subverts it? Once you frame it that way, something follows that is often ignored in modern constitutional talk. If the natural rights to which the Declaration and the Ninth Amendment refer to are regulable liberties, and if government exists to secure them, then the state p- then the state police power cannot be an all-purpose blank check.

It needs to … Some kind of limiting logic, like the limiting logic that enumerated powers brings at the federal level. At the federal level, we say Congress may legislate only within a set of delegated powers which demark its proper jurisdiction. At the state lever, however, states, 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 authority 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. If government authority rests not on expressed consent, none of us signed the Constitution or expressly consents to legislation that’s passed supposedly in our name But on a kind, if it rests 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 p- will arbitrarily upon them,” unquote. Why 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 pres- when the consent of the individual is not expressed but supposed or presumed, then this supposition or pr- or presumption has its limits.

Now listen to the continuity of this idea across the American tradition. In 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 Justice, Chief Justice Salmon Chase, in Calder versus Bull, 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 this sentence, “and therefore it cannot be presumed that he, 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 s- 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.” Now whatever one thinks of these thinkers, the shared structure is unmistakable. When legi- 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 with the moral jurisdiction of, within the moral jurisdiction of government’s just powers.

The power to regulate how a right may be exercised is not the power to subvert or deny that so on the Declaration’s 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 authorized their own subjugation. What is needed is a concep- conception of the police power that Thomas Cooley, the most prominent legal scholar of the late nineteenth century, provided in his eighteen sixty-eight treatise aptly entitled A Treatise on the Constitutional Limitations Which Rest Upon the Legislative Power of the States of the American Union.

There, 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 as reasonably consistent with the like enjoyment of rights by others.”

The Declaration presses toward a more serious account of what the pr- 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 a s- as a theory of jurisdiction. What counts as the common good, what counts as securing rights, and what crosses the line into subversion The Declaration’s law does not give a judge- ju- judges 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 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 to re- required to bind the people in conscience. Thank you

Eugene Volokh: Thank you very much for the invitation to appear here, and many thanks to Randy for his 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 it’s– 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 on some ways in which 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.

So 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 law.

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.” I wouldn’t recommend a modern political candidate to use precisely those words today, but you could 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 to, to– led foreign countries to conclude, yes, now here this– there’s this entity that is at least claiming to be an independent nation.

Whether or not it succeeds in that remains to be seen, but at least it is now asserting a particular legal status. It also intentionally captures what supporters of independence believe to be right and believe many of their listeners would support. It certainly articulates a particular vision that’s 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- There was a constituency for that as well.

It also unintentionally conveys certain implicit understandings of proper government behavior. Let 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, talks about appealing to the supreme judge of the world and firm reliance in the protection of divine providence. This is no longer just the deist watchmaker God as some people have suggested, so 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.

Very much the Christian God. No reference to Jesus, but perhaps God the Father, if I at the risk of being heretical, I’m not sure that’s exactly how most rel Christian denominations would articulate it. But basically at the very least, it is a document that, 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 may… That has been used as an argument, for instance, a-against kind of a broad reading of a no endorsement rule under the Establishment Clause. One 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 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.

Now, Randy argues they show more. They show that it was treated as law. Maybe not, but at the very least, they show it was inspiration. Likewise, the examples given by Tino Cuéllar 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 pl- past lawmaking, as Clint Bolick also identified. So it’s a very important document. But I– But so far, none of these things, I think, establish that it is law, and some suggest that it goes in the other direction.

So 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- I don’t think it was a law that was made by the Continental Congress to govern its behavior or that of 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. 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.

It’s also, I don’t think, a statement of permanent principles, for example. Some of those we might see as permanent, some of them it might not. It talks about the colonies as independent states very shortly after with a Const- 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 time and experience shows that, we needed a cl- a f- 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, and maybe if some are, that’s be- for reasons other than they just articulated it in the Declaration.

It’s not an attempt to elucidate legal principles. So for example, here’s this passage faulting 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 re- 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 refuse, or to veto a law because the law is wholesome and necessary for the public good.

At 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, “The veto is unjust.” I at least wouldn’t say it’s illegal, because the law set forth by the declaration is that is not something that a that an 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, or 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 DC license plates because at least the DC government thinks that is a bad feature of the current system.

That in fact DC and historically the territories as well, and today of course the territories that, that, that remain do not consent at least through normal voting processes to 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. On the other hand for instance, the sense that the seat of government ha- 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 also 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. Of course, that has in some measure become law in the Third Amendment. But no, the Third Amendment says that that soldiers cannot be quartered in private homes in time of peace or in time of war except as allowed by law.

That’s a more nuanced a restriction because you can condemn quartering while recognizing that in some situations it may be called for. Or how about endeavoring to prevent the populations of these– 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 Cuéllar’s paper is his observation that Franklin Roosevelt appealed to the Declaration even in a time of heavy tariffs and immigration limits And 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 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 there might w- 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.” That makes a lot of sense with a political platform and, 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. People 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 payoff of… Yes? Can you say that sentence again? Can it be used as a guide for applying other legal principles, which I think is the core payoff of Randy’s proposal.

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, and 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 preexistent liberty rights to act or refrain from acting, rather than claims of entitlement to particular goods. I am generally not a fan of reading Amer- US Constitution as securing positive rights, except in a few situations I will get to in a moment.

But 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? 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’d be these positive rights. Again, I think that’s not how we should read our Constitution that’s not how we should read just 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? The 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– 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 ref- 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.

That certainly does mean set up a government that doesn’t unduly trammel 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 con- 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, and one of the things we seek from the government is positive protection against that.

If, 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 over over 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 it exi- exists to secure.” Yeah, 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?

That is a question that might be answerable with reference to other bodies of law, w- 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, in some measure, constitutionalized. 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 can turn to.

So that is what I hope is my loyal opposition to to, to Randy’s assertions. Again, I ha- there’s no doubt that c- the Declaration of Independence is tremendously important in American political and legal culture in many ways but that’s why the claims of Declaration as law leave me somewhat skeptical.

Randy E. Barnett: Thank you.

So now I get to say something about, there’s a- Sure … there’s a, there’s an awful lot there. I’m not gonna be able to get into all of it. And a lot of it I, I do agree with. But you would justice 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 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 then subsequently enacted in the forms of the Articles of Confederation, and then the Constitution. So that’s at least one individual sense in which they thought it was foundational.

It’s, which is all I’m arguing that it was foundational. And at the end, that, what was the con- what was the thing you said we agreed about at the very end? How did you put it? Did I say- 

Eugene Volokh: That, that it had a tremendous pol- significance, kind of rhetorical significance- no. No, 

Randy E. Barnett: before the rhetorical part.

Yeah You said something else I stuck I did a thumbs-up to- … but I can’t remember exactly how you put it. It’s 

Eugene Volokh: tremen- the- 

Randy E. Barnett: It actually in- Yeah … should influence- Yeah … the way we read the text that we are called upon to read, right? It’s not how you said it. I won’t attribute- All I wish I could play back the tape, ’cause I can’t remember Yeah The, because I thought whatever it was you said was pretty much the ballgame, and now I wish I could have, 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.

True. There is general consensus across this dif- d- the disagreement I’m about to describe, that it’s refers to a judicial process. That it’s 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 go, be able to go in front of a neutral tribunal of justice, a, a judge, to adjudicate whether this law, whatever it is correctly applied to them.

So that’s a consensus. Everybody think, it’s about judging. It’s about the role of judges. But then the question is what does due process of law mean? And it’s assumed and asserted that the due process of law, to make it a deprivation according to law, then that’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. You’re … 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 super majority, 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 dischar- there was a distinction explicitly drawn by John Marshall, for example, in McCulloch versus Maryland between an act Because I cannot an act and a law.

And when he was talking about the law at issue in McCulloch versus 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.

So 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, i- into this provision, the, which is the Fifth and 14th Amendments. 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 people, judges say, “Okay, here’s the Declaration, now I get to do X.”

It’s done by implementing doctrines of the kind when you have to decide what the presumption is. The, is there gonna be a presumption of guilt? Is there gonna be a presumption of innocence? Is there gonna be a presumption of liberty? There’s gonna be a const- 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 I th- and the Declaration, as formally enacted, a b- a 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 US Senate.

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 wanna elaborate on what I actually think about that.

There’s no doubt that the, when you leave the state of nature and enter into civil society, you receive in return for that for doing so, the whole reason for doing so is that you get civil rights in exchange to, for your natural rights, or at least civil rights to protect your natural rights.

The 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 are right to focus on the jury trial as not a, becau- as a positive right.

It is not a natural right. It was not thought to be a natural right. It’s a right that result, in Madison’s words, it a result, it’s a right that results from the compact. It doesn’t pr- but he says it’s essential to protecting the liberties of the people as any of the preexistent rights of nature. So I just want to immediately agree with you.

That there’s lots of positive rights in that sense. The, 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. So the last thing I’m just gonna say is that I think what is at 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 whether, 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.

And 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 f- expression, an old advertising slogan for Ford Motor Company. The quality goes in before the name Ford goes on. So the qu- the quality must go into the sta- 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 principles of law, which it, natural law, which is the the duties that we have and the responsibilities that we have to flourish. What are the gr- grounds of flourishing? So last, one last thing so I don’t get confus- I don’t confuse anybody.

I distinguish between the natural law and natural rights. Natural rights define the boundaries or space within d- 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 they pr- 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 it’s g- we’re… Now I’m getting 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