Monday, February 29, 2016

Tsesis on the Declaration as Introduction to the Constitution

Alexander Tsesis, Loyola University Chicago School of Law, has posted The Declaration of Independence as Introduction to the Constitution, which is to appear in the Southern California Law Review 89 (2016):
Throughout the course of United States history, the Declaration of Independence has played an outsized role in constitutional development. For each generation of Americans, the document has reflected the historical reason for independence and the idyllic statement of representative government. On the one hand, it is not part of the formal Constitution, on the other, it informs constitutional interpretation. For a time, until ratification of the Fourteenth Amendment, it was the nation’s only formal acknowledgment of human equality.

The Supreme Court has paid scant attention to the Declaration’s overarching statement on national governance and its mandates to protect individual rights while securing the people’s “Safety and Happiness.” The early record of lawmaking in the United States, on the other hand, demonstrates the influence of the Declaration’s normative statement from the country’s inception. From the nation’s founding, Americans’ constitutional understandings have been shaped by the Declaration of Independence’s statements on human rights and mandates for just government. The judiciary has not adequately followed the will of the people to rely on the Declaration in developing constitutional interpretation.
H/t: Legal Theory Blog

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