Monday, July 16, 2018

Mikhail on the Declaration and the Constitution

John Mikhail, Georgetown University Law Center, has posted A Tale of Two Sweeping Clauses, which is forthcoming in the Harvard Journal of Law & Public Policy.  SSRN records it as being written on July 4!
Whenever the relationship between the Declaration of Independence and the Constitution gets discussed, most of the attention naturally gravitates toward the principle of equality and natural rights background of the Declaration, which have played such important roles in American history. The question then becomes whether, and to what extent, the Constitution embodies these background principles. This Essay focuses attention on a less familiar connection between these two documents, which bears on the issue of government powers rather than of individual rights. The Essay argues that some of the most influential founders considered the Declaration to be, in effect, the “first constitution” of the United States, whose reference to the power "to do all other Acts and Things which Independent States may of right do" vested the United States with implied national powers; and that this key provision of the Declaration later inspired the "all other powers" provision of the Necessary and Proper Clause.

The Essay is a revised version of invited remarks on "The Relationship Between the Declaration of Independence and the Constitution" I presented at the 37th Federalist Society National Student Symposium at Georgetown University Law Center on March 10, 2018. A video recording of this event, including separate remarks and a panel discussion featuring Judge Thomas Hardiman and Professors Randy Barnett, Lee Strang, and Michael Zuckert, can be found on the symposium website.

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