Author Topic: Issues in the American Creed (Constitutional Law and related matters)  (Read 533865 times)

Crafty_Dog

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WSJ: SCOTUS's Textualism Test
« Reply #1500 on: November 23, 2019, 11:20:58 AM »
The Supreme Court’s Textualism Test
Kagan tries to lure Gorsuch and Roberts off the Scalia method.
By The Editorial Board
Nov. 21, 2019 7:21 pm ET

The Supreme Court in Washington. PHOTO: ERIN SCHAFF/REUTERS
It won’t grab headlines like impeachment, but a major political drama this year will unfold at the Supreme Court. To wit, how will the Court, and especially new Justices Neil Gorsuch and Brett Kavanaugh, define the meaning of textualism and originalism?

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These are the watchwords of the jurisprudence made prominent by the late Justice Antonin Scalia, and all of the Justices claim to honor them in one way or another. But how the Justices define these tools of judicial interpretation will determine how the Court decides major cases going forward. An important test will be the discrimination cases under Title VII that the Court heard in oral arguments last month.

***
On traditional grounds of textualism, the two cases—Bostock v. Clayton County, and R.G. & G.R. Harris Funeral Homes v. EEOC—should be straightforward. The plaintiffs say they were fired because they were gay or transgender, and that such discrimination is illegal under Title VII of the Civil Rights Act of 1964.

But Title VII bans discrimination because of “race, color, religion, sex, or national origin.” No one in Congress in 1964 claimed that outlawing discrimination based on sex applied to sexual orientation, much less to the transgendered. The plain meaning of the text of Title VII is that “sex” referred to a man or a woman.

Under this plain reading, the Justices could and should say that discrimination against gays or the transgendered is invidious but that Title VII doesn’t ban it and it isn’t the job of judges to rewrite the text. If Congress wants to ban such bias in the workplace, it should pass a law, as some 23 states have done.

Enter Justice Elena Kagan, bearing a different definition of the text of the statute, updated for current mores. During oral arguments, she sought to redefine “sex” in Title VII to mean more than the binary choice of a man or woman. She offered a hypothetical case in which a company fires a woman employee for dating another woman but wouldn’t have fired a man for dating a woman. Voila, discrimination based on sex.

Justice Kagan is a shrewd Court politician, and her goal in politically significant cases is to attract one of the conservative Justices to form a 5-4 liberal majority. She’s succeeded more than once with Chief Justice John Roberts, who is above all an institutionalist who wants to preserve the Court’s public standing. Justice Kagan has used appeals to precedent and the “legitimacy” of the Court to pull the Chief to liberal policy ends.

Her main target on the Title VII cases is Justice Gorsuch, and, sure enough, in oral arguments he suggested he might agree with Justice Kagan’s nouveau interpretation of “sex.” At one point he said “the textual evidence” is “really close, really close” and we’re not talking about “extra-textual stuff.”

At another point he asked Solicitor General Noel Francisco to respond to Justice Kagan’s argument “and the fact that at least one contributing cause [of dismissal from the job] appears to be sex?”

Mr. Francisco gave an excellent answer: “First, I don’t think that one contributing cause is sex. I think that as long as you’re treating gay men and women exactly the same regardless of their sex, the contributing cause is sexual orientation, not sex. And, two, I think it reflects the fact that sex and sexual orientation are different traits.”

In other words, the employment bias isn’t based on sex since it could apply to gay men or gay women. The bias is against sexual orientation. Congress has expressly protected against such bias in other statutes, taking care to balance other interests such as religious views. Simply because Congress hasn’t done so for Title VII doesn’t mean the Court should usurp the role of the legislature and do so.

American social mores have traveled far since 1964, and today there is broad acceptance of differences based on sexual orientation and gender self-identification. The Fortune 500 and most employers have policies that ban bias on either grounds. A Supreme Court decision that said the job of reforming Title VII is up to Congress could well supply the political impetus to do so, while also allowing for the compromises necessary to protect other interests such as concerns over same-sex bathrooms and women’s sports teams.

***
The larger threat is to the new Court and the use, or misuse, of textualism. If the plain binary meaning of “sex” in 1964 as a man or woman can be redefined to fit today’s cultural politics, then textualism as a legal doctrine becomes meaningless. Justice Scalia might say it tortures the language more than it can bear. Textualism would become merely one more tool for judges to impose their politics on the law—based on whatever creative uses Justice Kagan can conjure to apply it.

Justice Clarence Thomas is now the Court’s foremost originalist and he makes his spirited arguments within the four corners of his opinions. Justice Samuel Alito appreciates textualism, though he also is a more traditional follower of judicial restraint.

Justice Gorsuch has taken on the role of public evangelist for the Scalia method, as he’s shown with his recent book “A Republic, If You Can Keep It.” He wants younger Americans in particular to understand and appreciate the benefits of textualism and originalism—a laudable mission unless their proper understanding is washed away when politically convenient.

Justice Kavanaugh, Justice Gorsuch’s generational peer, will also have a say in defining what textualism means in the years ahead. If Justice Gorsuch or the Chief Justice follow Justice Kagan in defining textualism down, we hope Justice Kavanaugh and the others will explain their errors.


Crafty_Dog

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Electoral College
« Reply #1502 on: January 04, 2020, 03:18:06 PM »
« Last Edit: January 04, 2020, 03:20:48 PM by Crafty_Dog »

DougMacG

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Constitutional Law: New state electoral vote laws unconstitutional?
« Reply #1503 on: January 17, 2020, 05:17:08 PM »
Just my opinion but these new state laws awarding their states delegates to the national popular vote winner are unconstitutional.  They disenfranchise that state's voters.  We will see.

https://www.cnbc.com/2020/01/17/supreme-court-takes-key-electoral-college-cases-ahead-of-2020-election.html

Crafty_Dog

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Rivkin & Casey: Congress declares War, but only the President can make it
« Reply #1504 on: January 20, 2020, 12:00:55 PM »
Serious article by serious resumes

Congress Declares War, but Only the President Can Make It
The effort to tie Trump’s hands in Iran would be unconstitutional if it weren’t meaningless.
By David B. Rivkin Jr. and Lee A. Casey
Jan. 15, 2020 7:11 pm ET


Iranian soldiers outside the U.S. Embassy in Tehran, Nov. 13, 1979. PHOTO: ASSOCIATED PRESS

House Democrats, joined by a few Republicans, responded to the killing of Iran’s Maj. Gen. Qasem Soleimani by questioning the president’s authority to order that strike. But the resolution they passed last week makes a mockery of Congress’s own powers. It purportedly “directs the President to terminate the use of United States Armed Forces to engage in hostilities in or against Iran or any part of its government or military” unless Congress authorizes the use of force or an Iranian attack on the U.S. is “imminent.” But it’s styled as a nonbinding resolution. That means it doesn’t need Senate approval, but it also makes no pretense of having the force of law.

Which is just as well. Congress cannot limit the president’s constitutional authority to wage war in the way it pretends to here.


The resolution purports to restrict the president’s power to an even greater extent than the 1973 War Powers Resolution. The latter was enacted over President Richard Nixon’s veto, and every president since has regarded it as unconstitutional. It demands that the White House notify Congress anytime U.S. forces are introduced into hostilities abroad, then either obtain congressional authorization or withdraw troops within 90 days. The new resolution applies to all forms of military power, including drones and missiles, and claims to prohibit them effective immediately.

It’s true that the Constitution assigns Congress the power “to declare war.” Yet even in the 18th century, a declaration of war wasn’t required to create a state of armed conflict, governed by the laws of war. Today, such a declaration has to do with how citizens and property from belligerent and neutral states are treated, rather than the actual use of force. The last time Congress formally declared war was in 1942. Since World War II, lawmakers have approved U.S. military actions by other means, from the 1964 Gulf of Tonkin Resolution, which allowed President Lyndon B. Johnson to expand U.S. involvement in Vietnam, to the Authorization for Use of Military Force Against Iraq Resolution of 2002.

The power to declare war is different from the power to make war, which belongs to the president in his role as “commander in chief of the Army and Navy of the United States.” There are few constraints on that power when the president is defending Americans, civilian or military, against armed attack.

True, the Framers didn’t grant the president power to initiate hostilities at his pleasure. They gave Congress, not the president, the authority to raise and support armies, to create a navy, and to make rules and regulations for their governance. It’s also up to the legislative branch to define the legal framework for armed conflict: offenses against international and military law, the procedures for their prosecution, the treatment of captured enemy property and prisoners and so forth.

Congress also has the power “to provide for organizing, arming, and disciplining, the militia.” Military officers are subject to Senate confirmation. Congress can use its exclusive appropriation powers to limit or eliminate funding for a particular conflict—if lawmakers are prepared to take the resulting political risks. Inaction or nonbinding resolutions have no constitutional import.

Even if it passes legislation, Congress cannot dictate when and how the president exercises his power over the military forces it has provided—especially in selecting targets. Like any American, Speaker Nancy Pelosi is free to speak her mind. But her claim that the attack on Soleimani was “provocative and disproportionate” is preposterous.

Iran has been engaged in on-and-off armed conflict with the U.S. since “students” seized the embassy in Tehran in 1979. Soleimani was a uniformed member of the Iranian armed forces, and a critical player in Iran’s worldwide terror campaign. All that made him a legitimate target. The notion that Soleimani was too senior to be killed finds no support in the laws of armed conflict. Even the most senior military leaders can be targeted, as the U.S. did in 1943 when it shot down Adm. Isoroku Yamamoto’s plane in New Guinea.

Nor is it legally relevant, as some congressional Democrats have claimed, that killing such a high-ranking officer could heighten the danger of a wider war. Any military action has the potential to escalate hostilities, as do other exercises of presidential authority. President Franklin D. Roosevelt’s imposition of an oil embargo against Japan in August 1941 arguably prompted the attack on Pearl Harbor four months later.

Under Mrs. Pelosi’s logic, virtually every major foreign-policy decision would require congressional authorization. Imagine if President John F. Kennedy had to ask lawmakers for approval during the Cuban Missile Crisis of 1962 before subjecting Cuba to a “naval quarantine,” an act of war against Havana. The threat of Soviet missiles in Cuba was real, but it wasn’t “imminent” in the sense that Mr. Trump’s critics use that word today.

Kennedy acted to prevent a long-term, highly dangerous change in the nuclear balance of power that would have put Moscow in a position to launch a nuclear attack on the U.S. with virtually no warning. But there was no reason to think an attack was planned for the immediate future.

Kennedy decided that action, while risky, would enhance deterrence, as President Trump did when he ordered the killing of Soleimani. The president deserves credit for a decision that would, at any time until recently, have been considered a triumph by Democrats and Republicans alike.

Messrs. Rivkin and Casey practice appellate and constitutional law in Washington. They served in the White House Counsel’s Office and Justice Department under Presidents Reagan and George H.W. Bush

DougMacG

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Issues American Creed Constitutional Law, Equal Rights Amendment - Just Say No
« Reply #1505 on: February 14, 2020, 08:48:55 AM »
Ruth Bader Ginsburg among others has put ERA back in the news.
https://www.baltimoresun.com/opinion/editorial/bs-ed-0216-era-ratification-20200213-kzp6yfftunbxrai42wdykwdt5i-story.html

Working to see this fail in the 70s and early 80s was my own mother's passion.  Most of what she warned against is already here, women in combat, gay marriage, the end of gender distinction.  However we feel about those issues, the equal rights amendment would end any remaining special protections girls and women enjoy.

We don't have a draft right now but if we needed one, drafting our daughters into war with equal opportunity would be a constitutional requirement if we needed to draft anyone into combat.  No distinction on the basis of gender allowed, regardless of whom the needs most.  Leftists think this prevents war, but WWII etc were not wars of our choosing.

Sports may be one of the last remaining areas of gender recognition.  This is already being screwed up by the trans movement with boys winning girls events.  Sports may seem trivial but ask the girls who benefited from girls and women's sports what it meant to their upbringing.  With ERA, LPGA is gone.  WNBA gone.  Title IX, gone.  Girls tennis, girls soccer, girls everything, mixed doubles, gone.  Girl Scouts, no longer.  Equal prize money at the US Open?  Not needed anymore, they only need one event and men will be winning it.  Federer versus Serena?  Not going to happen, she wouldn't make the qualifying round.  No distinction on gender is constitutional mandate under ERA.  Lost not just for the athletes, but those who like to watch women compete.

Who does this benefit?  No one.

Gender discrimination is not what holds women back in the workplace.  But even if it is, it's already against federal law.  My mom was an aeronautical engineer in the 40s. She entered when there was one woman in the field. Girls weren't kept out of engineering; they wanted out of engineering.  That has (partly) changed.  A constitutional amendment would not affect wrongful discrimination, but it would end any remaining preferences girls and women still enjoy.

Equal means the same and the TWO genders are not the same.  Some of us enjoy the differences.

Crafty_Dog

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Re: Issues in the American Creed (Constitutional Law and related matters)
« Reply #1506 on: February 14, 2020, 02:35:30 PM »
I remember debating exactly this point with Ruthie back in 1980 when the ERA came up in class.  She acknowledged my point about the validity of a time limit.

Crafty_Dog

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Ruthie gets it right on ERA
« Reply #1507 on: February 15, 2020, 11:31:32 AM »
Truth in Constitutional Amending
Justice Ginsburg says the push for the Equal Rights Amendment should start over.
By The Editorial Board
Feb. 14, 2020 6:40 pm ET
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Supreme Court Justice Ruth Bader Ginsburg participates in a discussion at the Georgetown University Law Center in Washington, D.C., Feb. 10.
PHOTO: SARAH SILBIGER/GETTY IMAGES
Everything old is new again in politics, including socialism. So why not the long lost Equal Rights Amendment that failed in the 1980s? The answer came Monday from no less than Supreme Court Justice Ruth Bader Ginsburg, who said at Georgetown University’s law school that ERA supporters are obliged to “start over.”

Congress passed the ERA in 1972, but it fell short of the three-quarters of the states it needed to become a constitutional amendment. Progressives have made a cause of reviving it in recent years, and Nevada, Illinois and recently Virginia have added their names to the list of ratifying states. Which brings the total to 38 states, the number they need.

One problem: The original legislation passed by Congress imposed a deadline of seven years. Though Congress later extended the original 1979 deadline to 1982, the amendment still didn’t garner enough states to be added to the Constitution. Another complication is that five state legislatures (Idaho, Kentucky, Nebraska, Tennessee and South Dakota) rescinded their original ratifications, most of them before the 1979 deadline.

On Thursday Nancy Pelosi’s House of Representatives passed, 232 to 183, new legislation meant to resolve the problem by dissolving the deadline. But the measure will likely die in the Senate, bringing us back to square one.

Meanwhile, the Justice Department’s Office of Legal Counsel has produced a memo saying that the Supreme Court has upheld Congress’s constitutional authority to impose a deadline for ratification—and “because that deadline has expired, the ERA Resolution is no longer pending before the States.” Although the memo disagreed with the office’s previous conclusion in 1977 that Congress can extend a ratification deadline on an amendment that’s still pending, it agreed that “Congress may not revive a proposed amendment after the deadline has expired.”

This is the legal and political context in which Justice Ginsburg offered her opinion. She did so, moreover, as a strong supporter of the ERA, not an opponent. “If you count a latecomer on the plus side,” she asked her audience, “how can you disregard states that said, ‘We’ve changed our minds?’”

The ERA also isn’t necessary today. America in 2020 is a very different place for women than it was when the ERA was written. Laws bar discrimination against women in all walks of life, and women are CEOs, Senators and the Speaker of the House. There are also legitimate concerns that the ERA would become another avenue for judges to impose a progressive agenda on abortion or transgender rights.

Justice Ginsburg is right to counsel prudence and process. If the champions of the ERA truly believe the Constitution needs revising, stop with the gimmicks and do it the right way.

Crafty_Dog

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The Whitehouse Effect at the SCOTUS
« Reply #1512 on: May 04, 2020, 02:24:45 PM »
The Whitehouse Effect at the Supreme Court
Democrats think they’ve found a way to move John Roberts to the left.
By The Editorial Board WSJ
April 29, 2020 6:56 pm ET

Our editorial Tuesday on the Supreme Court’s gun-rights ruling has inspired a letter nearby from four Senate Democrats led by Sheldon Whitehouse of Rhode Island. We recommend it to readers as it amounts to a victory lap and perhaps a sign of what it is come on the High Court.

Some readers may recall the Supreme Court phenomenon known as the Greenhouse Effect. That was how Judge Laurence Silberman of the D.C. Circuit Court of Appeals described in 1992 the impact on the High Court of former New York Times legal reporter Linda Greenhouse.

The Supreme Court is Still Gun-Shy


She applied a carrot-and-stick approach to the Justices in her coverage of Court decisions depending on whether they pleased or offended her political preferences. Justices are human and want to be admired, and over time the Greenhouse Effect influenced John Paul Stevens, Sandra Day O’Connor and Anthony Kennedy to move left.

Well, now it looks like we have a Whitehouse Effect in which Chief Justice John Roberts can be moved by political threats to judicial independence. The Chief joined the four liberal Justices in remanding as moot a case challenging a New York City regulation barring people with a legal gun permit from carrying those guns outside the city to a shooting range or second home (New York State Rifle & Pistol Assn. v. City of New York).

Justice Samuel Alito clearly believes in the Whitehouse Effect, as he makes specific reference in his dissent to the amicus brief filed by Mr. Whitehouse and other Democrats that threatened the High Court with restructuring if it didn’t toe their line on the New York gun case. He was joined by Justices Clarence Thomas and Neil Gorsuch.

Justice Alito’s dissent shredded the short, unsigned majority opinion on the mootness point. New York changed its rule but not enough to eliminate all of the burdens it put on the plaintiffs in violation of the Second Amendment. Yet the Court majority didn’t even attempt to rebut the dissent’s arguments.

Note, too, how the Whitehouse letter to us treats all of this as entirely political, as if there is no matter of law at stake. Because the National Rifle Association supports the New York plaintiffs, he suggests their case is illegitimate. Does he think plaintiffs backed by Planned Parenthood should be disqualified on abortion cases?

Lower-court judges are flagrantly disregarding the High Court’s Heller precedent as they uphold new gun laws, yet the Court has stood idly by for a decade. No wonder Mr. Whitehouse and his mates are chortling. They think they can turn the Chief Justice their way whenever they whip up the Whitehouse Effect.


Crafty_Dog

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WSJ on Faithless Electors
« Reply #1514 on: May 13, 2020, 11:07:23 AM »


‘Faithless Electors’ at the Supreme Court
A constitutional case could destabilize presidential elections.
By The Editorial Board
May 12, 2020 7:26 pm ET

In December 2016, Hillary Clinton’s campaign called for members of the Electoral College to be briefed on Russia-related intelligence before voting to ratify Donald Trump’s November election victory. This was unprecedented and amounted to an effort to nullify the judgment of 137 million voters.

Yet such gambits could become more common depending on the outcome of two cases before the Supreme Court Wednesday. In Colorado Department of State v. Baca and Chiafalo v. Washington, ex-Electoral College members want the Justices to declare that they can’t be bound by their states’ voters. They say all 538 presidential electors can instead vote their conscience like Senators or members of a jury.

The Supreme Court is right to settle this ahead of what looks to be a fiercely contested 2020 election. While the Founding-era ideal of an Electoral College of philosopher-kings may be appealing in the abstract, the Constitution leaves responsibility for selecting and regulating electors to the states. Those that want to enforce electors’ pledges should be allowed to do so.

Voters expect a state’s electors to vote for whichever presidential candidate wins the state. That’s the basis of the ubiquitous red-blue Electoral College map showing a path to a 270-vote majority. “Faithless electors” have historically been rare.

Thirty-two states require that an elector vote for the candidate he or she has pledged to. Among those states are Colorado and Washington, where Hillary Clinton won in 2016. When a Colorado elector sought to cast a ballot for a different candidate in 2016, the Secretary of State removed him. When electors did the same in Washington state, they faced a $1,000 fine. The Washington Supreme Court upheld the fine, while the Tenth Circuit Court of Appeals held that Colorado couldn’t constitutionally enforce electors’ pledges.

The electors—represented, ironically, by anti-Electoral College crusader Lawrence Lessig—argue that the Founders intended the Electoral College to be independent or they wouldn’t have created it. They point to Alexander Hamilton’s ruminations in the Federalist Papers about the electors serving as an intermediary between the masses and the Presidency.

Yet the states note that Hamilton’s views weren’t shared by all the Founders. If there had been a consensus around Electoral College independence, it would have been protected in the Constitution. The framers of the original Electoral College also did not envision parties. The 12th Amendment in 1804 rewrote the Electoral College rules to prevent a President and Vice President of opposite parties.

Most important, the Constitution gives states broad control over their Electoral College process. States appoint electors “in such Manner as the Legislature thereof may direct,” implying they can attach conditions to serving. They can bind electors—or not—and decide what if any penalty to impose for breaking a pledge. In the absence of a constitutional restriction on states’ authority, federalism ought to carry the day.

The Republican National Committee in its amicus brief argues the real mission of this lawsuit is “to sow chaos in the Electoral College.” More chaos is coming as Democratic state legislatures seek to nullify it through the National Popular Vote Interstate Compact, which could also one day end up at the Supreme Court. Meantime, the Justices should not swoop in to create more opportunities for 2016-style shenanigans after votes are cast this fall

DougMacG

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Constitutional Law, legislating from the bench
« Reply #1515 on: June 19, 2020, 06:32:44 AM »
SEN. TOM COTTON: “If the Chief Justice believes his political judgment is so exquisite, I invite him to resign, travel to Iowa, and get elected. I suspect voters will find his strange views no more compelling than do the principled justices on the Court.”
https://althouse.blogspot.com/2020/06/if-chief-justice-believes-his-political.html

I will start reading these decisions and dissents, but it is hard to believe that a pretend law made by "Executive Order" cannot be repealed executive order of the successor.  He didn't give a good reason for his action?  Are you kidding?  The original order was a breaking of existing law.  The reasoning of the repeal was laid out in a 17 month campaign for the Presidency and approved by 63 million Americans and 306 electors in the Electoral College.  If you don't believe the President, listen to his opponents who warned DACA recipients this repeal would happen if Trump was elected. 

If you disagree, fine, vote for someone else, but don't tell us its unconstitutional to insist on enforcement of the passed and signed laws of the land.
---------------------------
More: https://nypost.com/2020/06/18/supreme-court-becomes-supreme-power-overruling-president-and-congress/
« Last Edit: June 19, 2020, 06:44:32 AM by DougMacG »

ccp

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Re: Issues in the American Creed (Constitutional Law and related matters)
« Reply #1516 on: June 19, 2020, 06:51:59 AM »
au jus teece is. clearly twisting logic on its head on decisions he seems not to want to really rule on .

maybe someone has a naked picture of him
ready to go viral if he rules the "wrong way"

or he might loss a club membership .........

Crafty_Dog

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Crafty_Dog

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Will: To Construe the Constitution, Look to the Declaration
« Reply #1521 on: July 05, 2020, 09:21:33 AM »
Politics & Policy
To Construe the Constitution, Look to the Declaration
By George Will

July 4, 2019 6:30 AM

Detail of Declaration of Independence by John Trumbull, 1819 (US Capitol)
Frames are important and silver is precious, but what is framed is more important and gold is more precious.

Washington — On this 243rd anniversary of the beginning of the best thing that ever happened — “The Great Republic” was Winston Churchill’s tribute — many of today’s most interesting arguments about America’s nature and meaning are among conservatives. One concerns the relevance of the Declaration of Independence to the contested question of how to construe the Constitution.

The crucial question is: What did the Founders intend — what was their foundational purpose? Mark Pulliam, who might disagree that this is the crucial question, certainly thinks the Declaration is not pertinent to construing the Constitution.

Pulliam, a lawyer and contributing editor of the excellent Law & Liberty blog, notes portentously that the Declaration is not mentioned in the Constitution. This, however, is as obvious as it is obviously irrelevant. Neither is democracy “mentioned,” and the Declaration is hardly mentioned in The Federalist Papers. However, the Declaration expressed, as Jefferson insisted, the broadly shared “common sense of the subject.” Rather than belabor the Declaration’s (to them, unremarkable) assertions, the Constitution’s Framers set about creating institutional architecture that would achieve their intention: to establish governance that accords with the common sense of their time, which was that government is properly instituted to “secure” the preexisting natural rights referenced in the Declaration.

Also obvious and irrelevant is Pulliam’s observation that Jefferson, the Declaration’s primary author, was not at the Constitutional Convention (he was a U.S. diplomat in Paris). What is obvious — and, concerning the Constitution’s original meaning and continuing purpose, dispositive — is this: The Declaration’s role is the locus classicus concerning the Framers’ intention, which is surely the master key to properly construing what they wrought.

The late Judith Shklar (1928-1992), a Harvard political philosopher, correctly noted the “momentous novelty” of the Constitution’s first three words, “We the people.” They announced a “declaration of independence from the entire European past,” a root-and-branch rejection of all prior attempts to ground the legitimacy of government in anything other than the consent of the governed. The Constitution was, however, written by men of the Enlightenment who were not confident that the rationality they practiced and espoused could be counted on to constantly characterize the republic for which they wrote.

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The Declaration did not mention majority rule, which the Founders embraced because they considered it, when public opinion is properly refined and filtered, the best — although hardly a certain — mechanism for protecting the natural rights affirmed in the Declaration. Those rights, not a procedure (majority rule), was their foundational concern. The equilibrium of Madison’s constitutional architecture is currently in disarray, with congressional anemia enabling presidential imperiousness. Nevertheless, the architecture was designed to “secure” — the crucial verb in the Declaration’s second paragraph — the natural rights the Declaration affirms.

The Reverend Martin Luther King Jr.’s genius — he was, in a sense, the final Founder — was in understanding what the University of Pennsylvania’s Rogers M. Smith terms the “Declaration of Independence-centered view of American governance and peoplehood.” Over the years, this stance of “Declarationists” explicitly opposed Jacksonian democracy’s majoritarian celebration of a plebiscitary presidency, and the 1854 Kansas-Nebraska Act’s premise that majorities (“popular sovereignty”) could and should — wrong on both counts — settle the question of whether slavery should expand into the territories.

The learned and recondite disputes currently embroiling many conservatives, disputes about various doctrines of interpretive constitutional “originalism,” are often illuminating and sometimes conclusive in constitutional controversies. But all such reasoning occurs in an unchanging context. Timothy Sandefur, author of The Conscience of the Constitution, rightly sees the Declaration as the conscience because it affirms “the classical liberal project of the Enlightenment and the pervasiveness of such concepts as natural rights.”

Furthermore, Sandefur says, this explains the Constitution’s use of the word “liberty,” which “does not refer to some definitive list of rights, but refers to an indefinite range of freely chosen action.” Which means that the Constitution should be construed in the bright light cast by the Declaration’s statement of the Founding generation’s general intention to privilege liberty.
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Pulliam dismisses as “inapt Biblical imagery” Lincoln’s elegant formulation that the Constitution is the frame of silver for the apple of gold, which is the Declaration. Lincoln’s mission was to reconnect the nation with its Founding. The frame, Lincoln said, is to “adorn” and “preserve” the apple. Frames are important and silver is precious, but what is framed is more important and gold is more precious. So, tonight, by the light of some sparklers, read the Declaration, which illuminates what came next, the Constitution, and a nation worth celebrating.