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It warms my heart to see quotes from the Declaration of Independence all over Facebook, Twitter, and the Interwebs today. Yet, on September 17, Constitution Day, I see no such profusion of adoration for our Great Charter of Liberty, the Constitution. Why is this?

Everyone seems to be able to easily latch onto the broad vision of the Declaration, and the messages of freedom and separation from Great Britain. Americans shoot fireworks, host bbqs, and sing patriotic songs.

Yet on September 17, what happens? Not much. In fact, the Federal Government had to make it an official holiday in 2004 when Senator Robert Byrd added a rider to an omnibus spending bill. All Federal Agencies and schools that receive federal funds must celebrate and dedicate time to discussing the Constitution.

Although I buck conventional wisdom and argue that the Declaration does have the force of law, in some contexts, the Constitution is unquestionably our fundamental charter of liberty. Every federal employee takes an oath to uphold and defend the Constitution. Every Judge in every Court–both state and federal–must treat the Constitution as the Supreme Law of the land.

Why does the Declaration, which has no meaningful legal significance, get so much love, yet the Constitution gets the shaft?

I think it has to do with the simplicity of the Declaration. It promotes a broad vision of equality and freedom people of all ideological stripes can latch onto. The story of the Colonists fighting for Independence from the British is amazing. And you can pull random quotes from the Declaration, and interpret them to mean whatever you want them to mean. That, I think is why the Declaration has such a popular and enduring legacy.

The Constitution, on the other hand, with talk of regulating commerce and placing limitations on excise taxes, is quite mundane. The First Amendment gets some love. People like the Fourteenth Amendment. On the Fourth, people appreciate, but probably don’t explicitly think about the 21st amendment. With the exception of the lofty preamble–which the Courts have said has no significance–the Constitution is just an enumeration of law after law. For a constitutional nerd like myself, I love reading the Constitution. But for most people, it is just boring.

I commend everyone to celebrate Constitution Day proudly. Every year on September 17, the Cato Institute has a lovely celebration dedicated to Constitution Day. I have gone for the last 3  years now, and I hope to be there again on Constitution Day. This year, I will be publishing an article on McDonald v. Chicago, along with Alan Gura and Ilya Shapiro, in the Cato Supreme Court Review which is published annually on 9/17!

Happy Independence Day! Happy Constitution Day!

Every year on the Fourth of July, I read the Declaration of Independence to anyone who will listen. This year, I brought this tradition to the fireworks show at the Johnstown Galleria Mall. H/T To AL, my director extraordinaire.

While the Declaration of Independence turns 234 this July 4th, its monumental significance is more important than ever. Nonetheless, the Supreme Court has held for quite some time that the Declaration of Independence has no force of law in our Republic. Or does it?

In Cotting v. Godard, 183 U.S. 79 (1901), the Court stated:

The first official action of this nation declared the foundation of government in these words: “We hold these truths to be self evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness. “While such declaration of principles may not have the force of organic law, or be made the basis of judicial decision as to the limits of right and duty, and while in all cases reference must be had to the organic law of the nation for such limits, yet the latter is but the body and the letter of which the former is the thought and the spirit, and it is always safe to read the letter of the Constitution in the spirit of the Declaration of Independence. No duty rests more imperatively upon the courts than the enforcement of those constitutional provisions intended to secure that equality of rights which is the foundation of free government.”

Elena Kagan said as much during this exchange with Senator Coburn:

COBURN: So — so you wouldn’t embrace what the Declaration of Independence says, that we have certain God-given, inalienable rights that aren’t given in the Constitution, that they’re ours, ours alone, and that the government doesn’t give those to us?

KAGAN: Senator Coburn, I believe that the Constitution is an extraordinary document, and I’m not saying I do not believe that there are rights pre-existing the Constitution and the laws, but my job as a justice is to enforce the Constitution and the laws.

COBURN: Well, I understand that. Well, I’m not talking about as a justice. I’m talking about Elena Kagan. What do you believe? Are there inalienable rights for us? Do you believe that?

KAGAN: Senator Coburn, I — I think that the question of what I believe as to what people’s rights are outside the Constitution and the laws, that you should not want me to act in any way on the basis of such a belief, if I had one or…

COBURN: I — I would want you to always act on the basis of a belief of what our Declaration of Independence says.

KAGAN: I — I think you should want me to act on the basis of law, and — and that is what I have upheld to do, if I’m fortunate enough to be concerned — to be confirmed, is to act on the basis of law, which is the Constitutions and the statutes of the United States.

According to Kagan, our law is merely the Constitution and the statutes of the United States, and does not include the Declaration, or any principles of natural rights or higher law.

Does July 4, 1776 and the Declaration of Independence have the force of law? With respect to notions of “citizenship,” I think the answer is yes.

The word “citizen” is used in our original Constitution in 3 different locations (I am intentionally omitting the 3/5 clause. I will get to this in due time after some more research).

Lots more after the jump.

(more…)

This story is just too cool to process:

“Subjects.”

That’s what Thomas Jefferson first wrote in an early draft of the Declaration of Independence to describe the people of the 13 colonies.

But in a moment when history took a sharp turn, Jefferson sought quite methodically to expunge the word, to wipe it out of existence and write over it. Many words were crossed out and replaced in the draft, but only one was obliterated.

Over the smudge, Jefferson then wrote the word “citizens.”

No longer subjects to the crown, the colonists became something different: a people whose allegiance was to one another, not to a faraway monarch.

Scholars of the revolution have long speculated about the “citizens” smear — wondering whether the erased word was “patriots” or “residents” — but now the Library of Congress has determined that the change was far more dramatic.

So, does this drafting history mean anything? Should we even look at legislative history? Would Justice Scalia denounce it as irrelevant indicia of legislative intent? I don’t know. But this is pretty cool.

I was interviewed by Amanda Carey for an article in the Daily Caller about the constitutionality of Chicago’s new gun control laws following McDonald v. Chicago. Here’s what I had to say:

The new ordinance is already expected to undergo a slew of legal challenges. But city officials do not seem worried. In his press conference, Daley said the new ordinance does indeed respect the 2nd Amendment and the rights of the people under the Constitution.

Others say not so fast. Josh Blackman, a constitutional and legal scholar who has published several articles on the McDonald case told The Daily Caller that while the ordinances are actually “pretty moderate,” a few of the provisions are questionable. When it comes to being able to carry a firearm beyond the home, Blackman says any challenge to that likely won’t hold up in court.

Similarly, the restriction of one firearm a month, according to Blackman, is fairly common. The fees, however, are another thing. “The fees for this can get to be quite high,” said Blackman. “Then it’s more like a tax, which becomes a tax on a constitutional right. That’s egregious.” Blackman also called the ban on gun shops extreme. “A flat-out ban is constitutionally suspect,” he said.

But what happened in Chicago with this new ordinance is similar to what happened in Washington, DC after the Heller decision in 2008, explained Blackman. “They [city officials] read the opinion and figure out ‘how much can we do without crossing the line?’. We’ll have to see how it works in practice, but without a doubt, a number of challenges will be filed,” Blackman said.

And we shall see what happens with these laws.

Update: Eugene Volokh has a great post about the constitutionality of fees, and whether they amount to an unconstitutional tax on a constitutional right.