Representative Self-Government and the Declaration of Independence

May 31st, 2011

A new paper from Alexander Tsesis, titled Representative Self-Government and the Declaration of Independence, that argues that the Declaration has legal significance. Here is the abstract:

Legal scholars typically treat the Declaration of Independence as a purely historical document, but as this Article explains, the Declaration is relevant to legislative and judicial decisionmaking. After describing why this founding document contains legal significance, I examine two contemporary legal issues through the lens of the Declaration’s prescriptions.

Section 5 of the Fourteenth Amendment grants Congress the power to make laws that enforce the civil rights clauses in the amendment’s first four sections. In City of Boerne v. Flores and its progenies, however, the Supreme Court decided that it alone can identify fundamental rights and relegated Congress’s power under Section 5 to the enforcement of judicial rulings. The Boerne line of precedents forecloses ordinary citizens from petitioning legislators to pass innovative laws that prohibit states from violating civil rights. This article is the first to argue that although the Declaration of Independence lacks any enforcement mechanism; its clauses about popular sovereignty establish the people’s authority to engage in representative politics to identify core human rights.

The article also demonstrates the Declaration’s relevance to the issue of campaign finance reform. I use the document’s statement about the inalienable rights that are retained by the people, one of which is the freedom of political expression, to analyze the Court’s equating of corporations and natural people for First Amendment purposes in Citizens United v. Federal Election Commission. I also distinguish the speech of commercial corporations from that of nonprofit associations that are organized specifically for engaging in self-government.

From the article:

To date, commentators have entirely overlooked the relevance of theDeclaration of Independence’s consent doctrine to the Boerne line of cases.Articles on the Court’s notion of judicial review have not reflected on whatthe Declaration’s statements about popular governance indicates about thenature of judicial review. Indeed, scholars who have analyzed that foundingdocument have typically discussed its history without realizing itscontemporary significance. This article demonstrates the document’s relevanceto constitutional evaluations of civil rights statutes passed through Section 5and of campaign finance laws.

I argue in this article that although the Declaration of Independencecontains no explicit enforcement provision, it places substantive obligationson government. On my account, the Declaration of Independence requires allthree branches of federal power to protect inalienable rights on an equal basis.The Court’s recent augmentation of judicial power places unwarrantedly rigorous standards on Congress’s ability to respond to constituents’ lobbying efforts to safeguard their essential interests. I claim that the Declaration placesprimary authority to interpret the Constitution in the hands of the people, who can expand rights by petitioning Congress.

I made a similar point about the legal force of the Declaration in Original Citizenship, published this year in PENNumbra.

While Americans are fond of celebrating the birthday of the UnitedStates every year on July 4th, this date, as well as the Declaration, has no constitutional significance. Fireworks and barbecue aside, for legal purposes the practical starting date of the U.S. is 1789, when President Washington was inaugurated and the first Congress met.8 Our courts do not take cognizance of the Declaration. Yet to a member of the first Congress or a federal judge in 1789, the United States was not an infant, but was an old, familiar friend, and by 1789, such congressmen and judges had no doubt considered themselves to be U.S. citizens for quite some time. The Constitution merely represented a new form of government for a preexisting country. Article VII concludes that the Constitution was submitted to the states in the year “of the Independence of the United States of America the Twelfth.” The Constitution includes a direct textual and historical link to the Declaration and the year 1776.

Looks like an interesting read.