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The Distinction Between Constitutional Law and Constitutive Traditions

Last week, I had the pleasure of participating in the Tradition Project run by Mark Movsesian and Marc DeGirolami of St. John’s Law School. The subject of this year’s conference was tradition in law and politics. One of the high points for me was the opportunity to read Harry Jaffa. He turned out to be a very interesting thinker. But I found that his famous claim that the Declaration of Independence has a constitutional status weakly defended. In particular, he fails to distinguish between positive constitutional law and constitutive traditions—a distinction that I think central to political life in a constitutional republic.

The Declaration of Independence is not positive law. It is instead a declaration of the reasons that the colonies were breaking with Great Britain. Courts do not enforce it as law. While other officials reference the Declaration on occasion, they do not generally do so in a way that suggests that it represents a binding legal obligation. It would be hard to make it so, because while the Declaration announces general truths of politics, it does not impose specific legal norms. And, unlike the Constitution, it was not ratified by the people and is not the product of a process that Mike Rappaport and I have described elsewhere as conducive to good constitutions.

While it does not create positive law, the Declaration of Independence is an important source—the most importance source— of our constitutive traditions. As such politicians and citizens regularly invoke it in debates about fundamental political decisions, including those to change the Constitution. Thus, for instance, it was wholly appropriate to invoke the Declaration when deciding whether to require territories admitted as states to forbid slavery or whether to pass a constitutional amendment requiring states to provide equal rights to a certain class of citizens. Of course other considerations, including prudential ones, also may be relevant to such decisions. Moreover, the specific contours of the rather vague principle of equality referenced in the Declaration are the subject of legitimate political debate. Mike Rappaport and I have argued that constitutional rights are generally not vague.

Sadly, the failure to distinguish between positive constitutional law and constitutive traditions is a problem common to the Left and some precincts of the libertarian Right. Limiting the judicial enforcement of positive law to the specific provisions of the Constitution empowers a constitutional politics driven in no small measure by our constitutive traditions. Citizens can use our constitutive traditions to remake our constitutions, both state and federal. They can also deploy those traditions to create new statutory provisions that, while not formally entrenched, are unlikely to ever be repealed. We must never forget that it is constitutive traditions that can guide the development of the Constitution.

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on October 26, 2016 at 17:35:05 pm

I'm not sure Congress would have agreed that the Declaration of Independence is not positive law. Look at the Statutes at Large, published by Congress of all the law (including all statutes passed by congress), its now many statutes are referenced is by volume and page number of this series. The first page of which the Declaration of Independence, it is literally 1 Stat. 1. http://memory.loc.gov/cgi-bin/ampage?collId=llsl&fileName=001/llsl001.db&recNum=124

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Devin Watkins
on October 26, 2016 at 19:43:33 pm

how* (not now)

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Devin Watkins
on October 26, 2016 at 20:35:36 pm

Now THAT is interesting!

Although I must admit that I am partial to the view presented by McGinnis and shared by many others that the Declaration is not *positive Law.*

I suspect that McGinnis' assessment that "Sadly, the failure to distinguish between positive constitutional law and constitutive traditions is problem common to the left and some precincts of the libertarian right" is driven by a concern (not unwarranted, I might add) that the elasticity of the equality proclamation of the DOI can (and has) lead to the current elevation of individual rights to the detriment of civic obligations. As you know, I share this concern and it underlies my critique of both Progressive and Libertarian dialogues (such as it may be possible to characterize Progressive bullying as "dialogue").

NEVERTHELESS, I am more apt to consider the DOI as both a sacred American Creed" and the fundamental expression of ALL of our positive law. It is, or ought to have, not only a greater reverence, but also a greater import on our lawmaking. McGinnis may dismiss, to some extent, (and a short essay such as the above may prove less than faithful to the essayists beliefs) the importance of the "long train of abuses" outlined in the DOI as simply "the reasons the Colonies were breaking with Britain." While this is certainly accurate, I submit that it is not the whole *truth* of the matter as it elides a deeper understanding of the task that the Founders undertood themselves to have embarked upon, i.e., nothing short of a new (yes, it was predicated / grounded in "the rights of Englishmen") system of governance, that would be embarked upon with a written and clear (at least in those days prior to a surfeit of clever lawyers) delineation of those powers which the governing structure would have AND NO MORE.

Yet, Mc Ginnis is also quite correct, even if reducing his otherwise proper characterization of the DOI to a simple tradition. The DOI is indeed part of our tradition, the descendant of English tradition, albeit somewhat more robust; yet, tradition is not as frequently, nor as properly, invoked to inform *positive* law as is the spirit and enterprise of the DOI. And this is as it should be. Ought not one pay due respect to the fundamental statement of a polity? Ought not one defer to it in somewhat more rigorous fashion than tradition. Shall we overturn / transform it at common law? I think not.

The danger, of course, is to permit the spirit of the DOI to be corrupted by one's personal or ideological ambitions. Is it susceptible to this? Clearly, yes! May it's words and spirit be twisted by enterprising, clever and ambitious carnival barkers proclaiming *liberty* for all, and all types? Again, the answer is Yes - look to the headlines!

Yet, still as the "self-righteous" of right and left promenade along the boardwalk of (newly created / divined) individual rights, with legions in tow, it is important to remember that the the *timbers* upon which they so proudly promenade is still standing strong, weathering the tides and corrosive effects of the *salty* (pun intended) air and supporting the "positive" structure (laws) and planks upon which these new *elect* now trod.

I'd say that is something of a bit more import than simple tradition.

Me, I'll take Madison and Jefferson, et al over then thousand Barnetts' Fauxcahontas, Clintons, Bushes, etc.
Tommy and the boys were indeed good craftsmen.

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gabe
on October 27, 2016 at 11:04:19 am

Another excellent post. John McGinnis is the rare academic who is brilliant AND grounded in common sense.

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Mark Pulliam
on October 27, 2016 at 12:49:38 pm

This is an very complicated question. One new bit of evidence I've been considering against the Jaffa side (which is the side I usually am on) is James Madison's Bill of Rights Proposal to Congress in 1789. One of the amendments Madison suggested (but was rejected) was a prefix to the Constitution, which I think is extremely similar to the Declaration. The question is, why did Madison think this needed to be added, if the Declaration was already part of our law? Here's Madison's proposed amendment:

http://teachingamericanhistory.org/library/document/speech-on-amendments-to-the-constitution/
"First. That there be prefixed to the constitution a declaration That all power is originally vested in, and consequently derived from the people.

That government is instituted, and ought to be exercised for the benefit of the people; which consists in the enjoyment of life and liberty, with the right of acquiring and using property, and generally of pursuing and obtaining happiness and safety.

That the people have an indubitable, unalienable, and indefeasible right to reform or change their government, whenever it be found adverse or inadequate to the purposes of its institution."

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CJ Wolfe
on October 27, 2016 at 15:07:24 pm

Thanks to all. Gabe's comment invited me to reread a favorite address, Calvin Coolidge, "Address at the Celebration of the 150th Anniversary of the Declaration of Independence," Philadelphia, Pa.
July 5, 1926 (http://www.presidency.ucsb.edu/ws/?pid=408). Coolidge fused history with habituation before he discussed what he believed was the bedrock of the Declaration, the distinctive American fusion of spiritual and legal and social and historical values and experience. He used the word "charter."

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G. M. Curtis III
on October 27, 2016 at 15:30:23 pm

The DoI of 1776 is an extension of the Declaration of Rights of 1774. The DoR laid out the principles--written and traditional--that formed the basis for our relationship government, the rights of englishmen among those. Parliament did not respect those rights and were given a reasonable amount of time to make corrections to specifically stated problems. They did not. Instead they exacerbated the problems. The colonies declared independence with a declaration stating those facts in a legal manner. But the DoR, not the DoI laid out the legal foundations. (The DoR did all the work. The DoI took all the credit.)

The written Constitution was written to preserve rights, not create them. The creation of rights was outside the scope of the Constitution. Those rights are still a part of our government with respect to legality.

A classic example is the right to the presumption of innocence. The Constitution does not create the presumption of innocence. It only establishes a government to protect and support that right. But it is a legal right enjoyed by Americans. It is part of the unwritten constitution (lower case 'c'). It is a traditional right that we require of government whether it is explicated in writ or not.

Certain rights found in our constitution have legal power even if they are not found in our Constitution. The Constitution has four corners, but the corners do not define the whole of the constitution. I think I'm more the libertarian referred to. So this is probably a more libertarian perspective.

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Scott Amorian
on October 27, 2016 at 16:07:58 pm

GM:

Thx for reminding me of Collidge's address - I, too, am smitten by it. The "quiet man" had quite a bit, indeed, to say.

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gabe
on October 28, 2016 at 09:31:32 am

I find it hard to believe that the Declaration of Independence, intentionally mendacious in its substance and tending to anarchy in principle, could be accepted by any conservative as constituting either constitutional law or constitutive tradition. One might as well assert a similar status for political assassination.

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Monte Bohna
on October 28, 2016 at 10:49:52 am

Can you explain in what way the Declaration of Independence was intentionally lying? Or how it is tending to anarchy in principle?

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Devin Watkins
on October 28, 2016 at 11:58:50 am

Monte Bohna, apparently the Founders spurned assassination, whew, a close call.

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john trainor
on October 28, 2016 at 12:25:15 pm

"One might as well assert a similar status for political assassination."

Well, ACTUALLY, the Leftists of the French Revolution tried it - that seemed to work out so well, didn't it?

"Off with their heads"

Funny - not much of that went on around Philadelphia -!

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gabe
on October 28, 2016 at 21:58:51 pm

You share in the usual sanitized view of the American revolution, which isn't very surprising, because violence directed at Loyalists is usually either ignored or passed over lightly. If you doubt that mob violence for political ends was a feature of the Philadelphia scene, I suggest you look into the Fort Wilson Riot. If you doubt that the revolutionaries committed murder against their political opponents, I'd recommend to you a closer study of the course of the revolution in North Carolina where. for years after the battle of Moore's Creek Bridge, the treatment meted out to Loyalists was in no way less savage than that inflicted in the Vendee twenty years later.

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Monte Bohna
on October 28, 2016 at 22:53:54 pm

To answer your first question requires some historical perspective. Emotional allegiance to the monarchy was probably much stronger in the American colonies than in Britain itself in the 1770s. Jefferson and Adams, whose ideological commitment to republicanism was far more advanced than most of their colleagues in the second continental congress, understood that the only way to radicalize the confrontation between the American Whigs and Parliament, and therefore forcing the conflict to a resolution no matter how violent, was by moving it beyond a mere political dispute into symbolic regicide. The declaration was designed to break those bonds between the mass of ordinary Americans and the Crown, and the decision to frame the declaration as an indictment of the king was a calculated and intentional act of propaganda, compounded of mistruths, half-truths, and a great deal of elision around the actual political role of the king in the Anglo-American political system in the era of George III.

Virtually all the charges which the declaration laid against the king were either entirely without a legal or constitutional basis, or rested on Jefferson's and Adams' own misunderstanding of the king's actual constitutional role, or in many cases depended on the ignorance of ordinary Americans about the workings of that constitution - a constitution which had, after all, changed profoundly but gradually and subtly since the 1640s, and in ways that most Americans, even those reasonably well-informed, had little direct knowledge of.

But the declaration's indictment of the king was never intended by Jefferson and Adams (Franklin's view is more debatable) as a legal argument. Like any instrument of radical propaganda, it was intended to achieve a psychological effect, which made its legal mendacity beside the point in political terms. And that effect -was achieved splendidly: see e.g. Brendan McConville, The King's Three Faces, 307-8 and Eric Nelson, The Royalist Revolution, 64-5.

To your second question, I can only say that I would have thought the answer obvious enough from a conservative perspective. A fundamental principle - arguably, the fundamental principle - of the Anglo-American tradition of conservative thought is the value of tradition, especially constitutional tradition, embodying as it does the living legacy and wisdom of generations. The violent breakdown of constitutional order can almost never be contained, as indeed the course of the American constitutional crises of the early 1770s and 1860s sufficiently demonstrates. The American revolutions has been masked for most Americans behind a mythology of "order restored", but without an actual restoration that revolutionary tradition has bred anarchic violence, in the unrestrained and brutal communal violence of the late 1770s (I mention particular instances in a comment below) and the era of Reconstruction, 1865-80. Even in the late 1780s and 1790s, despite the apparent achievement of a "gentlemanly republic", there is evidence (to be found in the later chapters of Bailyn's ideology of the American Revolution) that the Founders themselves were aware that they had failed to contain the anarchic implications of their actions in 1775-6.

In short, revolution is an inherently anarchic activity, which by breaking the restraints which hold a people to their traditions, almost always unleashes more anarchy. Even critics of the American form of republicanism, such as Juan Linz, as recently as a generation ago tended to suppose that America, by some strange alchemy, had avoided that inevitability. Recent political events in America now tend to vindicate Linz' ideas more than he himself suspected when he wrote "Perils of Presidentialism".

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Monte Bohna
on October 29, 2016 at 11:25:29 am

Actually, I am aware of violence against Loyalists - but you go a bit too far with your hyperbolic charges.

Perhaps, we should compare numbers of Revolutionary America with, oh, let's just say, Soviet Russia or Mao's China or even Castro's Cuba for a proper perspective on the matter.

Also:

"by breaking the restraints which hold a people to their traditions,"

YEP, Ameriucan Revolution REALLY broke with the Colonists traditions - funny, how it was that they claimed they were fighting for the "rights of Englishmen" - NOW that IS breaking with tradition.

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gabe
on October 29, 2016 at 12:04:29 pm

By numbers, I assume you mean numbers of victims, and it's certainly true that the 20th c. revolutions you name had higher body-counts. It's not clear to me that quantity is more important than quality in such instances however: is the effect of political violence better counted or weighed? Why would a proper perspective only include examples forward in time from the 1770s? The English revolution of the 1640s claimed far fewer deaths by political violence than the American revolution, but the political-cultural effect of just one death (30 Jan 1649) was profound. A genuinely proper perspective would have to take into account cultural attitudes and expectations about political violence, and the type and nature of political violence in each cultural instance, wouldn't it?

And, of course, the entire point of the declaration was to move the argument beyond the ground of English rights. That rhetorical approach largely ceases among American whigs/patriots after July 1776, when the political dispute became a revolution. Which is the point.

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Monte Bohna
on October 29, 2016 at 13:02:19 pm

Monte:

In reply to DEvin you make some interesting points.
Yes, "long train of abuses" was not intended as a legal case against the Crown - but that is not to say, as you appear to do, that these abuses were fabricated. They were in fact quite real and felt deeply by the colonists.

Re: Loyalty to the Crown: There is something to be said for that claim. In some respects, the colonists were *as loyal* to the Crown, not more so, than their Metropolitan counterparts. This may be due, in part, to an earlier dialectic employed by a number of the Colonial "agitators" (if you will), that sought to demonstrate that Parliament was in violation of a sacred (and, yes, Legal) covenant with The Crown (see various Colonial Charters and "rights" granted thereunder). The initial effect of this was to engender in the Colonists a (contrived, perhaps) greater respect for the Crown and provided a means of refocusing Colonial efforts at reconciliation away from Parliament and towards the Crown.

The question: Did Jefferson, et al, decide that the only means to assure "separation" was via a form of "regicide." This is not clear, to my mind. A clever rhetorical instrument to be sure - but Jefferson, Adams, Madison, being highly practical and informed men of their times and politics, surely understood that the fault was to be placed at Parliament's door not the Crown's. Perhaps, it was simply another means of *encouraging* the Crown to assert its own Power in the face of Parliamentary negation of previously recognized (and legally binding?) powers of the Crown re: Colonial Charters, etc.

In any event, any call for separation would constitute a form of regicide, or at minimum "abandonment".

I would not be so quick as you to dismiss the "rights of Englishmen" claims and further assert that this represented a *break* with long standing tradition. On the contrary, many colonial writers / rhetoricians based their claims on specific legal guarantees in both English common Law and the English Constitution. Admittedly, that *unwritten* constitution had changed considerably in England - AND - some historians would argue that the colonists were defending the "Old" Constitution whereas the Metropolitans were defending the "New" Constitution with all of the prerogatives previously associated with the Crown now resident in Parliament.

To my mind, this would make it appear that it was THE Colonists who were defending tradition NOT THE Parliament.

take care

AND GO CUBBIES!!!!!!

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gabe
on October 31, 2016 at 11:53:17 am

Of Course the declaration of independence has legal significance.
It is far more than a list of offenses committed by King George,
it is the legal justification that separation for England is legitimate and not treason.

Its states principles - legal principles for determining whether government is legitimate or not.
When a government does not conform to those principles, it is not legitimate.
That is the LEGAL conclusion of the declaration of independence.

As such it is BINDING on our government - it is super constitutional.

The author finds some of the declarations assertions vague, they are not so much vague as broad.
The declaration establishes the legitimate role of government as securing liberty, and that any government that is destructive of that end is illegitimate.
That is no more vague than "Congress shall make no law" or "The right of the people .... shall not be infringed"

Whether the declaration or the constitution we grasp that there are rare and legitimate exceptions to the absolute assertions in each.
Securing our liberty - does not include the liberty to injure others. Nor are the rights enumerated or not in the constitution, absolute.

But in both instances they are near absolute.

Regardless, the declaration of independence is a LEGAL pleading claiming Breach of contract on the part of Britain. In doing so, it spells out the relevant portions of the contract that have been breached.
The constitution is a new legal framework for a federal government that purportedly conforms to the same contract that the Declaration asserts with respect to Britain.

Our constitution and federal govenrment are obligated to conform to that same contract.
The contract that the Declaration claims that Britian breached is as binding on subsequent government as it was on Britian.

I would also compare the Declaration to the Magna Carte - both serve the same purpose. Both endeavor to restore governance to its legitimate role. The fundimental difference is that the Magna Carte resulted in change to the existing govenrment, while the declaration desolved the right of the existing government to govern the united states.

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jbsay
on October 31, 2016 at 12:49:22 pm

I suppose it depends on how one uses or defines "legal."

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gabe
on November 05, 2016 at 22:27:35 pm

Biography of the signers to the Declaration of independence
by Sanderson, John, 1783-1844, ed; Waln, Robert, 1794-1825; Gilpin, Henry D. (Henry Dilworth), 1801-1860

Published 1820
Topics United States
Vol. 1
https://archive.org/details/bioofthesignersd01sandrich
.
https://archive.org/search.php?query=declaration+of+independence&and%5B%5D=creator%3A%22sanderson%2C+john%2C+1783-1844%2C+ed%22&and%5B%5D=creator%3A%22anderson%2C+john+j.+%28john+jacob%29%2C+1821-1906%22&sort=-publicdate

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SJ
on October 03, 2019 at 14:44:21 pm

I generally agree with Dr McGinnis’s assertions, with one exception- The Declaration is not just a declaration of the reasons colonists were severing ties with Great Britain. It is a statement of fundamental principles underlying those colonists’ beliefs about the relationship between the government and the governed. Why can “We the People” “ordain and establish this constitution”? Because “whenever any form of government becomes destructive” of the ends for which government is established , “it is the right of the people to alter or abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.” But what are the ends for which government is established? It’s right there in the preamble of the Declaration., and without the formal inclusion of these aimed-for ends in the understanding of how and why powers are allocated in the Constitution, those powers hang in mid air, without a logical link to any purpose. That is dangerous both to their diminution or expansion beyond the limits understood to be conducive to our happiness.

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David Nielsen

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