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.

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Freedom and the Natural Law: A Conversation with John Lawrence Hill

natural lawIs the natural law necessary for any enduring consideration of freedom and responsibility? Answering in the affirmative is John Lawrence Hill who joins us in this edition of Liberty Law Talk to discuss his latest book, After the Natural Law.

A Direct Glance at America

CHARLESTON, WV - MAY 5: Coal miners and their families pray before Republican presidential candidate Donald Trump addresses his supporters in Charleston, WV. (Photo by Ricky Carioti/The Washington Post via Getty Images)

In his neglected mid-century essay “The Direct Glance” Whittaker Chambers sought to understand the smugness of the West and America regarding Soviet Communism. The struggle against it was marked, Chambers thought, by a “boundless complacency” rooted in the West’s belief in its material superiority. And this failure of understanding left the West, Chambers argued, listless and without appeal.

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“My Country, ’tis of Thee”


About the middle of the morning on Monday, the sixth of May 1776, 45 men assembled at the Capitol in Williamsburg, Virginia. They were members of the House of Burgesses, elected back in the summer of 1774. Having entered the chamber of the House, they sat, silent. Elsewhere in the Capitol there were no signs of the royal governor or his council. Soon the Burgesses got up and went back outside. There they met others who, joining them, reentered the chamber, this time as delegates to the fifth and final Virginia revolutionary convention; this time carrying instructions from the people in their home counties calling on them to instruct Virginia’s delegates in the Continental Congress to declare American independence and to draft a constitution for Virginia.

While such a launching, this little-remembered ritual, may not seem so much to many in the thrall of the apotheosis of the 1787 Constitution, it remains a bright metaphor to illustrate the seamlessness of the transition from colony to country in America generally and in Virginia. This vivid drama of a departure joined with that of a prospect shows how far these Virginians had come since April 1774, even as it puts in relief just how significant the next two months, May and June of 1776, would be, culminating as they did with Virginia declaring its independence, establishing a bill of rights, and, two weeks later, completing a written constitution.

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The Declaration: A Conversation with Barry Shain

declThis conversation with Professor Barry Shain, editor of Liberty Fund's new volume, The Declaration of Independence in Historical Context, explores the vigorous debates between the colonists and the British Empire that shaped our country's charter document of independence.

The Declaration’s Principles of Politics

Last year I penned an analysis and something of a paean to the Declaration of Independence.  Perhaps a follow-up is in order.  Who knows, perhaps it could become a fourth of July tradition?  Certainly there is a good deal more in the famous text than one entry could survey.  In fact, the general purpose of this one is to provide material for reflection.  That would be a thoughtful way of being patriotic on this day of commemoration and celebration.

The Declaration applies various sorts of principles – theological; anthropological; and political – to a set of “Facts” – chiefly “injuries and usurpations” on the part of the British monarch (and, belatedly, Parliament).  It judges the facts as evincing a design of tyranny, and concludes, as it began, with the necessity and duty of revolution and independence, understood as self-government by and for free men and women.

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Confederate Flag-Waving at the Supreme Court

“I understand you are preparing to celebrate the ‘Fourth,’ tomorrow week. What for?” Abraham Lincoln‘s words to the people of Springfield in 1857, reacting to the newly announced Dred Scott decision

The ferocity of the dissents in the final days of the Supreme Court’s term obscured the most profound of the dissents, that of Justice Clarence Thomas in the same-sex marriage case, Obergefell v. Hodges. In fact the Thomas opinion gives the most radical recent account of how American government has deteriorated.

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The Measure of Remembrance: The Declaration of Independence and the American Future


Editor’s note: This Fourth of July oration was first delivered by G. M. Curtis III on July 1, 1989 in Lone Mountain, Montana, for a conference on American citizenship.

As an American historian and as an American citizen who looks forward to the 21st. century, I place great stock in John Adams’s early 19th. century exhortation to future generations that they remember and celebrate the signing of the Declaration of Independence.  Technically speaking, I suppose that we are jumping the gun by about one day, since the Continental Congress first agreed to the Declaration on the 2nd. of July 1776.  Actually, the past five days in one way or another has represented a remembrance and a reconsideration of many of those values and beliefs that John Adams cherished enough to tender the ultimate sacrifice: his life and property.  It is altogether fitting and proper, then, as my historical footnote for these discussions and as a remembrance of the Declaration of Independence, to return to the first principles therein contained, principles that not only retain their merit today, but more importantly, offer us hope for the years to come.

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Equal Rights for All


Who would argue with the Declaration of Independence’s claim that “all men are created equal”?

But one immediately runs into trouble. What about the Declaration limiting it to “men”? Are women equal? They did not have the right to vote at the beginning. Yet, Thomas Jefferson and the other Founders certainly believed women were morally equal and were covered under the generic term “men,” for mankind. Was that enough?

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The Patriots Didn’t Stop Lynch


For reasons known only to their coaches, the Seahawks decided against going “beast-mode” at the end of last night’s Super Bowl. Instead of running the unstoppable Marshawn Lynch, they flubbed a quick in-route and lost the game in the last seconds. So the Patriots weren’t faced with the challenge of stopping Lynch when it mattered. And that raises to mind a missed opportunity for another Lynch, Loretta Lynch, Obama’s nominee to be Attorney General and chief law enforcement officer of the land. This Lynch, however, has been given the ball. In what some thought might be a Judiciary Committee Superbowl on her nomination, instead turned out to be a fizzle for the constitutionalists. Lynch proved she can shed tackles also (although they were arm-tackles), while making the Republicans sound more like the press-defiant, laconic Marshawn Lynch.

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