Volume 89, Number 3 (March, 2016)
Continuity and the Declaration of Independence
Article by Darrel A. H. Miller
This Article explores the use of the Declaration as a law-making ritual, an example of what Richard Primus calls a “continuity tender”: “[A]n inherited ritual formula that one repeats to affirm a connection to one’s predecessors,” but not necessarily “to endorse the content of that statement as one’s predecessors originally understood it.” This Article progresses in three parts: Part I explains why the Declaration is not law in a positive sense. Part II suggests that the Declaration is not law,...
Originalism's Subject Matter: Why the Declaration of Independence Is Not Part of the Constitution
Article by Lee J. Strang
Scholars across the ideological spectrum have argued for a unique role for the Declaration of Independence in constitutional interpretation. These scholars’ arguments fall into two general categories: (1) the Declaration is the “interpretive key” to the Constitution’s text’s meaning ; and (2) the Declaration is itself part of the Constitution. In this Article, I argue that, from an originalist perspective, the Declaration is not part of the Constitution. I first articulate the analysis that or...
Historical Versus Iconic Meaning: The Declaration, the Constitution, and the Interpreter's Dilemma
Article by Daniel Farber
The Declaration of Independence is one of the paradigm texts of American history. It was originally written for a time-specific purpose. But it also has spoken to a broader audience across time, as an icon representing American ideals. After describing how the Declaration has been given both historical and iconic meaning by judges, presidents, and public figures, this Article considers the relevance of these two forms of meaning to current debates over constitutional interpretation. Originalists...
Independence and Immigration
Article by Amanda Frost
Part I of this Article observes that, surprisingly, the Constitution provides little guidance on many of the basic issues in immigration law, such as which governmental institutions have the authority to create the rules regarding who may come to the United States, the limits on governmental power to exclude or remove noncitizens (if any), and the degree to which noncitizens within the United States are protected by the U.S. Constitution (if at all). Part I then describes how the Declaration of...
To Alter or Abolish
Article by Jack M. Balkin & Sanford Levinson
Perhaps the most famous sentence in the Declaration of Independence, for twenty-first century readers, is its statement of the “self-evident” truth that “all Men are created equal,” and that they are “endowed by their Creator with certain unalienable Rights,” which include “Life, Liberty, and the pursuit of Happiness.” Equally famous is the Declaration’s explanation that the very purpose of organized government is “to secure these [unalienable] Rights” through political forms that “deriv[e] the...
The Declaration of Independence as Bellwether
Article by Katie R. Eyer
As scholars have long observed, the Declaration of Independence serves as one of the principal points of popular engagement with constitutional meaning. In particular, the Declaration’s introductory passages regarding liberty and equality provide a key entry point for the general public in engaging with the purpose and meaning of those core constitutional values. As such, claims about the Declaration’s meaning—and appropriation of its terms—have long pervaded public debates over core areas of co...
The Ghost of the Declaration Present: The Legal Force of the Declaration of Independence Regarding Acts of Congress
Article by Frank I. Michelman
I distinguish three ways by which references to the Declaration of Independence might enter into American legal argument. In primary-legal mode, the Declaration ranks as supreme law beside or above the Constitution, setting mandates as the Constitution does for other purported exercises of legal authority, from Acts of Congress on down. In interpretive-contextual mode, the Declaration provides informative historical context for determinations of the meanings of the Constitution and other laws. I...
Can Henderson or Lawson Repair the Golden State's Less-Than-Golden Treatment of Eyewitness Identification Reform? A Call for Judicial Intervention in California
Note by Morgan Schwartz
Part I of this Note provides a brief background regarding the history of the Supreme Court’s treatment of eyewitness identification, the current standard of admissibility of eyewitness identification testimony at both the federal and state levels, and the status of scientific research into eyewitness identifications today. Part II describes the changes that two states, New Jersey and Oregon, have made to their judicial frameworks to reflect the current state of empirical research into the danger...
Mouse v. Mau5: Implications of the Morehouse Defense in International Trademark Disputes
Note by Zachary Lainer
What happens when an iconic cartoon mouse and an internationally renowned, electronic dance music disc jockey face off? While this may sound like the making of a fictitious scenario, this was actually the underlying context of the 2015 trademark dispute between Walt Disney Company (“Disney”) and Joel Zimmerman —stage name “deadmau5” (pronounced “dead mouse”)—in which Disney challenged the trademark registration of deadmau5’s logo. Though short-lived, and likely best remembered for its attentio...
The Declaration of Independence as Introduction to the Constitution
Article by Alexander Tsesis
Throughout the course of United States history, the Declaration of Independence has played an outsized role in constitutional development. For each generation of Americans, the document has reflected the historical reason for independence and the idyllic statement of representative government. On the one hand, it is not part of the formal Constitution, on the other, it informs constitutional interpretation. For a time, until ratification of the Fourteenth Amendment, it was the nation’s only form...
Why the Declaration of Independence Is Not Law--And Why It Could Be
Article by Frederick Schauer
The Declaration of Independence, or at least one authoritative version of it, lies under several inches of glass at the National Archives in Washington. So too does the Constitution of the United States. Yet although the two documents are located side by side in the same building and honored in what appears to be much the same way, the Constitution is universally understood to be law, and the Declaration of Independence is widely (even if not universally ) understood not to be. But why is this s...
The Declaration of Independence and Constitutional Interpretation
Article by Alexander Tsesis
This Article argues that the Reconstruction Amendments incorporated the human dignity values of the Declaration of Independence. The original Constitution contained clauses, which protected the institution of slavery, that were irreconcilable with the normative commitments the nation had undertaken at independence. The Thirteenth, Fourteenth, and Fifteenth Amendments set the country aright by formally incorporating the Declaration of Independence’s principles for representative governance into t...
The Declaration of Independence and Contemporary Constitutional Pedagogy
Article by Mark Graber
The judicial opinions in Dred Scott v. Sandford debated whether the Declaration of Independence expressed an American aspiration to some form of racial equality. Chief Justice Taney insisted that the simultaneous American commitments in 1776 to the principles of the Declaration and to maintaining African Americans in human bondage demonstrated that the persons responsible for the Constitution of the United States did not regard persons of color as having any natural rights that “the white man wa...
Between the States and the Signers: The Politics of the Declaration of Independence Before the Civil War
Article by Bernadette Meyler
It is almost impossible to conjure the thought of the Declaration of Independence today without also raising the specters of the signers. Commonplace invocations of “John Hancock” stand in for the prototypical signature, and elementary school children throughout the country learn details about the lives of the signers. The signers did not, however, authorize the Declaration simply for themselves. As Jacques Derrida wrote in 1986, “[t]he signature invents the signer,” meaning that the signatures...
Make a tax deductible contribution to the Southern California Law Review.
- Bank of America Corporation
- Ernst & Young Global Limited
- Los Angeles Chapter of the Federal Bar Association
- Thomas Safram & Associates