American Constitutional Theory Is Wrong, 6-15-2010

Scott Gerber wrote a book [To Secure These Rights: The Declaration of Independence and Constitutional Interpretation (New York: New York University Press, 1995)] several years ago about the Declaration of Independence, natural rights, and constitutional interpretation. I think his theory sound, but misplaced, as it applies easier to state constitutions than to the federal constitution.

Gerber makes the point that slavery skewed the natural rights theory underlying our constitutions. I would extend that theory to include post-1876 institutionalized racism. I would add that legal education further removed the legal profession beyond the country's natural law roots.

What makes the Declaration more important to state constitutional law is that most state Bills of Rights explicitly incorporate the Declaration. The federal constitution does not explicitly incorporate the Declaration.

American constitutional law gives paramount place to the federal constitution. So far as the federal constitution establishes itself as the supreme law of the United States, there is sense to this distinction. A certain unity comes from giving the federal constitution pride of place. In one of The Federalist essays, there is a discussion of how a republic cannot exist over an extended area, but our Constitution has shown the means of doing so. However, the United States Constitution has not served as the basis for most of our state constitutions.

Every state constitution differs from the Constitution in scope and purpose. The state constitutions provide for a general governmental power. State constitutions begin with a Bill of Rights. State constitutions preceded the Constitution. From the early state constitutions came the general forms of American legislatures, executives, and law courts.

I say there is exists a continuing dialog between the state and federal constitutions. It is wrong to say that all constitutional law comes down from the United States Supreme Court and the federal constitution. Those wanting uniformity overlook the separate histories of state constitutional provisions.

[So far, I had no quibbles with my younger self.  I think in the preceding paragraph overstates the present state of affairs. I would now write it so that here was a dialog before the Supreme Court began applying the federal Bill of Rights to the states. As I have not read the Heller decision - once retired I quit having the same interest in the law - but only know its outlines, there might have been a dialog there. If so, it was one that went awry - consider how Indiana's Bill of Rights protects the owner of firearms: "Section 32. The people shall have a right to bear arms, for
the defense of themselves and the State." If the states separate the two reasons for bearing arms, then reading the federal Bill of Rights as implying personal as well as corporate rights for bearing arms is a misreading. The United States Supreme religion cases feel even further removed from any dialog with state Bills of Rights. The other two sentences I feel less disagreement with now. The second depends on whether a particular state supreme court wishes to align itself with the United States Supreme Court, and how closely it wants that alignment. sch 11/9/22.]

What do I mean a dialog? In 1851, during Indiana's last constitutional convention, one issue raised was the Governor's veto. Indiana's Constitution provides for that for a veto override, the legislature needs only a simple majority. The reason for this was President Andrew Jackson and the federal constitution.

In the other direction, I always thought the state Bills of Rights influenced the federal reading of the First Amendment's religion clauses. I never had a chance of researching this theory beyond reading all the state Bills of Rights.

As we have extended the federal constitution's reach, we have not included many sensible state provisions into the federal constitutions. Why not limit each federal bill's content to the listing of its title?

sch

[Scott Douglas Gerber condensed his argument of the Declaration's influence on the Constitution in a 2014 HuffPost article, The Declaration of Independence and the Constitution, which includes the following:

Which brings me to the matter at hand: the Declaration of Independence's role in interpreting the Constitution. With the notable exception of Clarence Thomas in civil rights cases, no member of the Court ever invokes the Declaration when deciding cases. They are wrong in failing to do so. After all, the Constitution was written for a reason: to establish a form of government that would provide better security for liberty than was provided under the Articles of Confederation, the fundamental law that the Constitution replaced.

To make the point somewhat differently, the particular provisions of the Constitution were written with the Founders' background attitudes about the purpose of government in mind. The Constitution is not an end in itself; it is the means by which the American political community's ideals -- its ends -- are ordered. It is therefore necessary to interpret the Constitution in light of those ideals; ideals expressed with unparalleled eloquence by Thomas Jefferson in the Declaration of Independence.

sch 11/10/22.]