This transcript is taken from a debate that took place on June 30, 2021, between JWI Founder and Director Hadley Arkes, and Toledo Law School Professor Lee Strang. The debate was hosted by the Federalist Society, and moderated by Steven Hayward. Those interested in viewing or listening to the debate can click here.
Hadley Arkes: Well, the anecdote to that introduction comes from that old cartoon in the New Yorker of a figure on a pedestal, 19th century garb, pointing out to the horizon. And on the pedestal, it says: “author, patriot, soldier, statesman, but still a disappointment to his mother.” I think we ought to take 40 seconds to make it clear what this conversation, or debate, tonight is not about. The Declaration has an elegant structural argument. It begins with the premise, odd for revolutionary documents, in which the writers give to themselves the burden of justification, that it lies with those people who would overthrow an established government and all the goods that a government brings.
They then unfold an argument, a brief, which begins with a complaint that George III has dissolved the legislatures, making it harder to elect new ones in their place. He’s deprived us of the blessings of governance. And then it unfolds in a kind of a persistent pattern of a government making war on its own people, culminating in unnatural acts. The British impress Americans to serve on British ships, making war on their own families and brothers, unnatural acts. Okay, but that’s not what we’re talking about tonight. I think we know what we’re talking about tonight.
So let me take my point of entry in this way. About 20 years ago, we invited to New York, the Institute of British in Public Life invited the late Cardinal Lustiger in from Paris to give a talk for us in New York. And in that lecture, the Cardinal would call that familiar liberal maxim, that my freedom ends at the point where I begin to injure other people, and he asked, do we mean all other people, even people we don’t know? Are we saying that our freedom ends at the point where we begin to injure – wink, wink – those people who count?
In Huckleberry Finn, you may recall, Aunt Sally was asking why they were late, and Huck said, “Steamboat blowed a cylinder.” And Aunt Sally said, “Oh, anybody hurt?” We can’t use this language anymore, can’t use the “N” word. Huck said, “No ma’am, nobody, just one of those Black men killed.” And Aunt Sally says, “Oh goodness. Sometimes, you know, people get hurt in these things.” That is, real, real people.
Bill Clinton vetoes the bill on partial-birth abortion at the concern for the health of the pregnant women, whose health would not have been safeguarded by this grisly procedure. Of the child whose head was being crushed and the brain sucked out, Clinton had nothing to say. That small being was screened from the picture. Evidently, he no longer counted. Cardinal Lustiger was taken with the familiar point that liberals often begin with the premise that there is no settled truth, and that is why all choices and opinions should be open to us. But the Cardinal was just posing this question: could it be that liberals had to be backing into that anchoring truth? All men are created equal. The proposition, as Lincoln said, was the father of all moral principles among us.
And as we look about us now, in our laws, do we not find people backing into that same hidden moral premise? We might ask, what do liberals care about? Unemployment. Everyone who’s unemployed, even people we don’t know, people whose merits we can’t possibly know? On what basis would be assumed they’re all equally worthy of our concern? What about climate change? What’s the grave concern there, if not the concern for human lives that are imperiled as the seas rise? But here, we’re not dealing with people already here, among us, like the unemployed.
We’re dealing now with a speculation about lives of people in the future, people we cannot know. And why would all of these people deserve our concern or our willingness to rearrange our lives drastically for the sake of rescuing them? Is it simply because they are human; because we think all men are created equal? But if the concern is for human beings, then why doesn’t that same concern show up prominently, in a concern for the 800,000 small human beings who are killed every year in this country in abortions? Well, the screen comes down, doesn’t it?
And those small human beings are simply screened out of the picture as those whose lives don’t count. We seem to understand that a visitor to this country who gets off the plane in New York has a right to be protected against an assault on the street without looking at his passport. But, the same man, you cannot take him over to the south, over to the city college of New York and enroll at that subsidized rate of tuition, that the people of New York are willing to make available to citizens of New York.
Now, if the right of that visitor to the protection of the law doesn’t hinge on his citizenship, then what is the basis of that right? Is it something we think flows to him, simply by virtue of being a human being? But then so much of it must depend on the question of whether all men are created equal is really, as the Founders and Lincoln thought, a truth, but more than that, as Madison and Lincoln thought, one of those anchoring necessary moral truths.
Barack Obama treats that claim with a certain condescending dismissiveness. “The great thing about America,” he said, “is that our institutions do not rest in any claim to an absolute truth.” With a wink, he says that we all know now that all men are created equal was not really a moral truth. And yet this was important for Obama to denounce the hypocrisy of the Founders, such as Jefferson, Washington, Madison, who owned slaves. But wait, if all men are created equal was not a fact, a moral truth, then there was no moral wrongness in making slaves of other men. Then what was the problem, that the Founders have been inconsistent?
But, if there is no moral truth, why is inconsistency suddenly elevated to a high moral fold? John Marshall, in a throwaway line at the end of Gibbons v. Ogden, apologizes to his readers for spending so much time demonstrating what should stand in the class of an axiom. He assumed all of his readers would know that before you can do a demonstration, there have to be certain axioms in place, like the law of contradiction. These are not things that could be explained in the course of a demonstration. They are the kinds of things we need to know before we step into a demonstration.
They involved, as Hamilton said in the Federalist 31, those primary truths or first principles that had to be grasped per se nota, as true in themselves, as we grasp the law of contradiction. These things had an internal evidence, he said, which antecedent to all reflection or combination commands the assent of the mind. Okay, but then how would “all men are created equal” be grasped in that way, as one of those first principles, one of those things that any functional person may readily grasp?
The answer would be quickly revealed if you posed this question to anyone we know: why is it in this age of animal liberation we are still not signing labor contracts with our horses and cows? Or seeking the informed consent of our household pets before we authorize surgery? I think that any person we encounter would be puzzled by the question and why we are asking it. But why? Because we recognize that animals cannot reason about the terms of the contract, weigh their interest, and give their consent.
Could it be that everyone knows, if you thought about it, there’s only one kind of creature who understands what it means to consent to a contract, to make a commitment and honor that commitment even when it no longer accords with his interest? As Aristotle said, that is the only creature who is suited by nature for political order and the life marked by the presence of law. The ordinary man who grasps at once that simple thing, takes hold of that principle in the Declaration.
Only one kind of creature can tender a knowing consent to the terms of which he’s governed. And so, the understanding was that human equality is revealed through the inequalities in nature. No man is by nature the ruler of other men in the way that God is by nature the ruler of men, and men are by nature the rulers of dogs and horses. And anyone who denies that, said Jefferson, has to assume that the mass of mankind were born with saddles on their backs and that a privileged few were born with spurs on, ready to ride them.
And so, the question, as Lincoln said, was whether that Black man is not or is a man. If he’s not a man, anyone who is a man may do with him what he pleases. But if he is a man, my ancient faith tells me, all men are created equal. And he, too, has the right to govern himself, and no man is good enough to govern another man without that man’s consent. And so when the question was put, where in the world would it be wrong for human beings to be ruled in the way that dogs or horses are ruled, the answer was, it would be wrong anywhere in the world and any time where that difference in nature remains the same and men are still distinguishable from animals.
Thus, the notion of certain enduring rights, grounded in man’s enduring nature, or we might call them natural rights. That is why Lincoln could aptly say, all honor to Jefferson, who took the moment of the Declaration to proclaim the truth applicable to all men and all times. On Lincoln’s question of whether the Black man is, first, not a man, Harry Jaffa argued that that cannot be a value judgment.
Value judgment is a term that came into play when we stopped speaking of moral truths. We began to speak of things that take on their goodness only as we value them. But one of my favorite justices, one of my favorite persons, insisted that the question of abortion must be put back in the political arena where it can be decided according to the value judgments of people in the separate states. And yet would you put that question of the human standing of the Black man to the value judgments that could fail the different states?
Then, how does it make any comparable sense to put out to the value judgment of people in the different states, whether that child in the womb has been anything other than human from its first moments? Here you could say is where the natural law and the Declaration would ask the positivist, is there not indeed an objective truth grounded in nature that we should be obliged to recognize here quite apart from the vagaries of value judgments in the states?
Carl Becker, in his famous book on the Declaration, said, “Whether that truth of the Declaration is truth is essentially beside the point. For we know, there are no truths of that kind, that truths can be understood only in that historic epoch, in which they are believed.” And then years later, with Hitler invading Russia, Alfred Knopf thought it was time to bring out another edition of Becker’s book, with Becker writing a new forward. And Becker said that the only hope at this moment for the democracies now depends on whether people are willing to risk and give their lives in defense of those summoning principles in the Declaration; those principles, of course, that we know are not true.
Now, we fast forward. Now, we’re in Princeton in the spring of 2003 for a discussion of the Declaration of Independence. And, of course, the question was raised as to whether that central truth of the Declaration was in fact true. The celebrated historian, Pauline Maier, still channeling Carl Becker, told us again that that was the wrong question; the importance of the Declaration doesn’t depend on this truth and – whisper – we know that there are no truths of that kind.
In the course of the discussion, I raised the matter of those firefighters in the World Trade Center in New York on September 11, 2001. As they were poised to enter those buildings, they had woven into their operational assumptions that every person, every soul they could reach, they would be equally obliged to save, and obliged even though they knew nothing about these people and whether they deserved saving. And I mentioned that just before they plunged into the building, they turned at the threshold, turned to Professor Maier and said, “Do we have that right?” “Do we have that one right?” And Professor Maier says, “You’ve got the wrong question.”
But that brings me to the chain of three questions raised by John Locke when he asked, what is the source of the law? The legislature that makes the law. Well, then, what is the source of the legislature? The constitution that tells us whether we have a legislature and how many chambers, what powers. But, then he asked, what is the source of the constitution? It must be, he said, a source wholly antecedent to the positive law, depending on the natural right of the people to determine the terms of their own governance. But to put it in another way, this principle must be in place before we can establish just what institutions or bodies have the legitimate authority to make a positive law for us.
This question popped up in a meeting several years ago, when I was speaking at a conference, along with Professor Amy Coney Barrett. She remarked that as a law clerk and follower of Justice Scalia, she was committed to a fastidious respect for the positive law. But a student raised the question, what is the ground on which we respect the positive law as a positive law? To put it another way, why should we make the positive law of the United States stand on a higher moral plane than the positive law in Stalin’s Russia? Would it make a critical difference that the positive law here emanates from legislatures and executives, elected by the people, responsible for the people?
In other words, the legislation that comes through the institutions and arrangements that give us an operational form of what we mean by government with the consent of the governed. That is also what Lincoln explained in a compelling way in that remarkable first inaugural address when he was facing a possible succession from people who would not respect the outcome of a free election. He showed that the only operational form of government by the consent of the governed was the rule of the majority, but a majority shifting on different issues with different interests.
But even more critically, a majority that is operating under moral and legal restraints, a majority that knows that it doesn’t have the authority to legislate virtually anything on any subject in its name as a governing majority. And, he showed quite compellingly that the only operational form of government was being governed by the consent of the governed. Those arrangements had to be devised in accordance with that first principle: governed by consent. But, they did not themselves supply the principle.
That principle had to be in place before we know what arrangements would give us a positive law that we could regard as legitimate. But the positive laws, I think, cannot adapt the principle. That principle must be there before we can have a positive law. From this angle, we’d see then more clearly what is wrong with the insistence of my beloved friend, Antonin Scalia, that the Declaration cannot be part of our law because it was never enacted in the positive law.
When Lincoln explained the operational form of government by the consent of the governed, he was assuming that that anchoring truth, that principle had to be in place and grasped for the necessary truth it was. But if it were not in place, if it had no standing because it had not been enacted in the positive law, then Scalia’s high defense of the positive law and the rule of majority will be utterly detached from this principle that explains its rightness. We ask then, “What made the ruling majority the rightful ruler?”
The answer he supplied was after the same supplied by Justice Holmes, that the majority rules because it has the root power to overbear, to overpower the minority, which is a prettified way of saying, that the rule of the strong, or might makes right. Again, a form of rule that utterly detached itself from the moral terms that make it rightful. But the dominant discordant flow in this regime was that consent of the governed people, the consent of American people had to encompass in the beginning, an institution of slavery quite at odds with the Founding principle and the ground of our own freedom.
Lincoln understood that the Fugitive Slave Clause of the Constitution was, as he said, “nominated in the bond.” We couldn’t have had this union, putting serious limits on slavery, looking to its ultimate extinction, unless that concession had been made. Without that commitment to return fugitive slaves, the free states could act as a magnet encouraging runaways. Lincoln, as you know, insisted on reaffirming the moral rejection of slavery with limits on its expansion.
But to the matter of the Fugitive Slave Clause, he brought a finesse that has not been widely noticed. He offered this construal of the clause in two notable instances. In his famous Peoria speech in 1854, he said that if he gives the slave states any legislation for the reclaiming of their fugitives, it should not in its stringency be more likely to carry a free man into slavery than our ordinary criminal laws are to hang an innocent one. And then later, in his first inaugural address, he asked in any law on the subject, ought not all the safeguards of a humane jurisprudence be introduced so that a free man may not in any case be surrendered as a slave?
And might it not be well at the same time to provide by law for the enforcement of that clause that says the citizens of each state shall be entitled to all privileges and immunities of citizens in several states. Look, the criminal law said its presumption is in favor of the innocence of the accused and the burden fell to those who wish to prove him guilty. Now Lincoln suggested, the Fugitive Slave Clause could be applied with two different leanings or presumptions.
We might presume that any Black man new to the scene in a free state was probably a runaway slave and the burden would fall to those who proved him free. Or we could begin with a presumption that he was by nature free, and the burden would fall to those who would prove him a slave. The Fugitive Slave Clause was utterly silent as a matter. So what Lincoln was doing was reading the positive law of the Constitution in the light of the Declaration and that underlying principle of natural right.
He would take as his operating premise that the Black man was by nature free, was a bearer of natural rights. And by what other construction we may ask, could Lincoln mention runaway slaves as citizens with a claim to privileges and immunities when the Supreme Court had declared that Black slaves were never meant to be citizens. And so, that’s what we have. Why is it that our laws always are cast in universal terms to apply to everyone similarly situated, to anyone who owns a restaurant or in or discriminates on the basis of race?
Anyway, why do we affect a concern for all persons who are unemployed, whose lives are at risk even though we don’t know them, and whether each one of them deserves our concern? Why do we persistently find it necessary to read the positive law by tracing back to those principles that were there before the Constitution, the principle that the Founders had drawn upon as they shaped the constitution? Why do you persist in supposing that every human being then is a bearer of rights by nature, rights that would be there even if there were no Constitution, much the way that John Quincy Adams argued, that their right to petition the government is simply implicit in the logic of a free government?
It would be there even if we’re not in the First Amendment. It would be there even if there were no Constitution. And what accounts for this sense, wildly held among our people, that those principles are strikingly violated today when the government by law provides benefits for some people and withholds them from others solely on the basis of race? And beyond everything else, how would we possibly even get the positive law without understanding, as Locke did, that those principles were there before the positive law and which told just what form of governments would legitimately produce the kind of positive law that would command our obligation to respect it?
So, what was the question put before us? Does the Declaration of Independence have any practical bearing on our law? To that, I can only answer: are you kidding? But Lee will have a different angle on this, so I’ll readily give it over to him because I’d like to see what he’s going to be saying.
Steven Hayward: All right, Lee Strang, you are gloved up and ready to throw a counter punch. So, the ring is yours.
Lee Strang: All right. Thank you so much. It’s great to be with everybody this evening. Thank you to Jacob in the Federalist Society for inviting me to fight Professor Arkes this evening. I learned a lot from Professor Arkes’ scholarship over the years and in his introductory remarks, Jacob was able to give a summary of all of Professor Arkes’ voluminous scholarship. And then I learned also from his remarks tonight. When I was first approached to participate in tonight’s event, I actually wondered—because there are many substantive issues in which Professor Arkes and myself agree—whether there’d be enough daylight between us to have a real fight. And after his remarks tonight, I think we’ve got enough space that we can fight about it.
Now many of you may be wondering, why is it that that Professor Hayward and myself, have the fireworks behind us, but Professor Arkes does not, and if you know him personally, you know that he’s somebody who brings his own fireworks to the table. And so, I think you saw some of that tonight. So the title of my remarks this evening is “The Declaration of Independence: No Special Role in Constitutional Interpretation.”
I’m going to argue that the Declaration is a beautifully written document. It’s a potent symbol of our nation’s history and founding principles, but it does not and should not play a unique role in constitutional interpretation. And that instead, the Declaration is one source among many, of the Constitution’s original meaning. And frankly, this isn’t what I expected when I started doing research into this subject back in 2005. I began teaching in 2004. I have a long-standing interest in the Declaration of Independence and that prompted me in my first year of teaching to go and look into the relationship between the Declaration and the Constitution.
And when I went into it, I assumed, I think like most Americans, and what you’ve heard from Professor Arkes tonight, that the framers and ratifiers viewed the Declaration in one of two ways. One assumption was that they view the Declaration as being a part of, a constitutive part of the Constitution, or at the very least, they viewed it as being the interpretive key to the Constitution. And I learned this from different events that my family took me to when I was a young person. We went to political events or pro-life events, and I would hear speakers make claims like this: that because of the Declaration of Independence, we need to interpret the word “person” in the 14th Amendment to include unborn human beings.
And so my research has been meant to try and evaluate claims like that. And this evening, I’m sharing you with you the reasons why I don’t share that view, that I don’t think the Declaration is the unique interpretive key. Now many of you may find my conclusion surprising and contrary to what you’d wish was the case.
In fact, there’s a part of me that that wishes it was different as well. But as your parents may have said to you, if you’re a true friend, you tell your friends the truth, even when the truth is hard and your friends may not want to hear it. And we’re fellow Americans, and all of us together are civic friends, that we’re all members of the American polity, that we wish well for the United States, we wish well for each other. And so, because of that, we’re together pursuing truth, wherever that leads us, even if it leads us to a place we may not anticipate.
My arguments are based on three articles I’ve published over the years and some unpublished work that someday may see the light of day. I’ll primarily respond to Professor Arkes’ claims in my rebuttal time, so we each get a couple of minutes of rebuttal. And for my first initial remarks, I’ll speak for about 20 minutes. There are a lot of things I won’t be able to address that I hope come out in Professor Arkes’ and my conversation and also in the question and comment period. So my thesis, as I said, is that the Declaration does not have a unique role in constitutional interpretation.
And I will make three arguments to support this thesis. First, a claim internal to originalism, second a historical claim, and third a jurisprudential claim. First and theoretically, mainline originalist theory shows that there’s no room for the Declaration to play a special role in constitutional interpretation. And my argument is going to have two steps. First, I’ll briefly summarize current originalist theory, and then I’ll show that public meaning originalism’s process to ascertain the Constitution’s original meaning treats the Declaration as one source of that meaning and that it depends on the historical question, whether in the communicative context of the Constitution, the Declaration was, in fact, privileged, which leads me to my second argument.
My second argument will be a historical one. I’ll make four moves to show that the Declaration did not and does not play a unique interpretive role. First, I’ll describe how the framers and ratifiers did not use the Declaration of Independence as the unique interpretive key to the Constitution. Second, I’ll show that because the Declaration is inconsistent with the Constitution’s original meaning, it cannot be the interpretive key. Third, the first Congress’ actions, I believe, show that the Declaration lacks interpretive uniqueness. And fourth, I’ll explain that it was only after the Founding, in fact, not until the early to mid-19th century, during times of moral crisis, that Americans and various social movements turned to the Declaration to support their out-of-the-mainstream constitutional interpretations.
And this phenomenon shows that this “declarationist” move to interpret the Constitution is brought about by a desire for legal change, political change, or social change, but not something intrinsic to the Constitution itself. And then third and jurisprudentially, I’ll summarize four important aspects of our current legal practice that show that our current legal practice does not specify a special role for the Declaration.
My arguments tonight presume that originalism is the correct theory of interpretation. I do this because most scholars who argue that the Declaration is an important tool follow originalism, and also because I think originalism is the right theory of interpretation. So, my first argument: mainline originalist theory shows that there’s no room for the Declaration to play a unique role in constitutional interpretation. Public meaning originalism identifies the text’s public meaning when it was ratified, as its authoritative meaning. And there’s a multi-step process to identify the original meaning, none of which privileges the Declaration.
First, an interpreter ascertains the text’s conventional meaning. This is the meaning—the standard usage of the text—at the time of ratification. Let’s say we’re trying to find out the original meaning of the word “religion” in the First Amendment adopted in 1791. The first step is that we will try to ascertain among Americans in 1791 when they use the word “religion,” was there a conventional use of meaning for that word and what that conventional meaning was.
Second, the interpreter identifies the semantic meaning of the text by placing that text in the context of the Constitution and applying the rules of grammar and syntax to that text. This involves identifying how the words are put together in clauses and sentences, which may modify the text’s conventional meaning. For example, the word “religion” doesn’t appear by itself in the Constitution. It, of course, appears in the Religion Clause, which says, “respecting an establishment of religion or prohibiting the free exercise thereof.” And just as one example of how that may change the conventional meaning of the word “religion,” the definite article “the” before the “free exercise thereof”, may have the connotation of being a term of art or a particular concept that’s different than the conventional meaning of the word at the time.
Third, the interpreter takes into account contextual enrichment; the contemporary publicly available context in which the Constitution’s text was drafted and ratified. So, for example, the fact that when the free exercise of religion was ratified in 1791, many states conditioned religious exercise to when it was not “inconsistent with peace and safety of the state”, as New York’s 1777 constitution provided. And this context suggests that the phrase “the free exercise thereof”, carried an additional connotation of a limitation along those sorts. If you looked at each of those different steps, the Declaration is not privileged in any of those steps.
For example, one would not prioritize the Declaration to ascertain the conventional meaning of a word. Instead, under current originalist theory, the Declaration is simply one piece of evidence of the conventional meaning or of the public context. For example, the Declaration’s invocation of God is, I think, a piece of evidence that the word “religion” in the First Amendment was a theistic belief system. My more theoretical point makes it a historical question about the extent to which the Declaration influenced the creation and interpretation of the Constitution.
So that leads to my second argument this evening. Second, and historically, I’ll describe four distinct pieces of historical evidence that show that the Declaration did not play a special role in the creation or interpretation of the Constitution. First, the framers and ratifiers did not use the Declaration as a special interpretive key of constitutional interpretation. Instead, my research on the period of the framing and ratification showed that very few statements regarded the Declaration and none argued or assumed that the Declaration would play a unique and explicit role in constitutional interpretation. And this is the scholarly consensus, as Charles Cosgrove has summarized: there’s very scant evidence from the framing and ratification that anyone was thinking of the Constitution as an extension of the political theory announced in the Declaration.
Instead, the framers and ratifiers utilize the declaration for three limited purposes. First, its practical impact as the creator and point of independence. So, for example, in the debates in the Philadelphia convention, Rufus King and Luther Martin debated the Declaration’s practical impact. King stated that the states were not complete sovereigns after independence because they could not make war, peace, or alliances, or treaties. And Martin responded invoking the Declaration. And then he said that the Declaration “placed the 13 states in a state of nature towards each other”.
The second use by the framers and ratifiers of the Declaration was to bolster an argument for or against the Constitution’s merits or the merits of a particular provision of the Constitution, where the disputants agreed on the Constitution’s meaning. So, on the Pennsylvania ratification convention, John Smyly, who was an opponent of ratification, argued that the Bill of Rights was an indispensable aspect that should be adopted and was missing because it established parameters for those in power. And to support his position, he courted the Declaration for the proposition that Americans should secure their rights through a Bill of Rights, or else, the right to abolish government announcing the Declaration is “mere sound without substance.” Both sides in the debate in the Pennsylvania ratification convention, over the inclusion of the Bill of Rights, refer to the Declaration, not as the interpretive key, but instead to argue for or against the merits of the Bill of Rights.
Third, the framers use the Declaration for its rhetorical impact. For example, in the Federalist Papers, the most comprehensive argument on behalf of ratification, and therefore, its meaning, cited the Declaration and referred to the Declaration twice. And both times, for the unexceptional proposition that it is legitimate to change one’s form of government.
And historians have the similar view. So Pauline Maier, who Professor Arkes had referenced earlier, who said, “Participants in the extensive debates over the creation and ratification of the Federal Constitution mentioned the Declaration very infrequently, and then generally cited its assertion of the people’s right to abolish or alter their government and to found new ones.” In sum, the evidence shows from the history that the Declaration is only one source among many of the Constitution’s original meaning.
My second historical argument is that the Declaration is inconsistent with the Constitution’s original meaning. Beyond the historical evidence that the framers and ratifiers did not understand the Declaration to play a unique role in interpretation, dramatic inconsistencies between the various provisions of the Declaration and the Constitution make it difficult to attribute to the Declaration any special role. And, the most glaring instance of this, as most people have noticed, is slavery.
The Declaration has its inspiring phrase, which Professor Arkes focused on in his remarks tonight, that all men are created equal. And the original Constitution by contrast accommodated slavery in multiple ways. The Constitution accommodates slavery by helping slave masters recover escaped slaves through the Fugitive Slave Clause. The Constitution prohibited Congress at least until 1808 from eliminating the supply of new slaves by ending the slave trade.
And Article 1, Section 2 gave southern states additional representation in Congress for their population purposes because of “three-fifths” of all other persons. The Constitution’s accommodation of slavery and the denial of equality that it entails make it difficult, if not impossible, to interpret the Constitution using the Declaration. When you think about the continued existence of slavery up to the Civil War, it suggests that the long term widely recognized tension among Americans between the Declaration and the Constitution, one that made them not compatible.
And I think one strong piece of evidence of this is that the people most inclined in the antebellum era to argue that the Constitution and the Declaration were compatible were abolitionists. And what you see is that only relatively few, relatively radical, abolitionists argued that the Constitution without amendment outlawed slavery. Indeed, following the Civil War, few abolitionists argue that the constitution properly interpreted in light of the Declaration abolished slavery without amendment.
And in fact, even those who held this belief, in other words, believed that the Declaration should be used to interpret the Constitution and which already outlawed slavery, recognize that their own views were idiosyncratic. For example, Charles Sumner, who held this view, recognized his minority status and therefore worked for a passage of statutes and constitutional amendments to secure his aims. So, in sum, the Declaration’s inconsistency with the Constitution’s original meaning shows the Declaration cannot be an interpretive key.
Third, the first Congress’ reenactment of the Northwest Ordinance and failure to reenact the Declaration shows that the Declaration ceased to have legally operative effect because of the Supremacy Clause’s adoption. The Second Continental Congress enacted the Northwest Ordinance in 1787, prior to the completion of the Philadelphia convention. After the Constitution went into effect, the First Congress, in the eighth act that it passed, reenacted the Northwest Ordinance. The First Congress recognized that it had to reenact the Northwest Ordinance because absent reenactment, the ordinance would have no authority under the new Constitution.
This was because the Supremacy Clause provided that only the Constitution, laws made pursuant there too, and treaties were the law of the United States. In other words, after the ratification of the Constitution, all previous legislation by the Second Continental Congress, other than treaties, became inoperable. Indeed, the First Congress said so in the act. It said, “In order that the Northwest Ordinance may continue to have full effect, it’s requisite that certain provisions should be made so as to adapt the same to the present Constitution.”
The Declaration, like the Northwest Ordinance, was enacted by the Second Continental Congress. It, too, absent reenactment ceased to have legal force. But the Declaration was never reenacted, and hence after ratification, did not have legal force.” The reenactment of the Northwest Ordinance also shows how the first Congress and President Washington understood the relationship between the Constitution and previous legislation.
It shows that the original meaning of the Constitution was that the Constitution superseded all pre-constitutional legislation, including the Declaration. And this understanding supports my argument that the Declaration is one source of the Constitution’s meaning, but it doesn’t have binding legal significance beyond that. My fourth historical argument this evening is that the Declaration of Independence has not played a unique role.
We can see this because it’s during times of great moral crisis that Americans have turned to the Declaration to support their unconventional constitutional interpretations. In the immediate aftermath of the revolution, the Declaration fell out of the public’s consciousness, only to be politically resurrected by social reform movements that have used it for a variety of purposes. Social movements throughout American history beginning in the 1820s utilize the Declaration to support their various constitutional visions, from abolitionists in the early to mid-19th century, suffragettes from the mid to late 19th century, the modern civil rights movement, and most recently, the pro-life movement have all turned towards the Declaration to support their, at that time, unconventional constitutional interpretations.
For example, Lysander Spooner, one of, I think, the most sophisticated abolitionists in the antebellum era, in his 1845 book, The Unconstitutionality of Slavery, employed the Declaration’s phrase, “Self-evident truth,” to argue that all constitutions necessarily incorporate all self-evident truths, and that because the U.S. Constitution did not explicitly deny the self-evident truth that slavery was unjust, it therefore actually prohibited slavery, even though it may not appear patently on its text to do so.
So, the phenomenon of social movements using the Declaration to support their unconventional constitutional interpretations shows that appeals to the Declaration are motivated by goals of political, social, and legal change, and not historical claims and what the Constitution actually meant or means. In other words, this shows that appeals to the Declaration originate extrinsic to the Constitution, and are not intrinsic to it.
My third argument this evening is jurisprudential in nature. Our current constitutional practice does not recognize the Declaration as playing a unique interpretive role. Because of time constraints, I’m just going to make four quick moves to support this claim. My jurisprudential argument that I’m relying on here relies on a thin, Hartian conception of law, that law is those norms recognized as law by the practice of relevant legal officials, such as judges. I’m utilizing this conception because it’s widely held and, I think in this context, it’s accurate; in other words, the context of what our legal practice supports or doesn’t support.
So first, the Constitution’s text identifies only the written Constitution as the subject matter of constitutional interpretation. In particular, constitutional indexicals show that the written Constitution is the subject of constitutional interpretation. These indexicals are the Constitution’s texts own reference to what the Constitution is. So, beginning in the Preamble, and then ending with the Ratification Clause in Article Seven, the Constitution identifies the document in the National Archives as “this Constitution.”
The Constitution’s text also makes explicit that the Constitution was chronologically expressed at a particular point in time, that is, the point in time when it was ratified. Article Seven identified the particular time in which “We the people” from the Preamble, established this Constitution. So, the Constitution’s indexicals and chronological identifiers, when coupled with the Supremacy Clause, identify the written Constitution, and only it, as our Constitution.
The Declaration of Independence is not identified by the written Constitution as part of the supreme law of the land, and therefore is not a subject of constitutional interpretation. The second aspect of our current practice is the Constitution’s provenance, which excludes the Declaration. Constitutional provenance is the origin of a constitution. Constitutional provenance is crucial because it’s the characteristic that explains why a particular document, in our case, the document in the National Archives, is our polity’s constitution, and why other documents are not.
Americans in 1787 and Americans today recognize that the framing and ratification process identified our Constitution, and that the ratifiers possess the authority to designate the document now located in the National Archives as the U.S. Constitution. No matter how much more normatively attractive another document is, it’s not the U.S. Constitution if it didn’t go through the framing ratification process. This same provenance excludes the Declaration. This provenance identifies only one subject matter: the written Constitution in the National Archives rotunda.
The Declaration is not identified and therefore is not a subject of constitutional interpretation. The third aspect of practice that I’ll mention tonight is the oaths that federal officers take. All federal officers take an oath to identify only the written Constitution as the subject matter of constitutional interpretation. All officers take an oath to support “the Constitution of the United States,” and this is the same Constitution of the United States identified in Title One of the U.S. Code.
The officers’ oaths bind them to interpret and to apply the Constitution, and not the Declaration of Independence. It excludes the Declaration. Fourth, this is my last aspect of practice, the Supreme Court practice identifies the written Constitution as the sole subject matter of interpretation. Because of time constraints, let me just state what I think is the theme of a variety of different Supreme Court practices that I’ve identified in my scholarship.
The thread that runs through them is that the Supreme Court treats the written Constitution as the subject matter of constitutional interpretation over other potential sources of law, including the Declaration. And conversely, the Supreme Court uses the Declaration as a source of the Constitution’s original meaning. Most recently, I think, in Gamble v. US in 2019, Justice Alito used the Declaration as one source to help him interpret the Fifth Amendment’s Double Jeopardy Clause.
In sum, these four important facets of our current constitutional practice show that the practice does not recognize the Declaration as having a special role in constitutional interpretation. Let me close with two caveats. The first caveat is I’m very far from disagreeing with Professor Arkes, that natural law exists and that it’s important to the U.S. Constitution. Our point of disagreement, I believe, and I’ll respond to this more in my rebuttal is that in our legal system, the natural law plays three important, but limited roles.
First, it serves as a justification for and critique of our legal system. Second, the Constitution’s original meaning, I think, in some instances requires officers to consult the natural law. Third, federal judges should utilize it when evaluating non-originalist precedent. So, I’m on board with much of what Professor Arkes said, but I think that I would view natural law and the Declaration as playing a more limited role in our legal system.
Second, my thesis that the Declaration does not play a unique role in constitutional interpretation is fully consistent with robust roles that it should play both within and outside of our legal system. For example, within our legal system, I think legislators or congressmen should utilize their lawful authority to implement the natural law within the scope of that authority. And outside of that the legal system, Americans should evaluate the legal system to its correspondence or lack thereof to the natural law and the Declaration of Independence.
So, in closing, what I’ve argued is that the proper role of the Declaration in interpretation is just one source of the original meaning. That’s an important role, but one that’s limited in its scope. Thank you very much.
Steven Hayward: All right. So that we don’t end up in a clench in the middle of the ring for an extended period of time, I wonder, Hadley, if in your rebuttal, you might try to limit yourself to maybe the two or, at most, three key parts of Lee Strang’s argument that you want to contest. Is that possible? Go ahead.
Hadley Arkes: Sure, I guess so.
Steven Hayward: There will be plenty of opportunity to extend all this, but …
Hadley Arkes: I’ve got marked up several. Where to cut into it? It’s like that line of Webster in Agnew v. Saunders where he’s arguing the case and he says, “Look, we tell you that the law is wrong. And against that, you simply cite us the law.” How does this make sense? We keep citing the positive law. And the definition that Lee gave us of what constitutes law is a real positivist definition: whoever has the control, whose authority is accepted. That would not establish the difference between the positive law of this country and that of Stalin’s Russia quite apart from those pervasive strands in our law reflecting the logic of the Declaration.
And by the way, no one’s claiming here the Declaration, I think, is the only unique source of law. There are many moral principles outside the text that, of course, come into play. But, we have to account for why is it that the visitor from abroad came to the protection of law that doesn’t depend on his citizenship? Why are some laws cast to apply equally to everybody who comes within that scheme?
Well, let’s just take this matter of the Founding. Yes, the positive law has to be reasserted with the Northwest Ordinance, but again, the question, where did you get that positive law? Now, Lee mentions the ratifiers. Ah, who ratified? Why was it important that the ratification not be done by the states, but by a special convention? Madison explained it, he said, “Legislatures are still the artifacts of a constitution. They cannot be its source.” In getting a Constitution, we have to go to the source of the Constitution in the judgment of the people themselves.
On the matter of the Founding, look at the constitutional convention. We have Gouverneur Morris getting up and saying, “Look, these slaves. I mean, are they property? Then why don’t we, in Philadelphia, get votes for our property? We have far more property there, worth more than you have in slaves.” It was so pervasive in the constitutional convention that, of course, Alexander Stephens would later complain that those Founders from the South got it wrong because they still were under the superstition that all men are created equal; they didn’t have the advantage of modern science and anthropology that tells us why there are certain inferior races.
But on this matter of the accommodation of slavery, look at it again. First of all, as Lincoln explained, there was no mention of slavery in the text. Oliver Ellsworth said, “We can’t mention it because we want no trace of it when that odious institution disappears.” Lincoln says, if you look at this arrangement, there’s no mention of slavery, no moral endorsement of the text. You’ve got a policy to bar the import of new slaves abroad and you’ve got a policy to bar its extension to the West. These are all the marks of compression and discouragement, not the marks of promotion and endorsement. I say, well, where does that come from? Where does that come from if not the premises that we began with, the premises that told us what kind of … It doesn’t have to be this constitution, of course. Different kinds of constitutions could have been compatible. We tried another one before. But what is it that tells us that it’s got to be a government that somehow represents the consent of the governed in some form?
Now Justice Curtis, in his dissenting opinion in Dred Scott. He cited this case, it is called Lydia v. Rankin. I think it was in Kentucky, and this is characteristic of other judges in the South. You got these judgments in Mississippi as well, with the judge saying, “Look, slavery, we understand, is in contradiction with the natural law.” Something could be sustained only by the positive law as statesmen try to make an accommodation with an evil for the sake of compressing it; something well known in classical philosophy.
But when the positive law is silent, the assumption is the natural law kicks in, and that premise was extensive in the South, as well as the North. So, I don’t quite see how Lee’s argument touched on any of those examples I gave about the pervasive effect of the premise of all men are created equal and those underlying principles of natural law. I recall a conversation with Scalia in the aftermath of the Heller case when I said, “You invoked in that case the right of self-preservation, but that language is nowhere contained in the [Second] Amendment.”
So, I was wondering whether you were … You mentioned self-preservation. Now, were you saying that Wilson and Blackstone had mentioned self-preservation and many people read them at the time? Or, were you invoking some deep principle of self-preservation that does not depend for its validity on being mentioned anywhere in the text? He said, well, “that’s a good question.” If it’s the first one, we know that many people read Wilson and Blackstone. It simply turns our jurisprudence into a legislative history.
We’ve got to find out how many people who framed the [Second] Amendment actually read Wilson and Blackstone and voted on that basis. And even if we got the answer to that kind of question, which we can’t, it doesn’t answer the question we’re offering, which is, is there in fact a deep principle that justifies the use of lethal force as a means of defending oneself? Now my pitch, Lee, is that it is pervasive, and we try to show so many times how those judges then and now are pressed, as Scalia was pressed, to move outside the text of the Constitution to those deep principles which are there. And among them, I think nothing is deeper than the principle of “all men are created equal.”
Steven Hayward: Thank you, Hadley. Lee, give your brief rebuttal, hopefully confining yourself to Hadley’s opening comments, but go ahead.
Lee Strang: Well, actually, I wasn’t going to do that. I’ll do both, if that’s all right.
Steven Hayward: All right.
Lee Strang: I’ll do it quick. So, I did not hear Professor Arkes rebut my claim about the lack of the role of the Declaration in the framing ratification and the subsequent history. So that’d be my first point. My second point is, when I hear Professor Arkes’ claim, this is echoed in his previous scholarship, so this claim that he’s making about the role of fundamental axioms, of natural law, of the principles of the Declaration as being a necessary component of constitutional interpretation or constitutional jurisprudence, I think of that as being a too close of an intertwining between natural law and positive law.
And here’s what I have in mind on that. I think that the role of natural law morality in the Constitution, in our particular Constitution, like in every legal system, is an empirical question. That different legal systems at different times have different roles for it. So, for example, in the English common law system, I think there was a relatively robust role for English common law judges to be able to utilize ethical norms. In the code of Napoleon, at least officially, you’re supposed to use nothing.
And I think that the American legal system, especially in the positive parts has channeled roles for natural law. And I think there are three key roles, which I described earlier, one is a justification for why officers should follow the Constitution’s original meaning today, or back in 1787. Second, when the original meaning itself requires use of natural law norms. So, for example, I think the Eighth Amendment’s phrase “cruel” requires an application of the moral principle of cruelty. And third, in the exercise of officer discretion. I think this is where a lot of the work is done.
So, if one is a member of Congress, one is going to utilize the natural law within their spheres of Article 1, Section 8 power to make that natural law effective. Second, I think that what Professor Arkes maybe is not saying, at least in my presentation of originalism, is that I think originalism is our positive law system’s way of rationally grounding our legal system in the natural law, but not being rationally determined by that natural law.
And when you think of, for those of you who had constitutional law, and you think of all the different aspects of the American Constitution, from the Interstate Commerce Clause to the Free Speech Clause, those are, I think, for the most part, rational ways for our community, both past and present, to live together in peace. But there’s nothing inherently right or wrong about the way that the United States has chosen it. And I think you can see that most easily in issues like, for example, the term of office for the president, that there’s broad bounds of prudence that require a term of office for the president.
One year is too short. Six years is probably too long. Lifetime is too long. And we, in our political community, made a number of judgments. Professor Arkes refers to it as legislative history. I’m happy to call it that as well as long as the idea is that it is referring back to these judgments that Americans today and in 1787 recognized as being made by the framers and ratifiers. Professor Arkes a couple of times refers to the role of moral axioms in constitutional jurisprudence.
And I think that his statement of what those moral axioms are, which is ethical truths that are true, always and everywhere, and that people have access to those. I think that seems true. But I think our U.S. Constitution, at least as originalism understands it, is a human creation, using human judgment about how best to pursue the common good under the circumstances we face. And it’s rationally underdetermined how we’re going to do that.
And so, we, for sound reasons, have identified our way of approaching, for example, interstate trade: we have the Interstate Commerce Clause. That’s different than what the European Union does, but that’s also different than what the United Kingdom does. And so, that rationally grounded but rationally underdetermined approach, I think, is still supported by sound reasons to follow, such as the rule of law, such as, I think, our legal system is basically just. But that’s far removed from relying on axioms of ethics to decide, for example, how the Commerce Clause applies to intrastate railroad rates like in the Shreveport Rate Case.
And I think even if we were able to identify moral axioms that would be used by judges in a particular case, I think it still leaves open the question about both who and how those moral axioms should be used. So, it’s rationally underdetermined proposition about what type of officer implements different natural law norms. And then I think it’s also underdetermined about how any particular officer implements those natural law norms.
So, for example, in previous scholarship, Professor Arkes has referred to a right to petition as being an axiom of democratic government, and that may or may not be true. I’ll assume it’s true for purposes of our fight tonight. But even if it’s true, that that’s a proposition, it doesn’t tell us who, in other words, which officers are entitled to receive or required to receive those petitions. And it also is rationally underdetermined what those officers should do when they receive those petitions.
And so, originalism recognizes the space between natural law norms and the positive law that the United States has adopted as a rational way to implement that. And originalism ties us to our unique implementation of those natural law norms. Steven, back to you.
Steven Hayward: I want to keep us from getting into a clench on what I think can be regarded as some subsidiary details. But what I want to do is, I’d like to pose one devil’s advocate question to each of you. And I have a whole bunch, but I want to stop after that because we have quite a lot of good audience questions starting to pile up, which I think will bring us back to some of the live questions here. First, the devil’s advocate question for you, Lee. As you know, most of the state constitutions in the 1780s, like Massachusetts, most famously, they often began with a Bill of Rights and a Preamble that sounds an awful lot like the Declaration of Independence, minus the complaints against the king, which they didn’t need to do.
And so, what if, sometimes the argument against the status of the Declaration is, well, it’s not referenced in the Constitution. There’s none of that language in the text of the Constitution. What if they had added it in? Instead of the afterthought of the Preamble we have, what if they had stuck the Declaration of Independence or some version of it in the Constitution? After all, it was thought meaningful for the state constitutions at the time. How would that affect your argument or your perspective here? It seems to me that would be a considerable challenge.
Lee Strang: I guess I don’t see it as a challenge at all, Steven. So, if there’s some new text that’s added to the Constitution, let’s say, it’s some quote or some part of the current Declaration of Independence, then that part of the Constitution will be treated like other parts of the Constitution. We’d look for the meaning of that text at the time it was ratified. And in fact, we’ve done it a lot. We’ve amended the Constitution; we’ve added new text. The text could be new text, or it could be text that was actually old that wasn’t adopted till later.
And so, it’s a regular occurrence for us to add new text to the Constitution. And if we added the Declaration’s text, we would look for the original meaning of that. But actually, let me push back a little bit on your premise, because when you talk about the Declaration, I assume you were talking about – because you referenced the state constitutions – the rights protection language or the language about equality or the language about the way in which humans are created or the way in which humans form their government. But there’s, as you said, lots of other parts of the Declaration.
And I think the fact that you have to point to certain parts of the Declaration, i.e. the rights language at the beginning of the Declaration, as opposed to, as you said, all the grievances against the king, shows that it would actually be really hard as a practical matter. And so, I think it was prudent for the framers to not include the Declaration’s language in the Constitution. The Declaration had one major goal. The goal was to justify revolution against the mother country against the United Kingdom.
And it served that purpose, it stopped serving that purpose once we had our Articles of Confederation. And the current Constitution has a different purpose, which is to implement and pursue the common good. And so, I think, actually, it was wise for them to not include the Declaration’s text. But if they had, it would be like other parts of the Constitution.
Steven Hayward: Yeah. I’m the referee, so I won’t extend this beyond just a comment. But it seems to me the Fourteenth Amendment’s Equal Protection Clause would be interpreted differently if the Declaration were part of the actual text.
Lee Strang: Yeah. I guess I don’t understand why that would be the case, because there would still be the context at the time the Equal Protection Clause was adopted. And we looked to that context, and it’d be an empirical question whether your claim was true, which is, “hey, this means the same thing as the Declaration,” or whether it meant something else, which I think, in fact, it did mean something else.
Steven Hayward: Okay. Well, I don’t want to enter the contest here. Let me pose my devil’s advocate question for Hadley, which is, Lee actually mentioned one case recently, where Justice Alito had referenced the Declaration of Independence. I guess I’m wondering, can you name very many cases, or any cases, where the Declaration is referenced as the decisive source of a legal principle for a holding or doctrine of a case. And the related version of that question is, Lee points out that it wasn’t mentioned a lot in the early decades of the Republic or afterwards for the most part. And maybe that’s an oversight, maybe it’s because they didn’t think they needed to. Maybe they did it, as you hint, in other ways. But I wonder if the absence of that isn’t significant in why we’re having this debate. I’ll put it that way.
Hadley Arkes: Well, that brings back an old conversation that I once had with the dean of a law school who said, “There wasn’t much discussion about natural law at those first cases on the Republic.” And my friend, Dan Robinson said, “Yeah, there wasn’t much discussion of the alphabet either, but it ran through everything.” And the same way here. It doesn’t have to keep being mentioned, but where do we get that premise? Why do you say that people don’t have to show their passport. But, look, I think, Lee, in this thing, I think he’s suggesting that positive law is the alternative to natural law. No.
Natural law needs positive law. We know that. We may have an understanding of the principle that bars us from driving at speeds that put life at hazard, including our own. But, we have to make a move to a positive regulation that tells us 35 miles an hour on the winding road, 70 on the height. The natural needs the positive. Consistent with the natural law, could be a variety of constitutions. It could be the confederation. It could be the regime where there’s free flow across the states, without a discriminatory tariff.
There are different arrangements for interstate commerce that are quite compatible. But, of course, the Court said, you could not bar people from moving across those lines because they happen to be poor or indigent. And I suspect today, we wouldn’t allow anybody to put up racial classifications for the movement. Now, that’s not in the Commerce Clause, but we seem to know what informs the Commerce Clause. So, I’m saying it’s one of the things so basic that you keep coming back to them without quite realizing how much you’ve absorbed of the main operating premise.
Steven Hayward: All right. I want to go to some questions now. George Nash is with us today, a great historian. And George, I’d like to bring you in now. And remember please to unmute your microphone, or we won’t be able to see you or hear you. George, are you out there?
George Nash: Yes, yes. Good evening, everyone. Well, my quick question to both gentlemen is, and after thanking you both for a very stimulating set of remarks, is in terms that the layperson will understand here as opposed to the legal specialists and the litigants and cases, what difference does this argument make in terms of our law or larger understanding of what our polity is all about? Just stepping back from the arguments you’ve made back and forth, can you explain to people perhaps listening in what the larger significance of this argument is in terms of our keeping our polity alive, our constitutional republic alive?
Lee Strang: Steven, may I say something?
Steven Hayward: Yeah, please do.
Lee Strang: Sure. So, I actually view this debate as being similar to a debate that’s going on in, I’d say, right of center circles right now over how to interpret our Constitution. So, for the last 30 or 40 years, if you were right of center in America, not including … I mean, the other people as well who are left of center, but if you are right of center, typically, originalism was the way that you thought about interpreting your constitution. And over the last, I would say, two to three years, there’s been criticisms by people on the right end of the spectrum, saying that originalism is inadequate, that we need to go directly to, and there are different ways of doing this, but directly the substantive natural law or ethical norms.
And I think maybe the most widely known example was Adrian Vermeule’s essay in the Atlantic, what, maybe a year-and-a-half ago or so. And that ignited a debate. And I actually think that this debate is a parallel of that, another version of that. And the pitch I’m making tonight is that originalism, in other words, originalism, which is our society’s way, our legal system’s way of reasonably implementing the natural law is a valuable project.
It’s a valuable project because of the rule of law, because of distributive justice, because of the way in which it allows Americans to coordinate their lives and live their lives in dignity together. It’s not perfect, right? That’s not my claim. And that what I’m worried about is that there’ll be a siren song, and I see this in Vermeule’s essay, there’d be a siren song of, “hey, let’s forget the constraints of the positive law and let’s just go straight for what we think are the ethically correct results.”
And then that will lead to a destabilizing vicious cycle where each side, tit for tat, you get your guys in the Supreme Court, and then they do substantive ethical principles. And then the other side gets their people on the court and does the same thing. So, I think, Mr. Nash, what’s most important here is that this allows us to find a theory of interpretation that Americans of reasonably different views can say, “this is the right way to interpret our Constitution despite our different views, despite our different religious views, political views, et cetera.”
Steven Hayward: Hadley, do you want to weigh in on that question?
Hadley Arkes: Okay. Look, we find that ordinary folk understand things, although it’s often without the philosophical vocabulary. The ordinary person would understand that not every alcoholic drink is destructive. It’s a matter of taking things with moderation. And the same person will not turn around and tell you that genocide, taken in moderation, could be harmless and ineffective. They don’t have the language of things that are categorical or contingent, but they grasp the matter.
The ordinary man may not grasp the principle that explains why he is not signing contracts with dogs and horses or why he feels obliged to treat everybody equally who comes within this view, or why he can’t make moral predictions about people on the basis of their height, their weight, their coloring on the assumption that those things determine the character of these people. The principles are at work there, even when the Declaration of Independence is not named. It made me think, though, of John Marshall in Fletcher v. Peck, where he said, you can settle the case simply on the Contracts Clause.
But instead, he shows how the Contrast Clause could be drawn deductively from the deeper principle of ex post facto laws, which everyone considered one of those necessary principles of law, that will be in any decent regime. So, Marshall could turn around and say, the state of Georgia is a great state, it’s part of the American union. But even if Georgia were a separate state, outside the union, outside the Constitution, this law would be wrong, because it is rooted in a proposition, in a wrong, that is a principle that is not contained in the text of the Constitution.
What I’m saying is they’re constantly doing it. That is the point of Marshall that, as I cited, at the end of Gibbons v. Ogden. Why should I be spending so much time explaining, demonstrating what should be an axiom? But the great advantage, the knack of those people, Hamilton and Marshall, was they tried to show, they tried to trace their judgments back to those anchoring axioms, to those things that were there before the Constitution, the principles that were there before they built the Constitution.
No one’s arguing the question that we have the Constitution. It’s a written Constitution. We follow the direction. No one is arguing or whether we should have an election for Congress every two years. We take the structure for granted. But what my concern is that the Originalism that has been offered to us, that utterly detaches the positive law of the Constitution from those anchoring principles. And my pitch has been, for years, as we may know, that it is persistently necessary for judges in explaining their judgments, to keep tracing those judgments back to those principles or those axioms, as Marshall said, that were there before the text in order to make sense of their application of the text to the case before them.
Steven Hayward: So, Lee, I have a very spirited challenge for you from Frank Beckwith. Hi, Frank, by the way. But, I want to preface it in a way that connects back to George Nash’s question a moment ago. I think it is fair to say that the dominant opinion in law schools runs along your lines, actually beyond yours really, that there’s no role or relevance of the Declaration of Independence to constitutional interpretation. And so, it’s not taught in a serious way, I think. And I wonder if that’s a mistake.
And I think that wondering about that possibly as a mistake, even to treat the philosophical basis of it is brought up by Frank’s question, which is about the famous Buck v. Bell case. Was that wrongly decided? We know, of course, that Holmes wrote the opinion, a person very hostile to natural law and didn’t really like the Fourteenth Amendment very much, didn’t like individual rights very much. And so, the question is, if you think it’s wrongly decided, what provision of the Constitution did the Virginia statute violate? And if you can’t find one, then don’t you need to go beyond the principles of the Constitution to reach a different judgment? Or maybe we presume that you think that case was wrongly decided? So take it from there.
Lee Strang: So, thank you for that question, Steven, and thank you, Mr. Beckwith, for that question as well. So, on your first point, Steven, about whether the Declaration is taught in law school classrooms, I’m confident that 98% of law school classrooms do not teach the Declaration. I, perhaps ironically, do teach it. I spend a class talking about it and about its background and its role, both as an input into the Constitution’s meaning, so my claim is that it doesn’t have no input.
And then second, as part of the small “c” political constitution, so my arguments been focused on legal interpretation, but there’s also the constitution playing a role in American public life. And I don’t want to diminish in any way the role that the Declaration can and should play. So, Dr. Beckwith points to the infamous case of Buck v. Bell. He says, “does it not violate the Constitution’s original meaning?” I think he chose the case because I think his premise would be that it would be hard to find a facet of the Constitution’s original meaning that would outlaw that.
And that actually may or may not be true. I need to step back and say, as an originalist, how I would approach answering this question. My first step is, well, I would need to find out: what is the original meaning of the Constitution? And is there an aspect of the original meaning that governs a statute by Virginia, this is the issue of Buck v. Bell, that forced sterilization of “feeble-minded” individuals? And there may or may not be … I’m sorry if he’s expecting an answer from me on the substance of that.
The court ruled based on the Fourteenth Amendment’s Due Process Clause. Based on my knowledge, which is not an expert knowledge of the original meaning of the Due Process Clause, I think that that would not be the correct location for that. If there was going to be a place, it would be the Privileges or Immunities Clause of the Fourteenth Amendment, and that included a variety of privileges or immunities of citizenship. There’s a big debate about how broad that scope is.
But once individual autonomy and one’s ability to not be forced to have sterilization against one’s will, we’ll probably be within that, but I’m not making a definitive claim on that point. But let me even bite the bullet. So let’s say if your premise is right there, there is no way in which the original meaning outlaws the outcome of Buck v. Bell. I actually think that that shows that originalism is a true theory of interpretation. It’s not just what living constitutionalist do, which is, pursue what they think is ethically best.
And it’s not what I think my friends to my right, and I’d say Professor Arkes may or may not be in this camp, who say that you look at the original meaning through the light of the Declaration or through natural law. Instead, the original meaning is tied to the artifact of the Constitution. And that artifact, I think, is reasonably just, but I think that artifact has failings. And if in fact, there’s nothing in the Constitution’s original meaning that prevents the result of Buck v. Bell, that would be a failing. I just think that that shows that originalism is actually a theory of interpretation.
And the way that I would show this is one of the characteristics of law as human created artifacts is that they bear the imperfections of their creators. There are intentional imperfections. There are unintentional imperfections. And for those of you who’ve had property law, so those lawyers out there and you’ve covered servitude law, you know right away that American law is imperfect. Because nobody would sit down and create American servitude law dealing with easements and driveways the way that we did.
And so, originalism, because it actually is unable to reach perfect results every time, shows that it’s law-like and that it’s faithful to our actual written Constitution. So, to summarize, I’m not sure if the original meaning outlaws result in Buck v. Bell. But even if it doesn’t, I don’t think that’s necessarily a fatal strike against originalism. I actually think that that shows that originalism is being faithful to our imperfect written constitution.
Steven Hayward: Go ahead, Hadley. Do you want to weigh in on that?
Hadley Arkes: Well, again, it’s indifferent to the outcome. It’s another way of saying that it’s a morally empty jurisprudence. Look, what do we do with that question I was raising before, Harry Jaffa’s, would you put the question “is the Black man a man?” out to the value judgments of people of the states or would you put out the question of whether that child in the womb is a human? Would you do it the way Scalia was suggesting to do: well, see, if the Constitution in its text gives us reason to think, they meant to protect anything that was prenatal? Is that the way we would do it?
Or would we then rather go along with the lawyers from Texas in Roe v. Wade to say, here is the compelling evidence from embryology that the infant in the womb, was human from its first moments and if the laws of homicide cover humans, then why they would they not cover this? So, I guess the question to Lee is, following Harry’s point, could you put out the question to the value judgments of the states as to why whether they’ll treat their Black people as human? I don’t think you’d do that.
Lee Strang: So, I think maybe there’s a misunderstanding going on here. So my claim is not that … and I don’t think it’s an implication of my position that originalism is a morally empty jurisprudence. In fact, I think what it’s doing is it’s using law in its proper way, which is as a way for a community in its particular circumstances among people who disagree with each other in lots of substantive ethical issues to live together in relative peace. And that means, as a matter of fact, there are going to be national governments going to do things that I think is imprudent or unjust, and state governments are going to do things that I think are imprudent and unjust.
And that’s baked into the reasonable response of our legal system to the fact of pluralism. But that doesn’t mean it’s morally empty, because I think that judges have really strong reasons to follow the original meaning, imperfect as it is. One is the rule of law. And this struck me, actually, when it was one of the two times when President Trump was impeached, that instead of having people coming together in fisticuffs and violence and bloodshed, what you had was three officials walking from one marble hall to another marble hall with a nice wooden box and some papers inside of it.
I didn’t agree with the impeachments, but what I saw there was that despite deep disagreements, the rule of law held, and that, I think, is a profound value. And so, it’s for this kind of value that originalism is able to secure in a way that I think the living constitutionalism versus the natural law originalist view that I think Professor Arkes is pointing out, would lead to a vicious cycle of polarization of the Supreme Court and actually would undermine that great good.
Hadley Arkes: Lee, let’s do a quickie. If you had to do this question of abortion, will you do it the way Scalia did by seeing whether the Constitution refers only to postnatal beings? Or would you do it the way the lawyers from Texas did it by saying, let us look at the empirical evidence of what constitutes human being as objective evidence? See, which path would you be more likely to take?
Lee Strang: I think it would depend on what the original meaning of the word “person” is. So does the original meaning of the word person require a natural kind, which would take into account the actual current medical knowledge of unborn human life? Or is it a conventional legal term? So what was the word human meaning in 1868, for example? And so, I think those would be the two. It depends on what the answer to that is, and that’s actually contested. As you know, Professor Finnis just recently had an article in First Things, articulating the natural kind argument, very powerfully so.
Steven Hayward: So, we’re down to about five minutes left and we have way more questions than I can possibly squeeze in. So, I’d like to try to implore you guys if I can for crisp, short answers. That’s difficult, I know. And being a Federalist Society audience, a lot of the questions are long and complicated and very, very good. I want to take up one from Jack Painter if I can, who brings up Marshall’s argument in McCulloch talking about the necessary and proper, especially proper part of the clause, needs to be understood as being connected to the spirit of the Constitution.
And so, the question Jack asks is, “aren’t natural rights part of that spirit?” And I’ll amend it slightly to say, and if they are, where do they come from, if not the Declaration. And he adds a typical twist, if Congress relies on a Necessary and Proper Clause, but passes a law that violates people’s natural rights, doesn’t that mean it’s not proper? Start with you on that, Lee.
Lee Strang: So, proper, I think the scholars have mined that fairly well, that proper means inconsistent with the structural principles of the Constitution. So, it doesn’t mean whatever is out there is ethically true. It has a particular meaning at that time, that it didn’t include free floating ethical norms.
Steven Hayward: All right. I mean, I know that I’m going to just cut you off into some time. I know that … Yeah, who’s the guy at Boston University who has written such so well and …
Lee Strang: Gary Lawson.
Steven Hayward: Gary, thanks. Yeah, it’s Gary Lawson, exactly. What about the other part of his question, are natural rights part of the spirit of the Constitution? What say you, Lee Strang?
Lee Strang: Yeah. So I’m not sure what the “spirit” means. There’s been a recent article by Professor Randy Barnett and Evan Bernick talking about the spirit of the Constitution, and I think it’s the best work so far, saying that you can have a claim that there’s something called the Spirit of the Constitution, which they characterize as the function of the clauses of the Constitution and still be within the tent of originalism, because it’s tied to the original functions of that. There’s actually a great new book that about original intent and looking at the functions of the Constitution. And so, if we mean it in that sense of the original functions, then I think I might be on board. But if it means something like free floating ethical principles untied to the original Constitution, then I think that that’s not consistent with the American legal system.
Hadley Arkes: Steve, a quickie.
Steven Hayward: Sure.
Hadley Arkes: That’s a great question, what it points us to is the Federalist 33, where Hamilton shows that the Necessary and Proper Clause was part of the logic of the Constitution. It would be there even if it were not mentioned in the text. And he simply draws the answer from what we mean by a moral agent, a being who could reflect about the rightful and wrongful acts that he may pursue, and what could he properly claim. He couldn’t claim a right to do a wrong. But, he could claim for those things, both necessary, useful, and legitimate, in seeking the ends he may rightfully seek, Necessary and Proper. So the question, yes, the very logic of that moral logic was there before the text, and would be there, even if there hadn’t been the text.
Steven Hayward: Yeah, okay. With, oh boy, the three minutes left, I think maybe one way of summarizing the difference here, Lee, on the highest and broadest way is that Hadley believes that very simply, Lincoln was right when he said the Declaration was an abstract truth applicable to all men at all times. You made a comment in your opening statement that I’m not quite sure exactly how you meant it. So, I’ll ask you to clarify it here. You said the Declaration, I’m re-paraphrasing here. It fell out of disuse after the Founding, the Constitution, and then was revived by people in causes out of the mainstream.
So, I guess you could say certain forms of the abolitionists were out of the mainstream. What about Lincoln? Was Lincoln out of the mainstream? And do you agree with him that the Declaration is a, regardless of its legal status, an applicable truth, applicable to all men at all times? Or are you more inclined to be a conventional historicist?
Lee Strang: Yeah, so two responses, Steven. So one is that I think it’s obvious that most of the Declaration is not applicable to all people at all times. It talks about King George pillaging our shores. And so, that’s not applicable to all people at all times. I think even some of the rights claims that government is instituted by consent of the governed. I don’t think that that’s a true statement, either. I think it depends on the common good of the community. So, I just think, on its own terms, the Declaration is incorrect.
More generally, though, I think that it is the case that the Declaration is viewed politically, incorrectly so, as being the philosophical commitment of the American project and the Constitution is the implementation of that project. I think Lincoln supports my position, though. So, you asked whether Lincoln was outside the mainstream. Lincoln was somebody whose view was that the Constitution did not outlaw slavery, even though it’s inconsistent with the Declaration’s equality principles. Instead, he advocated for its non-extension. And then eventually, his goal was to eliminate it in the states where it existed. So, he’s firmly in the same camp that I am, which is the Constitution and Declaration had separate and their own integrities.
Steven Hayward: I’m going to give Hadley the last word. I had a long question prepared, but we don’t have time for it, and it was going to be about how the word “statesman” has fallen out of … It’s fallen into disuse. It’s not used anymore in academic political science, but we still use the word “jurisprudence.” And I think there’s something significant to be said about that divergence, but that’s a longer story for another time. So, Hadley, I’m going to give you the last word, because we’re up against our time limit.
Hadley Arkes: I’m just trying to recover the last … Yeah, that when Lincoln said applicable to all men at all times, he wasn’t referring to that pronouncement on housing troops and private houses. He was referring to the principle. And to ask whether the principle is true, it might be to ask you Lee, do you think 100 years from now, we are going to see labor contracts signed with our dogs and horses? Or, 100 years from now, will we continue to think that those beings who can give and understand reasons over matters of right and wrong deserve to be ruled by having reasons given to them? Well, I think that’s what Lincoln meant. That was solely what it meant. My betting is that when we come back, things will still be in that suspense as they are now. And I say as Tiny Tim would say, “God bless us, one and all.”
Steven Hayward: Thank you, Hadley. I will just tell you very briefly that I ran your argument by an Animal Rights advocate at a university three or four years ago and about labor contracts for horses and consent forms for our dogs at the vet, and it promoted an eruption of vituperation and vulgar language back to me. That was the response.
Hadley Arkes: A friend reported a case in Denver where a man went to the marriage license office to get a marriage license for himself and his horse. And I’m pleased to tell you, I’m the one who guessed the answer given by the man behind the window: that the horse wasn’t yet 18.
Steven Hayward: Right, it was clever. All right, Jacob, our host, is back. And Jacob, I’m going to let you sign us off and send us off into the evening. And thank you both, Hadley and Lee, for a great discussion.
Hadley Arkes: Thanks, Lee, to come in with us.
Lee Strang: Thank you all.
Jacob: Thanks, Steven. On behalf of the Federalist Society Student Division and the University of Cincinnati College of Law Federalist Society, thank you to our speakers, our referee, and our audience for logging on the night. These events could not happen without you and we appreciate your time and support. Have a good night, everyone.