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July 4th, 2010

If it is not Declarational, then it is not Constitutional?

By Nathan Tucker
On this day 234 years ago, our Founders declared that “these United Colonies are, and of a Right ought to be Free and Independent States [and] that they are Absolved from all Allegiance to the British Crown.”  Increasingly, our country’s birth certificate is being cited among conservative activists as binding legal authority to check the liberal agenda of both legislatures and the courts.

As one proponent has put it, “[o]ur American Declaration is the supreme, unamendable moral law of the United States.  Declarational law preceded and trumps our supreme, amendable secular law, the Constitution.  As stated in our Declaration, the purpose of secular law (Constitution) is to secure our sacred, unalienable, equal, individual rights to life, liberty, and pursuit of happiness.”

Because of this, it has been argued that “if a law passed by Congress, or an executive order issued by the President, or a court opinion issued by Judges runs contrary to the principles of the Declaration, then it runs contrary to the spirit of the Constitution.  In other words, if it is not Declarational, then it is not Constitutional.”

Such “undeclarational” laws may not necessarily violate the express provisions of the Constitution itself.  Rather, advocates of this theory argue that, even if Congress, the President, or the judiciary do have the Constitutional authority to do something, a particular use of that power may run afoul the “spirit” of the Declaration and, consequently the Constitution itself.

The sole purpose, therefore, of “Declarational” law is to allow for its advocates to read into the Constitution ideas and prohibitions which are no where in the text of the document itself but which proponents of the theory sincerely believe to be mandated by the “spirit” of the Declaration.

Many are unabashed in their attempts to find every conservative principle mandated by the Declaration, and thus by the Constitution, arguing that the former “contains all the principles of the Conservative Movement: belief in God, Divine purpose, Natural Law, Natural Rights, the sweep of history, the definition of tyranny, unalienable rights, the purpose of government, private property, free enterprise, civil justice, the just war theory, and everything in the Bill of Rights.”

Taking up this theme, Christian law professor Herbert Titus stated on Jan Mickelson’s morning talk show on WHO Radio on April 14, 2009, that both our state and federal governments are bound by the Creator-centric worldview of the Declaration’s natural law.  He went so far as to say that, though both the state and federal constitutions are completely silent on the subject, the Levitical definition of marriage became constitutionally binding, via the Declaration, on both the legislature and the judiciary, who are powerless to change it.

Because the Iowa Supreme Court “attempt[ed] to make straight what God has made crooked” when they legalized same-sex marriage, Titus argued that their decision was wrong because “[t]hey are usurping the authority of God” in violation of their duty under the Declaration of Independence.

That is not a legal argument but rather a moral one which, however much one may prefer the biblical definition of marriage, has no place in constitutional argument.  In our secular constitutional republic, the Bible does not determine whether something is constitutional.  While “Declarational” law or natural law binds the conscience and can serve as the basis for new legislation or the civil disobedience of existing law, the Founders simply did not establish it as the supreme law of the land.

It would be odd, indeed, if they had intended to graft the Declaration’s references to “the Laws of Nature and Nature’s God” into the Constitution without saying so.  The men who labored under the summer heat of 1787 to create a document of limited, enumerated powers never once contemplated making “Declarational” law on par with the Constitution as the “supreme law of the land.”

Even if they had wanted to enshrine “Declarational” law into the Constitution, that document would have been an odd place to do so because the federal government had no power to either violate “Declarational” law or to enforce it.  It has very little power to enact domestic legislation (which is why the Founders did not originally include a Bill of Rights), and provisions for Congress to enforce constitutional protections against the states were not added until later amendments.

Additionally, the idea that the Founders intended to include “Declarational” law along with the Constitution as the supreme law of the land is contradicted by the fact that they codified in the later a violation of that law.  Without mentioning it by the name of slavery, the Constitution not only included bondsmen in determining population for the apportionment of House seats, but it also forbade Congress from prohibiting the foreign importation of slaves until 1808.  Few, if any, Founders justified slavery as moral, yet they included that violation of “Declarational” law into the Constitution itself.

In short, “Declarational” law is an enticing, but an ultimately perilous, temptation because it allows conservatives to read into the Constitution what they want it to say, even if the Constitution is silent on those subjects.  As a theory of constitutional interpretation it simply becomes the conservative version of the liberal’s “living Constitution”—the means of interpreting the Constitution to achieve one’s ideological goals.

The Constitution does not mandate every conservative principle, and the constitutionalist rejects the offer, no matter how tempting, to do so through Declarationalism.  We do not need biblical judges, capitalist judges, Lockean judges, Burkean judges, Aquinasian judges, or any other strand of conservatism that can be found in the Declaration.

Rather, we only need constitutionalist judges who will interpret that document as its text was originally understood, leaving morality and conservatism to be fought for in the political and cultural arenas.  Those who advocate for “Declarationalist” activist judges (while at the same time claiming that courts have no power) should be wary of courts judging morality, for they may not get the type of “righteous” judges they hope for.

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About the Author

Nathan W. Tucker
Nathan W. Tucker is a Davenport attorney and author of We The People: The Only Cure to Judicial Activism. He can be contacted at [email protected]

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