Declarationism

Declarationism

Discussion
Ask a question about 'Declarationism'
Start a new discussion about 'Declarationism'
Answer questions from other users
Full Discussion Forum
 
Encyclopedia
Declarationism is a legal philosophy that incorporates the United States Declaration of Independence
United States Declaration of Independence
The Declaration of Independence was a statement adopted by the Continental Congress on July 4, 1776, which announced that the thirteen American colonies then at war with Great Britain regarded themselves as independent states, and no longer a part of the British Empire. John Adams put forth a...

 into the body of case law on level with the United States Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...

. It holds that the Declaration is a natural law
Natural law
Natural law, or the law of nature , is any system of law which is purportedly determined by nature, and thus universal. Classically, natural law refers to the use of reason to analyze human nature and deduce binding rules of moral behavior. Natural law is contrasted with the positive law Natural...

 document and so that natural law has a place within American jurisprudence. Its main proponents include Harry V. Jaffa
Harry V. Jaffa
Harry V. Jaffa is Professor Emeritus at Claremont McKenna College and Claremont Graduate University and a distinguished fellow of the Claremont Institute. He has written on Aristotle, Thomas Aquinas, Abraham Lincoln, Thomas Jefferson, Winston Churchill, Leo Strauss, American constitutionalism...

 and other members of the Claremont Institute. Some proponents claim that Supreme Court Justice Clarence Thomas
Clarence Thomas
Clarence Thomas is an Associate Justice of the Supreme Court of the United States. Succeeding Thurgood Marshall, Thomas is the second African American to serve on the Court....

 is a follower of this school of thought; however, Thomas is more widely considered a member of the strict constructionist
Strict constructionism
In the United States, Strict constructionism refers to a particular legal philosophy of judicial interpretation that limits or restricts judicial interpretation. The phrase is also commonly used more loosely as a generic term for conservatism among the judiciary.- Strict sense of the term :Strict...

 school.

Proponents claim that the concept is derived from the philosophical structure contained in the Declaration of Independence and assertion that it was the Declaration that created the nation, the Constitution creating only the federal government. According to this view, the authority to create the Constitution derives from the prior act of nation-creation accomplished by the Declaration. The Declaration declares that the people have a right to alter or abolish any government once it becomes destructive of their natural rights. The turn away from the Articles of Confederation
Articles of Confederation
The Articles of Confederation, formally the Articles of Confederation and Perpetual Union, was an agreement among the 13 founding states that legally established the United States of America as a confederation of sovereign states and served as its first constitution...

 with the ratification of the Constitution was an action of this sort and so the Constitution's authority exists within the legal framework established by the Declaration. The Constitution cannot, then, be interpreted as though it were the foundation of constitutional law, in the absence of principles derived from the Declaration.

Though philosophically conservative, Declarationists such as Jaffa have been outspoken critics of originalist construction
Originalism
In the context of United States constitutional interpretation, originalism is a principle of interpretation that tries to discover the original meaning or intent of the constitution. It is based on the principle that the judiciary is not supposed to create, amend or repeal laws but only to uphold...

 jurists including Robert Bork
Robert Bork
Robert Heron Bork is an American legal scholar who has advocated the judicial philosophy of originalism. Bork formerly served as Solicitor General, Acting Attorney General, and judge for the United States Court of Appeals for the District of Columbia Circuit...

, Antonin Scalia
Antonin Scalia
Antonin Gregory Scalia is an American jurist who serves as an Associate Justice of the Supreme Court of the United States. As the longest-serving justice on the Court, Scalia is the Senior Associate Justice...

, and William Rehnquist
William Rehnquist
William Hubbs Rehnquist was an American lawyer, jurist, and political figure who served as an Associate Justice on the Supreme Court of the United States and later as the 16th Chief Justice of the United States...

, likening them to legal positivists
Legal positivism
Legal positivism is a school of thought of philosophy of law and jurisprudence, largely developed by nineteenth-century legal thinkers such as Jeremy Bentham and John Austin. However, the most prominent figure in the history of legal positivism is H.L.A...

. Bork and legal scholar Lino Graglia
Lino Graglia
Lino A. Graglia , Italian American, is the Dalton Cross Professor of Law at the University of Texas specializing in antitrust litigation. He earned a BA from the City College of New York in 1952, and an LLB from Columbia University in 1954, before working in the Eisenhower administration's United...

 have, in turn, critiqued the Declarationist position, retorting that it is single-mindedly obsessive over the Dred Scott
Dred Scott v. Sandford
Dred Scott v. Sandford, , also known as the Dred Scott Decision, was a ruling by the U.S. Supreme Court that people of African descent brought into the United States and held as slaves were not protected by the Constitution and could never be U.S...

 decision and resembles a theology
Theology
Theology is the systematic and rational study of religion and its influences and of the nature of religious truths, or the learned profession acquired by completing specialized training in religious studies, usually at a university or school of divinity or seminary.-Definition:Augustine of Hippo...

rather than a legal doctrine.