A Tale of Two Sweeping Clauses
12 Pages Posted: 13 Jul 2018 Last revised: 29 Jul 2018
Date Written: July 4, 2018
Whenever the relationship between the Declaration of Independence and the Constitution gets discussed, most of the attention naturally gravitates toward the principle of equality and natural rights background of the Declaration, which have played such important roles in American history. The question then becomes whether, or to what extent, the Constitution embodies these background principles. This Essay focuses attention on a less familiar connection between these two documents, which bears on the issue of government powers rather than of individual rights. The Essay argues that some of the most influential founders considered the Declaration to be, in effect, the "first constitution" of the United States, whose reference to the power "to do all other Acts and Things which Independent States may of right do" vested the United States with implied national powers; and that this key provision of the Declaration later inspired the "all other powers" provision of the Necessary and Proper Clause.
Note: The Essay is a revised version of invited remarks on "The Relationship Between the Declaration of Independence and the Constitution" I presented at the 37th Federalist Society National Student Symposium at Georgetown University Law Center on March 10, 2018. A video recording of this event, including additional remarks and a panel discussion featuring Judge Thomas Hardiman and Professors Randy Barnett, Lee Strang, and Michael Zuckert, can be found on the symposium website.
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