• 05 October 2012

The Continued Relevance of the Declaration of Independence

Alexander Tsesis

INTRODUCTION

In several recent decisions, the Supreme Court reasserted its exclusive power to review the constitutionality of federal statutes while diminishing Congress’s authority to pass civil rights legislation.  Beginning with City of Boerne v. Flores (1997), the Court issued a series of opinions placing significant limitations on Congress’s power under Section 5 of the Fourteenth Amendment to independently identify and create remedies against civil rights violations.  More recently, in Citizens United v. Federal Election Commission (2010), the Court prevented Congress from differentiating the regulation of corporate and individual campaign expenditures.  I critique the relevant decisions through the prism of the Declaration of Independence’s principle of representative governance.  My aim is to explain why the Declaration’s statements about inalienable rights and collective self-governance are pertinent to identifying the reach of congressional authority.

The manifesto’s principled statements about liberal equality and political participation are foundational to the Constitution’s structure.  The Declaration mandates that representative government respond to lobbying efforts aimed at protecting human rights, and Section 5 of the Fourteenth Amendment provides Congress with the power to enact effective civil rights legislation.  My perspective by no means discounts the role of the judiciary in constitutional interpretation, but neither does it leave the definition of American norms to the sole discretion of unelected officials.

I. THE DECLARATION OF INDEPENDENCE AS CONSTITUTIONAL FOUNDATION

The contours of representative governance and safeguards for inalienable rights were drafted into the Declaration of Independence even before ratification of the Constitution. The Declaration has had a remarkable effect on American constitutionalism.  Justice Arthur J. Goldberg explained this phenomenon in a concurring opinion: “The Declaration of Independence states the American creed . . . . This ideal” however, “was not fully achieved with the adoption of our Constitution.” (Bell v. State of Md.)  To this day, it remains inspirational and informs the legal understanding of substantive rights.

Unlike the technical jargon of the Constitution, the Declaration of Independence offers ordinary people an easy guide to representative governance.  Abolitionists, feminists, manhood suffragists, and other progressives have recognized the Declaration’s potentials.  While the Supreme Court has provided minimal interpretative guidance, the Declaration of Independence has remained a vehicle for popular activism.

As I explain more fully below, the Fourteenth Amendment enabled Congress to enact legislation for protecting the inalienable rights proclaimed by the Declaration of Independence.  Section 5 provides Congress with authority to respond to the lobbying efforts of groups demanding greater equal liberty.

II. CIVIL RIGHTS LEGISLATION

The Declaration of Independence continues to be relevant for determining the scope of congressional authority to enact civil rights legislation.  The Court has overlooked this point, determining that Congress cannot independently define fundamental rights but only remediate state harms in accordance with previous judicial rulings.  This constraint on legislative Fourteenth Amendment authority runs counter to the Declaration of Independence’s statements about self-governance.

Beginning with City of Boerne v. Flores, the Court significantly weakened popular governance by prohibiting Congress from rendering substantive interpretations to Section 5.  The holding in that case restricts citizens from developing constitutional values through their elected representatives.  The Court relegated Congress’s authority to passing prophylactic laws that are congruent and proportional to judicially recognized violations of the Fourteenth Amendment.  That methodology undercuts the Declaration of Independence’s promise of government by popular consent.

The Court then followed up with cases that further denied Congress’s right to act independently of judicial guidance. (see, e.g., Kimel v. Florida Board of Regents, University of Alabama v. Garrett, United States v. Morrison).  Absent from the Boerne line of decisions is any assessment of the whether Congress acted pursuant to the popular will in passing laws that were rationally related to the suppression of group discriminations and the expansion of fundamental rights.  The Court now regards itself as alone responsible for defining the breadth of constitutional rights, with the authority to strike popular anti-discrimination initiatives against state intransigence.  Such an institutional role is counter-indicated by the Declaration’s assertion that sovereignty to protect rights remains with the people.

The Declaration of Independence contains a variety of paragraphs indicating that citizens retain the prerogative to expand civil rights through their elected representatives.  All three branches of government are, in fact, obligated to abide by the Declaration’s directive that national government establish policies “most likely to effect [the people’s] Safety and Happiness.” (Declaration of Independence).  That statement creates the impression that the legislative branch must respond to constituents’ demands for laws likely to improve the general welfare and safeguard their dignity interests.

The new Section 5 precedents erect barriers that prevent citizens from effectively lobbying Congress to pass federal protections against state infringements of essential rights.  The power to strengthen protections of constitutional interests lies in the hands of the people, not at the sole discretion of unelected judges.  The Declaration’s manifesto of popular sovereignty devotes at least thirteen paragraphs to the importance of legislative self-government, which the Boerne progeny of cases significantly hampers.

For instance, in Garrett the Court denied Americans the power to require states to abide by the terms of the Americans with Disabilities Act even though Congress passed the ADA in response to a popular effort to protect disabled people’s dignity against state apathy and intransigence.  President George H. W. Bush expressly recognized the link to the Declaration of Independence when he signed the ADA into law.  Bush compared the statute to the Declaration of Independence, asserting his hope that it would be a beacon for equality and a model for civil behavior.  Representative Steny H. Hoyer spoke even more expositively to this point.  He described the disparate treatment of the disabled and likened the effort to combat this form of discrimination to other movements–against racial, gender, age, and ethnic inequality–that had based their demands for justice on the Declaration of Independence.  Representative Major R. O. Owens likewise believed that the ADA would allow millions of disempowered Americans to pursue happiness and enjoy the inalienable rights that the Declaration of Independence set out at the country’s founding.  These comments indicate that public officials, including the president of the United States, regarded the ADA’s antidiscrimination provisions to be necessary for securing disabled persons’ inalienable rights.  The story of the ADA is an example of how the popular governance principles of the Declaration of Independence can influence politicians advancing progressive law.

The Declaration envisions the people being deeply involved in developing policies designed to safeguard inalienable rights.  The Court’s narrow conception of Section 5 authority not only conflicts with reconstructed federalism, which the Fourteenth Amendment established, but also with the representative structure of governance envisioned by the Declaration of Independence.

Lest I be misunderstood, it is important to qualify my point. I am not arguing that the Court has no power of judicial review.  Rather my point is along the lines of Professor Mark Tushnet’s insistence that self-government is incompatible with the premise that the judiciary can thwart reasonable congressional efforts to represent the people’s will.  It is, after all, the “[r]ight of the people,” according to the Declaration of Independence, to create a structure of government on the basis of “such principles” as seem best for bolstering “safety and happiness.”

As an institution composed of the people’s representatives, Congress can protect Americans’ interests in equal treatment, the pursuit of happiness, life, and liberty.  Its power, however, is not absolute and requires judicial review to avoid political corruption and majoritarian oppression.  Self-governance favors the people’s involvement in the legislative process because the Declaration of Independence identifies them as the fountainhead of government.  But without some judicial oversight, the legislative process itself can become captive to special interest politics.

The key is for all three branches of government to abide by the principles of the Declaration of Independence.  Congress and the Court should avoid placing restraints on each other’s authority to protect and balance essential rights.  Indeed, they lack any legitimate authority to place such barriers on each other because the rights derive from the people.  Neither Congress nor the Court grant those interests, instead the Declaration of Independence asserts that life, liberty, and the pursuit of happiness to be intrinsic to humanity.  The people grant Congress and the Court the power to create policies for the preservation of human rights.  The Court lacks the authority to prevent the people from engaging in the legislative process to pass anti-discrimination measures like Title VII of the Civil Rights Act of 1964, the ADA, and the Age Discrimination and Employment Act.  Likewise, where the Court has identified protected rights, like privacy, it is not within Congress’s province to constrict them.

The Supreme Court’s new jurisprudence, to the contrary, prevents Congress from acting upon petitions for the better protection of essential liberties without awaiting judicial guidance.  The Court’s claim of exclusivity for interpreting the Fourteenth Amendment, then, is out of step with the founding purpose of national sovereignty: the creation of a government beholden to the people’s determinations of what laws best safeguard their safety, happiness, and liberty.

III. JUDICIALLY RECOGNIZED RIGHTS

Part II of this essay explained why the Court should rely on rational basis scrutiny to analyze statutes expanding federally cognizable rights. This part reflects on the relevance of the Declaration of Independence to circumstances when Congress seeks to regulate a judicially recognized right.

Judicial review is historically linked to the colonists’ protests against the Crown’s repeated encroachments on judicial authority.  The Supreme Court has recognized that even before Article III of the Constitution established an independent judiciary, the Declaration of Independence had already provided that judges must work without government encroachments. (Stern v. Marshall).  Where Congress passes legislation that restrains judicially recognized rights, only a narrowly-tailed basis of review will suffice to protect the Declaration’s guarantee of inalienable interests. For example, any statutory restraint on political speech is so closely related to the purposes of American independence as to warrant strict scrutiny.

A recent case dealing with political speech involved a federal voting statute that restricted corporate expenditures on campaigns.  Congress had passed the bipartisan law to prevent companies from having a disproportionate influence on elections.  In Citizens United v. Federal Election Commission, the Court found that a key component of the Bipartisan Campaign Reform Act of 2002 (BCRA) was unconstitutional.  The Court decided that both private and corporate expenditures on election campaigns enjoy First Amendment protection.

The majority equated constitutional speech protections of corporations with those for natural persons.  The holding in Citizens United arguably ran counter to the perspective of former Chief Justice William H. Rehnquist on the difference between corporations and natural persons. In one dissent he asserted:  “To ascribe to such artificial entities an ‘intellect’ or ‘mind’ for freedom of conscience purposes is to confuse metaphor with reality.” (Pac. Gas & Elec. Co. v. Pub. Util. Comm’n of Cal.). Rather than adhere to this dichotomy, the majority in Citizens United treated corporate and natural persons’ campaign speech the same for First Amendment purposes.  Rather than exploring the extent to which corporate financing can have a corrupting effect on politics, which several other authors have done, I want to relate the Declaration of Independence’s principles to electioneering speech and its legitimate limits.

The Declaration’s statement of inalienable rights, which include political speech, is inapplicable to corporations.  For instance, corporate entities have “perpetual life,” that is certainly not the sort of life that is mentioned in the second paragraph of the Declaration.  The surrounding language states: “all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life.”  A corporation, however, is the creation of the state, and by no means endowed with the natural rights that informed the framers of the Declaration of Independence.  Free speech, as the founding generation believed, is a natural right.  Having no natural rights–but only positive regulations on creation, operation, and dissolution–corporations’ communications can be restricted differently than the speech of ordinary people.

Self-government is central to the Declaration’s political framework, but it involved only living persons not corporate entities.  Corporations are legally created persons that cannot vote in general elections, can be governed by foreign directors, and enjoy the privileges of limited liability.  Restrictions in § 203 of the BCRA on using corporations’ general treasury funds for campaign electioneering were not inconsistent with principles of the Declaration of Independence that informed the framers of the First Amendment. The Statute’s brief time limit on contributions applied to businesses with no natural right to speech.

A. Compelling Interest

If, contrary to my initial contention in this part of the commentary, we were to accept the Court’s premise in Citizens United that corporate electioneering implicates the First Amendment, only a narrowly tailored restriction on corporations’ political messages would survive judicial scrutiny.

In Citizens United, the Court in fact subjected § 203 of the Bipartisan Campaign Reform Act to strict scrutiny.  The majority held that Congress lacked any compelling interest to prevent potential distortions of elections through domestic corporate politicking.  Citizens United explicitly reversed the Court’s earlier holdings, which had to the contrary identified a compelling interest to prevent “the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form.”  Taking an about face in Citizens United, the Court found that no compelling reason exists for preventing corporations and unions from public political advocacy.

Nowhere did the Court reflect on whether placing restraints on campaign contributions accorded with the Declaration of Independence’s principles of self-governance.  The founding document would have been a logical source for assessing whether Congress had a compelling interest in preventing undue influence of corporate wealth on elections.  The BCRA did not prevent private citizens, who are potential voters, from contributing to candidates in the days leading up to an election or primary.  Instead, the law was meant to prevent entities with no electoral status from manipulating the political process to further their business interests and thereby dilute natural persons’ choice of candidates.  The Court might have found that because self-government is at the core of national identity, as the Declaration of Independence defines it, Congress’s effort to preserve the representative process through §203 of the BCRA was indeed compelling.

B. Narrow Tailoring

I now turn to the question of whether the BCRA was narrowly tailored.  If I was correct to assert at the beginning of Part III that the Declaration of Independence’s model of self-governance indicates that First Amendment protection of political speech is limited to natural persons, then Congress was wholly within its power to pass §203 of the Act.  However, assuming that the majority in Citizens United was correct to extend political speech protection to corporations, I turn to how the Declaration of Independence can help decide whether §203 of the BCRA was narrowly tailored.  Indeed, the principle of stare decisis suggests that Citizens United will be the ruling precedent on corporate political speech for years to come.  Future campaign finance reform will need to incorporate this holding into any new effort to prevent undue corporate influence on politics.

The decision in Citizens United would have been less vulnerable to attack if the Court had struck the BCRA only on the basis of as applied considerations.  The Court did not even need to reach the facial challenge of the statute because Citizens United had eliminated it from its complaint, retaining only an as applied attack on the law.  Instead, the Court took the initiative to find the law to be facially unconstitutional.  The problem with §203, as the Court saw it, was not merely the harm Citizens United experienced but the chilling effect it had on the political speech of all corporations.  The decision deprived Congress of the power to place limitations on the distorting effect of corporate, union, or other organizational spending. The BCRA was meant to curb wealthy entities from bankrolling campaigns in order to curry favor from politicians.

A more circumspect approach than the one the majority adopted might have framed the decision to fit Citizens United’s corporate charter to disseminate political views.  Given that corporation’s explicit mission of self-governance, the Court might have found that §203 of the BCRA violated natural persons’ joint exercise of political rights.  This is a more group-oriented approach to the Declaration of Independence than the one I discussed earlier.  It would differentiate between corporations whose activities and communications are primarily wealth maximizing and those that seek to spread political messages.  By exempting corporations like Citizens United from limitations on campaign spending prior to elections, Congress might in fact eliminate inconsistency that the majority identified in the different treatment of media and other nonprofit corporations.  But a revised statute could still prevent for-profit corporation from distorting the political process through high political expenditures.

A codified exemption for nonprofit corporations that regularly engage in political speech would leave them free to participate in public debate. A redrafted BCRA provision might differentiate between corporations organized to influence political dialogue from those that are chartered to maximize companies’ earnings.  The Declaration of Independence recognizes the people’s primacy in governance. A new campaign finance law that is narrowly tailored to only prevent for-profit businesses from expending general funds shortly before primaries or general elections might pass judicial review.

CONCLUSION

The Declaration of Independence established a representative government with the primary purpose of protecting fundamental rights.  It contains the American creed against which all constitutional and statutory conduct must be measured.  The people remain the source of power, able to direct elected officials to enact laws that can best protect their safety and allow them to pursue individual visions of happiness.  Throughout the nation’s history, progressive social groups have relied on the document to advance idealistic visions for the increased protection of essential rights and political freedoms.  Although often regarded as a historic artifact, the Declaration of Independence remains relevant to constitutional theory. Its framework ensures citizens’ right to participate in developing civil rights and electioneering legislation.

Acknowledgments:

Alexander Tsesis is an Associate Professor of Law at Loyola University School of Law-Chicago.

This article is based on Alexander Tsesis, Self-Government and the Declaration of Independence, 97 CORNELL L. REV. 693 (2012).

Copyright © 2012 Cornell Law Review.


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