Cornell Law Review Volume 97 Issue 4

Self-Government and the Declaration of Independence

Legal scholars typically treat the Declaration of Independence as a purely historical document, but as this Article explains, the Declaration is relevant to legislative and judicial decision making. After describing why this founding document contains legal significance, I examine two contemporary legal issues through the lens of the Declaration’s prescriptions.

Section 5 of the Fourteenth Amendment grants Congress the power to make laws that enforce the civil rights clauses in the amendment’s first four sections. In City of Boerne v. Flores and its progeny, however, the Supreme Court decided that it alone can identify fundamental rights and relegated Congress’s power under Section 5 to the enforcement of judicial rulings. The Boerne line of precedents forecloses ordinary citizens from petitioning legislators to pass innovative laws that prohibit states from violating civil rights. This Article is the first to argue that although the Declaration of Independence lacks any enforcement mechanism, its clauses about popular sovereignty establish the people’s authority to engage in representative politics in order to identify core human rights.

The Article also demonstrates the Declaration’s relevance to the issue of campaign finance reform. I use the document’s statement about the inalienable rights that are retained by the people, one of which is the freedom of political expression, to analyze the Court’s equation of corporations and natural people for First Amendment purposes in Citizens United v. Federal Election Commission. I also distinguish the speech of commercial corporations from that of nonprofit associations that are organized specifically for engaging in self-government.

 

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