I am excited to announce that Mark Movsesian will be guest blogging at Law and Liberty for the month of January on religious freedom and migration issues facing the Middle East, among other topics. Some of our readers will recall Mark's earlier account of the Armenian genocide. In addition to being the Frederick A. Whitney Professor and Director of the Center for Law and Religion at St. John’s University Law School, he is co-director of the Tradition Project, a new research initiative that explores the continuing relevance of tradition in law, politics, and culture. He writes in law and religion, contracts and international and comparative law; his…
Last week, I had the pleasure of participating in the Tradition Project run by Mark Movsesian and Marc DeGirolami of St. John’s Law School. The subject of this year’s conference was tradition in law and politics. One of the high points for me was the opportunity to read Harry Jaffa. He turned out to be a very interesting thinker. But I found that his famous claim that the Declaration of Independence has a constitutional status weakly defended. In particular, he fails to distinguish between positive constitutional law and constitutive traditions—a distinction that I think central to political life in a constitutional republic.
The Declaration of Independence is not positive law. It is instead a declaration of the reasons that the colonies were breaking with Great Britain. Courts do not enforce it as law. While other officials reference the Declaration on occasion, they do not generally do so in a way that suggests that it represents a binding legal obligation. It would be hard to make it so, because while the Declaration announces general truths of politics, it does not impose specific legal norms. And, unlike the Constitution, it was not ratified by the people and is not the product of a process that Mike Rappaport and I have described elsewhere as conducive to good constitutions.
While it does not create positive law, the Declaration of Independence is an important source—the most importance source— of our constitutive traditions.