The essence of the Debate in summary?
Declarationism is a legal philosophy that incorporates the United States Declaration of Independence into the body of case law on level with the United States Constitution. Its main proponents include Harry V. Jaffa and other members of the Claremont Institute.
The concept is derived from the philosophical structure contained in the Declaration of Independence and the primacy of the Declaration in the existence of the United States of America as a nation (as opposed the existence of the government) and the allowance and consent for the Constitution to have been created at all, to wit: The Declaration establishes the nation on a "separate and equal Station"; The Declaration posits as one of the "certain unalienable Rights" (on the extended list found throughout the Declaration), "that whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or Abolish it..."; The Articles of Confederation were established as the initial "Form of Government" to "secure" the rights referred to in the Declaration; It was determined, by the fact of the ratification of the "Constitution for United States of America", that the Articles of Confederation were "destructive of these Ends" ("securing these Rights") as the Articles of Confederation were abolished by the People; The Constitution was ordained and established "in Order to form a more perfect Union..." in a manner that meant that the Articles were not perfect enough in instituting "new Government, laying its Foundation on such Principles, and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness."
To show a contrast with a Declarationist (who is by extension an adherent to the concept of natural law), the legal positivist, who concludes that law is strictly an arbitrary human construct without a connection to morality, would have to conclude that the Constitution is a de novo document, the two concepts of "the Laws of Nature and of Nature's God" and the self-evident truth of a Creator endowing Men with "unalienable Rights" are false, that the Preamble of the Constitution has no antecedents, and that the Bill of Rights and the efforts of the anti-federalists, and especially the Ninth Amendment to the United States Constitution, have no philosophical foundation or legal effect. For the Declarationist, the essence of the creation of Men as equals is not only those "unalienable Rights" but the inseparability of equal responsibilities linked to each one of those rights. The legal positivist would assert that only the law can establish any rights and no responsibilities come with rights unless also provided by the law, usually in the form of punishment rather than duty.
Proponents of Declarationism claim that Supreme Court Justice Clarence Thomas is a follower of this school of thought; however, Thomas is more widely considered a member of the strict constructionist school.
Though philosophically conservative, Declarationists such as Jaffa have been outspoken critics of originalist construction jurists including Robert Bork, Antonin Scalia, and William Rehnquist, likening them to legal positivists. Bork and legal scholar Lino Graglia have, in turn, critiqued the Declarationist position, retorting that it is single-mindedly obsessive over the Dred Scott decision and resembles a theology rather than a legal doctrine.[citation needed] Former U.S. presidential hopeful Alan Keyes is a proponent of declarationism.[1]
In 2008, an essay by Brigham Young University law professor A. Scott Loveless[2] entitled "The Forgotten Founding Document: The Overlooked Legal Contribution of the Declaration of Independence And CaliforniaÂ’s Opportunity to Revive It Through Proposition 8"[3] argues for the Declaration's connection to the laws of the United States of America and the inseparability of rights and responsibilities.
Declarationism - Wikipedia, the free encyclopedia
In fairness The Declarationists V.S. The Weenies.
