The Declaration's constitution
In 1776 and 2017, lawyers discovered our constitution in dark times
The closest I’ve come to July 4, 1776 was probably January 28, 2017. The document we associate with the earlier date defended liberties that rulers had threatened. That winter afternoon, about 400 people showed up at Dulles Airport to do much the same thing. We were indignant that passengers flying to the United States from seven Muslim-majority countries were denied entry as part of the new administration’s Muslim ban.1
We learned at the airport’s international arrivals area that several passengers from some of the affected countries were being detained there by authorities. One was five years old and for a few hours was separated from his parents.
Lawyers, we heard, were with the authorities advocating for the passengers’ release. The lawyers cited a partial stay of the ban issued by a United States district court earlier that day.
When we heard about the lawyers’ efforts, we chanted, “Thank you, lawyers.”
I never imagined, during or after my career as a trial lawyer, that I’d hear a crowd cheer America’s lawyers.
I was at Dulles until after ten that night, and I saw some of the detained passengers released. I saw the usual hugs and tears that one sees at international arrivals. But the joy was mixed with both relief and anger. The usual passersby were replaced by roped-off galleries of cheering citizens.
In a way, the lawyering that night was like the lawyering done in 1776. Most of the delegates to the Continental Congress were lawyers, as Edmund Burke had warned Parliament in 1775, and most literate Americans tried to read some law, too. Burke told his fellow members that this study of law made American colonists “acute, inquisitive, dextrous, prompt in attack, ready in defense, full of resources.”2
Like Burke, we weren’t praising lawyers for what they normally do in quieter times. We were thanking the lawyers at Dulles for mediating between us and the authorities as much as for mediating between their clients, whom they were representing pro bono, and the authorities.
On July 4, 1776, American lawyers “helped direct [the American Revolution], giving popular passion form and thereby at once making it effective and keeping it contained . . . ,” according to political science professor James R. Stoner, Jr.3 On January 28, 2017, the lawyers at Dulles and other American airports did much the same thing: they effectively channeled not only our passion but the passion of many other Americans who didn’t spend that Saturday evening at an airport.
The lawyers in the Second Continental Congress faced a dilemma: how could they give popular passion form? The answer was a constitution, and the Declaration of Independence explicitly refers to one. “Our constitution” was violated when King George and Parliament placed the colonies under Parliament’s jurisdiction:
He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation.
Our constitution, whatever it was, didn’t make us subject to Parliament and its onerous acts.4
But what was our constitution in 1776? Of course, it wasn’t the written Constitution ratified in 1789. It was unwritten, yet it wasn’t the British Constitution. The common law principles of the British Constitution were a good fit, but relying on what would have been, upon the Declaration’s signing, another nation’s constitution wouldn’t do.5
The Continental Congress lawyers discovered “our constitution,” according to Stoner, in both the ancient specifics of English common law and the abstractions of modern revolutionary theory. The specifics and the abstractions served each other:
The specifics of the common law and the ancient constitution gave the abstract theory its distinctive form, while the theory made order of a mass of particulars in the extreme case, when the question of foundations was raised not just abstractly, but politically.
Congress did some lawyering in the flexible, common-law tradition, particularly “when the question of foundations” wasn’t just theoretical but political.6
Burke’s words a year earlier were prophetic: in drafting the Declaration, Congress proved itself “acute, inquisitive, dextrous, prompt in attack, ready in defense, full of resources.” On July 4, 1776, Congress’s dexterity involved resources from both the ancient common law tradition and modern liberal political philosophy. For the delegates in Congress, Stoner says, the two “traditions were intermixed and continuous.”7
Admittedly, the lawyers on January 28, 2017 didn’t have to discover a new constitution. But like their brethren on July 4, they faced an “extreme case.” They construed our Constitution when the question of our republic’s foundation wasn’t theoretical but political.
And like their earlier brethren, the attorneys on January 28 weren’t arguing in courtrooms. In closed spaces just off international arrival areas across the country, they were putting their case before a candid world.
The short footnotes below refer to the full citations in the manuscript’s and this Substack’s bibliography.
Siddiqui, Faiz, Michael Laris, and Michael Alison Chandler. “‘We Can’t Become a Dictatorship’: Protests Erupt Across the U.S. Against Trump Immigration Ban.” Washington Post. January 29, 2017. https://wapo.st/475fBW0. The link in the text leads to this free article.
Quoted in Stoner, Common Law and Liberal Theory, 184.
Stoner, 189.
Stoner, 188-89.
Stoner, 188.
Stoner, 189.
Stoner, 186.