The Declaration of Independence and Contemporary Constitutional Pedagogy

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Southern California Law Review, Forthcoming

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Mark Graber
political constitution; slavery; legal education; constitutional law; inalienable rights; consent of the governed; canonical text; constitutional interpretation; practice ready
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paper description
This Article seeks to revive pedagogical attention to the Declaration as central to the basic constitutional law class and to legal education. The Declaration too often suffers from concerns with teaching to the bar examination and the tendency for constitutional law courses to focus on constitutional practice in courts. Both pedagogical practices are unfortunate. Practicing lawyers must interpret canonical legal texts as well as engage in straightforward application of black letter law. They must make constitutional arguments to elected officials, civil servants, and their fellow citizens, as well as to state and federal justices. The Declaration, while not a direct source of legal rules, plays vital roles both in the process of constitutional interpretation in the courts and the process of constitutional argument outside of courts. A law student who does not understand how such canonical texts function in American constitutionalism is not prepared for legal practice.