Green on What the Declaration Didn't Do

Jonathan Green, University of Florida College of Law, is publishing What the Declaration Didn't Do in volume 101 of the Notre Dame Law Review. Here is the abstract.

What did the Declaration of Independence do? Today, the Declaration figures in our "constitutional memory" as the text that created the United States, and that set out the essential principles that define us as Americans. But when the Declaration first appeared, neither of those claims was self-evident. Whether the Declaration actually created thirteen "Free and Independent States" on July 4, 1776, turned on whether, before 1776, Britain's American colonies had their own constitutional rights against the Crown--that is, corporate rights that were conceptually severable from the rights of their English contemporaries. Because that question was essentially insoluble, the Declaration's legal effects weren't clear in 1776. By extension, whether there were an independent, self-directing American "People"--one that could corporately agree to a set of shared principles and announce them in the Declaration--wasn't clear either. Bringing the Declaration's initial indeterminacy back into view, I argue, illustrates how our memories of the past sometimes diverge from our history. We can choose to be ruled by myths, if we want. But we shouldn't fool ourselves into conflating the past we'd prefer with the one we actually have. 

Download the article from SSRN at the link.