"Done in Convention": The Attestation Clause and the Declaration of Independence
Cross, Jesse, The Yale Law Journal
NOTE CONTENTS INTRODUCTION I. DONE DEAL II. DOUBLE DATE III. BEARING WITNESS IV. IMPLICATIONS CONCLUSION
At the close of the Constitution approved by the Constitutional Convention in 1787, there is a short clause indicating the date on which and the location where the Constitution was concluded and signed. Known as the Attestation Clause, it recorded the date of the Constitution's completion--and it did so in a fashion that has drawn increasing attention from lawyers and scholars over the past several decades. (1) In addition to dating the Constitution according to the year of grace (or the "Year of our Lord"), the Attestation Clause declares our nation's great founding document to have been executed "in the Year ... of the Independance of the United States of America the Twelfth." (2) Alluding to the drafting of the Declaration of Independence eleven years earlier, the Attestation Clause thus seems to establish a specific textual connection between the Constitution and the Declaration. The Founders went out of their way to insert the Declaration of Independence into this clause of the Constitution, it seems, encouraging us to read these two documents as engaged in unique dialogue with each other.
This is the argument that a variety of commentators have advanced, at least. It is an argument that has been made by several scholars, such as one who surmises, "No other conclusion logically can be reached since the Constitution directly attaches itself to the Declaration of Independence in Article VII...." ( 3) It is an argument that has been advanced in the pages of this Journal, where it has been said that the reference to the Declaration reveals the Federalists' "efforts to highlight the [Constitution's] ties to the American Revolution." (4) It is a point that has been argued to the Supreme Court as recently as 2008, when it was suggested to the Court that the Attestation Clause "legally engrafts the Declaration of Independence into the Constitution as effectively as though it had said, 'attached hereto and made a part hereof.'" (5) Even one current Justice has advanced a version of this argument, with Justice Thomas writing in the pages of the Harvard Journal of Law and Public Policy that "[o]ne should never lose sight of the fact that the last words of the original Constitution as written refer to the Declaration of Independence, written just eleven years earlier." (6)
These commentators have tried to transform the Attestation Clause into a textual foundation for the idea that, as the Supreme Court put it in 1897, "it is always safe to read the letter of the Constitution in the spirit of the Declaration of Independence." (7) They have argued, in other words, that it is permissible to read the Constitution in the "spirit of the Declaration" because the Attestation Clause's reference to the Declaration specifically imports that spirit into the Constitution. By making this argument, however, they have presumed that it is "safe" to read a reference to the Declaration as evidence of the Founders' intent to import the spirit of that revolutionary document into the Constitution. In this Note, I attempt to show that it is not "safe" to do so. I hope to show that the Attestation Clause in fact was animated by its own, distinct spirit--a spirit that was in some ways contrary to that found in the Declaration.
In this Note, therefore, I will suggest that the argument advanced by Justice Thomas and others distorts the Constitution more than it illuminates it. Theirs is a misleading argument, I will contend, because it concludes from the plain language of the Attestation Clause that the Founders understood the Declaration to be the central text with which their Constitution was in dialogue. This argument obscures the fact that the Attestation Clause reached out to a large set of domestic and international documents, including the Articles of Confederation and a wealth of English treaties and charters. …