"Done in Convention": The Attestation Clause and the Declaration of Independence

By Cross, Jesse | The Yale Law Journal, March 2012 | Go to article overview

"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

INTRODUCTION

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.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

"Done in Convention": The Attestation Clause and the Declaration of Independence
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.