July 22, 2018

John Mikhail (Georgetown University Law Center) has posted The Declaration of Independence and the Constitution: A Tale of Two Sweeping Clauses (Harvard Journal of Law & Public Policy, forthcoming) on SSRN.  Here is the abstract:

Whenever the relationship between the Declaration of Independence and the Constitution gets discussed, most of the attention naturally gravitates toward the principle of equality and natural rights background of the Declaration, which have played such important roles in American history. The question then becomes whether, and to what extent, the Constitution embodies these background principles. This Essay focuses attention on a less familiar connection between these two documents, which bears on the issue of government powers rather than of individual rights. The Essay argues that James Wilson and other influential founders considered the Declaration to be, in effect, the “first constitution” of the United States, which vested the United States with implied national powers and later inspired a key provision of the Necessary and Proper Clause. I presented these invited remarks on "The Relationship Between the Declaration of Independence and the Constitution" at the 37th Federalist Society National Student Symposium at Georgetown University Law Center on March 10, 2018. A video recording of this talk, along with a panel discussion featuring Judge Thomas Hardiman and Professors Randy Barnett, Lee Strang, and Michael Zuckert, can be found on the symposium website.

(Via Larry Solum at Legal Theory Blog, who says "Highly recommended").

Professor Mikhail's longer article about the "sweeping clause" in the Constitution is The Necessary and Proper Clauses, 102 Geo. L.J. 1045 (2014) (SSRN version here).

I assume the "implied national powers" would have included power over immigration, so if one accepts his view, it provides an answer to this question.

Posted at 6:38 AM