“Two competing originalist instincts”
In this episode of The Declaration at 250, Michael McConnell introduces Randy Barnett, the Patrick Hotung Professor of Constitutional Law at the Georgetown University Law Center and Faculty Director of the Georgetown Center for the Constitution alongside Eugene Volokh, the Thomas M. Siebel Senior Fellow at the Hoover Institution (Stanford), and the Gary T. Schwartz Distinguished Professor of Law Emeritus (and Distinguished Research Professor) at UCLA School of Law.
Barnett and Volokh share respect for the Declaration’s importance but diverge on what that importance does in law. Barnett sees the Declaration as the “ground and foundation of future government,” supplying binding premises about “just powers” and limiting even broad state “police power” claims that risk subverting rights. Volokh counters that the Declaration resembles a political platform and persuasive rhetoric—valuable for context and values, but too general and historically contingent to function as enforceable law without tethering to more specific legal texts.
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Chapters
[00:00:26] Chapter 1: Framing Question: Is the Declaration “law” if courts can’t directly enforce it?
Host Michael McConnell opens by contrasting Justice Barrett and Justice Scalia’s view—Declaration as ideals, not law—with Randy Barnett’s claim that the Declaration functions as foundational law shaping constitutional meaning.
[00:01:54] Chapter 2: Setting the Stage: Why Barnett and Volokh, and why this debate now?
McConnell introduces Barnett and Volokh, highlighting their originalist and civil-libertarian influence and teeing up the central question: “Is the Declaration our law?”
[00:06:11] Chapter 3: Barnett’s Case-in-Chief: How did Salmon P. Chase use the Declaration as law in anti-slavery litigation?
Barnett argues the Declaration supplied a liberty baseline in 19th-century practice—especially in the Matilda and Van Zandt cases—supporting “clear statement” rules and strict construction against liberty-restricting interpretations.
[00:37:38] Chapter 4: Volokh’s Challenge: What is the Declaration—and what isn’t it?
Volokh contends the Declaration is best understood as a political platform/announcement with legal significance as an independence claim, but not as governing law; it can guide interpretation mainly when reinforced by constitutional provisions like the Ninth Amendment.
[00:56:04] Chapter 5: Barnett’s Rebuttal: Can the Declaration shape doctrine without giving judges a blank check?
Barnett responds that “law” is broader than judicially enforceable rules, arguing the Declaration legitimately informs burdens of justification and doctrines (due process meaning, presumptions of liberty vs. constitutionality) while remaining constrained by legal method and natural-rights theory.
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