In this session, we will explore the role, if any, that natural law (particularly as articulated in the Declaration of Independence) plays or should play in constitutional interpretation. Readings for January 22, 2019 Session: 1. Declaration of Independence, excerpts ........................................................................................... 2 2. U.S. Constitution (review your own copy) 3. Troxel v. Granville excerpts ........................................................................................................... 2-8 4. Missouri Admission Debate, excerpts......................................................................................... 9-16 5. Federalist 43, excerpts .............................................................................................................. 17-18 6. Lincoln, Fragment on the Constitution .......................................................................................... 19 7. Eastman, The Declaration in the States .................................................................................... 19-33 8. Madison, On Property .................................................................................................................... 34 Eastman, Natural Law and the Constitution, Page 1 Declaration of Independence, July 4, 1776 When in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the laws of nature and of nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation. We hold these truths to be self-evident: That all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness; that, to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed; that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness. Prudence, indeed, will dictate that governments long established should not be changed for light and transient causes; and accordingly all experience hath shown that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same object, evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security. Such has been the patient sufferance of these colonies; and such is now the necessity which constrains them to alter their former systems of government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute tyranny over these states. To prove this, let facts be submitted to a candid world. *** We, therefore, the representatives of the United States of America, in General Congress assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the name and by the authority of the good people of these colonies solemnly publish and declare, That these United Colonies are, and of right ought to be, FREE AND INDEPENDENT STATES; that they are absolved from all allegiance to the British crown and that all political connection between them and the state of Great Britain is, and ought to be, totally dissolved; and that, as free and independent states, they have full power to levy war, conclude peace, contract alliances, establish commerce, and do all other acts and things which independent states may of right do. And for the support of this declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our lives, our fortunes, and our sacred honor. [Signed by] JOHN HANCOCK [President] *** Eastman, Natural Law and the Constitution, Page 2 Troxel v. Granville 530 U.S. 57 (2000) Sandra Day O’Connor, Supreme Court of the United States *Justice O’Connor announced the judgment of the visitation altogether, but instead asked the court to Court and delivered an opinion, in which the Chief order one day of visitation per month with no over- Justice, Justice Ginsburg, and Justice Breyer join. night stay. In 1995, the Superior Court issued an oral ruling and entered a visitation decree ordering visita- Section 26.10.160(3) of the Revised Code of tion one weekend per month, one week during the Washington permits “[a]ny person” to petition a su- summer, and four hours on both of the petitioning perior court for visitation rights “at any time,” and grandparents’ birthdays. authorizes that court to grant such visitation rights whenever “visitation may serve the best interest of Granville appealed, during which time she married the child.” Petitioners Jenifer and Gary Troxel peti- Kelly Wynn. Before addressing the merits of Gran- tioned a Washington Superior Court for the right to ville’s appeal, the Washington Court of Appeals re- visit their grandchildren, Isabelle and Natalie Troxel. manded the case to the Superior Court for entry of Respondent Tommie Granville, the mother of Isa- written findings of fact and conclusions of law. On belle and Natalie, opposed the petition. The case ul- remand, the Superior Court found that visitation was timately reached the Washington Supreme Court, in Isabelle and Natalie’s best interests: which held that §26.10.160(3) unconstitutionally in- The Petitioners [the Troxels] are part of a terferes with the fundamental right of parents to rear large, central, loving family, all located in their children. this area, and the Petitioners can provide op- Tommie Granville and Brad Troxel shared a rela- portunities for the children in the areas of tionship that ended in June 1991. The two never mar- cousins and music. ried, but they had two daughters, Isabelle and Na- …The court took into consideration all talie. Jenifer and Gary Troxel are Brad’s parents, and factors regarding the best interest of the chil- thus the paternal grandparents of Isabelle and Na- dren and considered all the testimony before talie. After Tommie and Brad separated in 1991, it. The children would be benefitted from Brad lived with his parents and regularly brought his spending quality time with the Petitioners, daughters to his parents’ home for weekend visita- provided that that time is balanced with time tion. Brad committed suicide in May 1993. Although with the childrens’ [sic] nuclear family. The the Troxels at first continued to see Isabelle and Na- court finds that the childrens’ [sic] best in- talie on a regular basis after their son’s death, Tom- terests are served by spending time with mie Granville informed the Troxels in October 1993 their mother and stepfather’s other six chil- that she wished to limit their visitation with her dren. daughters to one short visit per month. Approximately nine months after the Superior In December 1993, the Troxels commenced the Court entered its order on remand, Granville’s hus- present action by filing, in the Washington Superior band formally adopted Isabelle and Natalie. Court for Skagit County, a petition to obtain visita- tion rights with Isabelle and Natalie. The Troxels The Washington Court of Appeals reversed the filed their petition under two Washington statutes, lower court’s visitation order and dismissed the Wash. Rev. Code §§26.09.240 and 26.10.160(3) Troxels’ petition for visitation, holding that non- (1994). Only the latter statute is at issue in this case. parents lack standing to seek visitation under Section 26.10.160(3) provides: “Any person may pe- §26.10.160(3) unless a custody action is pending. In tition the court for visitation rights at any time includ- the Court of Appeals’ view, that limitation on nonpa- ing, but not limited to, custody proceedings. The rental visitation actions was “consistent with the con- court may order visitation rights for any person when stitutional restrictions on state interference with par- visitation may serve the best interest of the child ents’ fundamental liberty interest in the care, cus- whether or not there has been any change of circum- tody, and management of their children.” Having re- stances.” At trial, the Troxels requested two week- solved the case on the statutory ground, however, the ends of overnight visitation per month and two weeks of visitation each summer. Granville did not oppose * This opinion (copied from the court’s slip opinion) has been ed- ited, with most citations removed and some content removed for the sake of brevity. Eastman, Natural Law and the Constitution, Page 3 Court of Appeals did not expressly pass on Gran- nuclear family are called upon with increasing fre- ville’s constitutional challenge to the visitation stat- quency to assist in the everyday tasks of child rear- ute. ing. In many cases, grandparents play an important role. For example, in 1998, approximately 4 million The Washington Supreme Court granted the children—or 5.6 percent of all children under age Troxels’ petition for review and, after consolidating