America's Unwritten Constitution: The Precedents and Principles We Live By by Akhil Reed Amar

Americans had previously claimed for themselves in the Declaration, such as the right to petition, the freedom from peacetime troop-quartering, and the historical privilege of trial by a local jury.
    In the mid-1860s, history repeated itself with a twist, as textual amendments again echoed the Declaration. If children of God really did have unalienable rights given by their Creator; and if these rights logically preceded all government, which was legitimate only if it truly protected these rights; and if all men truly were created equal—then surely slavery must end and even states must be made to honor all fundamental rights, many of which were cataloged in the Declaration itself. Or so thought the party of Lincoln. Whether or not the slaveholder Jefferson himself would have agreed with each of these points as an accurate interpretation of his own intentions, Lincoln’s Republicans reglossed the Declaration and incorporated their gloss into the very text of the Fourteenth Amendment: Precisely because “all men are created equal,” all persons born in America would be legally equal—and thus equally citizens—at birth, and no government could heap legal disabilities upon a person simply because of his or her birth status.
    This quick summary of some of the most obvious interconnections between the Declaration and the Constitution only skims the surface. Entire books have been written on the linkages between these two iconic texts. Lest anyone doubt the special constitutional status of America’s Declaration in lawyerly discourse over the centuries, a computer check of United States Reports should dispel all skepticism. Beginning in the 1790s and continuing into the twenty-first century, justices and advocates have expressly invoked the Declaration on hundreds of occasions across an astonishingly wide range of issues.
    What is true in courtrooms is also true in classrooms and in family rooms. Every year, millions of students, parents, and teachers visit Philadelphia’s Independence Hall and National Constitution Center or the National Archives in Washington, D.C. In all three of these grand civic spaces, citizens hear and speak about both the Declaration and the Constitution. When returning home from these venues, ordinary Americans often do so carrying souvenir pocket Constitutions. Many of the current popular editions reprint the Declaration alongside the Constitution, following the general format prominently adopted by the 1987 Commission on the Bicentennial of the United States Constitution.
“Ratification”
    PUBLIUS ’ S Federalist ESSAYS HAVE ALSO EARNED a seat of special honor as a privileged guide to constitutional interpretation. Here, too, a document outside the written Constitution joined the canon in the earliest years of the fledgling republic and has since then continued to enjoy a special position in American constitutional discourse.
    The justices and members of the Supreme Court bar began citing The Federalist even before John Marshall’s ascension to the Court in 1801, and Marshall’s extravagant praise for and deployment of Publius settled the matter for good. In his 1819 ruling in McCulloch v. Maryland , perhaps the most magisterial of his opinions over the course of his thirty-four-year tenure on the bench, the chief justice began his extensive discussion of Publius as follows: “In the course of the argument, The Federalist has been quoted; and the opinions expressed by the authors of that work have been justly supposed to be entitled to great respect in expounding the Constitution. No tribute can be paid to them which exceeds their merit.”
    Marshall then proceeded to accord Publius’s “excellent essays” and “instructive pages” the kind of presumptive persuasive authority nowadays reserved only for previous decisions of the Court itself. Nowhere in Mc-Culloch did Marshall expressly cite to or quote from any of the Court’s prior precedents; but the chief did feel obliged to