"Done in convention": the attestation clause and the Declaration of Independence.

• Author: Cross, Jesse

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. When we restore what would have been the eighteenth-century vision of the Attestation Clause, we can see that the Attestation Clause is defined by its connections to a variety of domestic and international documents, the least of which is the Declaration of Independence.

The Attestation Clause's very act of appropriating language from these domestic and foreign documents reveals a set of values and commitments at work in the Clause--values that are distinct from (if not outright antithetical to) those found in the Declaration. The Attestation Clause's connections to these various legal documents reveal that the Clause is a relatively conservative portion of the Constitution, emphasizing continuity not only with the regime of the Articles of Confederation, but also with a variety of centuries-old English diplomatic practices. Placed in historical context, the Attestation Clause thus reminds us that the Founders were not one-dimensional revolutionaries continually reiterating the themes of rebellion and independence, but rather skilled politicians able to conjure assurances of continuity even in times of clear crisis and transformation. (8) In this sense, the Attestation Clause evinces a purpose very different from the one that animated the self-consciously revolutionary text of the Declaration of Independence, a text focused on "dissolv[ing] the political bands which ha[d] connected" colonial Americans to their prior sovereign. (9)

In order to develop this argument, it will be necessary to show that the Attestation Clause drew upon prior legal documents and diplomatic practices in ways that would have emphasized continuity with past exercises of sovereignty as well as compatibility with international practices of diplomacy. The majority of this Note, therefore, will be focused on revealing the legal instruments and international customs that lay behind the verbiage of the Attestation Clause and that already were well established in England and America. Cobbled out of phrases and formulations found in English treaties, charters, and compacts, the Attestation Clause's component parts all would have been familiar to a person living in the eighteenth century and well versed in diplomatic practices. The resulting Clause would have looked laden with forms inherited from earlier British and American practice, and the way that these forms were deployed would have suggested the importation of a set of values distinct from those associated with the Declaration.

Since different phrases in the Attestation Clause drew upon different legal instruments and diplomatic customs, the subsequent analysis addresses the Clause's various phrases separately, showing how each relevant phrase in the Attestation Clause was built upon a set of practices that would have imbued the phrase with meaning and value. Each of the first three Parts of this Note therefore begins by connecting a relevant phrase from the Attestation Clause to the practices upon which it drew, and each Part concludes by discussing the lessons to be gleaned from this historical context. Part I brings this analytic approach to the Attestation Clause's labeling of the Constitution as "done in Convention," tracing this phrase's journey from its early use in English treaties and letters of credence, through its use in the Articles of Confederation and in a number of documents emerging from the early Continental Congress, and finally to its use in the Constitution. Part II explains the historical practice of regnal dating, a practice that dates back at least to Roman times and that underlay the dating of the Constitution "in the Year ... of the Independance of the United States of America the Twelfth." Part III explains the longstanding practice of drafters and ratifiers setting their names to documents such as treaties and charters in order to witness the execution of these documents. Part IV then steps back and reflects on the implications of the textual and historical observations presented in the first three Parts. Through this analysis, I hope to show that each phrase in the Attestation Clause would have conjured associations with the Articles of Confederation and with English legal documents, and that in so doing these phrases all invested the Attestation Clause with a complex but coherent spirit--one that was very different from the "spirit of the Declaration of Independence."

1. DONE DEAL

   "done in Convention"

   --U.S. Constitution, Art. VII (10)

   "Done in Congress at Philadelphia"

   --Resolution of Congress, 1779 (11)

   "Done at Westminster"

   --Treaty of Peace and Alliance Between England and Denmark, 1654 (12)

   The beginning of the Attestation Clause places the preceding Constitution in context, explaining where, when, and by whom the document was produced. In so doing, the Clause provides closure to the document; its past tense use of "done" announces the close of the great deed begun in the Preamble. This term "done" was given a prominent position in the text--in the version of the Constitution signed by the members of the Constitutional Convention, it began a new line and was rendered in larger type than was the surrounding text, allowing it to stand out. (13) In the printed version of the Constitution (which was likely seen by the Convention's delegates and by the states' ratification committees (14)), the term was also highly visible, as it was one of only ten words prior to the list of states accompanying the signatures to be printed in all capital letters. (15)

   In attaching to the Constitution a clause that declared where the composing of the document was "done," the members of the Convention were drawing upon an established English practice regarding diplomatic correspondences and treaties. This practice was described in a late eighteenth-century treatise on the customs of European international law. (16) In its analysis of "letters of Council," that treatise explained that, after the substance of the letter, "[t]hen follows, separated from the body of...