The Conclusion provides an overview of the topics discussed throughout the book. First, it encourages governments to refuse to register expression with substantial inherent value or only provide a narrow scope of trademark protection to such marks. Then it reviews the free speech framework for trademark law, and the proposed reforms of trademark registration and enforcement laws discussed in Chapter 7. Finally, it discusses why these proposed reforms of trademark law are feasible. Many of the reforms proposed in this book are already included in current trademark laws or model trademark laws. Members of the International Trademark Association and other attorneys, academics, and commentators agree that the free expression right imposes some limits on trademark registration and enforcement laws. International obligations to protect trademarks in treaties and trade agreements do not prevent the United States, countries in Europe, and other members of the World Trade Organization from protecting the right to freedom of expression in trademark law. Governments also have obligations to protect this fundamental right in treaties and constitutions.

Chapter 4 begins by tracing some reappearances and interconnections of Emersonian themes, in what Goodman calls paths of coherence in Emerson’s philosophy: not a complete system, but ways that his thoughts hang together. The chapter focuses on “Nominalist and Realist,” where Emerson sets out the competing metaphysics of particulars and universals without reconciling their opposition. Near the end of the essay, he draws a skeptical lesson from his epistemology of moods. “I am always insincere,” he writes, “as always knowing there are other moods.” This might be cause for despair, but Emerson’s tone in this final paragraph is more in tune with ancient skepticism and Montaigne. He ends “Nominalist and Realist” by withdrawing from the dispute, but this does not mean that he gives up inquiring. Skepticism can be both a withholding of final judgment, and, as Herwig Friedl observes, “a constant looking around, without any attempt at closure.”

Chapter 6 explains how the concept of inherently valuable expression can help inform potential reforms of trademark law. Governments concerned about protecting expressive values and fair competition in trademark law are encouraged to pay more attention to whether the subject matter claimed as a mark had pre-existing communicative value in the marketplace or community before it was adopted or first used as a trademark. The chapter discusses evidence to consider when evaluating whether a proposed mark has substantial inherent informational, expressive, or decorative value unrelated to the party claiming trademark rights, or only some inherent value, minimal inherent value, or no inherent value. Examples of marks with substantial inherent value include words and symbols that provide information about the goods or services; political, social, and religious messages and other common words and designs claimed as marks for expressive merchandise; subject matter with pre-existing value to groups of people in a certain community or geographic area; colors; certain creative works formerly or currently protected by copyright law; and brand parodies and other expressive uses of another’s mark.

Chapter 3 provides details about the proposed free speech framework for trademark law. Legislators and courts should (1) identify the purpose of this specific trademark law – not the general purposes of trademark law, trademark theories, or a trademark’s functions – and determine whether it is sufficiently important (e.g., preventing misleading uses of trademarks, promoting fair competition, helping members of the public identify the source of goods or services, or discouraging the registration or use of hate speech); (2) evaluate whether that particular trademark law directly and materially furthers its purpose; and (3) determine whether this trademark law endangers free speech, and ensure that it suppresses or chills protected expression no more than necessary in pursuit of that important purpose. It is generally best to avoid constitutional analysis of trademark laws, so legislatures should consider making speech-protective and pro-competitive changes to problematic trademark statutes. In addition, courts and other government decision-makers should interpret provisions in trademark laws in a manner that protects expressive values and promotes the law’s important purpose(s).

Historian Carl Becker once said that every generation rewrites history to suit its needs and according to its perspectives. This twenty-first-century collection of essays on the Declaration partly validates his claim and partly does not. Probably the chief way in which this collection differs from earlier efforts is in its broadened horizons. There is a systematic effort to consider the Declaration in relation to groups and concerns that received little attention in the past – women, labor, Native Americans, the international resonances of the document. But there are familiar themes as well, though these are mostly treated differently from the past. The intellectual roots of the Declaration is indeed a familiar topic, but the century or so since Becker’s book has enriched and deepened our grasp of the intellectual sources and, perhaps even more deeply, of their meaning. Not often emphasized in previous treatments are the religious and theological influences. Themes like the relation of the Declaration to the political context from which it emerged, the legal basis of the document, its main ideas, the Declaration and slavery – these are all topics that have a long history but which receive new treatment here based on new scholarship.

Chapter 4 considers whether trademark registration laws adequately protect expressive values and fair competition. First, it provides information about the types of subject matter capable of trademark registration and protection in many countries, including words, names, logos, product packaging designs, and “non-traditional” marks like colors, shapes, and creative works currently or formerly protected by copyright law. Then it discusses the process for obtaining a trademark registration using the United States Patent and Trademark Office as an example. Next, this chapter evaluates the requirements for trademark registration and protection under the free speech framework. This includes the rule that a trademark must be distinctive and used in commerce or genuinely used in the course of trade with the products; rules prohibiting registration of matter that is deceptive, a false statement, or likely to cause confusion with a prior mark; and bans in some countries on registration of functional matter, merely informational or ornamental matter not perceived as a source-identifying trademark, and marks likely to dilute another’s mark that is famous or which has a reputation.

American presidents have actively participated in the process that transformed the Declaration of Independence into a fully constitutive document. Many presidential citations are either ceremonial or express shared values. All presidents, however, claim the Declaration supports at least some of their favored policies on civil rights, governmental powers, the culture wars, and immigration. Liberal and conservative presidents dispute whether the Declaration supports regulation in the public interest or limited government. Presidents in the culture wars engage in parallel play, with more progressive presidents citing the Declaration when supporting the rights of LGBTQ persons, gun control, and liberal immigration policies, and conservative presidents citing the Declaration for bans on abortion, a greater place for religion in the public sphere, and crime control measures.

This chapter re-examines slavery and abolition in the writing and reception of the Declaration of Independence. Far from being marginal parts of the nation’s founding document, as previous generations of scholars asserted, both slavery and abolition proved to be essential to the making and meaning of the Declaration. Indeed, during and after the American Revolution, the Declaration testified to the nation’s high abolitionist ideals and the enduring problem of slavery in American statecraft. By examining not only Jefferson’s ideas about black freedom in the Revolutionary era but a wide range of reformers who meditated on it as well – including African American writers and reformers like Benjamin Banneker – this essay argues that the Declaration itself remains a testament to the conflicted nature of emancipation in the American mind.

While it is important to trace Emerson’s main positions, one misses the living nature of his philosophy unless one also takes account of the motions, moods, and patterns within his essays, and the ways he dramatizes instability, spontaneity, and inconsistency. This emphasis is found in Goodman’s discussions of “History” in Chapter 1, “Friendship” in Chapter 3, “Nominalist and Realist” in Chapter 4, “Manners” in Chapter 6, “Experience” in Chapter 7, “Nature” in Chapter 9, and “Illusions” in Chapter 10. Chapter 2 distinguishes the sheer variety of skepticisms in Emerson’s thought, about the world and other minds, but also about mystical experiences that refuse “to be named” or are “ineffable.” It also attends to the differences between the “modern” tradition of skepticism as doubt, and skepticism as a form of life, with Emerson’s essay on Montaigne a key source for his idea of a “wise skepticism.”

The Declaration of Independence, usually regarded principally or even exclusively as a manifesto about certain “inalienable rights,” is better understood, especially historically, as a complex argument about popular sovereignty. Who exactly were “the people” who were entitled, as in the America of 1776, to secede from the British Empire and then claim their own rights of “self-determination”? The Declaration begins with the assertion that Americans were “one people.” But that was demonstrably false, even in 1776, and has become even more so since then. After all, James Madison, in Federalist 10, emphasizes the plurality of interests, including, religion and property, that generate “faction” and the possibility of tyranny of governing elites. Does the Declaration, even if complemented by the Constitution, supply enough of an “American creed” to supply the basis for genuine unity and political amity or does it instead plant the seeds for further division and even secession in the name of self-determination and government by consent of the governed?

Chapter 5 considers whether trademark enforcement laws adequately protect expressive values and fair competition. It first applies the free speech framework for trademark law to examples of trademark infringement and dilution laws, and discusses whether those laws promote important trademark purposes and/or harm protected expression too much in pursuit of those goals. Then the chapter considers whether defensive doctrines in trademark enforcement laws adequately protect speech interests and promote fair competition and other important goals of trademark law. This includes the commercial use or trademark use of the mark requirement for trademark liability; broad rules balancing trademark rights against free speech rights or other public interests (such as the EU’s due cause defense to dilution and the US Rogers test for infringement); fair use of the mark to identify or refer to the trademark owner (such as in connection with accessories, spare parts, comparative advertising, news reporting, parody, and other nominative fair uses); and affirmative defenses allowing fair use of descriptive terms, a person’s own name and/or address, nondistinctive matter, and functional uses.

The twenty-six grievances in the Declaration of Independence targeted two distinct categories of British policies: reforms and punishments. Parliamentary reforms like taxing the colonies to help pay for the 10,000 troops left in America at the end of the Seven Years’ War in 1763 (mostly as a human wall protecting colonists from Native Americans – and vice versa) angered free colonists, but not sufficiently to make them want out of the British Empire. Free Americans did, however, protest Parliament’s reforms, for example, by tarring and feathering Customs officials who cracked down on molasses smugglers, burning stamped paper, and throwing 340 chests of tea – taxed by Parliament and carried to American ports by the East India Company – into Boston Harbor. To punish the colonists for these protests, Parliament revoked Massachusetts’ charter, sent troops to reoccupy Boston, and more. Ultimately royal officials in the colonies even forged informal alliances with black Americans previously enslaved by George Washington, Thomas Jefferson, and other Founders. It was these British punishments, not Parliament’s original reforms, that pushed free colonists over the edge into independence.

This chapter examines how various civil rights movements have interwoven the Declaration into their advocacy for causes to combat social and legal discrimination, including chauvinism, labor exploitation, and election plutocracy. A variety of groups, including first-wave feminists and labor advocates, effectively relied on it to promote various constitutional causes. Among suffragettes, its statement of human equality stood out, while workers’ movements favored the document’s condemnation of autocracy and oppression. As with other groups who likewise relied on the Declaration’s mandates, it represented a national commitment toward achieving a liberal equality for the common good. The Declaration of Independence remains relevant today to matters as broad in constitutional scope as federalism, campaign financing, AI advertisement, and separation of powers. Its sweeping statement of unalienable human rights and equality continues to embody core American commitments to representative democracy. That manifesto of equality and freedom has for two centuries influenced politicians, civil rights organizations, and ordinary people in the United States and abroad.

This essay examines first the understanding of sex equality by the philosophic forebears of the US Declaration of Independence, Thomas Hobbes and John Locke. Hobbes was the more thoroughgoing egalitarian of the two. He insisted that men were not inherently superior to women, either in strength or prudence. Locke by contrast wrote that in the conjugal union, even in nature, while the union by mutual compact could be limited to whatever was needed for raising children, still, because of the need to have some authority stronger and more able, men were entitled to rule the household. Despite this public claim that men are the “abler” sex, Locke’s private writings showed him to be much more gender egalitarian than Jefferson himself.