Chapter 7 sets forth proposed speech-protective and pro-competitive reforms of trademark registration and enforcement laws for consideration by governments. Among other things, legislatures could allow challenges to the validity of a mark on any ground at any time, and not allow a registrant’s right to use the mark to become incontestable. Legislatures should also consider whether to categorically exclude certain expression with substantial inherent value from trademark registration and protection; not register proposed marks without proof they are distinctive, not functional, and are genuinely used and perceived as a source-identifying mark; and clarify that weak marks with substantial inherent value only have a narrow scope of trademark protection. They should also require proof this use of another’s mark is likely to cause confusion and material harm for trademark liability, and consider adopting fair use tests requiring a higher threshold for infringement liability and/or more affirmative defenses for certain informational, expressive, or decorative uses of marks. For example, one recommended defense is for any noncommercial use of a mark other than as a designation of source for the accused infringer's goods, services, or message. Trademark remedies and secondary trademark liability rules should also take free speech interests into account.

As part of the major premise of the Declaration’s syllogism and of a general theory of rightful government, it is unlikely that the main ideas in the Declaration’s second paragraph exist as separate, free-floating nuggets of indeterminate meaning. My task in this essay is to reconstruct the theory of rightful government contained in that paragraph in order to progress toward fixing meaning for those ideas – equality, rights, liberty, and others – that have been so important to the self-understanding and political aspirations of Americans from 1776 on.

Chapter 2 explains why the free expression right is relevant to laws regulating trademarks. Legislatures and courts agree that trademark laws can potentially conflict with this fundamental human right in constitutions, treaties, and statutes. Examples include the Recitals in the EU Trade Mark Regulation and Trade Mark Directive, the Court of Justice of the European Union’s Constantin Film case, and the US Supreme Court cases Matal v. Tam and Iancu v. Brunetti. This chapter also discusses the free speech theories relevant in the trademark context (such as the marketplace of ideas), why uses of trademarks are usually “expression” covered by the free expression right, and state action doctrine. With a focus on US free speech law, the chapter then discusses strict and intermediate constitutional scrutiny. It notes the analysis is different when laws regulate trademarks based on their viewpoint or content, and when the regulated speech is noncommercial or commercial, or fits into a category of expression that falls outside of the boundaries of the First Amendment. The chapter concludes with a discussion of William McGeveran’s four free speech goals for trademark law.

That the Declaration of Independence could be considered from the perspective of rhetoric might seem rather obvious, if not downright self-evident. Even so, appreciating how Jefferson thought about language not as an abstract concept but as a lived and material practice can help us appreciate the text of the Declaration from different perspectives. The text is shot through with the histories of race, nation, empire, and belonging that characterized the ideology of American revolutionary republicanism, and with Jefferson’s thinking about these forces and his own anxious place in them. In fact, despite and perhaps even in part because of his own difficulties with public speaking, Jefferson thought about the ability to access and marshal rhetorical exemplars and put them to use in legal and political argument as an elemental part of what it meant to be an effective citizen. His thinking about material rhetoric, about the absorption of what one read through notes, commentary, and commonplace books, turns out to be a critical component of how he thought about the legitimacy of the American project and of how he framed that project in successive drafts of the Declaration itself.

In the West, liberty and equality emerged as individual rights from theological speculations about the nature of God and human beings, and the relationship of human beings to each other and to God. It was a natural theology in which God is beneficent and glorifies in what God has created, having made a world in which it is possible for human beings to pursue happiness. Derived primarily from the writings of John Locke, that natural theology was embraced and expanded upon by Thomas Jefferson and articulated in the Declaration of Independence. The Declaration’s natural theology foundation holds that liberty serves God’s purpose: preservation of creation and flourishing in the pursuit of happiness. And liberty is equal liberty because, as Locke’s philosophy and Jefferson’s Declaration proclaim, human beings’ equality is more than a right; it is a fact of creation. For Locke and Jefferson, and for the “American mind” of the founding era, the theology underlying the Declaration implies duties to one another. Without such obligations beyond the self, egoism would lead to confusion as everyone would assert their own interests, and God’s purpose would not be realized.

As unprecedented as the Declaration was, it was not without intellectual antecedents. The Declaration interacted with and built upon recent expressions of European Enlightenment political philosophy in its focus on “Nature and Nature’s God,” and in its reliance upon the normative principles of “laws of Nature” as well as natural or “unalienable” rights. European Enlightenment political philosophers themselves stood in complex and varied relationships with their ancient and medieval predecessors; sometimes adding to, sometimes transforming, and sometimes rejecting these preceding ideas. The Declaration brilliantly navigates this complex web of intellectual antecedents by treating the ideas of laws of nature, natural rights, the social contract, and republicanism in such a way that the points of tension between their different interpretations are minimized and subsumed within a shared understanding of the importance of nature for political life. In so doing, the Declaration provides an intriguing hint of how the deep fault lines between these political philosophical traditions might ultimately be bridged. The Declaration’s succinct statement of political principles may be viewed as a transformative distillation of a few of its most important European antecedents.

Chapter 2 begins with Emerson’s responses to the ineffable character of mystical experience: one of silence and listening, the other of a profusion of terms from a multitude of cultures. Writings on mystical experience by William James and Ludwig Wittgenstein are part of the discussion. This chapter considers Emerson’s skepticism about the “external world” and “other minds” and about both freedom and fate, which form a “knot of nature.” The following section concerns skepticism as an existential condition, as when Emerson writes in “Experience”: “So it is with us, now skeptical, or without unity.” The chapter concludes by considering skepticism as a positive way of life, what Emerson calls a “wise skepticism.” This form of skepticism has roots in the ancient Greek and Roman worlds and, in a particularly important form for Emerson, in the Essays of Montaigne.

Simultaneously an assertion of universal natural rights and the unique story of a particular peoplehood, the Declaration of Independence has from the beginning played a central role in the ongoing struggle over the ever-contested meaning of American identity. Though its ringing phrases have at times become occasions for smug self-congratulation, more often, the Declaration has presented an opportunity for self-evaluation, offering an internal critique of American practices that fall short of the claims the Declaration makes about American values and character. In this sense, the Declaration has become a capacious and evolving civic myth that in its best moments has invoked – and cultivated – a pluralistic solidarity out of volitional adherence to civic ideals and participation in democratic rituals that has substituted for the “natural” ascriptive allegiances characteristic of ethnonationalisms. The essay also suggests that this story of peoplehood was within the scope of Jefferson’s own intention. Through common commitment to the principles of the Declaration, Americans might unite as a nation.

This essay explores the deep and longstanding relationship between African Americans and the Declaration of Independence. From the 1770s to the present, black activists and thinkers have consistently excoriated the paradox of an American democracy that proclaims inalienable rights while systematically denying black citizens’ rights. Drawing on figures such as Frederick Douglass, Sojourner Truth, Frances E. W. Harper, Anna Julia Haywood Cooper, and Shirley Chisholm, the text illustrates how African Americans have employed the Declaration as a foundation for their demands for the abolition of slavery, civil rights, and equality. It examines black protest rhetoric’s critique of white supremacy, hypocrisy, and the failure of the United States to live up to its foundational principles. And it emphasizes the crucial role black women have played in advancing black liberation and expanding the scope of equality to include gender and race. Through the centuries, African Americans have called for the United States of America to reconcile its practices with its founding document’s principles of equality and justice for all.

“The Poet” is what Adorno calls a “carpet essay,” which weaves its announced topics of the poet and poetry into a host of other subjects: character and expression; reception and abandonment; beauty and love; the present, new, and near; the Neoplatonic One or “whole”; and a fundamental “flowing” or “metamorphosis.” Chapter 8 focuses on Emerson’s romantic and proto-existentialist pronouncement that “the man is only half himself, the other half is his expression”; his theory that language “is fossil poetry”; and the proto-pragmatic picture of language in his statement that “all language is vehicular and transitive, and is good, as ferries and horses are, for conveyance, not as farms and houses are, for homestead.” Other topics treated are the place of what Kant calls “unbounded” ideas in Emerson’s account of poetry, thinking as a mixture of reception and activity, and the connections and differences of “Experience” and “The Poet.”

The essays in this volume resemble the dialogue with the four children that takes place at the Passover Seder. The wise child is prepared to honor the commitments and aspirations made in 1776 but needs instruction on how to do so. The wicked child refuses to identify with the commitments made in 1776, either because the child identifies with some status hierarchy or, more likely, the child refuses to take seriously the pleas of faux revolutionaries who were committed to illegitimate status hierarchies during the late eighteenth century. The simple child does not understand the significance of the Declaration of Independence in 1776 or in 2026. The fourth child cannot figure out how to frame a question in the twenty-first century about a document written in the eighteenth century. The wise child assumes without adequate reflection a commitment to the Passover story and the Declaration of Independence. American independence was forged on a foundation of soldiers who died for lower taxes and, arguably, more secure rights to hold others in bondage. These problems require retelling both the Passover and the Declaration stories, so that the simple child can determine intelligently whether commitment to either (the same?) tradition is warranted.

This chapter focuses on how Native Americans have understood and purposed the Declaration. By asserting tribal sovereignty, Native American nations have been declaring independence since 1776. Cast as “merciless Indian savages” in the Declaration of Independence, Native Americans have cited the document in speeches, published writings, and legal briefs since the founding of the United States. They did so not to claim national belonging, but to argue that in its dealings with Native Nations, the United States should honor its founding document’s principles of self-determination and natural rights. Divided paths through the American Revolution, nineteenth-century disputes about responding to US territorial and cultural pressure, and twentieth-century efforts to balance tribal citizenship, US citizenship, and intertribal advocacy show how the citizens of tribal nations have consistently debated and adapted strategies for maintaining tribal sovereignty. Especially among Native American leaders subjected to assimilative schooling, the Declaration of Independence was a consistent feature of Indigenous arguments for independence from the United States.

The Afterword recalls the importance of “emphatic experiences” throughout Emerson’s thought, especially in Nature, “The Over-Soul,” “Circles,” and “Spiritual Laws.” It also registers the many oppositions discussed in Emerson, the Philosopher of Oppositions: Reality and Illusion in “Experience,” “Unity” and “Variety,” “rest” and “motion,” in “Plato”; dead language and living poetry in “The Poet,” nominalism and realism in “Nominalist and Realist,” fate and freedom in “Fate.” Emerson “accepts” his “contrary tendencies” by building them into his essays, one after the other: “‘Your turn now, my turn next,’ is the rule of the game.” Skepticism pervades Emerson’s thought, as he registers doubts about knowledge, other minds, freedom, or meaning. But skepticism can also be understood as a way of life, as in ancient Greek philosophy and in Montaigne’s Essays, and Goodman argues for the attractions of Emerson’s own version of the skeptical life, what he calls a “wise skepticism.”

This chapter explores how the Declaration of Independence was drafted and ratified. Congress created and assigned the task of drafting a declaration of independence to a committee of lawyers. When the draft went to the Congress, lawyers like Edward Rutledge had their chance to weigh in. The draft document and the final version was a legal document designed to place rebellion on a legal foundation. Jefferson later recalled that his draft of the Declaration of Independence merely recombined ideas that had long been discussed, and terminology long adopted, by Congress. The Declaration assumed independence, otherwise it would have had no foundation. Following this logic, as the members did, surely Jefferson among them, the Declaration was simply stating the reasons – a justification like the Declaratory Act of 1766, by which Parliament explained its authority over the colonies – for an event already transpired. The ringing elaboration of the rights of mankind, various borrowings from John Locke, echoes of natural law, and the language of prior resolves and declarations were not really pertinent to a declaration for the independence of a continent, but make sense in the more limited framework of Virginia constitutional change.