By James P. Allen

What role does the Declaration have in constitutional interpretation, if any?

When it comes to understanding the meaning of the Constitution, many Americans don’t give the Declaration of Independence the first thought. But some argue that as the founding American document, everything hangs on it, and we must interpret the Constitution exclusively through the Declaration. They view the Constitution and the government it created as a mechanism through which we realize principles laid out in the Declaration of Independence. 

This question is of contemporary merit as evidenced by Justice Thomas discussing the Declaration three separate times in his recent dissent in the gay marriage cases.

In 2006, Lee J. Strang, the John W. Stoelper Professor of Law and Values, wrote Originalism, the Declaration of Independence, and the Constitution: A Unique Role in Constitutional Interpretation, for the Penn State Law Review taking something of a middle road between the two extremes.

Although elementary school children can recite some of the document’s most popular phrases phrases, very few adults are certain what the words of the Declaration of Independence mean in regard to constitutional interpretation. Does the Declaration serve as the ultimate gloss on the Constitution or, as Scalia would have it, a quixotic crust that defers the real business of constitutional construction and statecraft? Professor Strang takes a middle path in arguing that the Declaration is but one of many sources of constitutional meaning. Consequently, Strang believes the Declaration is informative but not legally binding.

As an originalist, Strang considers the Declaration’s historical role in order to explain its legal one. During the revolution, the theory of rights underlying the document played a smaller role than the list of abuses by the king. Many thought that the constitution had already responded to the former colonists’ complaints. However an equally large contingent believed that the Declaration, particularly its understanding of rights, should serve as a legal guidepost.

The Declaration did not play a salient role in the actual drafting the Constitution. The poetry of the Declaration peppered the bland debates at the Constitutional Convention, but in so doing, its words only provided rhetorical flourish and not lexicographical substance. Indeed when members of the convention spoke of the Declaration to explain a contested term, both sides recalled passages from the Declaration as evidence for their arguments.

The role of the Declaration changed little after the Convention presented a draft of the Constitution to the states. The Declaration’s interpretive role was limited to the scope of independence, that is, whether our separation from Great Britain created one or thirteen independent nations. Otherwise, both proponents and opponents of ratification justified their positions by how well the Constitution fit with the Declaration’s intent; neither saw the Declaration as a constitutional dictionary.

In the coming decades, the abolitionist movement viewed the Declaration in a fractured way. To many, the Constitution countenanced slavery and the Declaration did not. In their view, the Declaration’s principles should have trumped. Abraham Lincoln, for example, saw the Constitution as a silver frame and the Declaration as a golden picture. The frame was made to adorn and support the picture, not conceal it.

William Lloyd Garrison, on the other hand, did not mince words. For him, slavery’s constitutional legitimacy compelled all moral men to support the dissolution of the Union. Other abolitionists believed the Constitution was actually anti-slavery. Lysander Spooner, for example, held that the “self-evident truths” stated in the Declaration’s preamble should be automatically incorporated into the Constitution unless explicitly excluded. Therefore, the right to life, liberty, and the pursuit of happiness are the supreme law of the land, slavery notwithstanding. Many abolitionists, including Frederick Douglas, used the Declaration merely to add rhetorical force to their speeches.

A similar pattern was present in several other social reform movements, including those of women’s suffrage and pro-life campaigns. Members of these movements were not divided on which document was superior, but they tended to favor borrowing from the Declaration’s wording to bolster their support, and often disagreed whether the Constitution or precedent must be amended.

The Civil Rights movement, however, took a different tack. They used the Declaration’s words solely for their moral force. The Equal Protection Clause of the Fourteenth Amendment had already enshrined the Declaration’s principles. Thus the equality of men is merely an abstract concept in the Declaration; only after the ratification of the Fourteenth Amendment did equality become a legal principle. Although this was a clever solution to the Declarationists’ dilemma, there is a self-evident shortcoming. Where are our rights to life, liberty, the pursuit of happiness in the Constitution?

In today’s legal academy, the Declaration is “all but ignored.” Even libertarian-leaning originalists, like Randy Barnett, pay it no heed. Most scholars of this bent do not give decent respect to the Declarationists or declare the causes of their opinions. Former Supreme Court nominee Robert Bork alone took the time to address the Declarationists’ arguments. Bork maintained that Declarationists were only motivated by wish-thinking. The Constitution is not a document of natural law, like the Declaration; therefore the statements of natural law are not helpful in interpreting the Constitution.

Following his ilk, Strang hardly clarifies the structure of the Declarationist argument. We learn that the main scholarly defender of Declarationism is Professor Scott Gerber. His theory of “liberal originalism” mirrors the Civil Rights thinking on the Declaration, discussed above. Strang, however, neglects to clarify Gerber’s position regarding our rights to life, liberty, and the pursuit of happiness.

Strang personally favors the originalist viewpoint in which the public’s understanding of the Constitution at the time of ratification prevails. This viewpoint empowers judges to strike down any act by the other so-called political branches that contradict this original meaning. As originalism is a historical rather than a purely legal inquiry, the Declaration can help flesh out some Constitutional terminology. However, originalism confines judges to historical exegesis of the Constitution, so judges may not appeal to outside sources such as the natural law sentiments outlined in the Declaration.

Strang justifies his historical perspective with a series of analogies and metaphors. For instance, he draws a parallel with modern statutory interpretation. The goal of the legislature, re the Declaration, and the conventional meaning of the legislation, re the Constitution, are often at odds. In many cases courts will ignore the conventional meaning in favor of the legislative intent. This shows that the intent and the meaning are distinct, and only an activist court with little to no textual backing would supplant the meaning with the intent.

Thus the Declaration provides little assistance in interpreting the Constitution historically. Many scholars claim that the Declaration in this context is “little more than a Rorschach test.”

What remains historically unclear is the Declaration’s role in the ratification of the Civil War Amendments. Legal scholars have not yet scoured the debates on the Thirteenth and Fourteenth Amendments for citations to the Declaration. These amendments, which abolished slavery and established equal protection of the laws for all, do seem to echo Jefferson’s words.

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