The Declaration of Independence: No Special Role in Constitutional Interpretation.

AuthorStrang, Lee J.
PositionThirty-Seventh Annual Federalist Society Student Symposium

Introduction

The Declaration of Independence is a beautifully written document; it is a potent symbol of our nation's birth and founding principles; but it does not and should not play a unique role in constitutional interpretation. (1) Instead, the Declaration is one source, among many, of the constitution's original meaning. (Indeed, you heard many of my fellow panelists giving evidence of this claim regarding what they perceived as the impact of the Declaration either on a particular clause--the Necessary and Proper Clause for example (2)--or the Constitution's overall structure or its overall goals. (3))

Frankly, this is not what I expected when I began my research into the Declaration of Independence over a decade ago. Instead, like most Americans today, I assumed that the Framers and Ratifiers either viewed the Declaration as of-a-piece with the Constitution, or at least as the interpretive key to the Constitution. I think I learned this from going to political and prolife events with my parents, where speakers would make arguments like this: "The Declaration requires us to interpret the Fourteenth Amendment's 'person' to include unborn human beings." I assumed that that view was consistent with what went on in the Framing and Ratification of the original Constitution and the Reconstruction Amendments. Today, I'm sharing with you a sketch of some of the reasons why I changed my mind.

My thesis is that the Declaration is not the unique interpretive key to the Constitution. Instead, it is one source of the Constitution's original meaning. I will make three arguments to support that thesis. The first is a claim internal to originalist theory. The second is an historical claim. And the third is a jurisprudential claim.

First and theoretically, I argue that mainline originalist theory has no analytical space within it for the Declaration to play a special role in constitutional interpretation. To illustrate this, I describe the most prominent conception of originalism--public meaning originalism. Then, I show that public meaning originalism's process to ascertain the Constitution's original meaning treats the Declaration as one source of original meaning, and that its importance as a source therefore depends on the empirical-historical question of whether the original meaning in fact did privilege it.

This leads me to my second main argument, based on history. I make three moves to show that the Declaration did not play a unique interpretive role. First, I describe how the Framers and Ratifiers did not use the Declaration as the unique interpretive key to constitutional interpretation. Second, I show that, because the Declaration was inconsistent with the Constitution's text, it cannot be the interpretive key to the Constitution. Third, I explain that it was only after the Founding, during times of moral crisis, that Americans in various social movements turned to the Declaration to support their out-of-the-mainstream constitutional interpretations. This phenomenon shows that appeals to the Declaration are motived by a desire for political and social change extrinsic to the Constitution.

Third and jurisprudentially, I show that our current constitutional practice does not recognize the Declaration as playing a unique role in constitutional interpretation. I focus on the Constitution's text, current legal practice, and Supreme Court practice (because of time constraints).

One final note before proceeding: my arguments today presume that originalism is the correct interpretive theory. I make that assumption because I think that it is the correct interpretive theory and also because many Declarationists--that is, scholars who argue in favor of the Declaration playing a unique role--adhere to this premise. (4)

  1. There is No Analytical Space Within Mainline Originalist Theory for the Declaration of Independence to Play a Unique Role in Constitutional Interpretation

    Public meaning originalism identifies the Constitution's text's public meaning when it was ratified as its authoritative meaning. (5) Originalists have described three analytically distinct steps to identify the original meaning, (6) none of which privileges the Declaration of Independence.

    The first step that an originalist will perform is to look for the conventional meaning of the text in the period of ratification. (7) This is the standard usage of that text at the time of ratification. For example, if we are looking for the conventional meaning of the word "religion" in the First Amendment, we look to how Americans utilized that word in 1791. (8)

    The second step is an interpreter identifies the text's semantic meaning by placing that conventional meaning in the context of the Constitution and applying the rules of grammar and syntax. (9) This involves identifying how the words are put together in clauses and sentences, along with their punctuation, which may modify the text's conventional meaning. For example, the word "religion" does not appear by itself in the Constitution or the First Amendment. It is part of a(t least one) clause that includes the phrase the "free exercise []of [religion]." (10) In this phrase, the "free exercise []of" could impact the conventional meaning of "religion." (11)

    Third, an interpreter takes into account contextual enrichment: the contemporary publicly available context in which the Constitution's text was drafted and ratified. For example, when the "free exercise []of [religion]" language was adopted in 1791, most states conditioned religious exercise on, for instance, not being "inconsistent with the peace or safety of this State," as New York's 1777 constitution provided. (12) This context may suggest that the constitutional text's phrase carried that connotation--and that limitation--into its meaning. (13)

    The Declaration of Independence is not a privileged element in any of these three steps of originalist interpretation. For example, one would not prioritize the Declaration to ascertain the conventional meaning of a word. Instead, under current originalist theory, the Declaration is simply one potential piece of evidence at steps one and three, what I described as the conventional meaning and the Framing and Ratification context. This theoretical point then makes it a contingent historical question of the extent to which the Declaration of Independence actually influenced the meaning of the Constitution in these two steps. And it is to this, my second move, I now turn.

  2. Three Important Pieces of Historical Evidence Show that the Declaration of Independence Did Not Play a Special Role in the Creation or Interpretation of the Constitution

    Here, I describe how three important pieces of historical evidence show that the Declaration of Independence did not play a unique role in the creation or interpretation of the Constitution. This evidence shows that the Declaration is one source among many of the Constitution's original meaning.

    1. The Declaration Did Not Play a Unique Role in Constitutional Creation or Interpretation During the Framing and Ratification

      First, the Framers and Ratifiers did not use the Declaration as a special key to the creation or interpretation of the Constitution. In my research on the period of the Framing and Ratification, I uncovered very few statements regarding the Declaration, and none arguing or assuming that it would play a unique role in constitutional interpretation. (14) Instead, the Framers and Ratifiers typically employed the Declaration for three purposes.

      First, the Declaration was identified for its practical impact as the creator and point of independence from the United Kingdom. We heard this from Professor Mikhail earlier. (15) For example, during the Constitutional Convention, Rufus King and Luther Martin debated the Declaration's impact. (16) King contended that the states became one collective entity, whereas Martin argued that each of the thirteen...

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