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Strang on Originalism’s Subject Matter: Why the Declaration of Independence Is Not Part of the Constitution

Lee Strang, who has made important contributions to originalism, has a new essay out on the proper role of the Declaration of Independence in originalist interpretation.  Here is the abstract:

Scholars across the ideological spectrum have argued for a unique role for the Declaration of Independence in constitutional interpretation. These scholars’ arguments fall into two general categories: (1) the Declaration is the “interpretive key” to the Constitution’s text’s meaning; and (2) the Declaration is itself part of the Constitution. In this Essay, I argue that, from an originalist perspective, the Declaration is not part of the Constitution.

I argue that originalism’s subject matter—that which originalism interprets—is—and is only—the document in the National Archives that begins “We the People of the United States,” along with canonical amendments. Therefore, even though the Declaration is a rich data source for the Constitution’s original meaning, it itself is not a subject of constitutional interpretation.

This Essay proceeds in three parts. In Part II, I briefly describe the debate over the Declaration’s role in constitutional interpretation. Part III argues that, based on originalism’s own commitments, only the written Constitution is the subject matter of constitutional interpretation. Part IV shows that this limitation of the Constitution to solely the written Constitution fits both important and widely accepted facets of our legal practice. I conclude, in Part V, by suggesting that this limitation of the subject matter of constitutional interpretation to the written Constitution also comports with the natural law tradition’s conception of law as an authoritative, prudential, social-ordering decision, aimed at procuring the common good and human flourishing.

I largely agree with Strang’s view here.  In the past, I have blogged about this subject, noting that there are three positions on the relationship between the Declaration and the Constitution:

1. Largely Unrelated. This is the conventional view in constitutional law. Under this view, one generally can ignore the Declaration when interpreting the Constitution. One justification is that the Declaration had a limited purpose – announcing to the world that the US was independent – and that was concluded by the end of the Revolutionary War.

2. Significant as a Document. Under this view, the principles announced in the Declaration are important guides to the meaning of the Constitution. The force of the Declaration comes from the fact that it is one of the foundational documents in US history. While not the standard view in either  originalist or conventional constitutional law, it does have some adherents.

3. Significant as Evidence of Political Principles. Under this view, the Constitution should be interpreted in accordance with certain important political principles, such as natural law or traditional common law principles. The Declaration is evidence that natural law principles were widely accepted by the people in the latter part of the 18th The reason for employing these principles, however, is not that they are in the Declaration, but that they were widely accepted.

I am not sure whether Strang adopts position 1 or 3, but my guess is that he adopts something like position 3, but a distinct version of it.  He has argued that during the framing and ratification period, “the Declaration was rarely referenced, and that the Declaration was utilized as one source of the Constitution’s meaning, among many.  In my view, position 2 is clearly mistaken, with the choice between 1 and 3 being determined by how prevalent the principles of the Declaration were at the time of the Constitution.

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