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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.

Reader Discussion

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on September 09, 2015 at 11:25:37 am

A common thread of these posts is that definitions are taken for granted. In this case, does natural law mean "certain rights or values are inherent by virtue of human nature, and universally cognizable through human reason?" And is "common law" "developed by judges through decisions of courts and similar tribunals that decide individual cases, as opposed to statutes adopted through the legislative process or regulations issued by the executive branch?" Both quotes are from Wikipedia. And when writing about the declaration or the constitution would "common law" reference British common law?

I wish to introduce into the discussion the idea that justice simply is. It does not bend to reason, faith, legislation, supreme court opinion, scholarship, human construct, body of law, scripture, people's gods, or any other human construct. Justice exists and it is humankind's noble task to discover, understand and benefit from understanding. With this view, neither natural law nor common law has standing.

Humankind must find the basis for justice. Albert Einstein asserted, in my paraphrase, that physics is the basis of ethics and humankind's work to establish justice should start with a clear statement of the issue in terms of physics. Herein, physics means not a study, but the objects of that study: energy, mass and space-time from which everything emerges.

Einstein's single example is lying. He wrote that we don't lie to each other so that we can trust our statements. Likewise, we don't run red lights so that we can trust green lights.

Similarly, that single cell that will become a human being came from a couple's ovum and sperm and establishes that child's heritage. Adult contracts that deny a child's equality respecting his/her couple are immoral in the child's perspective.

Mitochondrial DNA informs us that everyone alive descended from one woman who lived some 140,000 years ago, perhaps 5% back in time of evolution of the humanoid species. The descendants of peers of that woman died out as they encountered environmental or cultural changes they could not survive. The question of the Supreme Court authorizing adult contracts that deny a child its heritage is thus not trivial.

I am appealing to scholars, who understand these issues much better than this chemical engineer to pay attention to Einstein's humble, warm statements about law. His expressions are subtle and brief, so it is not easy to understand how far reaching they are. See Einstein's essay at www.samharris.org/blog/item/my-friend-einstein .

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Phil Beaver
on September 11, 2015 at 15:25:00 pm

I've been following this conversation with great interest.

The Constitution references the Declaration, although subtly, in two places; the date line before the signatures in the original document, and in the First Amendment.

The date sentence acknowledges the Declaration by the date referred to in "... of the Independence of the United States of America the twelfth ..." which is a reference to the signing of the states' and Congresses declarations of independence. I'm not sure how legalistic this small piece of writing is.

The First Amendment refers to the Declaration indirectly through its reservation of the right to petition for redress of grievances.

The Declaration was not a single document, but the last in a series of four that were produced by the three Continental Congresses. The first was the Declaration of Rights, which endorsed an import and export prohibition by the colonies, and which promised an upcoming petition for redress. The second was the petition for redress. The third was the cause for taking up arms which addressed British improprieties with respect to the petition. The fourth was the Declaration which was the consequence of an improper response to the petition. So it wasn't so much a single document standing by itself. It was the end product of a process of formal petition for redress that established a precendent for cause for separation from a government.

The First Amendment right to petition refers to the general right of people and states to address the government and ask for a resolution of a governmental issue. If the government addresses the state's petition improperly the state has the right to withdraw from the nation today, just as the colonies had the right to withdraw in 1776.

What I find most interesting about all this is that right to petition defines a cause and a method for separation. As a side note I believe that Lincoln was aware of this. He could never come out and admit as much because to do so would have been to give the illegally seceding states the keys to their own escape, and Lincoln knew that his job was to prevent such an escape. His regular references to the Declaration and the earlier acts of the Continental Congresses suggest this. He needed to lay the legal groundwork of his justifications for his actions, but he had to do so in a way that would not give too much information to the secessionist.

The standards found in the right to withdraw help define the meaning of states' bindings with the national government. The national government has certain obligations to the states, and the states to the national government. Some of those obligations can be found 1774-1776 process of petition for redress which includes of course the finalizing document, the Declaration of Independence.

The Constitution does not explicitly restate the meaning of the original Congresses petition. Instead it just notes that the right to petition already existed. Certainly, everyone at the time was quite familiar with the petition and Declaration that they had just fought a major war over. The date line suggests, even though it does not say so explicitly, that the 1774-1776 petition for redress is part of the meaning of that right which would later be stated explicitly in the Bill of Rights.

Because the earlier process of petition and Declaration helps define the proper relationship between a state and the national government, it is part of the body of work that can be used as an "interpretive key" to the Constitution.

So my answer is #2; significant as a document.

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Scott Amorian

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