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Lee Strang: The Declaration of Independence: No Special Role In Constitutional Interpretation
Michael Ramsey

Lee J. Strang (University of Toledo College of Law) has posted The Declaration of Independence: No Special Role In Constitutional Interpretation (Harvard Journal of Law and Public Policy, Vol. 42, No. 1, 2018) (16 pages) on SSRN.  Here is the abstract:

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. Instead, the Declaration is one source, among many, of the Constitution’s original meaning. I make three arguments to support this thesis. 

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.

RELATED:  As noted in a previous post, Mark Pulliam had an earlier essay in which he (among other things) argued against a special role for the Declaration in constitutional interpretation; Edward J. Ehler responds: The People’s Sovereignty Is the Foundation of Constitutional Law, arguing that "[t]here is not a single prominent American Founder—not Madison, Hamilton, Adams, Mason, Randolph, Wilson or any of a host of others—who did not believe that the Declaration served as the authoritative source of the Constitution’s authority. Miss this point and you cannot understand the original intent of the Constitution."