From Volume 89, Number 3 (March 2016)
Throughout the course of United States history, the Declaration of Independence has played an outsized role in constitutional development. For each generation of Americans, the document has reflected the historical reason for independence and the idyllic statement of representative government. On the one hand, it is not part of the formal Constitution, on the other, it informs constitutional interpretation. For a time, until ratification of the Fourteenth Amendment, it was the nation’s only formal acknowledgment of human equality. Justice Goldberg put the point succinctly in a concurrence: “The Declaration of Independence states the American creed,” which “was not fully achieved with the adoption of our Constitution.” The values and ideals it espouses do not include the compromises the framers included in the original Constitution, which contains several clauses that protected slavery. Some of the clauses of the 1787 Constitution “reflected a fundamental departure from the American creed.”
Goldberg’s conception of the Declaration of Independence was remarkably close to one expressed by Samuel Adams, the renowned revolutionary, more than 150 years before. Speaking to the Massachusetts legislature, while serving in the role of acting governor, Adams asserted that when “the Representatives of the United States of America” averred that “all men are created equal, and are endowed by their Creator with certain unalienable rights,” they proclaimed “the doctrine of liberty and equality” to be the “political creed of the United States.” The creed was a guiding force in constitutional theory even though it did not grant any office of government specific powers.
The Constitution’s departures from the ideals of independence were partly rectified, as I point out in my article contribution to this Symposium, after the Civil War with the addition of amendments to the Constitution securing universal freedom, birthright citizenship, due process, equal protection, privilege or immunities of citizenship, and manhood suffrage. Even then, the country was a long way from universal equality in its legal treatment of women as well as various national and racial groups. The ideals of unalienable rights, innate equality, and representative democracy, all of which appear in various paragraphs of the Declaration of Independence, remain, almost two-and-a-half centuries after independence, the highest aspirations of nationhood.
The Supreme Court has paid scant attention to the Declaration’s overarching statement on national governance and its mandates to protect individual rights while securing the people’s “Safety and Happiness.” Those relatively rare cases that do make mention of the founding document often give no more than a nod to the Declaration’s statement of national independence. These passing statements often demonstrate only a glimpse into the document’s importance to the framers. For instance, in Faretta v. California, a case dealing with pro se defendants, the Court discussed early state constitutions, passed shortly after the Declaration of Independence’s adoption, which contained the right to represent oneself at trial. Another case discussed the creation of the postal service the year before the Declaration. The historical record was far richer than the Court’s few passing examples. In fact, some of the earliest state constitutions adopted the Declaration into their bills of rights.