From Volume 89, Number 3 (March 2016)
As scholars have long observed, the Declaration of Independence serves as one of the principal points of popular engagement with constitutional meaning. In particular, the Declaration’s introductory passages regarding liberty and equality provide a key entry point for the general public in engaging with the purpose and meaning of those core constitutional values. As such, claims about the Declaration’s meaning—and appropriation of its terms—have long pervaded public debates over core areas of constitutional contestation.
This Article suggests that this unique role of the Declaration may render it an especially useful subject of study for understanding shifts in popular constitutional understandings. To the extent that popular invocations of the Declaration have shifted over time, these shifts may signal broader changes in public understandings of how the Constitution should be understood. Moreover, to the extent that one credits popular constitutionalism as a descriptive theory (i.e., a theory of how, ultimately, constitutional law evolves), such shifts may provide an important bellwether of the redirection of constitutional doctrine.
This Article explores this idea in the context of a historical examination of shifting invocations of the Declaration of Independence in the context of affirmative action. As such a historical account demonstrates, invocations of the Declaration’s equality principles in the context of affirmative action have shifted profoundly over time, from the early years, when such invocations were found predominantly in the context of pro affirmative action statements, to the present, in which such invocations are largely made in opposition. This shift has accompanied broader shifts in the equality discourse of both proponents and opponents of affirmative action, shifts that have profoundly changed the dominant discourse of affirmative action’s relationship to equality. The Article concludes by discussing the troubling implications for proponents of a particular constitutional project of its disassociation from popular understandings of equality and liberty as represented by the Declaration.