From Volume 89, Number 3 (March 2016)
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 Article, I argue that, from an originalist perspective, the Declaration is not part of the Constitution. I first articulate the analysis that originalists should utilize to identify what the Constitution is and second argue that 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 is not itself a subject of constitutional interpretation.
This Article is important for two reasons. First, there is little discussion in the literature on what analysis originalists should utilize to ascertain the subject matter of interpretation—it is nearly always assumed. Originalists typically presume that only the written Constitution is the subject matter of interpretation, and this Article makes express that assumption. More importantly, doing this provides an opportunity to respond to a criticism of originalism: that originalism is incorrect because it is inconsistent with our normative constitutional practice, which identifies more than the written Constitution as the Constitution.
Second, the application of this analysis will provide an additional reason why the Declaration—though an important piece of evidence of the Constitution’s original meaning —does not play a unique role in constitutional interpretation. This more theoretical claim complements historical claims I have made elsewhere.