36 Pages Posted: 2 Sep 2015 Last revised: 14 Jun 2017
Date Written: May 1, 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 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.
Keywords: Declaration of Independence, originalism, constitutional interpretation, Constitution
Suggested Citation: Suggested Citation
Strang, Lee J., Originalism's Subject Matter: Why the Declaration of Independence is not Part of the Constitution (May 1, 2016). Southern California Law Review, Vol. 89, 2016. Available at SSRN: https://ssrn.com/abstract=2654408