Originalism, the Declaration of Independence, and the Constitution: A Unique Role in Constitutional Interpretation?

67 Pages Posted: 24 Aug 2006 Last revised: 3 May 2012

See all articles by Lee J. Strang

Lee J. Strang

University of Toledo College of Law

Date Written: January 1, 2005

Abstract

Originalism, the Declaration of Independence, and the Constitution begins by noting that, despite the widespread popular consensus that the Declaration is a constitutional document, the Declaration's role in constitutional interpretation is deeply contested among scholars. I argue that the Declaration of Independence does not play a unique role in constitutional interpretation and instead is one of many sources of the Constitution's original meaning.

First, I lay out the background debate over the role of the Declaration in constitutional interpretation and how appeals to the Declaration have periodically arisen during times of national moral crisis, such as those over slavery or civil rights. I also detail how scholars have relied on the Declaration to support dramatically inconsistent claims of political morality and constitutional norm.

Assuming an originalist perspective on constitutional interpretation, I then argue that the historical evidence from the Framing and Ratification of the Constitution shows that the Declaration is simply one source of the original meaning of the Constitution. In addition, I contend that the Declaration is not the interpretative key to the Constitution because they are inconsistent, and because the Declaration cannot provide sufficient interpretative guidance. Lastly, I advance arguments to establish that the Declaration is not independently legally binding. In doing so, I rebut many of the common claims made by scholars who assert that the Declaration is more than simply one source of original meaning, scholars I label Declarationists.

Keywords: Declaration of Independence, Constitution, Originalism, Framers, Ratifiers, Constitutional Interpretation

Suggested Citation

Strang, Lee J., Originalism, the Declaration of Independence, and the Constitution: A Unique Role in Constitutional Interpretation? (January 1, 2005). Lee J. Strang, Originalism, The Declaration of Independence, and the Constitution: A Unique Role in Constitutional Interpretation?, 111 Penn. St. L. Rev. 413 (2006). Available at SSRN: https://ssrn.com/abstract=926187 or http://dx.doi.org/10.2139/ssrn.926187

Lee J. Strang (Contact Author)

University of Toledo College of Law ( email )

2801 W. Bancroft Street
Toledo, OH 43606
United States
419-530-2877 (Phone)

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