The Declaration of Independence and the U.S. Constitution

What is the relationship between these documents, especially for interpreting the Constitution?  There are several different possibilities.

1. Largely Unrelated. This is the conventional view in constitutional law.  Under this view, one generally can ignore the Declaration when interpreting the Constitution.  One justification is that the Declaration had a limited purpose – announcing to the world that the US was independent – and that was concluded by the end of the Revolutionary War.

2. Significant as a Document. Under this view, the principles announced in the Declaration are important guides to the meaning of the Constitution.  The force of the Declaration comes from the fact that it is one of the foundational documents in US history.  While not the standard view in either  originalist or conventional constitutional law, it does have some adherents.

3. Significant as Evidence of Political Principles. Under this view, the Constitution should be interpreted in accordance with certain important political principles, such as natural law or traditional common law principles.  The Declaration is evidence that natural law principles were widely accepted by the people in the latter part of the 18th. The reason for employing these principles, however, is not that they are in the Declaration, but that they were widely accepted.

I am not entirely sure whether I hold position 1 or 3 (or something in between), but I believe that position 2 is mistaken.

The argument for 2 is that the Declaration of Independence was an operative document that is one of the basic documents of U.S. history.  Under the English system of constitutional law at the end of 18th century, significant documents would have been included in the constitution – documents such as the English Bill of Rights and the Magna Carta.  But the American system departed from the English system by placing the entire constitution in a single document.

Another problem with this argument is that the Articles of Confederation was also a fundamental document of U.S. history, yet we do not interpret the Constitution in accordance with it (which is not to say that it is irrelevant to the interpretation of the Constitution).

Finally, the U.S. Constitution makes no reference to the Declaration, but such reference might have been expected if the Declaration were deemed to be a continuing part of constitutional law.

It is not really clear that people who want to interpret the Constitution in accordance with natural law need the Significant as a Document view.  The natural law content would be much the same under the Significant as Evidence view, and that view could rely upon far more evidence and support.  In the future, I hope to post about this latter view.

Reader Discussion

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on April 14, 2020 at 19:51:59 pm

The missing link is the practical purpose of Jefferson who was writing a constitution for Virginia. This Virginia Commonwealth at the same time Jefferson was in Philadelphia as a delegate to the Continental Congress. Jefferson subitted his work to Virginia which accept his prologue, but had already approved a Bill of R

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on April 14, 2020 at 20:25:50 pm

Thomas Jefferson was a delegate to the Continental Congress, but writing a constitution for the Commonwealth of Virginia. Part I of Jefferson's work was accepted as a prologue to Col. Mason's Bill of Rights and the Virginia delegates form of government. The first state constitution was adopted. A month later Jefferson submitted his prologue within the Declaration of Independence to the Committee which contained two other men who would write State Constitutions. Benjamin Franklin would preside over the Constitution of the Commonwealth of Pennsylvania and John Adams would write the accepted Constitution of Massachusetts after a popular election, Yes, Adams in a rush did some heavy lifting of the ideas for a commonwealth state from Virginia in writing by himself a 3 day Constitution. . Only one other state became a commonwealth state and that was during the split of the Commonwealth of Kentucky from Virginia. Democratic principles illuminate these constitutions for a state government and not a Republic. Washington's constitution from Philadelphia copied the role of Augustus Caesar in his 27 BCE constitution for Rome and the beginning of the Pax Romana. The Roman Republic was restored for Rome, while Washington would rule a senate and a house of tribunes with a veto, power over the military and power over foreign policy. Basically 50 state constitutions as well as foreign constitutions were written with the commonwealth foundational document of Virginia. James Monroe was to write, as Jefferson's law student and alter ego as well as the Chairman of the Northwest Territorial Ordinances with the help of Col. Mason and Jefferson. Jefferson would wave the Commonwealth Constitution at The Marquis de Lafayette who wrote the 1789 Declaration of the Rights of Man, while Ambassador James Monroe would assist in the French Constitution of 1795 as to a Declaration of the Rights of Man and the Duties of the Citizen. Monroe was granted French Citizenship giving him one up on others in becoming a real estate broker.
An interesting thing is that Monroe, The Marquis, Alexander Hamilton, and later Chief Justice James Marshall were all at Valley Forge and dinner table guests of Mrs. Washington and conversations with Washington over the future of the United States based on the 1776 documents. Some real heavy thinking goes into producing two sovereignties, the states and the Republic over the next eleven years with very different goals as promoted by the Northwest Territorial Ordinances of 1785 and 87, accepted as Federal Law in 1789. Remember Col. Mason's Bill of Rights was rejected in Philadelphia as not needed, but with pressure became an appendage of the Republic in 1791. I hope this helps on the road to understanding two separate ideas.

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Introducing Myself

As an academic, I have worked in various fields, but my dominant passion has been the libertarian pursuit of free markets and freedom under the law. In recent years, I have focused mainly on constitutional originalism. At the University of San Diego, I am the Director of the Center for the Study of Constitutionalism and have a book coming out next year from Harvard, Originalism and the Good Constitution (co-authored with John McGinnis), which presents a new defense of originalism.