Republic, Found: The relationship between the Declaration and Constitution

National Constitution Center senior fellow Christopher Phillips looks at the theoretical debate that the Declaration of Independence should be considered, when relevant, on par with the Constitution in legal cases.

I recently had the opportunity to moderate at the National Constitution Center three public conversations with the noted political theorist Danielle Allen, author of the thoughtful and provocative Our Declaration: A Reading of the Declaration of Independence in Defense of Equality, which is fast shooting up the bestseller charts. Dr. Allen argues in her work that a tension that scholars and academics have long claimed exists in the Declaration — namely, between political equality and freedom — in fact does not. To Allen, freedom can only be had when a considerable degree of political equality is first achieved. So to her, political equality is the “instrumental means” or necessary springboard for achieving an array of freedoms needed to be a full participant at the political table in our constitution republic. Her claim is that the Declaration presents, in a tad over 1,300 words, a cohesive and compelling argument for political equality.

Does the Declaration in any way have the force of law, much less advance political equality as Dr. Allen conceives of it?

As I noted in Constitution Café, John Hancock — president of the Continental Congress and the Declaration’s first signer — characterized the Declaration as “the foundation of a future government.” Thomas Jefferson himself considered the Declaration “the fundamental act of union of these states.” To political scientist Dennis J. Mahoney, Jefferson in effect was claiming that it is not the Constitution, but rather “the Declaration that constitutes the American nation.”

The Constitution of the United States is sometimes pronounced, by scholars or politicians, to be neutral with respect to political principles. Is that really so?

After the Revolutionary generation had passed, political luminaries continued to take it as a given that the Declaration was the Constitution’s reason for being, and as such, was itself part of our foundational law. For instance, John Quincy Adams, the sixth president of the United States, asserted that the Declaration contained nothing less than “the fundamental elements and principles of American constitutional law.” In his view, the Declaration and Constitution “are parts of one consistent whole, founded upon one and the same theory of government.”

As a lawyer arguing before the Supreme Court, John Quincy Adams brought the Declaration front and center in the famous “Amistad case.” A group of Africans from Sierra Leone who had been abducted in 1839 by Portuguese slave hunters took control of the ship on which they were held captive, killed the ship’s captain and cook, and were attempting to return to their homeland when they were seized on August 24, 1839 by the U.S. brig Washington and then were incarcerated on charges of murder. These charges were dismissed, but rather than being released right away, they continued to be held while it was determined whether they should be returned to Cuba, where they had been initially taken to be sold by their Portuguese captors, and where they would again be human chattel, the property of others — President Van Buren favored extraditing them there — or whether they should be allowed to return to their homeland. In strenuously arguing before the Supreme Court for their release, Adams held that the president was committing an “utter injustice” by imposing himself “in a suit between parties for their individual rights.” At one memorable point in his two-day argument Adams pointed to a copy of the Declaration of Independence hanging on the courtroom wall. He told the Justices that aid he knew of “no law, statute or constitution, no code, no treaty, except that law…which [is] forever before the eyes of your Honors.” To him, the Declaration was law.

Abraham Lincoln, in his Gettysburg Address in 1863, asserted that the U.S. was founded “four score and seven years ago” — in 1776, when the Declaration was issued, rather than in 1789, when the Constitution was ratified. Such evidence supports argues that “the Constitution is ruled by the Declaration, which may be considered its real preamble.”

In modern times, the constitutional scholar Charles L. Black is among those who assert that the Declaration is part of the Constitution itself. As he asserts in A New Birth of Freedom, “the Declaration as a whole was an act of ‘constitution,’ and so the rights and freedoms it sets forth not only have the “force of law” but are in fact ‘an act of law.’” To Black, this means that it’s our federal lawmakers’ obligation to enact laws that give people the inalienable rights enumerated in the Declaration, thus bringing the disenfranchised into the fold as relative equals. Black believes that the “general diffusion of material welfare” must be seen as “an indispensable part in the general diffusion of the right to the pursuit of happiness.”

The constitutional scholar Akhil Reed Amar maintains that our 14th Amendment in an important respect does our Declaration one better. In stating in its opening sentence that all persons born or naturalized in the United States are citizens, he believes the 14th amendment is making clear that all persons — rather than just all men, as the Declaration states — are created equal.

Our most recently appointed Supreme Court Justice, Elena Kagan, does not believe the Declaration has the force of law. In an exchange with Senator Tom Coburn at her confirmation hearing, the Senator said to her that he “would want you to always act on the basis of a belief of what our Declaration of Independence says.” To which now-Justice Kagan replied: “I think you should want me to act on the basis of law, and … that is what I have upheld to do, if I’m fortunate enough to be … confirmed, is to act on the basis of law, which is the Constitutions and the statutes of the United States.”

James Madison, dubbed the father of the Constitution, attempted to make a portion of our Declaration an actual part of the Constitution when he submitted his draft of the Bill of Rights. On June 8, 1789, Madison told Congress the Preamble needed a “pre-Preamble”:

Madison’s idea, though, didn’t make it past the committee stage, and it wasn’t included in the Bill of Rights.

In “From Parchment to Power,” Robert Goldwin asserts that rather than compare Madison’s proposed “pre-Preamble” with our original Declaration of Independence, we’d be better served to compare it to a typical bill of rights set forth in our state constitutions at the time. For instance, one might consider these passages from the Massachusetts State Constitution of 1780: “All powers originally residing in the people, and being derived from them … Government is instituted for the common good; for the protection, safety, prosperity and happiness of the people … Therefore the people alone have an incontestable, unalienable, and indefeasible right to institute government; and to reform, alter, or totally change the same, when their protection, safety, prosperity and happiness require it.”

There is a school of thought, called “declarationalism,” that holds that our Declaration of Independence should be viewed on equal par with the Constitution in American jurisprudence. Has there ever been an instance in which a ruling by our highest court has used the Declaration as the key legal basis for any of its decisions? None that I could find, though there look to be scores of instances in which it is mentioned.

In one case that set back political equality — the Dred Scott case of March 1857 — the Supreme Court ruled that black Americans in the United States, whether slaves or free, did not have the right to become citizens. In Dred Scott v. Sanford, Chief JusticeTaney, in legalizing slavery, wrote for the majority that black Americans “had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold and treated as an ordinary article of merchandise and traffic, whenever profit could be made by it.” Taney held that the Declaration’s claim that “all men are created equal” did not apply to black Americans. To him, “it is too clear for dispute, that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this declaration. …”

But most instances in which the Declaration is mentioned by our highest court appear more in the vein of what John Quincy Adams had in mind. For instance, in Cotting v. Godard, in 1901, the Supreme Court makes the case that the Constitution is but the “body and the letter” of the “thought and spirit” of the Declaration’s founding principles:

Pauline Maier, the noted scholar of early American history, maintained in American Scripture that the “vitality of the Declaration of Independence rests upon the readiness of the people and their leaders to discuss its implications and to make the crooked ways straight” and to do so “in the ritual of politics,” since to her this is a revivification of “our capacity, together, to define and realize right and justice in our time.”

Further, according to Maier in American Scripture, while over the course of our nation’s history our Declaration has undergone a “gradual reinterpretation,” it has never been and was not meant to be “institutionalized” in the manner of the Constitution. And hence, to Maier,the ultimate authority of the Declaration itself “… rests, as it always has, less in law than in the minds and hearts of the people, and its meaning changes as new groups and new causes claim its mantle, constantly re-opening the issue of what the nation’s ‘founding principles’ demand.”

What say you? Should the Declaration of Independence ever play a role in court decisions?

Christopher Phillips is a Senior Education Fellow at the National Constitution Center. Dr. Phillips was most recently senior writing and research fellow with the University of Pennsylvania’s Center for Programs in Contemporary Writing. He is the founder and executive director of Democracy Café, a nonprofit that seeks to engage more citizens in the democratic process.