The Declaration of Independence: Why It Holds No Special Role in Constitutional Interpretation
The Declaration inspires but doesn't interpret — whatever its moral power, it was never ratified as law, and originalism rightly limits constitutional interpretation to the written Constitution alone.
The Declaration of Independence occupies a singular place in America’s political and cultural imagination. It is regularly quoted in public speeches, invoked during national crises, and revered as a timeless statement of human liberty. Scholars across the ideological spectrum have argued that the Declaration provides not only inspiration but also binding guidance for constitutional interpretation. Some claim that the Declaration is the interpretive key to the Constitution’s meaning, while others assert that it is part of the Constitution itself. Yet, despite these claims, the Declaration does not and cannot play a unique role in constitutional interpretation. Instead, originalism — understood as fidelity to the original public meaning of the Constitution — limits constitutional interpretation to the written Constitution and its ratified amendments. Put simply, the Declaration, though important historically and morally, does not have a unique position in interpreting the Constitution. The following essay supports this thesis, demonstrating that the Declaration has little significance in constitutional interpretation both historically and doctrinally, and that this limitation is consistent with the fundamental commitments of modern originalist theory.
Evidence That the Declaration Has Little Significance in Constitutional Interpretation
To begin, it is necessary to demonstrate that the Declaration has not historically fit within constitutional interpretation and that it does not align with current constitutional interpretation practices. Examining each separately, this section will show that the Declaration of Independence has never been essential to interpreting the Constitution’s meaning. It was not until times of moral crisis that the Declaration resurfaced as a justification for creative constitutional interpretations. Such practice is inconsistent with the principles of originalism.
Historical Practice
Evidence from the framing and ratification period reveals that the Declaration was not understood as a source of constitutional meaning. The records of the Constitutional Convention show that references to the Declaration were rare and limited in scope. Delegates such as Rufus King and Luther Martin debated the effect of independence but did not suggest that the Declaration supplied binding constitutional principles.1 James Wilson and Alexander Hamilton defended the practical implications of independence, but again made no claims about the Declaration’s interpretive authority.2 The silence of the Convention is striking: the Constitution incorporated none of the Declaration’s rights language, focusing instead on institutional design. This confirms that the Declaration was viewed as a political statement justifying independence, rather than a legal charter for future governance.3
Moreover, the Declaration is inconsistent with the Constitution in key respects. The Declaration proclaims universal equality and inalienable rights, yet the Constitution explicitly accommodated slavery, including the Three-Fifths Clause and the Fugitive Slave Clause.4 As some have argued, this contradiction undermines the plausibility of interpreting the Constitution through the lens of the Declaration’s egalitarian principles. The Constitution’s compromises reflect the reality that the founders prioritized union and governance over philosophical consistency with the ideals of the Declaration.5 If anything, the divergence shows that the Declaration could not be considered legally binding at the time of ratification.
Additionally, the Supremacy Clause explicitly states that the Constitution is the supreme law of the land and authorizes laws and treaties made in accordance with it.6 The Constitution did not provide authority for previously enacted legislation or for the Declaration of Independence. Further support of this fact comes from the re-enactment of the Northwest Ordinance after the Constitution’s ratification.7 This bolsters the historical evidence indicating that the Declaration was viewed primarily as a proclamation of separation from Britain, not as a constitutional blueprint.8
It was not until times of moral crisis that the Declaration resurfaced as a justification for broader individual rights. For example, abolitionists invoked the Declaration’s rights phrase to challenge slavery, arguing that its principles were the true foundation of American government.9 Some, like Frederick Douglass, treated the Declaration as a moral charter superior to the Constitution’s compromises. Others, such as William Lloyd Garrison, went further, condemning the Constitution as a pact with slavery and elevating the Declaration of Independence as the authentic American founding document.10 During the women’s suffrage movement, activists like Elizabeth Cady Stanton modeled the 1848 Seneca Falls Declaration on Jefferson’s language, proclaiming that women, too, were created equal.11 In the twentieth century, Martin Luther King Jr. similarly appealed to the Declaration’s promise of equality to press the cause of civil rights.12 These episodes demonstrate the rhetorical and moral power of the Declaration, while also highlighting its lack of binding interpretive authority. When constitutional text failed to advance reform, activists turned to the Declaration as an extralegal source of legitimacy.13
Modern Practice
Contemporary constitutional practice also demonstrates that the Declaration plays no privileged role in interpretation. The vast majority of leading constitutional theorists, including Robert Bork, Ronald Dworkin, Richard Fallon, and Keith Whittington, develop their interpretive methodologies with no reference to the Declaration.14 Most do not give any argument for its limited role due to the fact that it was never a center of true constitutional interpretation.15 Some address it briefly, outlining the distinction between the Constitution’s framing of the government and the Declaration’s emphasis on separating from England, as well as the limited use of natural law in the Constitution’s framing.16 In sum, it is common practice to accord the Declaration no special role in the majority of scholars’ thinking.
This is the same for the interpretive posture toward the Declaration on the Supreme Court. Justice Antonin Scalia explicitly distinguished between the aspirational rhetoric of the Declaration and the enforceable provisions of the Constitution, emphasizing that the former was not legally binding.17 Early Supreme Court decisions occasionally mention the Declaration but never treat it as an independent source of constitutional law. For instance, Chief Justice Taney in Dred Scott v. Sandford acknowledged the breadth of the Declaration’s language but dismissed its application to African Americans, underscoring its non-binding character.18 Abraham Lincoln famously rebutted Taney, invoking the Declaration as a moral guidepost, but Lincoln himself conceded that the Declaration did not supply immediate legal obligations, only enduring principles for aspiration.19
Many modern courts continue this pattern: references to the Declaration appear in dicta, often to highlight ideals of liberty or equality, but never as controlling law.20 Attempting to cite its aspirational statements for legal authority falls outside of the acceptable forms of interpretation. Thus, both in historical and modern practice, the Declaration has not been granted interpretive authority within constitutional adjudication.
Consistency with Modern Originalist Theory
Modern originalist constitutional theory also affirms that the Declaration has no unique role in Constitutional interpretation. In originalist thinking, there is an additional theoretical justification for excluding the Declaration from constitutional interpretation. This is based on support from the two key commitments of modern originalism. First, the fixation thesis holds that the Constitution’s meaning was fixed at the time of framing and ratification.21 Second, the constraint principle requires that constitutional doctrine remain consistent with that fixed meaning.22 These theses demonstrate that originalism adheres to the written Constitution as the sole basis for interpretation. Together, these commitments preclude the Declaration from serving as an independent source of interpretation. Because it was never ratified, the Declaration lacks the authority to fix meaning or constrain doctrine. At most, it is background evidence of political thought, not binding law.23
Following this, originalism distinguishes between interpretation and construction: when meaning is determinate, judges must follow it; when underdeterminate, elected branches or judicial doctrines may construct rules consistent with the original meaning.24 Acceptance of this construction zone depends on the primacy of the text’s original meaning.25 When outside the determinate meaning, the Declaration may have some use — along with many other pieces of evidence — in constructing an underdetermined meaning. But this is not a part of interpretation. Thus, any use in construction does not alter the way the Declaration ought to be considered in constitutional interpretation. Overall, originalism privileges the written Constitution — the text ratified by the people — as the sole subject matter of constitutional interpretation.26
Responding to Gerber’s Liberal Originalism
Professor Scott Gerber attacks this line of thinking to find greater purchase for the use of the Declaration in his form of liberal originalism. According to Gerber, the Constitution should be interpreted in light of the natural rights philosophy articulated in the Declaration.27 On this view, the Constitution was designed to secure the rights proclaimed in 1776, and its provisions must be construed with those ends in mind. Gerber highlights the Constitution’s general language — such as “freedom of speech” and “equal protection” —which he argues can only be given meaning by reference to the Declaration’s ideals.28 He cites Abraham Lincoln, who treated the Declaration as a “standard maxim” to guide constitutional development, and Justice Clarence Thomas, whose jurisprudence in civil rights cases sometimes reflects liberal originalist premises. 29Gerber contends that reading the Constitution without the Declaration mischaracterizes it as a purely majoritarian document, when in fact it enshrines natural rights as limits on government power.30
This theory fails to provide historical evidence that the framers or ratifiers treated the Declaration as interpretive law. The most Gerber shows is that natural rights philosophy was influential, but influence does not equal incorporation. Even if the Constitution was intended to secure natural rights, the vehicle for doing so is the determinate text, not an open-ended appeal to political philosophy.31 Allowing judges to interpret provisions directly through the Declaration would undermine originalism’s fixation and constraint principles, opening the door to judicial imposition of contested values.
Furthermore, the Constitution’s compromises with slavery demonstrate that its text cannot be coherently reconciled with the Declaration’s egalitarian claims. The coexistence of slavery under the Constitution reveals that the Declaration’s principles, while aspirational, were not legally binding.32 Gerber fails to demonstrate why the Declaration should hold a privileged interpretive role, but does show how liberal originalism would likely collapse into judicial moral reasoning masquerading as constitutional law.33 Others who align with this view make similar errors in assuming an unenumerated desire to secure all natural rights.34
Limiting interpretation to the written Constitution is consistent not only with theory but also with broader constitutional practice. American legal institutions recognize the Constitution and its amendments as the supreme law, which is implemented through judicial precedent and political practice. Other sources, such as moral values or historical traditions, may provide context but cannot override the text. As explained elsewhere, expanding the subject matter of interpretation to include the Declaration would destabilize constitutional law by introducing an external, indeterminate standard.35 This methodological discipline explains why, despite the Declaration’s rhetorical importance, American constitutionalism has consistently limited its binding authority to the written Constitution.36
Conclusion
The Declaration of Independence remains a profound moral and political statement, inspiring generations of Americans to pursue liberty and equality. But it does not play a vital role in constitutional interpretation. The historical record confirms that the framers and ratifiers did not treat it as a binding source of meaning. Modern courts and scholars likewise regard it as aspirational rather than authoritative. Originalist theory reinforces this conclusion by insisting that only the written Constitution, ratified by the people, provides fixed and binding legal norms. Attempts to elevate the Declaration to constitutional status, such as Scott Gerber’s liberal originalism, fail to overcome the theoretical and historical evidence that the Declaration lacks independent legal force. In short, the Declaration inspires, but it does not interpret. Limiting constitutional meaning to the ratified text preserves the Constitution’s authority while allowing the Declaration to retain its proper role as a moral beacon. This conclusion both respects America’s founding ideals and safeguards the integrity of constitutional law.
¹ See Lee J. Strang, “Originalism, the Declaration of Independence, and the Constitution: A Unique Role in Constitutional Interpretation?,” Penn State Dickinson Law Review 111, no.2 (October 2006): 413, 441.
²Ibid.
³ Strang, “Originalism,”442.
⁴ Strang, “Originalism,”459.
⁵ Strang, “Originalism,”Id.
⁶ Strang, “Originalism,”473.
⁷ Strang, “Originalism,”474.
⁸ Strang, “Originalism,”415.
⁹ Strang, “Originalism,”417.
¹⁰ Ibid.
¹¹ Strang, “Originalism,”421.
¹² Strang, “Originalism,” 423.
¹³ Strang, “Originalism,”431.
¹⁴ Strang, “Originalism,”432.
¹⁵ Strang, “Originalism,”433.
¹⁶ Strang, “Originalism,”434.
¹⁷ Ibid.
¹⁸ Strang, “Originalism,”460.
¹⁹ Strang, “Originalism,”414.
²⁰ Strang, “Originalism,”434.
²¹ Lee J. Strang, “Originalism’s Subject Matter: Why the Declaration of Independence Is Not Part of the Constitution,” Southern California Law Review 89 (2016): 637, 642.
²² Ibid.
23Strang, “Originalism’s Subject Matter,”639–41.
²⁴Strang, “Originalism’s Subject Matter,” 645.
²⁵Strang, “Originalism’s Subject Matter,” 646.
²⁶Strang, “Originalism’s Subject Matter,” 644.
²⁷Scott D. Gerber, “Liberal Originalism: The Declaration of Independence and Constitutional Interpretation,” Cleveland State Law Review 63 , no1 (2014):1, 4–6.
²⁸Gerber, “Liberal Originalism,” 5.
²⁹Gerber, “Liberal Originalism,”5–6.
³⁰Gerber, “Liberal Originalism,”6–7.
³¹Strang, supra note 1, at 50–51.
³²Id. at 46–47.
³³Strang, supra note 16, at 640–41.
³⁴Id. at 640.
³⁵ Id. at 640.
³⁶ Id. at 641.
