To Construe the Constitution, Look to the Declaration

By George Will

Thursday, July 04, 2019

Washington — On this 243rd anniversary of the beginning of the best thing that ever happened — “The Great Republic” was Winston Churchill’s tribute — many of today’s most interesting arguments about America’s nature and meaning are among conservatives. One concerns the relevance of the Declaration of Independence to the contested question of how to construe the Constitution.

The crucial question is: What did the Founders intend — what was their foundational purpose? Mark Pulliam, who might disagree that this is the crucial question, certainly thinks the Declaration is not pertinent to construing the Constitution.

Pulliam, a lawyer and contributing editor of the excellent Law & Liberty blog, notes portentously that the Declaration is not mentioned in the Constitution. This, however, is as obvious as it is obviously irrelevant. Neither is democracy “mentioned,” and the Declaration is hardly mentioned in The Federalist Papers. However, the Declaration expressed, as Jefferson insisted, the broadly shared “common sense of the subject.” Rather than belabor the Declaration’s (to them, unremarkable) assertions, the Constitution’s Framers set about creating institutional architecture that would achieve their intention: to establish governance that accords with the common sense of their time, which was that government is properly instituted to “secure” the preexisting natural rights referenced in the Declaration.

Also obvious and irrelevant is Pulliam’s observation that Jefferson, the Declaration’s primary author, was not at the Constitutional Convention (he was a U.S. diplomat in Paris). What is obvious — and, concerning the Constitution’s original meaning and continuing purpose, dispositive — is this: The Declaration’s role is the locus classicus concerning the Framers’ intention, which is surely the master key to properly construing what they wrought.

The late Judith Shklar (1928-1992), a Harvard political philosopher, correctly noted the “momentous novelty” of the Constitution’s first three words, “We the people.” They announced a “declaration of independence from the entire European past,” a root-and-branch rejection of all prior attempts to ground the legitimacy of government in anything other than the consent of the governed. The Constitution was, however, written by men of the Enlightenment who were not confident that the rationality they practiced and espoused could be counted on to constantly characterize the republic for which they wrote.

The Declaration did not mention majority rule, which the Founders embraced because they considered it, when public opinion is properly refined and filtered, the best — although hardly a certain — mechanism for protecting the natural rights affirmed in the Declaration. Those rights, not a procedure (majority rule), was their foundational concern. The equilibrium of Madison’s constitutional architecture is currently in disarray, with congressional anemia enabling presidential imperiousness. Nevertheless, the architecture was designed to “secure” — the crucial verb in the Declaration’s second paragraph — the natural rights the Declaration affirms.

The Reverend Martin Luther King Jr.’s genius — he was, in a sense, the final Founder — was in understanding what the University of Pennsylvania’s Rogers M. Smith terms the “Declaration of Independence-centered view of American governance and peoplehood.” Over the years, this stance of “Declarationists” explicitly opposed Jacksonian democracy’s majoritarian celebration of a plebiscitary presidency, and the 1854 Kansas-Nebraska Act’s premise that majorities (“popular sovereignty”) could and should — wrong on both counts — settle the question of whether slavery should expand into the territories.

The learned and recondite disputes currently embroiling many conservatives, disputes about various doctrines of interpretive constitutional “originalism,” are often illuminating and sometimes conclusive in constitutional controversies. But all such reasoning occurs in an unchanging context. Timothy Sandefur, author of The Conscience of the Constitution, rightly sees the Declaration as the conscience because it affirms “the classical liberal project of the Enlightenment and the pervasiveness of such concepts as natural rights.”

Furthermore, Sandefur says, this explains the Constitution’s use of the word “liberty,” which “does not refer to some definitive list of rights, but refers to an indefinite range of freely chosen action.” Which means that the Constitution should be construed in the bright light cast by the Declaration’s statement of the Founding generation’s general intention to privilege liberty.

Pulliam dismisses as “inapt Biblical imagery” Lincoln’s elegant formulation that the Constitution is the frame of silver for the apple of gold, which is the Declaration. Lincoln’s mission was to reconnect the nation with its Founding. The frame, Lincoln said, is to “adorn” and “preserve” the apple. Frames are important and silver is precious, but what is framed is more important and gold is more precious. So, tonight, by the light of some sparklers, read the Declaration, which illuminates what came next, the Constitution, and a nation worth celebrating.