Liberal Originalism: A Past for the Future
Sandefur, Timothy, Harvard Journal of Law & Public Policy
First comes the Declaration of Independence, the illuminated initial letter of our history.... Here is the national heart, the national soul, the national will, the national voice, which must inspire our interpretation of the Constitution, and enter into and diffuse itself through all the national legislation.
--Charles Sumner (1)
I. INTRODUCTION 490 II. LIBERAL VS. CONSERVATIVE ORIGINALISM 491 III. SLAVERY AND THE PROBLEMS OF RACE 497 IV. LIBERAL ORIGINALISM AND CONSERVATISM IN GENERAL 507 V. ARGUMENTS AGAINST LIBERAL ORIGINALISM 510 A. Liberal Originalism Overemphasizes Locke 511 B. The Founders Did Not Really Mean It 513 C. The Founders Did Not Understand Evolution 515 D. The Framers Didn't Intend for It to Be Relevant 518 VI. WHAT DIFFERENCE DOES IT MAKE? 520 A. Civil Rights 520 B. Sexual Freedom and Public Morality 522 C. Economic Equality 532 D. Federalism 538 VII. CONCLUSION 541
What role ought the Declaration of Independence play in interpreting the Constitution? Average Americans would probably be surprised that the subject has received relatively little scholarly attention. But in recent years, some writers, led particularly by Scott Douglas Gerber, have begun to devote serious consideration to the Declaration's constitutional role. These scholars are developing a theory of interpretation that Gerber calls "liberal originalism." (2) According to this view, the Declaration is part of the organic law of the United States, and ought to guide our understanding of the Constitution. (3) Liberal originalism contrasts with the "conservative originalism" of Robert Bork, (4) Chief Justice William Rehnquist, (5) and Justice Antonin Scalia, (6) who view the Declaration as a world apart from the Constitution.
Liberal originalism is relevant to a historical analysis of the Constitution because it illuminates the issue of slavery in America's founding. But it is also relevant today as a method of interpreting the Constitution. Like originalism in general, the liberal originalist view is incompatible with attempts to use government to accomplish "social justice" or other ends inconsistent with the principles of individual liberty and limited government reflected in the Declaration. This article addresses the merits of liberal originalism and the differences that this method would make if adopted by today's courts. I take the recent book The Declaration of Independence: Origins and Impact ("Origins and Impact"), (7) edited by Gerber, as a point of departure. In it, Gerber brings together twelve essays on the Declaration, each written by a different historian or constitutional scholar. The essays range in scope from the history of the Declaration's writing and reception in 1776 to its impact on modern Presidents and the Supreme Court. To this, Origins and Impact adds a variety of primary sources, including the first drafts of the Declaration, passages from the constitutional ratification debates and the Federalist Papers, speeches by Abraham Lincoln, Franklin Roosevelt, Martin Luther King, Jr., and others, and even a list of all Supreme Court cases that have cited the Declaration. In the following, I offer some reflections on the liberal originalist project in general, in hopes that it will help us not only to know "where we are, and whither we are tending," but also to better judge "what to do and how to do it. (8)