What if we put our Declaration of Independence on an equal footing with the Constitution, and give it the force of law? Would that embed the Spirit of '76 in all our political doings in a big way?
James Madison, dubbed the father of the Constitution, attempted to make part of our Declaration an actual part of the Constitution when he submitted his draft of the Bill of Rights. Though Madison didn't succeed, John Quincy Adams, the sixth president of the United States, acted as if the Declaration was in fact part of the Constitution. He believed that the entire Declaration should be seen as a foundational legal document that had equal billing and stature with the Constitution. To Adams, the Declaration contained nothing less than "the fundamental elements and principles of American constitutional law."
In Adams's view, the Declaration and Constitution "are parts of one consistent whole, founded upon one and the same theory of government." Adams put his theory into practice. As a lawyer arguing before the Supreme Court, Adams brought our 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'd been initially taken to be sold by their Portuguese captors, and where they would again become 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 vehemently 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 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 is law.
Abraham Lincoln is of like mind. In his Gettysburg Address in 1863, Lincoln contended 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."
There is a modern school of thought, called "declarationalism," that holds that our Declaration of Independence should be viewed on equal par with the Constitution in American jurisprudence.
As I point out in Constitution Cafe, the constitutional scholar Charles L. Black is among those who have made the compelling claim 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 the duty of federal lawmakers to enact laws that see to it that our nation's disenfranchised are brought into society's fold as equals, so that all Americans enjoy the inalienable rights enumerated in the Declaration. In particular, 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."
Pauline Maier, the noted scholar of early American history, maintains 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 that this is the best springboard to then act in ways that "define and realize right and justice in our time."
Imagine having the Declaration-bequeathed right to revolt if government no longer operates with the consent of the governed. As things stand, a mere 19 percent of likely U.S. voters believe our federal government acts in accordance with the consent of the governed.
If that's so, and the Declaration has the force of law, should we use the courts to insist that government cease and desist from acting without our consent? In arguing before the court, we might present a recent Princeton study that shows in depressing detail what we already suspect: that our republic no longer is of the democratic kind, since the will of the people is rarely heeded. According to the study, "mass-based interest groups and average citizens have little or no independent influence" in determining the direction of our country.
If this is so, besides challenging our government's legitimacy in the courts as one way to revive our republic, should we also be roused en masse to take other forms, and join forces to take more direct kinds of action - the admirable Mayday.us comes readily to mind -- that hold out promise of making the crooked ways straight? Is this a must if we're to do our part, in the name and spirit of the Declaration and our Founders, to define and realize justice in our times?
A considerably different earlier version of this was posted on the blog at the National Constitution Center.