For the Fourth, George Will in the Washington Post devotes an entire column to attacking Mark Pulliam: To construe the Constitution, look to the Declaration. Here is the introduction:
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.
And from the core of the argument:
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.
Congratulations to Mark Pulliam for drawing some prominent fire.
For a counterpoint, see Lee Strang's article "The Declaration of Independence: No Special Role In Constitutional Interpretation" (Harvard Journal of Law and Public Policy, Vol. 42, No. 1, 2018).
Also relevant: Scott Gerber, The Declaration of Independence’s unexpected team of champions.
July 4 marks the 243rd anniversary of the Declaration of Independence. Most Americans can probably recite by heart the Declaration’s ringing phrases that “all men are created equal” and that “they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.”
Likely less familiar is that Thomas Jefferson, Abraham Lincoln, Martin Luther King Jr. and — perhaps surprising to many — Clarence Thomas have been the leading voices about the Declaration in American history.
UPDATE: An important and insightful post on the Declaration's legal meaning and significance from Randy Barnett: What the Declaration of Independence Said and Meant.
Posted at 6:21 AM