Our Declaration: A Reading of the Declaration of Independence in Defense of Equality

Unlike the US Constitution, the Declaration of Independence is not legally binding. However, its status as a document on which many of the principles of the Constitution rest means that it is often read through the same lenses that legal scholars apply to the latter. In the 21st-century US, originalism and judicial pragmatism represent two such lenses.

Originalism, as its name implies, stresses the original meaning or intent of a document. The theory in its current form emerged in the 1970s and 80s, articulated by legal scholars such as Robert Bork and Raoul Berger, and would go on to shape the judicial decisions of influential Supreme Court justices such as Antonin Scalia. In contemporary US politics, originalism is typically associated with conservatism, in part because the philosophy necessarily looks to the past and the preservation of a status quo. However, critics of originalism have also contended that its advocates apply the theory selectively to advance the concerns of the contemporary conservative movement. Other criticisms center on the difficulty of determining a writer’s intent with certainty and on the impossibility of a document anticipating every future scenario that would require adjudication.

By contrast, judicial pragmatism argues that texts like the Constitution and Declaration must be understood as “living” documents—i.e., documents that evolve alongside society even if they are not formally amended or otherwise updated. Early proponents of this approach included Supreme Court Justices Oliver Wendell Holmes and Louis Brandeis, and it was a particularly influential theory during the New Deal and civil rights eras, when it allowed for the creation of a social safety net and the expansion of civil liberties to formerly marginalized groups (e.g., Black Americans). In contemporary US politics, it is typically associated with liberalism or progressivism. Critics argue that it allows judges to impose their own preferences on legal texts and potentially usurp the role of legislatures (i.e., by ruling on matters that ought to be settled through legislation). Though some proponents of judicial pragmatism argue that their philosophy is simply a matter of necessity—a way of keeping pace with societal questions as they arise—others argue that documents like the Constitution were in fact intended to be flexibly interpreted, thus positioning themselves as “originalists” in a certain sense.

Allen’s approach to reading the Declaration best resembles this latter philosophy. She acknowledges, for example, the various ways in which the Declaration perpetuated racism, sexism, etc., but for Allen, this does not supersede the document’s claims about equality. Moreover, her point is not simply that one can read the document as a statement of radical equality but that one must—at least, if one wishes to interpret it faithfully. Allen’s core claim is that the Declaration enacts its vision of equality and community as one reads it. Thus, its claims about equality (and, indeed, about everything else) are subject to continuous evolution as new readers interact with it.