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.