Does the Federal Constitution Incorporate the Declaration of Independence?

Thomas B. McAffee, University of Nevada, Las Vegas -- William S. Boyd School of Law


In their text The American Constitutional Order: History, Cases, and Philosophy, Professors Douglas W. Kmiec and Stephen B. Presser make it reasonably clear that, historically, they see the American Constitution as an attempt to implement directly natural law through the mechanism of fundamental law. Kmiec and Presser suggest that if one reads Thomas Jefferson and/or John Locke carefully enough and concludes that Americans have (or should have) a natural and inalienable right, it should follow that one also has an argument strongly favoring recognition of a fundamental constitutional right. At least as fundamental to Kmiec and Presser is that this basic feature of our constitutional order has largely been lost on “modern” law professors and Supreme Court justices, who regularly say things that reflect another, incorrect way of viewing the historical grounding of our constitutional order. The authors find that the project of our Constitution is rooted in the framers' commitment to natural law as reflected in founding-era works, and they find this same conclusion supported by modern scholars who are more sensitive to these historical themes. Without question, however, the Declaration of Independence is the key exhibit of the founding era's commitment to constitutional law based on natural law and rights. For it is there that we assert that those public officials “we consent to be governed by, are bound, as we all are, to observe the ‘unalienable rights of life, liberty, and the pursuit of happiness.”’