Chief Justice Roberts is wrong about the Declaration of Independence

OPINION:

The chief justice’s year-end report is designed to explain the state of the federal judiciary, highlight challenges and communicate priorities. Chief Justice John G. Roberts Jr. deviated from that practice on Dec. 31, when he wrote instead about the Declaration of Independence. He did so for an obvious reason: 2026 marks the 250th anniversary of our nation’s founding document.

I applaud the chief justice for honoring the Declaration, but unfortunately, he gets some of the history wrong. For example, he fails to mention that the political philosophy Thomas Jefferson memorialized in the Declaration comes from other texts, including the Virginia Declaration of Rights (1776), Jefferson’s own Summary View of the Rights of British America (1774) and the preamble to the Virginia Constitution (1776).

Chief Justice Roberts also inappropriately adopts the view of late Justice Antonin Scalia that the Declaration of Independence “consists of ‘aspirations’ and ‘philosophizing’ that do not lend themselves well to prescription or enforcement.” In other words, the chief justice insists that the Declaration isn’t law.

Nothing could be further from the truth. After all, “law,” especially constitutional law, is more than words on a page.

Here, it is necessary to explain the connection between the Founders’ background attitudes on the purpose of government and the interpretation of the particular provisions of the Constitution. The most important point to recognize is that the Constitution was written for a reason: to establish a form of government that would provide better security for individual rights than was provided under the Articles of Confederation.

To make the point somewhat differently, the particular provisions of the Constitution were written with the Founders’ background attitudes in mind. The Constitution is not an end in itself; it is the means by which the American political community’s ideals — its ends — are ordered. It is therefore necessary to interpret the Constitution in light of those ideals, which are expressed with unparalleled eloquence by Thomas Jefferson in the Declaration of Independence.

The necessity of keeping the Founders’ background attitudes in mind when interpreting the particular provisions of the Constitution becomes even more apparent when one realizes that many of the most significant provisions of the Constitution are phrased in general terms, especially those concerning individual rights.

For example, the First Amendment’s directive that Congress shall make no law “abridging the freedom of speech” is not unambiguous, nor is the Eighth Amendment’s prohibition against “cruel and unusual punishments.” Moving beyond the original 10 amendments, what does it mean to say, as the 14th Amendment does, that no state shall deny to any person “the equal protection of the laws”?

Provisions as general as these — and there are many others in the Constitution — are not self-interpreting. They can be given meaning and life only when they are construed in light of the moral and political principles upon which they are based.

Although I reject the argument advanced by many proponents of the application of literary analysis to legal texts — that meaning cannot be extracted from legal texts but can only be put into them — it is difficult to deny the more modest claim that “texts can be interpreted only in some ‘context.’” That “context” is the political philosophy of the Declaration of Independence.

Of course, it’s possible to construe the provisions of the Constitution in light of philosophical principles other than those embodied in the Declaration. One need only peruse the plethora of provocative theories of constitutional interpretation advanced over the years to appreciate this fact.

However, those advancing non-originalist approaches to constitutional interpretation have failed to show that the particular approach they favor is based on anything other than their own moral and political preferences. Indeed, Ronald Dworkin, a forceful critic of originalism, maintained that we should abandon the search — hopeless, in his view — for the framers’ intent in favor of the “best argument” about political morality.

The problem with Dworkin’s interpretive position (and a problem repeated by most lawyers attempting to articulate theories of constitutional interpretation) is that under his theory, substantive values are inevitably established by those with the best argumentation skills, by clever lawyers such as Dworkin himself.

If the rule of law means anything, it surely means that the Constitution should not be interpreted in such a subjective fashion, especially by unelected, life-tenured judges.

That, Chief Justice Roberts, is why the Declaration of Independence is law.

• Scott Douglas Gerber is the author of, among other books, “To Secure These Rights: The Declaration of Independence and Constitutional Interpretation.” His novel “The Trafficker” will be published later this month.