What is "declarationism"

Declarationism is a legal philosophy that incorporates the United States Declaration of Independence into the body of case law on level with the United States Constitution. It holds that the Declaration is a natural law document and so that natural law has a place within American jurisprudence. Its main proponents include Harry V. Jaffa and other members of the Claremont Institute. Some proponents claim that Supreme Court Justice Clarence Thomas is a follower of this school of thought; however, Thomas is more widely considered a member of the strict constructionist school.

In Cotting v. Godard, 183 U.S. 79 (1901), the United States Supreme Court stated:

The first official action of this nation declared the foundation of government in these words: "We hold these truths to be self evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness. "While such declaration of principles may not have the force of organic law, or be made the basis of judicial decision as to the limits of right and duty, and while in all cases reference must be had to the organic law of the nation for such limits, yet the latter is but the body and the letter of which the former is the thought and the spirit, and it is always safe to read the letter of the Constitution in the spirit of the Declaration of Independence. No duty rests more imperatively upon the courts than the enforcement of those constitutional provisions intended to secure that equality of rights which is the foundation of free government."

Proponents claim that the concept is derived from the philosophical structure contained in the Declaration of Independence and assertion that it was the Declaration that revealed the United States as a new emergent nation, the Constitution creating only the federal government. According to this view, the authority to create the Constitution derives from the prior act of nation-creation accomplished by the Declaration. The Declaration declares that the people have a right to alter or abolish any government once it becomes destructive of their natural rights. The turn away from the Articles of Confederation with the ratification of the Constitution was an action of this sort and so the Constitution's authority exists within the legal framework established by the Declaration. The Constitution cannot, then, be interpreted as though it were the foundation of constitutional law, in the absence of principles derived from the Declaration.

Though philosophically conservative, Declarationists such as Jaffa have been outspoken critics of originalist construction jurists including Robert Bork, Antonin Scalia, and William Rehnquist, likening them to legal positivists. Bork and legal scholar Lino Graglia have, in turn, critiqued the Declarationist position, retorting that it is single-mindedly obsessive over the Dred Scott decision and resembles a theology rather than a legal doctrine.