The Fourth of July marks the 238th anniversary of the Declaration of Independence. Monday was the final day of the U.S. Supreme Court's most recent term. The two have more in common than the justices on America's highest court seem to understand.
As usual, the Supreme Court's term ended with a flourish: the justices ruled five-to-four that closely held for-profit businesses can invoke religious objections to opt out of a requirement in the Affordable Care Act to provide free contraceptive coverage for their employees. In April they ruled, again five-to-four, that aggregate limits restricting how much money a donor may contribute to candidates for federal office, political parties, and political action committees violated the Constitution's free speech guarantee. In some of the other major decisions issued this term, the Court allowed a town government to open its board meetings with a prayer given by a citizen; upheld the 2006 amendment to Michigan's constitution that prohibits state colleges and universities from considering race as part of their admissions processes; struck down a Massachusetts law that made it a crime to stand on a public road or sidewalk within 35 feet of a reproductive health care facility; and voided President Obama's recess appointments to the National Labor Relations Board on the ground that the Senate wasn't in recess for enough days for the president to consider the Senate in recess.
Sadly, there is no unifying theme to any of these decisions, other than at least five of the nine members of the Supreme Court felt the cases should come out the way they did. In the immortal words of Ralph Fuller, "What a way to run a railroad!"
Which brings me to the matter at hand: the Declaration of Independence's role in interpreting the Constitution. With the notable exception of Clarence Thomas in civil rights cases, no member of the Court ever invokes the Declaration when deciding cases. They are wrong in failing to do so. After all, the Constitution was written for a reason: to establish a form of government that would provide better security for liberty than was provided under the Articles of Confederation, the fundamental law that the Constitution replaced.
To make the point somewhat differently, the particular provisions of the Constitution were written with the Founders' background attitudes about the purpose of government 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; ideals 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. 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 Fourteenth 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.
Chief Justice John Roberts says he re-reads the Constitution every September 17, the date on which the Constitution was signed. Perhaps July 4 would be a good day for everyone, including the nine judges on the most powerful court in the world, to re-read the Declaration of Independence. As the Declaration proclaims, "to secure these rights, governments are instituted among men."
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