The Rev. Martin Luther King Jr.’s genius — he was, in a sense, the final Founder — was in understanding what the University of Pennsylvania’s Rogers M. Smith terms the “Declaration of Independence-centered view of American governance and peoplehood.” Over the years, this stance of “Declarationists” explicitly opposed Jacksonian democracy’s majoritarian celebration of a plebiscitary presidency, and the 1854 Kansas-Nebraska Act’s premise that majorities (“popular sovereignty”) could and should — wrong on both counts — settle the question of whether slavery should expand into the territories.
The learned and recondite disputes currently embroiling many conservatives, disputes about various doctrines of interpretive constitutional “originalism,” are often illuminating and sometimes conclusive in constitutional controversies. But all such reasoning occurs in an unchanging context. Timothy Sandefur, author of “The Conscience of the Constitution,” rightly sees the Declaration as the conscience because it affirms “the classical liberal project of the Enlightenment and the pervasiveness of such concepts as natural rights.”
Furthermore, Sandefur says, this explains the Constitution’s use of the word “liberty,” which “does not refer to some definitive list of rights, but refers to an indefinite range of freely chosen action.” Which means that the Constitution should be construed in the bright light cast by the Declaration’s statement of the founding generation’s general intention to privilege liberty.