Of Course the Declaration Is Law

One question Sen. Ben Sasse posed to Judge Amy Coney Barrett last week might seem odd at first: What role does the Declaration of Independence play, he asked, when interpreting the Constitution? To anyone who remembers high school civics, the answer seems obvious: The Declaration is one of the America’s founding documents; it sets forth the “self-evident truths” on which the nation was founded. Why would it not play a role in understanding the Constitution?

Yet the Declaration’s legal status is actually a subject of debate among lawyers, and Judge Barrett’s answer was a disappointing indication that, like her mentor Justice Antonin Scalia, she sees the Declaration not as the basis American constitutional law—which it is—but as a merely political statement. “While the Declaration of Independence tells us a lot about history and the roots of our republic,” Barrett said, “it is not binding law.”

That’s not true—and it matters, not just to constitutional law nerds, but to how we understand and implement the most important aspects of our legal system.

To begin, the Declaration is quite clearly “law.” Federal laws are published in the United States Statutes at Large, and are also usually—but not always—codified in the United States Code. This latter is the “U.S.C.” that you often see on legal documents, but the United States Code is actually not our most important legal publication. Instead, if there’s a conflict between how something appears in the U.S.C. and the Statutes at Large—which does sometimes happen—it’s the Statutes at Large that takes precedence.  (The law itself says so: 1 U.S.C. § 112.)