The craft of interpreting the Declaration of Independence

by Heather Gerken on June 15, 2015

In Our Declaration, Danielle Allen writes neither as a philosopher’s philosopher, a historian’s historian, nor as a textualist’s textualist. She writes instead a dazzling scholar in the midst of a full-blown academic obsession. And, strangely enough, she writes like a lawyer. Indeed, much to my surprise, Allen’s project displays deep continuities with the project of constitutional law. Like constitutional lawyers, she derives a robust set of democratic commitments from a thin textual guarantee, and her project shares the same imperfections and glories as constitutional law’s.

The Declaration of Independence, Allen tells us, embodies a deep, democratically inflected equality norm. While we’ve long read the document as an important pronouncement on liberty, she insists it is just as preoccupied with the act of collective self-governance and the conditions necessary for that collective to flourish.

Many scholars will find Allen’s methodology eclectic, even strange. It intersperses analytic philosophy and everyday wisdom, close textual reads and broad-gauged historical analysis, deep attention to the Founder’s motives and her own, lived experience as a woman of mixed race heritage.

Scholars typically don’t mix methodologies in this fashion, and with good reason. They worry about analytic slippage. When you can switch from one methodology to another, there’s a risk that you’ll turn to text when the history goes the other way, answer a normative question with a descriptive answer, or derive a collective commitment from a formalist flourish.

Constitutional law, however, always mixes methodologies, which is why it is best understood less as a discipline than a craft. Constitutional lawyers are acutely aware of the risks of eclecticism. But in trying to imbue a thin historical text with sufficient meaning to guide us, they prefer to layer many interpretive methodologies over one another in order to identify a problem’s true shape and form. It’s the conceptual equivalent of creating a map with overlays of topography, population concentrations, voting patterns, socioeconomic status, and the like. Each individual overlay offers a parsimonious view, but you must look at them all together in order to get a full sense of the underlying terrain.

Allen’s strategy is similar. She refuses to treat her interpretive task – figuring out what the Declaration tells us about equality — as a purely historical question, which would have revealed its hypocrisy, or as a pure textual question, which would have been deceptively clear. In order to understand the Declaration’s commitments, she layers different modes of analysis upon one another to derive the best understanding of the document’s true import.

There is another way in which Allen’s approach resembles constitutional law’s. When constitutional lawyers turn to a text, they look not for precision, but what Ronald Dworkin calls “fit” and “justification” – a normatively attractive account that fits within the extant interpretive landscape.  Constitutional analysis, in short, tries to find the sweet spot between what is and what ought to be. So, too, Allen hews to the Declaration’s text without being unduly bound by it. Her project doesn’t involve a mindless translation of past to present, but reconstruction, excavation, and imagination.

A constitutional lawyer will also notice a familiar set of interpretive puzzles in Allen’s book, all of which routinely emerge whenever we translate our past for our present. How do we decide what was really decided? How do we understand a document that served many purposes and had many authors? At what level of generality do we cast a principle? How do different parts of a document relate to one another? What do we do with the problem of ambiguity? Should we focus on the text or its purpose? Should we pay attention to edits and authorship? Lawyers deploy a set of well-settled conventions in negotiating these questions. That’s why it’s so interesting to see Allen approach these interpretive puzzles with a fresh eye, unburdened by the conventions of lawyering and unbounded by law’s deep-seated conservatism.  Even Allen’s choice of text distinguishes her from my tribe. Lawyers care about interpreting the Constitution of the United States; Allen cares about interpreting the documents that constitute the United States.

Allen’s project also confirms why constitutional analysis can be both frustrating and inspiring. Here I’m not referring to Allen’s fascination with the placement of a period. I recognize others might find her obsession annoying or at least bewildering, but I have a lawyer’s reverence for such preoccupations. No, if Allen’s project is frustrating, it’s because it –like constitutional law — isn’t committed to a single methodology. It’s hard enough to generate a clear answer with a single interpretive strategy. Multiple interpretive strategies create space for multiple, good-faith interpretations. And multiple, good-faith interpretations creates space for abuse. Because law is a craft, not a discipline, there’s always a danger that one’s preferences about the ought will bleed into one’s interpretation of the is.   It is essential, then, to do precisely what Allen does in this book. Be rigorous. Show your work. Acknowledge ambiguity. Put your normative cards on the table.

It’s not just that Allen refuses to commit to a single methodology. She sees complexity and nuance even when working inside a single interpretive frame. In describing the Declaration’s purpose, for instance, Allen eschews parsimony. The document, we are told, is both a divorce agreement and a marriage vow, a carefully crafted political necessity and an act of pure idealism, a litany of specific grievances and an appeal to universal norms. While this kind of analytic complexity can be trying to those seeking an answer, it has the distinct virtue of being true.

I also found Allen’s project to be unexpectedly moving. It might seem strange to look the past in fashioning our present commitments, but it is precisely this sense of continuity, this trust in the enduring touchstones of the past, this sense of being bound across generations that lend constitutional law its enduring appeal.

But while treating a centuries-old document as our touchstone gives us a reassuring sense of continuity, it’s an illusion of sorts. The Constitution serves as a bridge between generations only because we – like Allen — hew to the text but are not unduly bound by it, because we reconstruct and excavate and imagine as we interpret. The text is too thin to stand alone, let alone endure. It is the accreted wisdom of generations interpreting that text that gives the Constitution its life and longevity.

That, I take it, is what Allen seeks to do here with the Declaration of Independence, and it explains what I suspect most scholars – and most constitutional lawyers — will find the most unsettling about her approach. Academics are accustomed to the effacement of identity, the disembodied voice, the timeless observer, the self-consciously non-presentist. Historians don’t refer to a desire for a “sporty little Toyota.” Philosophers don’t talk about what it’s like to have a grandmother bullying you about your kinky hair. Textualists don’t anchor definitions in the views of night students struggling to support their families. Theorists don’t enlist and cajole their audiences in a joint project of discovery. Constitutional analysis tends to be nameless, faceless, even raceless, although critical race theorists have had much to say about whether those conventions serve us well.

Allen does not eschew the personal; she embraces it. She insists we read the Declaration as if it belonged to us. A specific us, a contemporary us, even a presentist us.  She isn’t just engaged in an act of interpretation, but an act of faith. She believes we really can understand ourselves as part of an enduring, interpretive community.

Indeed, I was quite struck by the parallels between Allen’s vision of equality and the way she models an egalitarian relationship between our generation and the Founders’. On Allen’s account, equality is a deeply participatory notion, one that depends upon mutual recognition and mutual respect, one in which we are all “co-creators of [our] shared world.” Those same values inform the connection she draws between the Declaration’s generation and our own. Often those who look to the past for guidance are engaged in little more than ancestor worship. But Allen’s unusual methodology puts us on equal footing with the Founders. They speak to us, but we respond with a contemporary set of questions and concerns that they could not have thought to anticipate. Constitutional lawyers love to quote Chief Justice Marshall: “it is a Constitution we are expounding,” with the emphasis on the word Constitution. Danielle Allen, in sharp contrast, puts the emphasis on the we.



Anderson 06.15.15 at 9:46 pm

Good post. I love the emphasis on “we,” because the Declaration and the Constitution are constitutive of the American nation in a way that, it seems to me, isn’t shared by the British, the French, the Russians, etc. At least as the myth goes, we became a country by getting together and signing some papers. As the R.E.M. song puts it, “Let’s put our heads together / And start a new country up.” And figuring out how, despite appearances, we remain and continue to be a nation, may require figuring out what is ours in those old documents.


Meredith 06.16.15 at 5:31 am

So much to think about here — thank you!
One first query that might be a quibble: “Constitutional lawyers love to quote Chief Justice Marshall: ‘it is a Constitution we are expounding,’ with the emphasis on the word Constitution. Danielle Allen, in sharp contrast, puts the emphasis on the we.”

How sharp is that contrast? “We” is present in the prefix “con”: standing “with, together.” The same prefix (“cum” for those struggling to remember their high school Latin) in words like “community” and “commonwealth.” Cum/con/com is sort of the first person plural of prepositions, where the “I” and the “we” meet. (I am thinking of those crowded houses in places like Charlestown in 1775, full of many children, old grandparents and/or spinster aunts, that sort of thing — and how very small these towns and cities were by today’s standards! What — if memory serves — like 15,000 for Boston before the evacuation?)

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