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66 Temple L. Rev. 361 (1993)
Completing the Constitution: The Declaration of Independence, Bill of Rights and Fourteenth Amendment

handle is hein.journals/temple66 and id is 373 raw text is: TEMPLE LAW REVIEW © 1993 TEMPLE UNIVERSITY OF THE COMMONWEALTH SYSTEM OF HIGHER EDUCATION VOL. 66 NO. 2 1993 COMPLETING THE CONSTITUTION: THE DECLARATION OF INDEPENDENCE, BILL OF RIGHTS AND FOURTEENTH AMENDMENT Robert J. Reinstein * Most lawyers have vivid recollections of specific incidents in law school. One of my own occurred during a discussion of Brown v. Board of Education. The professor told us that the decision, while morally correct, could not be de- rived from neutral principles of constitutional law. A classmate suggested that the Declaration of Independence supplied those principles. Our professor then explained patiently that the Declaration was an exercise in rhetoric, that it was not adopted when the Founders got down to the serious business of writing a constitution and that it has nothing to do with constitutional law. This is the conventional wisdom,1 and there is very little contrary evidence in the most authoritative treatise on constitutional law - the United States Re- ports. References to the Declaration of Independence in Supreme Court deci- sions are rare, and its influence on constitutional interpretation has been minor.2 * Dean and Professor, Temple University School of Law. This article originated in a speech I gave in 1991, to the United States District Court for the Eastern District of Pennsylvania, commemorating the bicentennial of the Bill of Rights. The final product benefitted greatly from the research assistance of Aeryn S. Fenton and Debora Fliegelman and from the criticisms and suggestions of Jane Baron, Ronald Collins, Deborah Feldman, Paul Finkelman, Richard Greenstein, David Kairys, Diane Maleson, Louis Pollak, and Mark Rahdert. This article is dedicated to the memory of Thurgood Marshall. 1. But see Louis H. POLLAK, THE CONSTITUTION AND THE SUPREME COURT 17 (1961) (ar- gument that Declaration is progenitor of Fourteenth Amendment and school desegregation deci- sions); GEORGE ANASTAPLO, THE CONSTrrUTION OF 1787, 2-25 (1989) (argument that original Constitution incorporates principles of Declaration of Independence); HARRY V. JAFFA, AMERICAN CONSERVATISM AND THE AMERICAN FOUNDING, 1-25 (1984) (same); HARRY V. JAFFA, How TO THINK ABOUT THE AMERICAN REVOLUTION 13-140 (1978) (same); Harry V. Jaffa, What Were the Original Intentions of the Framers of the Constitution of the United States?, 10 U. PUGET SOUND L. REV. 351 (1987) (same); Dennis J. Mahoney, The Declaration of Independence as a Constitutional Document, in THE FRAMERS AND THE RATIFICATION OF THE CONSTITUTION 54 (Leonard Levy & Dennis J. Mahoney eds., 1987) (same). 2. According to my LEXIS search, the Declaration of Independence has been cited in less than

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