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Interpreting and Preserving the Constitution
some have also maintained that the principle of equality embodied in the
Declaration of Independence authorizes judges to reach beyond the Constitution in order to implement and protect it. In their struggle to end
slavery, some abolitionists argued, for example, that the Constitution embraced the Declaration of Independence, and that slavery was therefore
unconstitutional.
Such arguments are persuasive. It may well be that we are all governed by a higher, unwritten natural law, emanating from God; that certain rights are by nature indelibly impressed upon the hearts and minds
of all mankind; and that the spirit of ’76 is incorporated into our fundamental law. The problem is that these concepts, whatever their merit and
value, are not provided for in the Constitution, and there is no evidence
that the Framers ever intended them to be. This is not to say that the
Framers rejected natural law ideas or that they opposed the principles of
the Declaration of Independence—which they assuredly did not—but
merely to state that the authors of the Constitution appreciated and understood the fact that any declaration to the effect that ‘‘The natural law’’
or ‘‘The natural rights of man’’ or ‘‘Moral values’’ or ‘‘The principles of
the Declaration of Independence’’ of 1776 ‘‘shall be the supreme law of
the land’’ would have produced not only widespread confusion, but the
overthrow of the Constitution and the establishment of a judicial oligarchy as well. This is because there is considerable disagreement about the
precise meaning of these concepts. Judges, after all, are trained in the law.
They are not priests or philosopher kings, and no two judges are likely to
agree on whether or why one right is ‘‘natural’’ and another is not. The
practical effect of the Supremacy Clause, it should be kept in mind, is to
expand the powers of the Supreme Court. It is the judges who must interpret the laws and decide whether they conform to the Constitution. To
empower them also to decide whether the laws also conform to religious,
moral, or philosophical doctrines would be an invitation to the exercise
of arbitrary power. Taken t