So we need a theory to justify the practices of our constitutional order. We can start with the Declaration of Independence and move forward.
We can accept the Declaration of Independence as providing “a few basic political principles that undergird our constitutional order without having to insist on an orthodoxy of first principles.”[i] As James Stoner argues in his thoughtful essay, “Is There a Political Philosophy in the Declaration of Independence?”
To be true to the spirit of the Declaration means, from my perspective, not that we are bound to the most radical reading of its most abstract truth, but that we ought to recover the spirited aspiration to self-government that gave the American Revolution its force and its justification. Rather than look to an unelected judiciary for the formulation of our ideals—or to the liberal philosophers who want to rule through them—we should neither shy away from free debate on important social questions nor demand that every consensus work out its derivation from first things in order to count.[ii]
The theory required is one that mediates the compromises that allowed a regime of ordered liberty to emerge that was superior to the competing notions that were actually compromised.