The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty Hardcover

by Timothy Sandefur

  Because they rejected equality and self-responsibility, defenders of slavery were forced to reject the Declaration of Independence. Assuming a basic right to govern others, they saw individual liberty as merely a gift they could dole out as they saw fit. The result was the corruption of both the individual citizen and American civic institutions. “Conscience is, to the individual soul, and to society,” said Douglass, “what the law of gravitation is to the universe. It holds society together; it is the basis of all trust and confidence; it is the pillar of all moral rectitude. Without it, suspicion would take the place of trust; vice would be more than a match for virtue; men would prey upon each other, like the wild beasts of the desert; and earth would become a hell.” A society in which some people claim the right to control the lives of others experiences not harmony, cooperation, and freedom, but bitterness, hostility, and strife. The people waste their energies scheming for political advantages or revenge, or hopelessly searching for protection from a legislative process that could target them next. Like Soraya M. or the victims of the dystopian tales of Jerome Bixby or Shirley Jackson, they are exposed to the same predatory dangers that government was supposed to protect them against; they are as vulnerable as they were in the state of nature, before the institution of civil society.

  The Constitution was written to put a stop to such pointless plundering by drawing a boundary around politics—a shield that would protect people’s rights from the political process. That shield is the law, and the Founders created it because, for all their faults and compromises, they knew that the ultimate goal of government was to secure the most basic right of all people: the right to be free.

  When the Founders’ compromises with slavery could no longer be sustained, Douglass and his allies demanded a return to the Declaration’s principles, both individually and in the nation’s fundamental law. “Interpreted as it ought to be interpreted,” said Douglass in an 1852 address, “the Constitution is a GLORIOUS LIBERTY DOCUMENT.”2 He and other anti-slavery constitutionalists formulated a constitutional theory that brushed away the reactionary doctrines of states’ rights and limitless legislative power, and restored the classical liberal principles of equality, liberty, and government by consent. All Americans were Americans primarily, and citizens of states only secondarily. They were entitled to federal protections that would ensure that both federal and state governments honor the primary value of liberty. No government may justly claim power to override people’s rights at will. At the end of the Civil War, Republican leaders grasped the opportunity to amend the Constitution to ensure that these principles would not again be denied.

  Sadly, their efforts were only partly successful. Although nothing so barbaric as chattel slavery remained, modern legal doctrines, and precedents like the Slaughter-House Cases and decisions from the 1930s, have marred the Fourteenth Amendment and perverted our understanding of the Constitution by turning away from the Declaration’s orienting principles. The result is a body of law that prioritizes democracy over liberty—that encourages courts to defer to lawmakers and regulators and to shrug when politically influential factions exploit government power for their own private benefit. Like a bank guard abusing his trust by robbing the bank for himself, political leaders, instead of enforcing laws to protect individual rights, routinely take private property through eminent domain for private profit, restrict the freedom of workers and entrepreneurs so as to benefit established businesses, and expand government’s reach into areas of our lives that the Founders meant to protect from their prying fingers. Lawyers, judges, and law professors, adhering to the wolfish view that government has a basic right to rule, and that individual rights are only privileges given to people for society’s benefit, refuse to defend constitutional guarantees that were written to give life to the principles of the Declaration of Independence. The Constitution’s real promise thus remains imperfectly redeemed.

  Like an unheeded conscience, those principles still speak, waiting only for us to listen. Today, more and more Americans are realizing the dangers of expanding the scope of government and are protesting the continued calls for bailouts, handouts, entitlement programs, and restrictions on freedom, privacy, property rights, and other aspects of liberty. The time has come for the legal community to pay heed. The time has come to reject the notion that people have the right to control each other’s lives and to take the fruits of their labor. The time has come to secure the blessings of liberty for ourselves and our posterity.

  Notes

  Introduction

  1. John Locke, Second Treatise of Civil Government, § 57, in John Locke: Two Treatises of Government, rev. ed., Peter Laslett, ed. (New York: Cambridge University Press, 1963), p. 348.

  2. Address at Sanitary Fair (April 18, 1864), in Lincoln: Speeches and Writings 1859– 1865, Don Fehrenbacher, ed. (New York: Library of America, 1989), p. 589.

  3. John C. Calhoun, “Disquisition on Government,” in Union and Liberty: The Political Philosophy of John C. Calhoun, Ross M. Lence, ed. (Indianapolis: Liberty Fund, 1992), p. 42.

  4. Palko v. Connecticut, 302 U.S. 319, 324–25 (1937).

  Chapter 1

  1. “Active Liberty: A Conversation with United States Supreme Court Justice Stephen Breyer and Professor Robert P. George,” http://web.princeton.edu/sites/jmadison/calendar/flash/breyer.html.

  2. See, for example, Charles Beard, An Economic Interpretation of the Constitution of the United States (New York: MacMillan, 1921).

  3. See, for example, Stephen Holmes and Cass R. Sunstein, The Cost of Rights: Why Liberty Depends on Taxes (New York: Norton, 1999).

  4. Robert Bork, The Tempting of America: The Political Seduction of the Law (New York: Free Press, 1990), pp. 353–54.

  5. Ibid., p. 124.

  6. James Madison, “Sovereignty” (1835), in Writings of James Madison, Gaillard Hunt, ed. (New York: G. P. Putnam’s Sons, 1910), vol. 9, pp. 570–71.

  7. Philip Kurland and Ralph Lerner, eds., The Founders’ Constitution (Indianapolis: Liberty Fund, 1987), vol. 1, p. 632. See Edward Corwin, The “Higher Law” Background of American Constitutional Law (Indianapolis: Liberty Fund, 2008), p. 75.

  8. Virginia Declaration of Rights ¶ ¶ 1–2 (1776).

  9. Letter from Thomas Jefferson to Roger C. Weightman, June 24, 1826, in Jefferson: Writings, Merrill Peterson, ed. (New York: Library of America, 1984), p. 1517.

  10. As Jefferson put it in his first inaugural address, “Sometimes it is said that man can not be trusted with the government of himself. Can he, then, be trusted with the government of others? Or have we found angels in the forms of kings to govern him?” Ibid., p. 494.

  11. See John Locke, Second Treatise of Civil Government, chap. 6, in John Locke: Two Treatises of Government, rev. ed., Peter Laslett, ed. (New York: Cambridge University Press, 1963).

  12. Letter to Isaac Tiffany, April 4, 1819, in Jefferson: Political Writings, Joyce Appleby and Terence Ball, eds. (New York: Cambridge University Press, 1999), p. 224.

  13. See, for example, Letter from Thomas Jefferson to James Madison (September 6, 1789) in Jefferson: Writings, pp. 959–64; Letter from James Madison to Thomas Jefferson, Madison: Writings, Jack Rakove, ed. (New York: Library of America, 1999), pp. 473–77. See also Randy E. Barnett, Restoring The Lost Constitution: The Presumption of Liberty (Princeton: Princeton University Press, 2004), pp. 11–88.

  14. Letter to Judge Spencer Roane (September 6, 1819), in Jefferson: Writings, p. 1426 (emphasis added).

  15. “[T]he people’s right to give their consent is itself derived from the equality of all men and therefore limits and directs what it is to which they may rightfully consent.” Harry V. Jaffa, “Equality as a Conservative Principle,” in How to Think About the American Revolution (Durham: Carolina Academic Press, 1978), pp. 41–42. See also Roger Pilon, “The Purpose and Limits of Government,” Cato’s Letter No. 13 (Washington: Cato Institute, 1999).

  16. Barnett, ch. 10.

  17. James Wilson, Speech in the P
ennsylvania Ratification Convention, in The Founders Constitution, vol. 1 (December 4, 1787), p. 454. See also Annals of Congress, vol. 1 (August 15, 1789), pp. 759–60, in which Congressman Theodore Sedgwick opposed a bill of rights because it “might have gone into a very lengthy enumeration of rights; [it] might have declared that a man should have a right to wear his hat if he pleased; that he might get up when he pleased, and go to bed when he thought proper; but he would ask the gentleman whether he thought it necessary to enter these trifles in a declaration of rights, in a Government where none of them were intended to be infringed.”

  18. William Blackstone, Commentaries on the Laws of England (London: A. Strahan, 1809), vol. 4, p. 51.

  19. Thomas Paine, “The Rights of Man: Part One,” in Thomas Paine: Writings (New York: Library of America, 1995), p. 482.

  20. James Madison, “Autobiographical Notes” (1832), in James Madison: A Biography in His Own Words, Merrill Peterson, ed. (New York: Newsweek, 1974), vol. 1, p. 41.

  21. Thomas Jefferson, “Notes on the State of Virginia,” in Jefferson: Writings, p. 285.

  22. Henry Mayer, A Son of Thunder: Patrick Henry and the American Republic (New York: Grove Press, 1991), p. 361.

  23. Jefferson: Writings, p. 285.

  24. Ibid.

  25. Virginia Statute for Religious Freedom, in ibid., pp. 346–48.

  26 See also letter from George Washington to the Hebrew Congregation in Newport, RI, August 18, 1790, in John Rhodehamel, ed., George Washington: Writings (New York: Library of America, 1997), p. 767 (“The Citizens of the United States of America have a right to applaud themselves . . . [That] [a]ll possess alike liberty of consciences and immunities of citizenship. This now no more that toleration is spoken of. . . .”).

  27. James Madison, “Charters” (1792), in Madison: Writings, p. 502.

  28. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 388 (1978) (opn. of Marshall, J.) (“The Declaration’s self-evident truths and . . . unalienable rights were intended, however, to apply only to white men”).

  29. 60 U.S. (19 How.) 393 (1857).

  30. Howard Zinn, A People’s History of the United States (New York: Harper Perennial, 1990), p. 73.

  31. Ibid., p. 74.

  32. The term “anti-ideology” was popularized by William F. Buckley Jr., following Russell Kirk, The Conservative Mind, 7th ed. (Chicago: Regnery, 1986), p. iii.

  33. See Harry V. Jaffa, Original Intent and the Framers of the Constitution: A Disputed Question (Washington: Regnery, 1994).

  34. See Gordon Wood, The Radicalism of the American Revolution (New York: Knopf, 1991); Gordon Wood, Empire of Liberty: A History of the Early Republic, 1789–1815 (New York: Oxford University Press, 2011).

  35. 1 Stat. 1 (1776). The Declaration, along with the Constitution, the Northwest Ordinance of 1787, and the Articles of Confederation, were added to the United States Code in a supplement to volume 1, entitled “Organic Laws of the United States of America.” See 1 U.S.C. xlv (2006).

  36. To name just one example, in Boumediene v. Bush, 553 U.S. 723, 748 (2008), the Court relied on a resolution of the Continental Congress to interpret the meaning of habeas corpus. See also Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 471 (1793) (opn. of Jay, C. J.) (relying on the Declaration as source of law).

  37. Minutes of the Board of Visitors of the University of Virginia, March 4, 1825, in Jefferson: Writings, p. 479. The Board—which consisted of James Madison, James Monroe, and others—determined that the Declaration would be taught to law students along with The Federalist, the Virginia Resolutions, Washington’s Farewell Address, and the works of John Locke and Algernon Sidney as being “the best guides” for “the distinctive principles of the government of our State, and of that of the United States.”

  38. John C. Eastman, “The Declaration of Independence as Seen from the States,” in Declaration of Independence: Origins and Impact, Scott Douglas Gerber, ed. (Washington: CQ Press, 2002), pp. 97–117.

  39. Quoted in Douglas Kmeic and Stephen B. Presser, The American Constitutional Order: History, Cases, and Philosophy (Cincinnati: Anderson Publishing Co., 1998), p. 165.

  40. Troxel v. Granville, 530 U.S. 57, 91–92 (2000) (Scalia, J., dissenting).

  41. Barnes v. Glen Theatre, 501 U.S. 560, 574–75 (1991) (Scalia, J., dissenting).

  42. The Founders were well aware that—in the words of Justice James Wilson, signer of the Constitution and of the Declaration—some people will use their natural liberty in ways that “may be justly censured as vicious and dishonourable,” but “while they are not injurious to others,” the Founders thought that generally “more unhappiness would result from depriving them of their liberty on account of their imprudence, than could be reasonably apprehended from the imprudent use of their liberty.” James Wilson, “Lectures on Law,” pt. 1, ch. VII, in Collected Works of James Wilson, Kermit L. Hall and Mark David Hall, eds. (Indianapolis: Liberty Fund, 2007), vol. 1, p. 639.

  43. 539 U.S. 306, 378 (2003) (Thomas, J., dissenting). Justice Scalia joined Parts I through VII of this dissent rather than simply joining the whole of it. The dissent is only seven parts long—but at the end, separated by three asterisks, is Justice Thomas’s reference to the Declaration. It is this part that Justice Scalia refused to join.

  44. See Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction (New Haven: Yale University Press, 1998), pp. 147–56.

  45. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819).

  46. Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2592 (2012).

  47. Congressional Globe, 36th Cong., 1st sess. p. 2602 (1860).

  48. Congressional Globe, 42nd Cong., 2nd sess. p. 844 (1872).

  49. Congressional Globe, 39th Cong., 1st sess. p. 2961 (1866).

  50. Federalist No. 1 (Alexander Hamilton), Jacob E. Cooke, ed. (Middletown, CT: Wesleyan University Press, 1961), p. 3.

  51. Lochner v. New York, 198 U.S. 45, 75–76 (1905) (Holmes, J., dissenting).

  52. W. Va. Bd. of Ed. v. Barnette, 319 U.S. 624, 638 (1943).

  53. Federalist No. 51 (Madison), in Cooke, p. 349.

  54. Ibid.

  55. Ibid.; see also James Wilson, Lectures on Law, pt. 1, ch. X, in Hall, vol. 1, p. 690 (“In a state of nature, it is true, any one individual may act uncontrolled by others; but it is equally true, that, in such a state, every other individual may act uncontrolled by him. Amidst this universal independence, the dissensions and animosities between the interfering members of the society, would be numerous and ungovernable. The consequence would be, that each member, in such a natural state, would enjoy less liberty, and suffer more interruption and inconvenience, than he would under a civil government.”).

  56. See Garrett Hardin, “The Tragedy of the Commons,” Science 162 (1968): 1243–48.

  57. See, for example, R. Quentin Grafton et al., “Private Property and Economic Efficiency: A Study of a Common-Pool Resource,” Journal of Law and Economics 43 (2000): 679–713 (using a real-life fishing example).

  58. See, for example, Eric A. Posner and Alan O. Sykes, “Economic Foundations of the Law of the Sea,” American Journal of International Law 104 (2010): 569–96, p. 571 (“[T]he sea contains a wealth of valuable resources, including food, minerals, energy, and materials for bioresearch. When such resources are unowned or found in a ‘common pool,’ they may be exploited inefficiently because of some familiar externality problems associated with the creation of property rights.”).

  59. See Robert Nozick, Anarchy, State, and Utopia (Cambridge: Harvard University Press, 1974), pp. 11–12 (describing rationality of state as rules for protecting resources). But see Anthony de Jasay, Social Compact, Free Ride (Indianapolis: Liberty Fund, 2008) (arguing that the social compact is not actually efficient).

  60. Federalist No. 62 (James Madison), in Cooke, p. 421.

  61. See James M. Buchanan, “Rent Seeking and Profit Seeking,” in The Logical Foundations of Constitutional Liberty, (Indianapolis: Lib
erty Fund, 1999), vol. 1, p. 108 (“Rent seeking on the part of potential entrants in a setting where entry is either blocked or can at best reflect one-for-one substitution must generate social waste.”).

  62. Federalist No. 51 (James Madison), in Cooke, p. 352.

  63. Congressional Globe, 33rd Cong., 1st sess., app. p. 137 (1854) (Sen. Petit). See also John C. Calhoun, “Speech on The Oregon Bill,” in Union and Liberty: The Political Philosophy of John C. Calhoun, Ross M. Lence, ed. (Indianapolis: Liberty Fund, 1992), pp. 565–66; Alexander Stephens, “Cornerstone Speech, March 21, 1861, http://teach-ingamericanhistory.org/library/index.asp?documentprint=76.

  64. Randy E. Barnett, “Was Slavery Unconstitutional before the Thirteenth Amendment: Lysander Spooner’s Theory of Interpretation,” Pacific Law Journal 28 (1997): 977–1014.

  65. Charles Edward Merriam, A History of American Political Theories (New York: MacMillan, 1903), pp. 248–50.

  66. Ibid., p. 311.

  67. See Louis Menand, The Metaphysical Club (New York: Farrar, Strauss and Giroux, 2000).

  68. Oliver Wendell Holmes, “Natural Law,” Harvard Law Review 32 (1918): 41 (“Deep-seated preferences can not be argued about—you can not argue a man into liking a glass of beer—and therefore, when differences are sufficiently far reaching, we try to kill the other man rather than let him have his way.”).

  69. Ibid., p. 42.

  70. See Philippa Foot, Natural Goodness (Oxford: Clarendon Press, 2001), pp. 15–16; John Herman Randall Jr., Aristotle (New York: Columbia University Press, 1960), pp. 250–53.