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

by Timothy Sandefur

  71. A thorough defense of natural-rights theory would require a full treatise and be beyond the scope of this book. I recommend the works of such classical liberal natural-rights thinkers as Douglas Den Uyl and Douglas Rasmussen, Norms of Liberty: A Perfectionist Basis for Non-Perfectionist Politics (University Park, PA: Pennsylvania State University Press, 2005); Tom G. Palmer, “Saving Rights Theory from Its Friends,” in Individual Rights Reconsidered: Are the Truths of the U.S. Declaration of Independence Lasting? Tibor Machan, ed. (Stanford: Hoover Institution, 2001), pp. 35–85; Randy E. Barnett, The Structure of Liberty (Oxford: Oxford University Press, 1998); Larry Arn-hart, Darwinian Natural Right (Albany: State University of New York Press, 1998); Tara Smith, Moral Rights and Political Freedom (Lanham, MD; Rowman & Littlefield, 1995); and Ayn Rand, Capitalism: The Unknown Ideal (New York: Signet, 1968). One common objection to these arguments is the charge that deriving rules of individual or group behavior from human nature is to commit the “naturalistic fallacy.” This is answered most convincingly in Foot, Natural Goodness; Jan Tullberg and Brigitta S. Tullberg, “A Critique of the Naturalistic Fallacy Thesis,” Politics and the Life Sciences 20, no. 2 (2001): 165–74; Philippa Foot, ed., Theories of Ethics (Oxford: Oxford University Press, 1976); Arnhart; Harry Binswanger, The Biological Basis of Teleological Concepts (Marina Del Rey, CA: Ayn Rand Institute Press, 1990); Roger D. Maters, The Nature of Politics (New Haven: Yale University Press, 1989); and W. D. Falk, Ought, Reasons, and Morality (New York: Cornell University Press, 1986). As Daniel Dennett writes, “[f]rom what can ‘ought’ be derived? The most compelling answer is this: ethics must somehow be based on an appreciation of human nature—on a sense of what a human being is or might be, and on what a human being might want to have or want to be. If that is naturalism, then naturalism is no fallacy.” Daniel Dennett, Darwin’s Dangerous Idea: Evolution and the Meanings of Life (New York: Simon & Schuster, 1995), p. 468. But I recognize that this is complicated and hotly contested philosophical ground.

  72. Oliver Wendell Holmes, The Common Law (New York: Dover, 1991), p. 3.

  73. See Adam Smith, An Inquiry into the Nature and Causes of the Wealth of Nations (Oxford: Oxford University Press, 1976) (1776), vol. 1, p. 26 (“Nobody ever saw a dog make a fair and deliberate exchange of one bone for another with another dog.”).

  74. Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co., 276 U.S. 518, 533 (1928) (Holmes, J., dissenting).

  75. Letter from Oliver Wendell Holmes to Alice Stopford Green (August 20, 1909), in The Essential Holmes, Richard Posner, ed. (Chicago: University of Chicago Press, 1992), p. 116.

  76. Letter from Oliver Wendell Holmes to Harold Laski (September 15, 1916), in The Holmes-Laski Letters, Mark DeWolfe Howe, ed. (New York: Atheneum, 1953), vol. 1, pp. 18–19.

  77. Buck v. Bell, 274 U.S. 200, 207 (1927).

  78. 205 U.S. 349, 353 (1907). In a letter to Harold Laski dated January 29, 1926, Holmes elaborated: the idea of rights valid against government “seems to me like shaking one’s fist at the sky, when the sky furnishes the energy that enables one to raise the fist.” One might observe that it is entirely possible to shake one’s fist at the sky—and to fly a rocket to the moon—notwithstanding. Essential Holmes, p. 235.

  79. 250 U.S. 616, 624 (1919) (Holmes, J., dissenting).

  80. See, for example, Harry Kalven Jr., A Worthy Tradition: Freedom of Speech in America (New York: Harper & Row, 1988), p. 144.

  81. Abrams, 250 U.S. at 630 (Holmes, J., dissenting).

  82. Ibid.

  83. 249 U.S. 47, 52 (1919).

  84. Lochner, 198 U.S. at 75–76 (Holmes, J., dissenting).

  85. In Book 1 of Plato’s Republic, Thrasymachus argues that justice is whatever serves “the interest of the stronger party.”

  86. Laurence H. Tribe, “The Curvature of Constitutional Space: What Lawyers Can Learn from Modern Physics,” Harvard Law Review 103 (1989): 8.

  87. Ibid., p. 7.

  88. Laurence H. Tribe, American Constitutional Law, 2d ed. (Mineoala, NY: Foundation Press, 1988), p. 578.

  89. Cass Sunstein, Democracy and the Problem of Free Speech (New York: Free Press, 1995), p. 30.

  90. Ibid., pp. 34–35.

  91. Ibid., p. 247.

  92. Anthony de Jasay, Justice and Its Surroundings (Indianapolis: Liberty Fund, 2000), pp. 150–51.

  93. William Lee Miller, Arguing About Slavery (New York: Vintage, 1995).

  94. Palmer, “Rights Theory,” p. 45.

  95. Paraphrasing Sunstein, p. 30.

  96. Bork, Tempting of America, p. 124.

  97. Ibid., p. 249.

  98. Ibid., p. 124.

  99. Robert H. Bork, “Neutral Principles and Some First Amendment Problems,” Indiana Law Journal 47 (1971): 10.

  100. See Bork, Tempting of America, p. 121 (“It is doubtful that there are any moral ‘facts,’ as opposed to moral convictions. . . .”).

  101. Ibid., pp. 258–59.

  102. Ibid., pp. 124–25 (emphasis added).

  103. First Treatise of Civil Government § 27, in Laslett, ed., p. 195.

  104. Ibid., § 2, p. 176.

  Chapter 2

  1. Kimberly Shankman and Roger Pilon, “Reviving the Privileges or Immunities Clause to Redress the Balance among States, Individuals, and the Federal Government,” Texas Review of Law & Politics 3 (1998): 11.

  2. Jacobus tenBroek, Equal Under Law: The Antislavery Origins of the Fourteenth Amendment, 2nd ed. (New York: Collier, 1965), ch. 4.

  3. Akhil Reed Amar, America’s Constitution: A Biography (New York: Random House, 2005), pp. 5–53; Daniel Farber, Lincoln’s Constitution (Chicago: University of Chicago Press, 2003), pp. 26–91.

  4. Federalist No. 15 (Alexander Hamilton), in The Federalist, Jacob E. Cooke, ed. (Middletown, CT: Wesleyan University Press, 1961), p. 93.

  5. Federalist No. 33 (Alexander Hamilton), in ibid., p. 207.

  6. Jonathan Elliot, ed., Debates in the Several State Conventions on the Adoption of the Federal Constitution (Washington: J. Elliot, 1836), vol. 3, p. 22.

  7. Ibid., p. 94.

  8. Ibid.

  9. Elliot, vol. 5, p. 213.

  10. Luther Martin, “The Genuine Information XII,” in Debate on the Constitution, Bernard Bailyn, ed., (New York: Library of America, 1993), vol. 1, p. 658 (emphasis in original).

  11. Elliot, vol. 5, p. 213.

  12. Ibid.

  13. Elliot, vol. 2, p. 444.

  14. Ibid.

  15. “Brutus XII,” (February 7–14, 1788), in Elliot, vol. 2, pp. 173–74.

  16. Federal Farmer, “Letter IV” (Oct. 12, 1787), in Elliot, vol. 1, p. 275.

  17. See Akhil Reed Amar, “Of Sovereignty and Federalism,” Yale Law Journal 96 (1987): 1462, n. 162.

  18 22 U.S. (9 Wheat.) 1, 187 (1824); see also Chisolm v. Georgia, 2 U.S. (2 Dall.) 419, 470 (1793) (opn. of Jay, C. J.) (“the people, in their collective and national capacity, established the present Constitution”).

  19. 17 U.S. (4 Wheat.) 316, 403–04 (1819). Justice Kennedy’s words almost two centuries later are apt: “The Framers split the atom of sovereignty. It was the genius of their idea that our citizens would have two political capacities, one state and one federal, each with its own direct relationship, its own privity, its own set of mutual rights and obligations to the people who sustain it and are governed by it.” U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 838 (1995) (Kennedy, J., concurring).

  20. See William W. Freehling, Prelude to Civil War: The Nullification Controversy in South Carolina, 1816–1836 (Oxford: Oxford University Press, 1992); Manisha Sinha, The Counter-Revolution of Slavery: Politics and Ideology in Antebellum South Carolina (Chapel Hill: University of North Carolina Press, 2000); and Timothy Sandefur, “How Libertarians Ought to Think About the U.S. Civil War,” Reason Papers 28 (2006): 61–83.

  21. Thomas Jefferson, Kentucky Resolutions (1798), in Jefferson: Writings, Merrill Peterson, ed. (New York: Library of America, 19
84), p. 449.

  22. John C. Calhoun, A Discourse on the Constitution and Government of the United States, in Union and Liberty: The Political Philosophy of John C. Calhoun, Ross M. Lence, ed. (Indianapolis: Liberty Fund, 1992), p. 86.

  23. Farber, p. 34.

  24. Herman Belz, ed., The Webster-Hayne Debate on the Nature of the Union (Indianapolis: Liberty Fund, 2000), p. 136.

  25. Ibid., p. 126.

  26. Ibid., p. 136.

  27. Ibid., p. 174.

  28. “Address to the People of South Carolina, by Their Delegates in Convention” (1832), in State Papers on Nullification (Boston: Dutton & Wentworth, 1834), pp. 40–43.

  29. William Blackstone, Commentaries on the Common Law (London: A. Strahan, 1809), vol. 1, p. 156.

  30. Ibid., p. 49.

  31. Ibid., p. 156.

  32. Ibid., p. 157.

  33. Julian S. Waterman, “Thomas Jefferson and Blackstone’s Commentaries,” Illinois Law Review 27 (1933): 649–52.

  34. St. George Tucker, Blackstone’s Commentaries (Clark, N.: Lawbook Exchange, 2008), vol. 1, Appx. A, p. 3; vol. 2, Appx. G, pp. 19–20 (quoting James Madison).

  35. Ibid., vol. 1, p. 49, n. 5.

  36. Robert M. Cover, Book Review, Blackstone’s Commentaries, St. George Tucker, ed., Columbia Law Review 70 (1970): 1475–94.

  37. Abel Upshur, Enquiry into the True Nature and Character of Our Federal Government (Petersburg, VA: Edmund & Jullian C. Ruffin, 1840), p. 78.

  38. Henry St. George Tucker, Lectures on Constitutional Law (Richmond: Shepherd and Colin, 1843), pp. 33–36 (Quoting Joseph Story).

  39. N. Beverley Tucker, A Series of Lectures on the Science of Government (Philadelphia: Carey and Hart, 1845), pp. 73–74.

  40. 21 Pa. 147 (1853). Sharpless is among the most fascinating of antebellum constitutional decisions. It illustrates the debate over the limits of sovereignty that echoed through American legal history up until the outbreak of the war. See Timothy Sandefur, Cornerstone of Liberty: Property Rights in 21st Century America (Washington: Cato Institute, 2006), pp. 64–67. The dissents, sadly, were not printed in the official state reports, but can be found in volume 2 of the American Law Register for 1854. Justice Lewis’ dissenting opinion appears at page 80, and Justice Lowrie’s at page 27. See also Ellis L. Waldron, “Sharpless v. Philadelphia: Jeremiah Black and the Parent Case on the Public Purpose of Taxation,” Wisconsin Law Review (1953): 48–75.

  41. Sharpless, 21 Pa. at 160.

  42. Ibid.

  43. Ibid. at 161. In fact, Black contradicted himself on this point. Contrary to his assertion that states possessed “full and uncontrolled power” except where specifically denied by the state constitution, Black accepted the existence of unwritten limits on state power: “The whole of a public burden cannot be thrown on a single individual, under the pretence of taxing him,” for example, even though no written provision of the Constitution forbids this; such a prohibition “was not necessary,” because such a legislative act “would not be a law, but an attempt to pronounce a judicial sentence, order or decree.” Ibid. at 168. This, as Waldron observes, is the theory later called “substantive due process.” Waldron, p. 75. Black did not seem to recognize his self-contradiction. Ibid., p. 64.

  44. Sharpless, 21 Pa. at 160.

  45. Sharpless, American Law Register 2, pp. 87, 97 (Lewis, J., dissenting).

  46. Henry Hughes, Treatise on Sociology, Theoretical and Practical (Philadelphia: Lippincott, Grambo and Co., 1854), pp. 185–86. By “use,” Hughes meant the common-law concept of “use,” which entitles a person to the profits of a piece of land, but not to actual ownership.

  47. William Harper, Memoir on Slavery (Charleston: James S. Burges, 1838), p. 7.

  48. John C. Calhoun, A Disquisition on Government, in Union and Liberty, Lence, ed., p. 42.

  49. Ibid.

  50. Calhoun, speech on the Oregon Bill, in ibid., p. 566.

  51. See John C. Calhoun, Speech on the Force Bill (Feb. 15–16, 1833), in ibid., pp. 443–44.

  52. Amar, America’s Constitution, pp. 38–53; Freehling, pp. 165–66.

  53. Madison’s clash with Calhoun and his allies is described in Drew McCoy’s superb book, The Last of the Fathers: James Madison and the Republican Legacy (Cambridge: Cambridge University Press, 1989).

  54. 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.

  55. George A. Lipsky, John Quincy Adams: His Theory and Ideas (New York: Thomas Y. Crowell Co., 1965). See especially ch. 12.

  56. The Jubilee of the Constitution was one of the most popular publications of the era, selling more than 8,000 copies in a matter of weeks. See Paul C. Nagel, John Quincy Adams: A Public Life, A Private Life (Harvard: Harvard University Press, 1997), p. 372.

  57. John Quincy Adams, The Jubilee of the Constitution (New York: Samuel Colman, 1848), p. 20.

  58. Ibid., p. 9.

  59. Ibid., p. 30.

  60. John Quincy Adams, An Oration Addressed to the Citizens of the Town of Quincy on the Fourth of July, 1831, the Fifty-Fifth Anniversary of the Independence of the United States of America (Boston: Richardson, Lord and Holbrook, 1831), p. 22.

  61. Ibid., p. 35.

  62. Ibid., p. 37.

  63. Belz, Webster-Hayne Debate, p. 144.

  64. Adams was hardly alone in these beliefs. Joseph Story made the same arguments in his Commentaries on the Constitution (Boston: Hilliard, Gray and Co., 1833), vol. 1, bk. 2, §§ 205-08, as did several other Northern leaders. Nor did all Southerners agree with the entire states’ rights theory. For example, John Taylor of Caroline’s 1820 book Construction Construed and Constitutions Vindicated rejected absolute Blackstonian sovereignty, and objected to the very word. But in 1823, in his New Views of the Constitution of the United States, he argued that the Constitution was a league of sovereign states, and appeared to back away from his arguments against absolute sovereignty.

  65. See Anne-Marie Taylor, Young Charles Sumner and the Legacy of the American Enlightenment, 1811–1851 (Amherst: University of Massachusetts Press, 2001), pp. 275–78.

  66. See John M. Taylor, William Henry Seward: Lincoln’s Right Hand Man (Washington: Potomac Books, 1991), pp. 69–70.

  67. See William Lee Miller, Arguing About Slavery (New York: Knopf, 1996), pp. 448–49.

  68. 46 U.S. (5 How.) 215 (1847).

  69. S. P. Chase, An Argument for the Defendant Submitted to the Supreme Court of the United States in the Case of Wharton Jones vs. John Van Zandt (Cincinnati: R. P. Donogh and Co., 1847), pp. 93–94. Chase is paraphrasing from the opinion of his great-grandfather, Justice Samuel Chase, in Calder v. Bull, 3 U.S. (3 Dall.) 386, 388 (1798).

  70. Kohl v. United States, 91 U.S. (1 Otto) 367, 373 (1876). Kohl upheld an 1872 condemnation of land to construct a post office in Ohio.

  71. Article II section 1 requires that the President be a “natural born Citizen.” Article I section 2 requires that Congressmen and Senators be “citizen[s] of the United States.”

  72. Josiah Quincy, Memoir of the Life of John Quincy Adams (Boston: Phillips, Samson, and Co., 1858), p. 114.

  73. Charles Francis Adams, ed., Memoirs of John Quincy Adams (Philadelphia: J. B. Lippincott, 1875), vol. 5, p. 308.

  74. State v. Claiborne, 19 Tenn. 331, 340 (1838). See also Amy v. Smith, 11 Ky. 326, 334 (1822) (“Free negroes and mulattoes are, almost everywhere, considered and treated as a degraded race of people; insomuch so, that, under the constitution and laws of the United States, they cannot become citizens of the United States.”)

  75. Elkison v. Deliesseline, 8 F. Cas. at 493 (C.C.D.S.C. 1823).

  76. Ibid. Johnson wrote the decision sitting as a Circuit Judge.

  77. 1 Op. Atty. Gen. 659 (1824).

  78. Freehling, p. 115.

  79. 2 Op. Atty. Gen. 426 (1831).

  80. H. Jefferson Powell, “Attorney General Taney & the South Carolina Police Bill,” Green B
ag (Second Series) 5 (2001): 84–85.

  81. Quoted in Herman von Holst, The Constitutional and Political History of the United States (Chicago: Callaghan and Co., 1881), vol. 3, p. 137.

  82. Deliesseline, 8 F. Cas. at 494.

  83. Congressional Globe, 31st Cong. 1st sess., App., p. 284 (1850).

  84. Ibid., p. 288.

  85. Ibid.

  86. Ibid., p. 290.

  87. Howard Jay Graham, “The Early Antislavery Backgrounds of the Fourteenth Amendment,” Wisconsin Law Review (1950): 498.

  88. Crandall v. State, 10 Conn. 339, 370 (1834). Crandall operated a school to teach black children, which outraged citizens of Canterbury, Connecticut. Unable to drive Crandall out through threats and violence, locals persuaded the state legislature to enact a law closing the school. Crandall continued to teach, and was arrested and tried for “harbouring and boarding coloured persons.” Crandall’s conviction was eventually reversed on a technicality, but continued harassment forced her to close her school. See Henry Mayer, All on Fire: William Lloyd Garrison and the Abolition of Slavery (New York: Norton, 1998), pp. 145–89.

  89. William Jay, An Inquiry into the Character and Tendency of the American Colonization and American Anti-Slavery Societies, 3rd ed. (New York: Leavitt, Lord, and Co., 1835), pp. 39–46.

  90. Lysander Spooner, The Unconstitutionality of Slavery (Boston: Burt Franklin, facsimile ed. n.d. (1860)); William Goodell, Slavery and Antislavery (New York: William Harnet, 1852); Beriah Green, The Chattel Principle (New York: American Anti-Slavery Society, 1839); Gerrit Smith, Letter of Gerrit Smith to Hon. Henry Clay (New York: American Anti-Slavery Society, 1839); Joel Tiffany, A Treatise on the Unconstitutionality of American Slavery (Cleveland: J. Calyer, 1849); Frederick Douglass, “The Constitution of the United States: Is It Pro-Slavery or Antislavery?” (1860), in Frederick Douglass: Selected Speeches and Writings, Philip S. Foner and Yuval Taylor, eds. (Chicago: Lawrence Hill Books, 1999), pp. 380–90.

  91. Frederick Douglass, “The Dred Scott Decision” (1857), in ibid., p. 357; see also Spooner, p. 188 (“[T]here is no legal ground for denying that the terms ‘the people of the United States,’ included the whole of the then people of the United States. And if the whole of the people are the parties to it, it must, if possible, be so construed as to make it such a contract as each and every individual might reasonably agree to.”).