December 4, 2013

The Conscience of The Constitution

By The Conscience of The Constitution

My new book, The Conscience of The Constitution, is now available on Amazon in hardback and Kindle. Although it’s short—only about 150 pages, not counting notes and index—this book is my own manifesto of constitutional law. I address some of the most controversial and important topics in our nation’s legal debates, including substantive due process, judicial activism, and the role of a judge’s political views in interpreting the Constitution.

My previous books have focused on specific issues: private property rights and the freedom to earn a living at a gainful trade. This time, I take a step back to try to take a broader look at the principles that underlie our constitutional structure—and in the process, to cover some things overlooked by many constitutional scholars. For example, I describe how, a century and a half before the American Revolution, a judge in the Massachusetts Bay Colony explained that “due process of law” protects individual rights that aren’t listed in any bill of rights. I tell the story of a little-remembered Pennsylvania judge managed to have his revenge and undo one of the most critical aspects of Reconstruction. I describe how former president and anti-slavery spokesman John Quincy Adams helping to found a school of constitutional thought that within twenty years of his death enshrined in the Constitution the principle of equal protection of the laws.

The idea for the book came to me while I was looking at my wife’s copy of Barry Goldwater’s Conscience of A Conservative. It struck me that the basic controversy in American constitutional law is one of priorities. Today, conservatives and liberals alike rank “democracy” above individual liberty as the central value that the American Constitution is supposed to preserve. Yet the founders themselves saw things differently. Their primary concern was with protecting liberty. The Constitution’s first sentence pronounces that the document was written “to preserve the blessings of liberty”—not to ensure that voting majorities get their way.

We know the importance of liberty to those who wrote the Constitution because of the document they’d written only eleven years earlier: the Declaration of Independence. Although intellectuals today typically regard the Declaration as little more than political propaganda, I believe the Declaration is the basic statement of principles upon which the Constitution itself stands. It declares that all people are fundamentally free, and that government and democracy are created to protect that freedom. Whenever government starts to destroy that freedom instead of protecting it, the people should alter or abolish that government.

The antislavery constitutionalists who built the intellectual foundation for the Fourteenth Amendment saw the Declaration this way—as the polestar for constitutional interpretation. Their triumph in the Civil War over those who thought that the power of the majority should take priority over individual freedom enabled them to amend the Constitution to ensure that the Declaration’s principles could never again be denied by those who read the nation’s basic law. Sadly, in the decades that followed, that hope was betrayed. The revival of legal doctrines that placed the power of the majority first, and denied the fundamental rightness of freedom, gave rise to many of the problems that plague our constitutional law today—including the problem of judges who think that they should defer to legislatures when the Constitution actually demands that they stop lawmakers from taking away our freedom.

Looking at the cover of Goldwater’s book, it struck me that the principle of the primacy of individual liberty—the centrality of freedom as the theme of our Constitution—is the conscience of the Constitution. It is the voice that points out to us the right path when we try to understand this critical legal document. We are free to ignore those principles—but when we do so, we do violence to the legal system we inherited, and we threaten something we ought to preserve for ourselves and our posterity.

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