Liberal originalism: a past for the future.

Author:Sandefur, Timothy
 
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First comes the Declaration of Independence, the illuminated initial letter of our history.... Here is the national heart, the national soul, the national will, the national voice, which must inspire our interpretation of the Constitution, and enter into and diffuse itself through all the national legislation.

--Charles Sumner (1)

  1. INTRODUCTION 490 II. LIBERAL VS. CONSERVATIVE ORIGINALISM 491 III. SLAVERY AND THE PROBLEMS OF RACE 497 IV. LIBERAL ORIGINALISM AND CONSERVATISM IN GENERAL 507 V. ARGUMENTS AGAINST LIBERAL ORIGINALISM 510 A. Liberal Originalism Overemphasizes Locke 511 B. The Founders Did Not Really Mean It 513 C. The Founders Did Not Understand Evolution 515 D. The Framers Didn't Intend for It to Be Relevant 518 VI. WHAT DIFFERENCE DOES IT MAKE? 520 A. Civil Rights 520 B. Sexual Freedom and Public Morality 522 C. Economic Equality 532 D. Federalism 538 VII. CONCLUSION 541 I. INTRODUCTION

    What role ought the Declaration of Independence play in interpreting the Constitution? Average Americans would probably be surprised that the subject has received relatively little scholarly attention. But in recent years, some writers, led particularly by Scott Douglas Gerber, have begun to devote serious consideration to the Declaration's constitutional role. These scholars are developing a theory of interpretation that Gerber calls "liberal originalism." (2) According to this view, the Declaration is part of the organic law of the United States, and ought to guide our understanding of the Constitution. (3) Liberal originalism contrasts with the "conservative originalism" of Robert Bork, (4) Chief Justice William Rehnquist, (5) and Justice Antonin Scalia, (6) who view the Declaration as a world apart from the Constitution.

    Liberal originalism is relevant to a historical analysis of the Constitution because it illuminates the issue of slavery in America's founding. But it is also relevant today as a method of interpreting the Constitution. Like originalism in general, the liberal originalist view is incompatible with attempts to use government to accomplish "social justice" or other ends inconsistent with the principles of individual liberty and limited government reflected in the Declaration. This article addresses the merits of liberal originalism and the differences that this method would make if adopted by today's courts. I take the recent book The Declaration of Independence: Origins and Impact ("Origins and Impact"), (7) edited by Gerber, as a point of departure. In it, Gerber brings together twelve essays on the Declaration, each written by a different historian or constitutional scholar. The essays range in scope from the history of the Declaration's writing and reception in 1776 to its impact on modern Presidents and the Supreme Court. To this, Origins and Impact adds a variety of primary sources, including the first drafts of the Declaration, passages from the constitutional ratification debates and the Federalist Papers, speeches by Abraham Lincoln, Franklin Roosevelt, Martin Luther King, Jr., and others, and even a list of all Supreme Court cases that have cited the Declaration. In the following, I offer some reflections on the liberal originalist project in general, in hopes that it will help us not only to know "where we are, and whither we are tending," but also to better judge "what to do and how to do it. (8)

  2. LIBERAL VS. CONSERVATIVE ORIG1NALISM

    Understanding the liberal originalist project requires a clear understanding of the ways in which it differs from conservative originalism. Although both conservative and liberal originalists emphasize the importance of understanding the Constitution as the framers meant it, they see the framers' intent in a different light and find different aspects of American tradition relevant. The conflict between these two groups is both heated and enlightening, and in the end it reveals a great deal about the intellectual motivations of the two groups. (9)

    The use of the term "liberal originalism" can mislead novices because the term "liberal" has unusual connotations in America. Modern American liberalism differs greatly from the way liberalism was understood at the time of America's founding, largely as a result of the Progressive and New Deal eras, which caused the term "liberal" to take on a very different meaning. (10) The terms "classical liberal" or "libertarian" are now often employed to avoid the confusion caused by referring to Thomas Jefferson--whose political philosophy is often expressed as "that government is best which governs least" (11)--as a "liberal," when that term today refers to a political philosophy emphasizing extensive government intervention in economic and personal lives of citizens.

    John Dewey explained the evolution of American liberalism as occurring in two waves. (12) The first wave "emphasi[zed] ... individuality and liberty," which was "directed against restrictions placed by ... the political state, upon freedom of economic enterprise." (13) While this variety of liberalism also emphasized personal liberties such as freedom of religious conscience and freedom of expression, Dewey was correct that it also placed heavy emphasis on the importance of economic liberty. In short, classical liberalism sought to liberate people to reach their highest potential, in which endeavor their primary opponent was government. Hence this older liberalism believed, in Jefferson's words, that "the sum of good government" was one which "shall restrain men from injuring one another, shall leave them otherwise free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labor the bread it has earned." (14)

    In Jefferson's day, there were those who opposed such liberation on the grounds that a prescribed social order was fundamental to social survival. The early Federalist Party emphasized the importance of class structure and attacked what they viewed as the dangerous secularism and social dynamism of liberals like Jefferson and Madison. Jefferson subtly replied to these opponents in his Second Inaugural Address, where, ostensibly discussing American relations with Indian tribes, he denounced

    crafty individuals ... who feel themselves something in the present order of things, and fear to become nothing in any other. These persons inculcate a sanctimonious reverence for the customs of their ancestors; that whatsoever they did, must be done through all time; that reason is a false guide and to advance under its counsel, in their physical, moral, or political condition, is perilous innovation; that their duty is to remain as their Creator made them, ignorance being safety, and knowledge full of danger ... anti-philosophers, who find an interest in keeping things in their present state, who dread reformation, and exert all their faculties to maintain the ascendancy of habit over the duty of improving our reason, and obeying its mandates. (15) The dichotomy between Jefferson and these anti-philosophers is echoed in the distinction between liberal originalism and conservative originalism. While liberal originalists endorse Jefferson's classical liberalism, with its emphasis on individual liberty and limited government, conservative originalists, like Jefferson's opponents, emphasize traditionalism, the need for moral command, (16) and the pragmatic nature of the Revolution, while frequently downplaying Jefferson's historical importance.

    The second wave of liberalism, as described by Dewey, began at the end of the nineteenth century, when liberal intellectuals decided that laissez-faire could not accomplish the liberal goals of individual autonomy. Modern liberalism, Dewey argued, had discovered that the

    individual is nothing fixed, given ready-made. It is something achieved, and achieved not in isolation, but the aid and support of conditions, cultural and physical, including in 'cultural' economic, legal, and political institutions.... [Modern liberalism seeks to develop] policies for dealing with these conditions in the interest of development of increased individuality and liberty. (17) Thus governmental mechanisms for "adjusting the benefits and burdens of economic life" were created out of a belief that they were necessary to accomplish traditionally liberal goals of individual fulfillment. (18)

    Despite the potential confusion between classic and modern liberalism, Gerber's distinction is useful when considering the "conservative originalists." This group of "anti-philosophers" tends to downplay the historical importance of principles such as equality or individual liberty, which conservatives see as the fountainhead of the immorality and social breakdown that they think reached its ascendancy in the 1960s. Robert Bork, for example, sees the Enlightenment as responsible for the decadence which, in his view, is symptomatic of modern society. (19) In this, he represents the mainstream of conservative thought regarding the Declaration of Independence. Some make a historical case, arguing that previous generations of historians have overemphasized the role that equality and liberty played in the Revolution. Russell Kirk, for instance, wrote that the American revolutionaries "meant to keep their old order and defend it against external interference," rather than fighting for any "theoretic dogma." (20) In his view, the Declaration, "[h]astily drawn up by Jefferson and a committee of four others," was meant as "an apology to the world--France in particular--for the Patriots' armed rising, in hope of assistance from abroad." (21) The principles which others have called "revolutionary" were, in Kirk's view, not new, but were "premises taken for granted, and every political order must be founded upon some such unquestioned premises." (22) Certainly, in Kirk's view, the Declaration did not refer to "a secularized version of natural rights theory." (23) In any case, as a matter of political philosophy, it was of little importance:...

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