Author:Kenneth L. Karst

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In today's America the term "liberalism" is circulated mainly by those who pronounce it with scorn?by the political right and by academic theorists who have little else in common with the right. Yet the American nation was conceived in liberalism. The DECLARATION OF INDEPENDENCE proclaimed the liberal ideals of individual liberty, legal equality, and the rule of law. It also embraced the liberal doctrine that located the legitimacy of governmental power not in divine right but in the consent of the governed.

The Constitution, too, was mainly seen by its Framers through liberal lenses. What they saw was a SOCIAL COMPACT deriving its authority from "the people of the United States" and designed in major part to serve liberal purposes: "to establish justice," "to secure the blessings of liberty," and by dampening the causes of civil strife, "to insure domestic tranquility." What they did not see?or would not see?was the fundamental inconsistency of SLAVERY with all these purposes. Putting this enormity out of their minds, the Framers of the Constitution and the BILL OF RIGHTS saw the chief source of oppression in the power of the state and placed much of their hope for achieving liberal ends in a system of LIMITED GOVERNMENT.

The limits were both structural and substantive. Liberty was to be achieved both by the dispersal of the powers of government (see FEDERALISM; SEPARATION OF POWERS) and by broadly worded prohibitions on various kinds of governmental interference with the rights of individuals. Although the liberalism of the Framers was strongly influenced by the Enlightenment's notions of rationality, these substantive limitations were not the product of abstract

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reason. Rather, they were designed to serve intensely practical purposes for the new nation. The liberal doctrines of FREEDOM OF SPEECH and FREEDOM OF THE PRESS, for example, seemed essential to the citizen participation on which the continued legitimacy of government would depend. Similarly, the liberal doctrine rejecting divine authority as the basis for governmental legitimacy served the cause of domestic peace. The Framers, well versed in recent British history, need not stretch their imaginations to see how the interactions of religion and government might plunge a nation into civil strife. A major purpose of both the SEPARATION OF CHURCH AND STATE and the guarantee of RELIGIOUS LIBERTY was to promote tolerance and thereby to moderate religion's capacity for political divisiveness.

Today's Constitution, the product of two centuries' worth of interpretation, differs dramatically from the Constitution of the Framers. Yet, what Louis Hartz called "the liberal tradition" has remained central in American constitutional law, surviving political and social upheavals and even a civil war of our own. Like all paradoxes, this contradiction of continuity and change is more apparent than real. Over the years liberalism, like the Constitution, has taken on a series of new meanings in response to changes in America's economic, social, and political conditions. Jacksonian democracy, the CIVIL WAR and RECONSTRUCTION, the late-nineteenth-century industrial expansion, the NEW DEAL, and the CIVIL RIGHTS MOVEMENT each brought a new version of liberalism that made its mark on the Constitution. The constitutional law of our time?like the term liberalism itself?evidences overlays of all these eras of social change, from the days of Adam Smith to the days of MARTIN LUTHER KING, JR. The decisions of the Supreme Court, the nation's leading expositor of the Constitution, have both reflected the transformations of liberalism and contributed to them.

In the nation's early years the individualist liberalism of JOHN LOCKE was tempered by a vision of REPUBLICANISM that imposed on the people's governors a moral responsibility to attune their public decisions to the general good, not merely their own self-interest or the interests of their constituents. This republican ideal was not wholly unrealistic so long as government was largely in the hands of the gentry. By around 1820, however, gentry rule had crumbled under the dual pressures of democratization and geographical expansion. In the era of ANDREW JACKSON the consent of the governed implied an electorate that was expanded to include most adult white men, and the body of citizens who could make effective use of individual freedom?especially economic freedom?was similarly expanded by a doctrine of equal liberties. The widening of the franchise was almost entirely the work of legislatures. The protection of economic freedom, however, became the business of the courts, acting in the name of the Constitution. The JUDICIAL ACTIVISM of the MARSHALL COURT (1803?1835) led the way in promoting a nationwide free-trade unit by striking down a number of state regulatory laws (see STATE REGULATION OF COMMERCE; CONTRACT CLAUSE).

During the period before the Civil War, another doctrine of liberalism came to the fore, with major assists from the adherents of ABOLITIONIST CONSTITUTIONAL THEORY and from those who opposed SLAVERY IN THE TERRITORIES."Free labor" became a slogan of the new REPUBLICAN PARTY and of ABRAHAM LINCOLN in particular (see LABOR MOVEMENT AND CONSTITUTIONAL DOCTRINE). The doctrine of free labor, infused with the liberal goals of democracy and individualism, received a strong impetus when the EMANCIPATION PROCLAMATION converted a war to save the...

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