To Secure These Rights: The Declaration of Independence and Constitutional Interpretation.

• Author: Semel, Wendy Ann

By Scott D. Gerber.(*) New York: New York University Press, 1995. Pp. xv, 315. $45.00.

I

The question of whether constitutional interpretation ought to emphasize the intended meanings of the Framers, as discerned from the text itself and relevant historical sources, remains a highly charged political issue. Conservatives generally espouse originalist methodology as a basis for rejecting the liberal court decisions and "judicial activism" of the 1960s,(1) while liberals reject the originalists' methodological claims and defend the propriety of judicial discretion, which has tended to produce outcomes to which they are sympathetic.(2) With To Secure These Rights, Scott D. Gerber enters the debate over the Framers' intent by rejecting the presumption that a "jurisprudence of original intention" need be a "jurisprudence of the right;" Gerber attempts, instead, to develop a "liberal originalis[t]" theory of constitutional interpretation, one which, though faithful to original intent, yields liberal results (pp. 4-7).

Gerber's call for a liberal originalism is intriguing, but the particular originalist vision he offers is less than compelling. Gerber argues that the Constitution's drafters intended their creation to achieve one central purpose: the protection of the natural rights delineated in the Declaration of Independence. The Declaration, according to Gerber, expressed the Lockean natural rights theory that animated the Revolution. The Constitution, in turn, established a national governmental structure for the protection of those rights. The Supreme Court, as the ultimate protector of these rights, properly enjoys the role of final arbiter of constitutional interpretation. Unfortunately, Gerber's argument is crippled by the inadequacy of his historical scholarship and by his sometimes unrealistic view of the American political system today.

II

Gerber begins with a discussion of the intellectual climate and political philosophy of the Revolutionary Era. Looking both to primary sources and to the arguments advanced by an earlier generation of historians who identified the character of the American Revolution as firmly rooted in the Lockean theory of natural rights,(3) Gerber rejects the prevailing trend in Revolutionary historiography, "republican revisionism."(4) Instead, he asserts that "on the issue of the basic purpose of government--the issue of preeminent concern to constitutional interpretation ... the intellectual leaders were Lockean liberals, not classical republicans" (p. 33); the Declaration of Independence, in Gerber's view, expressed "the essential political premise of the American regime ... that government exists to secure natural rights, not to cultivate virtue" (p. 40).

Gerber then contends that "the primary goal of [the Constitution was] to provide the institutional means to secure the natural-rights philosophical ends of the Declaration" (p. 59). Gerber argues that the preamble to the Constitution, the framing and ratification debates, and the Federalist Papers all demonstrate that "the Founders remained as dedicated to natural-rights principles during the period of the framing and ratification of the Constitution as they had been during the heyday of the American Revolution" (p. 90).

Based on this reading of the Framers' intent, Gerber argues in the second part of the book that the proper role of the Supreme Court is to be the guardian of the natural rights of the people and, thus, the final arbiter of constitutional interpretation. Gerber argues that, as the Framers became increasingly suspicious of the legislative branch's ability to protect citizens' natural rights, especially in light of the failures of the national and state governments under the Articles of Confederation, they moved from the traditional English model of legislative supremacy to one recognizing the validity of judicial review (pp. 99-100).

Gerber also appeals to the structure of the Constitution to support his contention that the Framers intended the...