In “If Slavery Is Not Wrong, Nothing Is Wrong,” I proposed that the Civil War was fought to restore the original unity of the Declaration of Independence and the Constitution, and that the Thirteenth Amendment, adopted in 1865, was the culmination of that colorblind restoration. In the antebellum period, opponents of slavery could not specify what would result once slavery was ended. Would free blacks have equal rights? Vote? Intermarry with whites? Thus did Stephen Douglas mock Abraham Lincoln. The post-bellum answer of universal freedom nonetheless preserved much of the antebellum distinction between being anti-slavery and being anti-black. While Black Codes prevailed…
If democracy is to endure, thoughtful citizenship is a requirement for a critical mass of the citizenry. We have an opportunity to live up to that obligation today. America’s birthday offers an opportunity to go back to the self-conscious beginnings of our common enterprise, where we meet the Declaration of Independence.
In a letter to Richard Henry Lee, Jefferson famously characterized the Declaration as “an expression of the American mind.” Let’s spend a few minutes considering that mind. We will find it to be: 1) logical; 2) liberty-loving; 3) manly; and 4) gesturing towards, and calling for, philosophical and theological reflection.
Could anything be clearer than the Thirteenth Amendment? A model of succinctness, it reads in full:
Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Section 2. Congress shall have power to enforce this article by appropriate legislation.
From its modest yet revolutionary text some contemporary legal commentators have derived governmental power to address every category or practice that involves a form of discrimination or inequality: racial profiling, poverty, migrant workers, pregnant women (for abortion rights), and more. Such a Thirteenth Amendment might devour the rest of the Constitution, marking the demise of constitutional government that protects individual rights, as any means would be justified to attack every ill that might have some relationship to freedom. The fight to end slavery would have become the fight to end freedom.
I am grateful for the thoughtful commentaries and kind words that Keith Whittington, Lee J. Strang, and Adam White have provided on my essay on Clarence Thomas’s jurisprudence of constitutional restoration. Since all three commentaries address the low value that Thomas, as an originalist, places on stare decisis, I will begin there.
In a detailed historical review of Timothy Sandefur’s new book entitled The Conscience of the Constitution, Adam Tate raises the practice of federalism as a principled method that representatives used in the early republic for handling difficult issues. Rather than face political paralysis or endure efforts at national coercion via constitutional provisions regarding slavery or religious freedom, for example, Tate notes that the Founders looked to the states and their separate interests as the best solution. So Tate argues that there was no natural rights code of law with exact specifications nationally applied.
If we were such a republic, then why were natural rights not relied upon in the tough cases and appealed to with precision? If there was consensus on natural rights as the baseline, then surely it would have governed these disputes, rendering them noncontroversial. More plausible is that the natural law and natural rights were seen as an ultimate source of law, but what this meant in concrete application was not firmly agreed upon by the Framers. As a result, particular resolution of constitutional questions via a detailed code of natural rights wasn’t ventured.
Timothy Sandefur’s The Conscience of the Constitution contributes to the debate over the best way to limit the powers of the United States government in order to secure liberty. Sandefur, a lawyer and legal scholar, believes that “American constitutional history has always hovered in the mutual resistance of two principles: the right of each individual to be free, and the power of the majority to make rules.” (1) For Sandefur adherence to the natural rights theory of Declaration of Independence manages the tension between the two principles.
In reflecting further on the issues raised by Ted McAllister’s emphasis on the American historical experience of liberty in this month’s Liberty Law Forum, I find myself returning again to consider the meaning of a particular phrase of the Declaration of Independence: “the pursuit of happiness.” I have written about this before in other places, but McAllister’s highlighting of historically lived experience, brings out the significance of this passage even further.
The home and birthplace of John Adams—and his son, John Quincy Adams, diplomat, president, legislator and, most important, translator of the indispensable The Origins and Principles of the American Revolution, compared with the Origins and Principles of the French Revolution, more on which presently—sits on Hancock Street in Quincy, Massachusetts. The next time a U.S.-French Presidential duo desires a photo-op at the home of a historic American executive, they might skip Monticello and visit the Adams manse instead.
Many long posts ago, this website hosted a discussion of Michael Greve’s wonderfully illuminating Upside Down Constitution. A key part of the thesis was the degree to which local self-governing political bodies in America have steadily ceded administration to national agencies, not as the helpless victims of a national takeover, but as willing, nay eager participants in the national redistribution of our common wealth.
Without a consideration of basic principles, of basic notions of right and wrong, of moral and philosophic ideals, this transfer of self-governance from the local to the national, becomes very hard to criticize.
My Left Foot is a touching film (and novel) about a poor young Irishman, Christy, with cerebral palsy; he can neither walk nor speak. But he has a shrewd mind and uses his left foot, the only limb he controls, to draw, paint, and thereby express his soul.
President Obama’s recent State of the Union Address also told a tale about overcoming disabilities. The disability metaphor extends through the entire speech and culminates at the end, when he introduces his special guest, a severely injured Afghan war veteran: