Vol. 5 No. 9 (September, 1995) pp. 225-227
TO SECURE THESE RIGHTS: THE DECLARATION OF INDEPENDENCE AND
CONSTITUTIONAL INTERPRETATION by Scott Douglas Gerber. New York:
New York University Press, 1995. 315 pp. Cloth $45.00.
Reviewed by Tinsley E. Yarbrough, Department of Political
Science, East Carolina University.
Lively and at times acrimonious debates over the proper way for
judges to determine the Constitution's meaning continue unabated.
For years Hugo Black appeared to be the only modern Supreme Court
justice committed to a positivist or interpretivist jurisprudence
in which constitutional meaning is discovered primarily through a
literal reading of its text and inquiries into the intent of its
framers. Now, several members of the Court -- most notably the
Chief Justice and Justices Scalia and Thomas -- along with a host
of scholars and politicians purport to embrace a philosophy of
original intent. Others, on the bench (especially former Justices
Brennan and Marshall) and off (including Michael Perry and Ronald
Dworkin) have championed an essentially noninterpretivist
jurisprudence drawing constitutional constructions largely from
evolving conceptions of ethics, morality, and social need rather
than from the "dead hand" of the past. John Hart Ely
has advocated a mixture of interpretivist and noninterpretivist
elements, while Professor Dworkin, also seemingly bent on having
his cake and eating it, too, has argued that the Constitution's
framers INTENDED its provisions to be given noninterpretivist
meanings based on conceptions of fairness.
Comes now Scott Gerber, provocative critic of the prevailing
schools of thought and forceful advocate for a jurisprudence of
"liberal originalism." According to Gerber, Rehnquist
and company, whom he terms "conservative originalists,"
invoke the doctrine of original intent largely as a means of
pursuing conservative political goals. Noninterpretivism also
produces constitutional constructions based on the personal (and,
in the modern era, generally liberal) preferences of a majority
of justices. Gerber, by contrast, argues that the Constitution's
framers intended that its meaning reflect neither a conservative
nor liberal agenda but the natural-rights philosophy of the
Declaration of Independence -- a philosophy that will yield both
conservative and liberal results and thus, apparently, transcend
personal predilections. Such an approach, he contends, is
"liberal" in the sense that it bottoms constitutional
interpretations on principles of eighteenth century liberalism;
but it also embodies the "original intent" of the
Constitution's framers that the document's meaning be derived
from the natural-rights principles of the Declaration of
Independence. Hence, Gerber's classification of his jurisprudence
as one of "liberal originalism."
Consistent with its historic role under the doctrine of judicial
review, the Supreme Court, Gerber further argues, should have
final power to determine the reach and limits of the natural
rights which the Constitution embodies. But this would not mean,
he insists, that judges could impose their policy choices on the
constitutional text, despite the modern tendency to equate
"natural rights" with personal whim. Instead, they
would simply enforce rights discoverable in the Declaration of
Independence. Moreover,
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jurisdictional controls, the amendment process, impeachment
proceedings, and related constitutional safeguards are always
available to restrain judges willing to abuse their concededly
immense authority. In an effort to demonstrate that his approach
is workable as well as historically defensible, Gerber subjects a
number of significant constitutional issues to review under
natural-rights standards he claims to have derived from the
Declaration of Independence and the philosophy of John Locke, on
which much of the Declaration was based. Drawing on the
Declaration's assertion that "all men are created
equal," he condemns as unconstitutional class-based legal
differentiations "not based on a UNIVERSALLY true and
relevant characteristic" (p. 175), including preferential
treatment programs designed to overcome the effects of past
discriminatory practices. The natural-rights philosophy of the
Declaration and Locke, he argues, guarantees equality of
opportunity, not result. Characterizing "the preservation of
mankind" as "the fundamental law of nature" and
applying that natural right to the capital punishment issue,
Gerber also concludes that the death penalty is not inherently
unconstitutional. Under the moral theory of Locke, reasons
Gerber, an individual is obligated to act rationally as a
condition "for being subject to natural law and the
possessor of natural rights under that law" (p. 177). An
individual who takes another person's life, except in
self-defense, violates the basic obligation to preserve mankind
and thus is not acting rationally. Such persons thereby forfeit
their right to life. Nor is the state's taking of a life
inconsistent with the preservation of mankind; "the
fundamental law of nature," Gerber explains, "is the
preservation of MANKIND, not the preservation of INDIVIDUAL
persons" (p. 177). Since, on the other hand, "adult,
consensual, private homosexual acts" would not appear to be
a serious threat to mankind's preservation, laws restricting such
activity "represent nothing more than the majority's attempt
to enforce its morality on the minority" (p. 190) and
constitute an improper interference with the individual's
"natural right to freely direct the course of his or her
life, including his or her sex life" (p. 190). Gerber
subjects other civil liberties issues to the same sort of
natural-rights analysis but reserves judgment on the abortion
question until such time as it is established when life begins.
If an unborn child is a "life," he concludes, there is
no natural right of abortion; in fact, innocent life is to be
preferred over other life. If, on the other hand,
"life" extends only to postnatal beings, the woman's
natural right "to freely direct the course of her life"
(p. 182) certainly includes the childbearing decision. Gerber's
study is a good read, and he is to be commended for seeking to
find a firmer guide to constitutional meaning than the personal
predilections of judges. Arguably, however, the writings of Locke
and text of the Declaration of Independence are hardly more
restrictive of judicial (or scholarly) discretion than the
noninterpretivists' appeals to justice and social utility or the
interpretivists' quest for original intent. I find it more
difficult than Gerber does, for example, to read into the natural
rights philosophy of the Declaration a
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freedom to engage in homosexual activity -- even that which is
adult, private, and consensual. Or a ban on racial
discrimination. It is no doubt true that many of the founders
considered slavery a violation of natural rights, yet tolerated
its continuation for reasons of expediency. But just as many
probably accepted the natural superiority of certain races, and
innate inferiority of others, as basic to the law of nature.
Natural law has been compared to a harlot -- available to
everyone. I am afraid the same thing can be said of the natural
rights philosophy of the Declaration of Independence. Nor is
Gerber entirely fair in characterizing "conservative
originalism" and noninterpretivism essentially as tools for
achieving conservative or liberal results. Hugo Black's emphasis
on text and historical record led him to embrace both
conservative and liberal interpretations of the Constitution's
meaning. Antonin Scalia's originalism has taken him generally in
conservative directions highly deferential to government, but his
stance in constitutional cases is by no means invariably
predictable. While according the fifth(and fourteenth)
amendment's takings guarantee a broad construction protective of
private property, for example, Justice Scalia recognizes no power
for courts to review nondiscriminatory state regulations
impinging on interstate trade. Noninterpretivism is based, of
course, on the notion that the Constitution's meaning should turn
on evolving conceptions of justice, ethics, and social utility;
and such standards, as Gerber contends, can be expected to lead
an individual judge largely in one policy direction. In other
hands than Gerber's, however, application of the natural-rights
philosophy of the Declaration and Locke's writings arguably could
yield essentially the same sort of policy-oriented and
one-directional body of constitutional interpretation as
noninterpretivism is claimed to produce. Such flaws not
withstanding, TO SECURE THESE RIGHTS is highly recommended for
students of the courts, especially those committed to the
tremendously important continuing quest for principled to the
reach of judicial discretion.
Copyright 1995