Positive Liberty

Every age is immediate to God. — Leopold von Ranke

Timothy Sandefur has been kind enough to send me a copy of his article from the Harvard Journal of Law & Public Policy entitled “Liberal Originalism: A Past for the Future.”

I’m quite impressed, to say the least.

First, Sandefur proposes that the Declaration of Independence should indeed be used to guide our understanding of the Constitution. This view is contrary to prevailing legal theory, and it has many far-reaching implications.

Sandefur argues that the Declaration is an organic expression of the founders’ classical liberal thinking and that it ought to be considered carefully when asking–as the courts so often do–just what the original intent of the founders really was.

If anything, the Declaration is far more radical in its defense of liberty than is the 1787 Constitution. It borrowed quite frankly from John Locke, one of the most radical political philosophers yet seen. And it proposed that all men were created equal–a step that even called into question the slavery upon which the new nation economically depended. The question of slavery in the Declaration develops into one of the mainsprings of Sandefur’s argument.

Did the Declaration really mean to attack slavery? I would argue that yes, it absolutely did. Sandefur argues the same, in part because Jefferson’s original draft of the Declaration explicitly denounced slavery. Jefferson classed slavery as one of the abuses that had been inflicted upon the colonies by the rapacious kings of England.

This draft was subsequently modified, but we would do well to note that Jefferson played a very active role in the new government–and if we are to look at the “original intent” of the founders, then Jefferson’s ideas must not be neglected in our jurisprudence. The Declaration, with its radical calls to universal liberty and equality before the law, must remain central to our thinking. And in any event, even the modified text of the Declaration quite arguably condemns slavery, in spirit if not in letter.

The Declaration, then, established in principle a right that did not yet exist in practice, and this has important implications for how we view American law. Did the Constitution establish a specific, empirical list of rights–or did it establish in principle the rules by which can test the claims that restrict natural rights? Sandefur argues for the latter because it is more consonant with the Founders’ understanding of limited government, particularly as it was expressed in the Declaration.

Far more frequently, though, one hears of the conservative originalist interpretation of the Constitution, which binds us not merely to the principles of the Founders, but also to their specific conclusions as they existed at the time of the Constitution’s adoption.

Sandefur calls the conservatives’ bluff by asking a probing question about original intent: Granting for a moment the conservatives’ insistence on originalism, what did the founders really intend for the republic? Was their own elaboration of rights supposed to prevail forever, or did the founders imagine that one day, we might come to understand our rights differently than they did? If the latter was their “original intent,” then most questions about the state of rights in 1787 cease to be relevant.

I’ve long agreed with this idea, although my own approach is by way of intellectual history, not jurisprudence.

It’s hard for me to imagine a group of thinkers so bold as the American founders, a group so willing to innovate–who would then turn around and inflict a static dogmatism upon all of their descendants.

The founders understood their new nation to be a place of constant experiment and renewal. Above all, they were men of the Enlightenment, who were convinced that each individual–and by extension, every age–must think for itself, never chaining itself to received wisdom. They understood the social contract not as an eternal, divinely ordained, inflexible structure, but as an ongoing negotiation among citizens, one that could become either better or worse over time.

“We give you a republic,” to paraphrase Benjamin Franklin, “if you can keep it.”

“The ancients had no ancients,” Diderot famously asked, “so what did they do?”

And our founders would likely have agreed. Jefferson famously excised all miracles from his copy of the King James Bible; as a rationalist and a deist, he considered such stories to be needless embellishments.

It is high time that we dispense with the idea that our Constitution is a miracle, and that it is subject, as it were, to a fundamentalist interpretation: The Constitution is certainly a wonderful achievement, but it was written by the people, enacted by the people–and now, the people must maintain it.

After all, we have ample reason to expect that our own judgments about the meaning of the Constitution–and about the meaning of ordered liberty–should be better than those of our founders. We have all of their knowledge to draw from, and more than two centuries of practical experience besides. Their genius was to imagine a government based on individual rights–ours is that we have lived in one.

In my view, then, the founders themselves would have rejected conservative originalism as we now have it. Sandefur takes a somewhat different approach, but one that is no less rewarding. In his phrase, conservative originalists like William Rehnquist and Antonin Scalia would argue that the Declaration was “a world apart” from the Constitution, and he proposes to demolish this idea through an examination of American law throughout the nation’s history.

At one point, Sandefur notes that some conservatives have gone so far as to suggest that the Declaration’s radical language was meant merely to curry favor with the “court of France.” Because of this, they argue, the Declaration should not be understood to have any influence on our jurisprudence.

If I may be so bold, I believe that Sandefur lets this argument pass far too easily. While he clearly disagrees, he should really have attacked it for the historical nonsense that it is.

In 1776, France was still an absolute monarchy. Ideas of social contract and natural rights were popular with many French intellectuals of the day, but the French royal ideology was emphatically based upon the divine right of kings. The French government unquestionably participated in some strains of the Enlightenment–but it abhorred this one.

When the French had their own Revolution just thirteen years later, the official machinery of the government turned emphatically against even the watered-down social contractarianism proposed in 1789. Although the French Revolution grew much more radical in subsequent years, its early manifestations had about them only the faintest hints of what was to come. And still, all major branches of the French government outside the Third Estate rejected these reforms.

The same king who reigned in 1776, along with largely the same parlement, the same nobility, and many of the same ministers–all of them agreed that even an attenuated social contract theory was unacceptable.

It is absurd to think that these officials were eager, just thirteen years earlier, to support a radical and untested Lockean experiment. Official France supported the Americans merely to spite the English, who had recently defeated the French quite badly in the Seven Years’ War. Individuals like Lafayette may well have been attracted to the radicalism of the American Revolution, but pure realpolitik was what determined the official French response.

Conservatives no doubt find it convenient to pin American libertarianism upon the French Revolution (never mind the chronology!) and thereby dispose of it. After all, anything that can be associated with France is automatically bad. But it won’t work in this case, and not merely because of the chronology. When the French intervened on the American side, they did it purely out of self-interest.

Returning to the Declaration of Independence, Sandefur suggests that it provides a powerful justification for the idea that our rights remain perpetually in our own hands–and a free people must continually re-assert and even re-invent the social contract under which they live, guided by tradition to be sure, but also by right reason and by our evolving understanding of justice.

And if you think the French connection gave the conservatives fits, well… We’re only getting started.

Three very important difficulties arise immediately from the conservative originalist position. We have already dealt to some extent with two of them: First, the late eighteenth century was no more united on any definition of rights than we are today. Second, as mentioned above, many thinkers at the time already subscribed to the notion that our understanding and implementation of natural rights might change and even become more perfect over time.

And third, there is the Ninth Amendment, which reads,

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Liberal originalists argue that above all, the Ninth Amendment disproves the idea that the Constitution granted only certain, specific rights as they were understood in the eighteenth century. One of my favorite illustrations of this idea came in the form of a quote from John Quincy Adams, who defended as follows the right of slaves to petition Congress:

A gentleman had said yesterday that he would as soon receive a petition from a horse or a dog as from slaves. Sir,… if a horse or a dog had the power of speech and of writing, and he should send [me] a petition, [I] would present it to the House; ay, if it were from a famished horse or dog, [I] would present it. [Cong. Globe, 24th Congress, 2nd Sess. 165 (1837), cited at p 502 of Sandefur.]

It would seem that John Quincy Adams understood at least some rights to inhere merely in the ability to write and to speak. Race or other intermittent obstacles have nothing to do with it, and we need not bind ourselves to the beliefs either of our peers or of our ancestors in this regard. We must discover for ourselves the proper scope of natural rights, and, if necessary, we must rethink these rights again and again whenever they are challenged.

Liberal originalists, then, share some striking features with flat-out liberals, and this worries the conservatives. Writes Sandefur,

The Declaration is adaptable to new circumstances. This resembles “living constitutionalism,” which is one reason that conservative originalists reject this interpretation. In their view, such adaptation threatens the moral stability of society… [But the view of liberal originalists] differs from the leftist notion of living constitutionalism precisely in its appeal to unchanging principles underlying the Constitution: where the leftist theory of living constitutionalism sees the principles of good government–if not the very nature of human beings themselves–as malleable and subject to progressive change, liberal originalism sees the principles of equality and the entitlement to liberty as unchanging, even though their applicability to particular circumstances might evolve. [pp 508-09]

In other words, we stand on the shoulders of giants. We see further than they, and we are obliged to correct their errors, to hold ourselves more true to their principles than even they themselves had been. And such action is not merely permitted. It’s precisely what the giants would have wanted us to do.

There is a great deal more worth reading in this article, including thoughtful discussions of John C. Calhoun, Woodrow Wilson and Carl Becker (none of whom I have ever much cared for, and all of whom make quite a poor showing here). Sandefur’s article is an intellectual feast, integrating ideas from all across western political thought. As a historian, I’m almost jealous: In my discipline, we have to limit ourselves in ways that forbid us ever to make such wide-ranging and thought-provoking analysis. Come to think of it, that’s part of the reason that I started blogging.

For instance, here is Sandefur on liberal originalism as it relates to sexual autonomy:

Because conservative originalists deny the role of natural rights under the Constitution, they claim that homosexuality can be banned simply because it is distasteful to the majority… However, the Declaration secures the concept of personal autonomy in the phrase “the pursuit of happiness.” As all people are entitled to this right, nobody, and no government, may deprive another of it… The Declaration protects the right of people to seek their own happiness, even in ways that others find distasteful, so long as they respect each others’ right to do so.(p 525-26)

The conservatives like to ask whether we can seriously imagine the founders establishing a right to sodomy in the Constitution. But they are asking us precisely the wrong question. Instead, we should ask ourselves whether the principles of the constitution establish, to the best of our own understanding, the right to be left alone–and if so, then we must ask how that right must be interpreted, in light not only of the founders’ understanding, but again of our own.

Probably the most important single sentence in the entire article is the one that links all of these disparate observations most elegantly. It is also the one that shows most clearly why the Declaration’s claims about natural rights must still be taken seriously. Sandefur writes,

Contrary to the dissembling of some conservative originalists, the meaning of the Ninth Amendment is plain: the Bill of Rights is not intended to be exhaustive, but only illustrative. (p 526)

Thus, when conservatives demand proof that a right exists somewhere within the specific grant that is the Constitution, they are in all cases asking the wrong question, and left-liberals labor in vain whenever they attempt to answer this question with an invented right to privacy that is derived from the penumbras and emanations of the various amendments. Instead, in Randy Barnett’s phrase, the presumption of liberty should prevail.

It is difficult to see how American jurisprudence would unfold if such wide-ranging changes were adopted, and I suspect that conservatives have at least some justification for their fears. Would, for instance, a later Supreme Court find that the right to universal health care, or to a living wage, or to a share in the communist workers’ paradise, must surely have been implicit all along in the Declaration or in the Ninth Amendment, unbeknownst to the Founders?

If they are so inclined, conservatives can argue against the welfare state by noting its absence in the eighteenth century. Liberal originalists have a more difficult argument to make, namely that the welfare state is absent in right reason.

Rather than point at the eighteenth century, we would instead have to show that the purpose of government–in all ages–is to protect the liberties of each citizen within their own life, and not to create material conditions for certain citizens to enjoy. We would have to show, through reason itself, that the right to be left alone is universal, while the right to receive money for merely existing is specious.

And yet, I suspect that Mr. Sandefur proposes just this sort of audacious judicial revisioning: I suspect he believes that it would do us all a great deal of good if we were forced to fall back on the theory of natural rights itself, to reiterate, elaborate, and test it, aided–though never limited–by the Constitution.

[Numerous edits throughout the afternoon of September 26. If you read the post during this process, you have my sympathy.]

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