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Book Review: The Conscience of the Constitution

Book Cover Conscience of the ConstitutionI recently was fortunate to observe Tim Sandefur argue the unconstitutionality of Obamacare in the District of Colombia Court of Appeals under the Origination Clause.1 Following the arguments a symposium on the Origination Clause was held at the Cato Institute. After the symposium I met Mr. Sandefur and was introduced to his new book, The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty.

Crucial to appreciating the import of Conscience of the Constitution is the introduction’s Lincoln parable on the meaning of “liberty”.2 The parable’s two incompatible definitions of “liberty” define the ongoing constitutional battle in modern America.

One view of liberty is a person’s right to do with as one wishes with the fruits of one’s own labor, the other is a right to do as one wishes with the fruits of another’s labor. The natural law view of the equality of men recognizes a right in every individual to chart their own destiny. The other view creates a constitutional value of democracy simply because a majority can exercise power. Mr. Sandefur points out that the country has wrongly come to be dominated by the view that majorities can rule simply because they are majorities.

Liberty:  The Crucial Value in the Declaration of Independence

“Liberty” as the freedom to do with the product of one’s own labors as one pleases is the crucial value of the Declaration of Independence3 and ultimately expressed in the Constitution through the constitutional controls on a political majority.4 The Declaration and the Constitution both demonstrate the Founders distrust of “democracy”. Over the last 100 years, “democracy” has been elevated to a constitutional value not simply on a par with liberty, but as the prime constitutional value although it was never intended to be such.

The Conscience of the Constitution

Mr. Sandefur makes the point that The Declaration of the Independence is more than a political document, but actually a legal document that created the United States of America and legally separated the colonies from England. As such it is an important factor in constitutional interpretation. The Natural Law values expressed in the Declaration are a legal element of the Constitution. It was the inspiration for the 14th Amendment as the ultimate inclusion of the Declaration’s inalienable right to liberty. This is the Constitution’s “Conscience” Mr. Sandefur to which Mr. Sandefur refers.

The “wolves” Abraham Lincoln referred to have been in the ascendancy, to the detriment of our liberty and freedom, sold with the term democracy.  Tim Sandefur shows the crucial significance of the Declaration of Independence in defining not only the Constitution’s philosophical framework but its legal basis. The Constitution exists to secure “the blessings of liberty.”

Philosophy Matters

The book demonstrates the importance of philosophy in reading and applying the Constitution, and Mr. Sandefur tells us clearly in this valuable book:
“The Declaration helps make constitutional priorities clear – that rights come first and government power only second – and thus it anchors our legal and political system on a firm philosophical ground.”

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1 In Sissel v. Sebelius, one of three pending challenges to Obamacare based upon the Origination Clause.

2  From Lincoln’s April 18, 1864 speech in Baltimore: “The world has never had a good definition of the word liberty, and the American people, just now, are much in want of one. We all declare for liberty; but in using the same word we do not all mean the same thing. With some the word liberty may mean for each man to do as he pleases with himself, and the product of his labor; while with others the same word may mean for some men to do as they please with other men, and the product of other men’s labor. Here are two, not only different, but incompatible things, called by the same name—liberty. And it follows that each of the things is, by the respective parties, called by two different and incompatible names—liberty and tyranny.

The shepherd drives the wolf from the sheep’s throat, for which the sheep thanks the shepherd as a liberator, while the wolf denounces him for the same act as the destroyer of liberty, especially as the sheep was a black one. Plainly the sheep and the wolf are not agreed upon a definition of the word liberty; and precisely the same difference prevails to-day among us human creatures …”

3 “...that all men are … endowed by their Creator with … Liberty …

4The controls to limit the power of a democratic majority are many and intricate, ranging from separation of powers to the divided sovereignty of federalism.

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  1. […] [5] Law written by men is referred to as “positive law”, distinguishing it from Natural Law. In the United States Constitution specific unalienable natural rights have been made part of its positive law in the Bill of Rights, e.g.: freedom of speech,  religion and press, keep and bear arms. Beyond rights written into positive law, unenumerated rights have been recognized as well, this recognition growing out of the country’s Natural Law heritage. While court decisions have dismissed the Declaration as being “law”, Timothy Sandefur argues that it deserves to be a guiding principle in constitutional interpretation. […]