For July 4th weekend, check out To Secure These Rights by Scott Douglas Gerber. Gerber is a law professor who has written extensively about what he calls “liberal originalism,” that is, a constitutional interpretation theory based on originalism, but which focuses on the Lockean political philosophy of the Constitution and the Declaration of Independence. As I argue in my forthcoming Harvard Journal of Law And Public Policy article, “liberal originalism” is really the only valid version of originalism—its opposite, the “conservative originalism” of people like Robert Bork, contains fatal flaws.
To Secure These Rights contains Gerber’s most thorough exposition of “liberal originalism,” and in particular on its most important constitutional claim—that the Constitution must be read through the lens of the Declaration. As Gerber puts it,
The Constitution…is a political document in the noblest sense. It establishes a framework of government through which certain underlying philosophical principles are to be advanced. And these philosophical principles are the natural-rights principles of the Declaration of Independence. To ignore this fact is to ignore the reason we are a nation.
Gerber proceeds to give a magnificent exegesis of the political philosophy of the Declaration and its historical and philosophical connection to the Declaration. Most interestingly, though, he explains that “the political philosophy of the Declaration of Independence is sufficiently determinate to be a practical guide to judgment in individual cases that come before the [Supreme] Court.” This is a claim that conservative originalists in particular despise—Justice Scalia has notoriously proclaimed that the Declaration is “not part of our law.” But in chapter 5, Gerber explains how the Declaration’s principle of equality should influence our understanding of cases involving race relations; how its principle of the “inalienable right…[of] life” should affect abortion and right to die cases; how its principle of “liberty” should affect economic regulation cases.
I don’t agree with all that Gerber argues—for instance, he writes that “[t]he natural rights political philosophy of the Declaration of Independence cannot determine whether a woman has a constitutional right to choose whether to have an abortion until it is established when life begins.” But this is not accurate—the Declaration does not assume that all things that are alive have a right to life: it says that “all men” have the right to life. The question is therefore not whether the fetus is alive, but whether it has a right to life. A subtle, but important difference. On the other hand, Gerber is to be praised for distancing himself from Harry Jaffa’s argument that the principles of the Declaration permit the state to ban homosexuality. As Gerber correctly notes,
by requiring that sex be procreational Jaffa is advancing an unnecessarily rigid and formalistic approach to homosexuality…. [B]ecause the preservation of mankind does not appear to be seriously threatened by adult, consensual, private homosexual acts, a natural-rights interpretation of the Constitution recognizes a constitutional privacy right to engage in such acts…. [L]aws against homosexual sodomy represent nothing more than the majority’s attempt to enforce its morality on the minority, something that is flatly incompatible with the concept of liberty embodied in the Declaration of Independence and the Constitution. In the American regime, an individual is supposed to enjoy the natural right to freely direct the course of his or her life, including his or her sex life.
This is not precisely the approach I take on the issue—as you’ll see when my article comes out—but Gerber’s book is about the closest thing you can find to my own manifesto of constitutional interpretation.
To Secure These Rights is more deeply researched and more consistently written than Randy Barnett’s recent book on the presumption of liberty. (This is in part because Gerber’s book was written as a book, while Barnett’s is really a collection of his law review articles.) This is a serious advantage, I think, because while Barnett’s argument is largely correct, it leaves too many gaps to make a person very comfortable that his jurisprudence is really warranted by the Constitution. Gerber makes clear that liberal originalism is really the only coherent originalism.
I very strongly recommend this book, particularly for lawyers. If you liked Barnett’s book, check out To Secure These Rights.
Update: A correction, here.