The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty Paperback – April 16, 2015 by Timothy Sandefur (Cato Institute)

In this important and thought provoking book, Tim Sandefur does a very good job in demonstrating the importance of the Declaration of Independence in setting the philosophical context for the Constitution. This context is critical for securing “the blessings of liberty.” He sees the Declaration of Independence as the “regime philosophy” of the nation and notes that:

“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.”

The book starts by discussing the difference between having freedom or democracy as the primary focal point. Freedom depends on the “presumption of liberty” found in the Declaration and he contrasts this with the views of Oliver Wendell Holmes, Robert Bork, Cass Sunstein and others. He makes it clear why the foundation matters and there are examples used throughout the book that illustrate the results of these differences.

After setting the philosophical context, he does a good job discussing the Civil War and the 14th Amendment. This section is well done in terms of the fight against slavery, the ideas of the abolitionists, the Dred Scott case, the 14th Amendment and some very interesting discussions on citizenship (state versus national), states rights and the unfortunate decision in the “Slaughter-House” cases.

The next 2 chapters defend Substantive Due Process. Sandefur notes that the due process of law started with the Magna Carta and covers a quick history of this idea (and emphasizes the importance of the “of law” part of the phrase). He then discusses the purpose of law as well as key elements in the rule of law. He uses Lawrence vs. Texas in this context and notes that this case “illustrates the continuing split between those who prioritize liberty and those who prioritize democracy in constitutional interpretation.” He closes this section by discussing the critics of substantive due process and shows how their arguments come up short.

The final chapter deals with Judicial Activism and Judicial Abdication and makes some very good observations that the bigger problem may be Judicial Abdication. While he sees no easy answers in this area, there are a lot of important ideas covered and that I need to think through more thoroughly.

I highly recommend this book. The author succeeds in demonstrating the importance of philosophic ideas in the defense of liberty. He rightly refers to the Declaration of Independence as the “conscience of the constitution.” In the conclusion, he quotes Frederick Douglass on what conscience is and I repeat that quote here:

“Conscience is, to the individual soul, and to society, what the law of gravitation is to the universe. It holds society together; it is the basis of all trust and confidence; it is the pillar of all moral rectitude. Without it, suspicion would take the place of trust; vice would be more than a match for virtue; men would prey upon each other, like the wild beasts of the desert; and earth would become a hell.”