In A New Birth of Freedom, Charles L. Black, Jr., attempts to stem the tide of judicial conservatism that has dominated American constitutional law in the 1980’s and 1990’s. Black’s credentials are most impressive. A professor emeritus at Yale Law School and part-time instructor at Columbia Law School, he was part of the team of attorneys that successfully overcame legally mandated school segregation in the case of Brown v. Board of Education(1954), which remains a groundbreaking example of judicial activism, an approach to constitutional law that encourages sweeping judicial initiatives consistent with the text of the Constitution. Black has also been well-published in the fields of constitutional law and civil liberties, previously authoring books such as Structure and Relationship in Constitutional Law(1969), Capital Punishment: The Inevitability of Caprice and Mistake (1980), and Decision According to Law (1981). He has published numerous scholarly articles and spoken publicly to a variety of audiences on these and related topics.
The title of Black’s book comes from the Gettysburg address by Abraham Lincoln, to whom the book is dedicated. According to Black, Lincoln’s promise of “a new birth of freedom” was meant to be taken seriously and was not just a rhetorical convenience of the moment. Lincoln’s promise, however, has not been fully realized because of the failure of Americans to understand the true expanse of rights offered by the U.S. Constitution. This, in turn, is linked to three mistakes of constitutional interpretation: failure to realize the quasi-legal status of rights outlined in the Declaration of Independence, failure to utilize the Ninth Amendment to the Constitution (which strongly suggests the existence of rights not enumerated in the Constitution), and failure to properly implement the “citizenship” and “privileges and immunities” clauses of section 1 of the Fourteenth Amendment. In concert, these mistakes have led to an overall approach to civil liberties and civil rights that systematically deprives Americans of freedoms they should and could be enjoying under the protection of constitutional law.
All three of these alleged mistakes of interpretation are controversial and, therefore, need explanation, which Black supplies in enough detail to make his arguments compelling but not so much as to make his book esoteric or conspicuously academic.
With regard to the Declaration of Independence, Black argues that the nation’s founders had the “inalienable rights” mentioned in that document’s second paragraph well in mind when they authored the Constitution and, even more particularly, when they added and ratified the Bill of Rights (the first ten amendments to the Constitution). Black reminds readers of the close proximity in time between the Declaration of Independence and the Constitution, which are separated by only about a dozen years, and asserts that the Declaration of Independence had, at the very least, quasi-legal status for the nation’s founders. He also suggests that the founders understood the rights to “life, liberty, and the pursuit of happiness” in broad, rather than narrow, terms. Judicial interpretation of the Constitution, however, has been thoroughly dominated by the point of view that the Declaration of Independence has no legal standing whatsoever and that it cannot even be seen as a helpful indicator of what the founders had in mind when they ratified the Bill of Rights. As a result, constitutional interpretation has been denied the richly idealistic legacy that the Declaration of Independence should have provided.
Black further supports his argument for the founders’ broad notion of inalienable rights by citing the Ninth Amendment to the Constitution (part of the Bill of Rights), which states that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” According to Black, this language clearly legitimizes a broad (and flexible) interpretation of constitutionally protected rights and liberties. Jurists, however, have been extremely hesitant to accord the Ninth Amendment any meaningful role in constitutional interpretation, thus artificially narrowing the range of rights and liberties enjoyed by Americans.
Black finally buttresses his argument for a broad interpretation of constitutional liberties by citing the “citizenship” and “privileges and immunities” clauses of section 1 of the Fourteenth Amendment, which, he believes, also indicate the existence of unnamed, but nevertheless inviolable, rights fundamental to genuine civil liberty. Crucial to this section is Black’s interpretation of the terms “privileges” and “immunities.” For Black, the terms...
(The entire section is 1960 words.)