Review of “A New Birth of Freedom” by Charles L. Black, Jr.

Professor Black, the constitutional scholar, attempted, in this restatement of much of his life’s work, to put the jurisprudence of human rights on firm legal ground.

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Black looked to three sources for human rights: the Declaration of Independence, the Ninth Amendment, and the “privileges and immunities” clause of the Fourteenth Amendment.

The Declaration declares “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

The Ninth Amendment provides that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

Article 1 of the Fourteenth Amendment says “1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Black considers the Declaration of Independence to be not only a source of law, but “law” itself. Why not? After all, it is the founding document that “established” the United States.

But even if the Declaration is not considered “law,” the ninth and fourteenth amendments are most certainly law – national law, which Article VI of the Constitution, provides is the supreme law of the land, superior to anything enacted by any of the “several states.”

The ninth amendment, though rarely cited in Supreme Court opinions, as indicated above states that the failure of the constitution to enumerate certain “rights” shall “not be construed to deny or disparage others retained by the people.” But what are those unenumerated rights? Black proposes they should include those mentioned in the Declaration, which was adopted only thirteen years before the passage of the Ninth Amendment.

And because the Ninth Amendment applies only to the Federal Government, the Fourteenth Amendment is needed to protect citizens from the actions of the states, which, Black points out, are the principal abridgers of human rights.

Although the 14th Amendment has acted as a check on actions by the states to limit human rights, the jurisprudence surrounding it has been faulty. The federal courts have relied on the “due process” clause of the amendment to find various state actions unconstitutional. This is all well and good where the state action was an unfair procedure (process), but that clause’s language simply does not seem to cover an unfair or otherwise constitutionally inappropriate substantive provision.

Professor Charles L. Black

Professor Charles L. Black

Black contends that reliance on the due process clause to invalidate overreaching by state governments has resulted in some poor decisions and fuzzy analysis. Instead, he points to the privileges and immunities clause, augmented by the 9th Amendment and a reference to the Declaration of Independence, as a better guide to the human right jurisprudence.

Black further argues that those three sources of human rights not only protect against state infringement, but also impose on Congress an affirmative constitutional duty to see that all citizens have a decent chance to “pursue happiness.” He says, “There is then nothing exotic to the Constitution in the proposition that a constitutional justice of livelihood should be recognized….” He wants our national debate about the elimination of poverty to shift from a matter of compassion to one of a constitutional right. In his words, “The general diffusion of material welfare is an indispensable part in the general diffusion of the right to the pursuit of happiness.”

Black believes that “the pursuit of happiness” should be adopted as a fundamental right, created by the Declaration of Independence, incorporated in the Constitution and imposed on the federal government through the Ninth Amendment, and imposed on the states through the privileges and immunities clause of the Fourteenth Amendment. The simple insight of the right to pursue happiness would reach out to every field of human rights. “It would make plain the wrong in every kind of discrimination hurtful to women. It goes to the essence of the wrongs done by the law and outside the law to those having homosexual preferences. It could clarify the ultimate grounds of the banning of racial discrimination against blacks and other racial minorities.” Moreover, we need not fear that such an extension of such rights would go “too far.” After all, the law effectively limits the right of free speech and religion. An analysis similar to that which prohibits yelling “fire” in a crowded theater (limiting speech) and prohibits ritual animal sacrifice (limiting religion) would keep pursuit of happiness jurisprudence within reasonable bounds.

Black dedicated the book to Abraham Lincoln, who also looked to the Declaration of Independence as a source of “law” when he referred to it in the Gettysburg Address. Black thinks perspicaciously and writes perspicuously, especially for a man in his 80’s. This exceptionally good book is highly recommended.

Published by Putnam, 1997

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