Conscience and the Constitution

Conscience and the Constitution: History, Theory, and Law of the Reconstruction Amendments

David A. J. Richards
Copyright Date: 1993
Pages: 308
https://www.jstor.org/stable/j.ctt7zvnh2
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    Conscience and the Constitution
    Book Description:

    At stage center of the American drama, maintains David A. J. Richards, is the attempt to understand the implications of the Reconstruction Amendments--Amendments Thirteen, Fourteen, and Fifteen to the United States Constitution. Richards evaluates previous efforts to interpret the amendments and then proposes his own view: together the amendments embodied a self-conscious rebirth of America's revolutionary, rights-based constitutionalism. Building on an approach to constitutional law developed in hisToleration and the ConstitutionandFoundations of American Constitutionalism, Richards links history, law, and political theory. InConscience and the Constitution, this method leads from an analysis of the Reconstruction Amendments to a broad discussion of the American constitutional system as a whole.

    Richards's interpretation focuses on the abolitionists and their radical commitment to the "dissenting conscience." In his view, the Reconstruction Amendments expressed not only the constitutional arguments of a particular historical period but also a general political theory developed by the abolitionists, who restructured the American political community in terms of respect for universal human rights. He argues further that the amendments make a claim on our generation to keep faith with the vision of the "founders of 1865." In specific terms he points out what such allegiance would mean in the context of present-day constitutional issues.

    Originally published in 1993.

    ThePrinceton Legacy Libraryuses the latest print-on-demand technology to again make available previously out-of-print books from the distinguished backlist of Princeton University Press. These paperback editions preserve the original texts of these important books while presenting them in durable paperback editions. The goal of the Princeton Legacy Library is to vastly increase access to the rich scholarly heritage found in the thousands of books published by Princeton University Press since its founding in 1905.

    eISBN: 978-1-4008-6356-3
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-viii)
  2. Table of Contents
    (pp. ix-x)
  3. ACKNOWLEDGMENTS
    (pp. xi-2)
  4. ONE AIMS AND METHODOLOGIES
    (pp. 3-20)

    THE INTERPRETATION of the Reconstruction Amendments (the thirteenth, fourteenth, and fifteenth amendments to the Constitution of the United States) is at stage center of the American drama, our agon of public discourse about the basic terms of American identity, the values of equality and human rights. In this book, I argue that the interpretation of these amendments is too important to be left to either the historians or the lawyers or the political theorists and philosophers. Rather, we need a new interdisciplinary approach to the understanding of these amendments and their interpretation, one that brings arguments of history, law, and...

  5. TWO PROSLAVERY CONSTITUTIONALISM VERSUS THE THEORY OF UNION
    (pp. 21-57)

    THE AMERICAN CIVIL WAR, the second American Revolution, was understood by both parties to it as a controversy over the political theory of the first revolution and the constitutionalism in terms of which the revolution justified its claims. The Reconstruction Amendments were the culminating constitutionalism of this controversy, and we need to explore the competing constitutional theories central to this controversy.

    I begin with the roots of the antebellum constitutional crisis in the founding itself and then turn to examine two important early competing constitutional theories—proslavery constitutionalism and the theory of Union. The next chapter will examine abolitionism and...

  6. THREE THE ARGUMENT FOR TOLERATION IN ABOLITIONIST MORAL, POLITICAL, AND CONSTITUTIONAL THOUGHT
    (pp. 58-107)

    THE ABOLITIONISTS were a small but internally highly contentious, fissaparous group of probing social critics, often most energetic in criticism of one another.¹ They disagreed on matters of substance and strategy, not least, as we shall see, on the interpretive attitude to be taken to the U.S. Constitution and on what political strategy, if any, they should adopt.²

    Their great importance in American moral, political, and constitutional thought was not only the substantive moral issue on which they aimed to fasten the public attention of the nation, but a mode of argument basic to the integrity of American revolutionary constitutionalism:...

  7. FOUR THE SECOND AMERICAN REVOLUTION AND THE RECONSTRUCTION AMENDMENTS
    (pp. 108-148)

    THE RECONSTRUCTION AMENDMENTS were the culminating expression of the moral, political, and constitutional crisis of the antebellum period discussed in the previous two chapters. That long national controversy may have been a necessary condition of the Reconstruction Amendments, but it was not sufficient. The moral and political world of 1864–70, which gave rise to these amendments, was not the nation of 1860–61. Two related facts in each period mark the moral chasm that separates these dates.

    First, on March 2, 1861, the Congress of the United States, having given the required two-thirds approval in each house, transmitted to...

  8. FIVE A THEORY OF EQUAL PROTECTION
    (pp. 149-198)

    EQUAL PROTECTION expresses the general requirement, rooted in abolitionist political theory, that political power must be reasonably justifiable in terms of equal respect for human rights and the pursuit of public purposes (see Chapter 4).¹ It has various dimensions, including one demanding form of analysis associated with the protection of fundamental rights and another with the protection of suspect classes from oppression; outside these categories, its demand for reasonable justification is much more deferential to democratic politics.² Fundamental rights analysis under the equal protection clause was anticipated by the equality principles of the Constitution, as in the first amendment;³ it...

  9. SIX THE NATIONALIZATION OF HUMAN RIGHTS
    (pp. 199-232)

    THERE IS no area of current judicial interpretation of the Reconstruction Amendments more at war with their text and background history and political theory than the interpretation of the clauses of the fourteenth amendment bearing on the enforcement of fundamental rights against the states, in particular, the privileges and immunities clause. Text, history, and political theory all confirm that this clause should be broadly interpreted nationally to enforce against the states fundamental human rights including both enumerated and unenumerated such rights that had been enforceable against the federal government by the Constitution of 1787 and the amendments of 1791 that...

  10. SEVEN ECONOMIC JUSTICE AND THE CONSTITUTION
    (pp. 233-251)

    THE LEADING CASE taken today to define the interpretive limits of the Constitution as a vehicle for economic justice is a case that exceeded those limits,Lochner v. New York.¹ The issue in dispute inLochnerwas a New York law prohibiting the employment of bakery workers for more than ten hours a day or sixty hours a week. In a five-four opinion, Justice Peckham, writing for the Supreme Court, held the statute unconstitutional on the ground that it abridged employers’ and employees’ right to contract, a substantive right protected by the due process clause of the fourteenth amendment. Peckham...

  11. EIGHT CONSCIENCE AND CONSTITUTIONAL INTERPRETATION
    (pp. 252-258)

    THE INTERPRETIVE PROJECT of this book is now complete and should be assessed in terms of the tests for adequacy that I set out in Chapter 1. These tests were, first, whether the theory clarified the general normative purposes of the Reconstruction Amendments; and second, whether it advanced public understanding of the central interpretive questions that arise in connection with these amendments.

    It is against the antebellum background of prolonged controversies over issues of political theory, constitutional interpretation, and their relationship that the basic normative purposes of the Reconstruction Amendments should be understood. Proslavery constitutional thought had featured both rights-based...

  12. APPENDIX I CONSTITUTION, STATUTES, AND LEGISLATIVE HISTORY
    (pp. 259-260)
  13. APPENDIX II CASE LAW
    (pp. 261-262)
  14. BIBLIOGRAPHY
    (pp. 263-284)
  15. INDEX
    (pp. 285-295)