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To Secure These Rights

To Secure These Rights: The Declaration of Independence and Constitutional Interpretation

Scott Douglas Gerber
WITH A FOREWORD BY Henry J. Abraham
Copyright Date: 1995
Published by: NYU Press
Pages: 330
https://www.jstor.org/stable/j.ctt9qfzq2
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  • Book Info
    To Secure These Rights
    Book Description:

    To Secure These Rights enters the fascinating--and often contentious--debate over constitutional interpretation. Scott Douglas Gerber here argues that the Constitution of the United States should be interpreted in light of the natural rights political philosophy of the Declaration of Independence and that the Supreme Court is the institution of American government that should be primarily responsible for identifying and applying that philosophy in American life.Importantly, the theory advanced in this book--what Gerber calls liberal originalism--is neither consistently liberal nor consistently conservative in the modern conception of those terms. Rather, the theory is liberal in the classic sense of viewing the basic purpose of government to be safeguarding the natural rights of individuals. As Thomas Jefferson wrote in the Declaration of Independence, to secure these rights, governments are instituted among men. In essence, Gerber maintains that the Declaration articulates the philosophical ends of our nation and that the Constitution embodies the means to effectuate those ends. Gerber's analysis reveals that the Constitution cannot be properly understood without recourse to history, political philosophy, and law.

    eISBN: 978-0-8147-3323-3
    Subjects: Political Science

Table of Contents

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  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Foreword
    (pp. ix-xii)
    Henry J. Abraham

    How to interpret the evolving Constitution contemporarily, and the Supreme Court’s crucial role in the process, has been the abiding concern of its students and observers—whether they are lawyers, political scientists, historians, other social scientists, or humanists … or the public at large. It has been a central question since the basic document was formulated on Fifth and Chestnut Streets in Philadelphia during that hot summer of 1787. The answers have been as diverse as they have been numerous, informed by wisdom as well as nebulousness, by sophistication as well as naïveté—with the Court quite naturally at the...

  4. Preface
    (pp. xiii-xvi)
  5. Introduction: Liberal Originalism
    (pp. 1-16)

    Constitutional interpretation has been a source of political debate for most of American history. In fact, the first constitutional-law case decided by the Supreme Court,Chisholm v. Georgia(1793),¹ wherein the Court held that a citizen of one state may sue another state in federal court, was so politically unpopular it was quickly reversed by constitutional amendment.² Other examples from the early days of the American republic are easily identified. The great debates between the Jeffersonian Republicans and the Federalists, for instance, centered on disagreements in constitutional interpretation, such as the power of the national government vis-à-vis the states—disagreements...

  6. I The Jurisprudence of the American Founding

    • [I Introduction]
      (pp. 17-18)

      The Introduction endeavored to place my project in the context of the long-standing public-law debate over constitutional interpretation. I now turn to the specific historical and philosophical support for my thesis that the Constitution should be interpreted in light of the natural-rights political philosophy of the Declaration of Independence. Here, my audience is as often historians and political philosophers as it is public-law scholars. My objective, however, remains chiefly one of public law: to discern the essential principles of the American regime in order to assess what those principles have to say about constitutional interpretation.

      Chapter 1 interprets the American...

    • 1 The Declaration of Independence
      (pp. 19-56)

      The Founders came from England to settle America for a variety of reasons. Some sought to improve their economic condition, others were recruited by those who saw colonial development as essential to the influence and power of the mother country, and still others sought freedom from religious persecution. As the colonies grew in population and developed economically, the British government enacted more and more laws regulating them. Before 1763 that regulation was largely confined to colonial trade, and the colonists had grown accustomed to a great degree of self-government in their internal affairs. After 1763 things began to change as...

    • 2 The Constitution of the United States
      (pp. 57-92)

      Just as scholars have long been interested in discerning the character of the American Revolution, so too they have been captivated by the question of why the Constitution of the United States came to be. And as was true of the scholarship on the Revolution, the conclusions reached about the Constitution have varied dramatically. In perhaps the most controversial book ever written on the Constitution, Charles Beard argued at the beginning of this century that the Constitution was designed to protect the property interests of the Framers, especially their holdings of government securities¹—an argument that was subjected to extensive...

  7. II Natural Rights and the Role of the Court

    • [II Introduction]
      (pp. 93-94)

      Part 2 addresses the Supreme Court’s role in the American constitutional order. Given that part 1 explained that the Constitution was enacted chiefly to provide the institutional framework through which the natural-rights principles of the Declaration of Independence can be effectuated; the question considered here concerns the Court’s role in protecting the natural rights of the American people. As in part 1, I approach this question through history and political philosophy, as well as through law.

      Chapter 3 explains that the Framers commissioned the Court as the principal guardian of the people’s natural rights. The originalist context of my thesis...

    • 3 The Court
      (pp. 95-133)

      This chapter enters the debate over the origins and scope of judicial review in America. While I hesitate to add to the seemingly endless literature on the subject, the importance of history to my theory of constitutional interpretation—what I call “liberal originalism” (see the Introduction)—requires that I do so. In other words, it is not enough for me simply to assume or assert that the Supreme Court is to play a specified role in my theory: I must substantiate that role historically.*

      Obviously, an extensive treatment of the roots of judicial review is a volume unto itself, as...

    • 4 Checks on the Court
      (pp. 134-161)

      The theory of constitutional interpretation advanced in this volume affords the Supreme Court immense authority. To prevent the Court’s role as the ultimate interpreter of the Constitution from devolving into the unacceptable state of government by judiciary, checks on the Court are essential—a point surprisingly neglected in virtually all of the volumes on constitutional interpretation.¹ And what those checks must ensure is that the Court interprets the Constitution in light of its underlying natural-rights philosophy, instead of on the basis of the personal moral and political preferences of individual justices.

      This chapter considers five potential checks on the Supreme...

    • 5 Constitutional Interpretation
      (pp. 162-195)

      Up to this point I have attempted to show that the Constitution of the United States should be interpreted in light of the natural-rights political philosophy of the Declaration of Independence and that the Supreme Court is the institution of American government that should be primarily responsible for identifying and applying that philosophy in American life. Even if this thesis is accepted, however, the potentially disabling criticism that a natural-rights–based theory of judicial review is unworkable must be addressed. Simply stated, it must be shown here that the political philosophy of the Declaration of Independence is sufficiently determinate to...

  8. Conclusion: A New American Revolution?
    (pp. 196-204)

    From the discussion in chapter 1 of the character of the American Revolution to the analysis in chapter 5 of the constitutional status of welfare, this book has addressed a host of important subjects. As I stated in the Preface, however, the book is as much a methodological statement as it is a substantive statement. I have tried to show that scholars from different disciplines need to talktoeach other, rather thanpasteach other—especially where the Constitution is concerned. In fact, my underlying theme is that the Constitution cannot be properly understood without recourse to history, political...

  9. Notes
    (pp. 205-268)
  10. Works Cited
    (pp. 269-294)
  11. Index
    (pp. 295-315)
  12. Back Matter
    (pp. 316-317)