The Declaration of Independence: 'Conscience of the Constitution'

The Constitution of the United States is rightly seen as the bulwark of American free institutions, a brilliantly-crafted machine to set the proper limits on government.

However, on this July 4th weekend it is especially important to remember and reflect on the meaning of the Declaration of Independence, perhaps the most profound expression of natural rights and liberty ever created. Thomas Jefferson called it, “the fundamental act of union of these states,” and believed it to reflect the American mind in 1776. The timeless principles imbued in the document are assuredly at the heart of “American exceptionalism.”

Timothy Sandefur, who is the principal attorney at the Pacific Legal Foundation and heads the Foundation’s Economic Liberty Project, has written an enlightening new book published by the Cato Institute, Conscience of the Constitution: The Declaration of Independence and the Right to Liberty, about the need to restore Jefferson’s work into American understanding of constitutional law. It is a potent argument about how the Declaration’s ideas should be placed back at the cornerstone of American constitutional doctrine in the 21st century.  

Sandefur begins by explaining how American Constitutional debate has always revolved around “the mutual resistance of two principles: the right of each individual to be free, and the power of the majority to make rules.” Ultimately, Sandefur argues, America’s constitutional order is premised on the “basic right of each person to be free.” He wrote that people are “born with liberty, their rights are not privileges that government gives to them as it pleases.”

American ideas about good government and the need to protect natural, individual rights  come from great theorists such as John Locke, Algernon Sidney, and Cicero, but the American Founding Fathers turned theory and principles into an effective system of government. However, Sandefur argues that it was against the Founders’ intention to treat the principles of the Declaration as separate from America’s constitutional framework.

Sandefur wrote to Breitbart News about some of the more important and controversial parts of his book and answered questions about how it addresses current debates around American principles and the most important Constitutional questions.

Breitbart News asked about how those who believe in restoring the Founders original vision for the Constitution should deal with bad Supreme Court decisions that contradict that vision. Sandefur wrote, “This is really the hardest question you can ask those of us who believe in the actual language of the Constitution–what do we do about the fact that we’ve ignored or violated so much of the Constitution for so long? Even James Madison believed that long acquiescence in something that was arguably unconstitutional can make it constitutional,” he continued. “I’m not so sure about that: I think wrong precedent can have no force as law, although there might be prudential reasons to follow bad precedent anyway.”

One of the most controversial positions Sandefur takes is defending the idea of applying “substantive due process,” as opposed to “procedural due process” in regards to the 5th and 14th Amendments. This is a position that many on the left and the right have been critical of. The acceptance of “substantive due process” allows federal courts to protect certain individual rights from government interference under the authority of the due process clauses of the 5th and 14th Amendments to the Constitution, but many claim that this could lead to an ever expanding definition of “rights” that merely fit a judge’s social and political agenda.

Sandefur wrote:

I argue that there’s no difference between “substantive” and “procedural” due process–fair legal procedures are just one aspect of our overall commitment to “due process of law.” And it’s those last two words that matter. The Constitution guarantees our right to the rule of law, which means, a system of fair, regular, comprehensible, publicly-oriented rules, as opposed to arbitrary, discriminatory, or irrational restrictions, or rules that serve only the self-interest of the ruler.

Breitbart News asked Sandefur if this doctrine would undermine the principal of “federalism” and the ability of the states to set their own policies. He wrote:

…the point of the Fourteenth Amendment was to put limits on the power of states to violate our rights. The term “Federalism” is often abused by people who may not like federal intervention, but think it’s fine for states to violate our rights with impunity… Obviously states have autonomy to implement their own policies, which can differ from those of other states. That’s healthy–but only when it’s limited by the basic protections of our natural and constitutional rights. We should celebrate the Fourteenth Amendment’s limits on state power as one of the great achievements in the history of liberty.

Sandefur believes that while the general legal trend in constitutional law has been to move away from the principles of the Founders and the Declaration, there was never a “Golden Age” or a “Moment When It All Went Wrong.” However, he did point out cases and doctrines that he believed have been the most destructive of liberty.

One was the “rational basis test,”  that he claims radically undermined protections for private property and the “right to earn a living.” Sandefur wrote that this doctrine “allows the government to do practically anything it wants to, and has been particularly destructive of individual rights.” Another example he gave of a Supreme Court case he would like to overturn are the Slaughter-House Cases of 1873.

Sandefur wrote, “I show in the book how that case was clearly wrongly decided, and that it has done the worst kind of damage to the Constitution that you could really do–namely, it basically erased an entire sentence from the Constitution, which has practically been ignored ever since,” he continued. “That sentence was supposed to have been the centerpiece of the Fourteenth Amendment, and was supposed to provide strong protections for individual rights against state oppression.”

The Slaughterhouse decision was one of the primary reasons for the “virtual restoration of slavery in the South in the years after the Civil War,” according to Sandefur.

“The privileges or immunities Clause of the Fourteenth Amendment was supposed to signal a recommitment of this country to the classical liberal principles of the Declaration, and by neutering that clause at the outset, the Slaughter-House decision did terrible damage to the constitutional promise of liberty,” Sandefur wrote.

At less than 200 pages, Sandefur makes a succinct but no less devastating set of arguments that attack the most obnoxious and destructive doctrines stemming mostly from the Progressive Era. Although some conservatives may be uncomfortable with Sandefur’s opinions about the expansive role he ascribes to the 14th Amendment, his argument presents a viable and principled opportunity to restore the individual liberties that Americans have lost over the past century. The Conscience of the Constitution is an important book to pick up for Independence Day and is available for $1.99 on the Kindle this July 4th weekend.