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A New Birth of Freedom: Human Rights, Named and Unnamed
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In American courts and especially among students of the Constitution, there has long been a tension between two competing understandings of the law: namely, between those that hold that the law's purpose is merely to guarantee fair procedure and those who go further and say that its purpose is to guarantee other more substantive rights as well. Constitutional lawyer Charles Black, who helped craft the arguments that carried the day in Brown vs. Board of Education, has for many years planted his flag firmly in the latter camp. In this book, citing as authority the Declaration of Independence and the Ninth and Fourteenth Amendments to the Constitution, he argues this anew, and holds that it's up to the federal judiciary to be the bulwark that protects against all infringements by federal, state, and local governments. --This text refers to an out of print or unavailable edition of this title.
... most Americans, even those unschooled in the law or the Constitution, know that many such unwritten rights are somehow inherent in the American scheme of democracy. So where do these freedoms come from? Charles L. Black Jr., Sterling Professor emeritus at Yale Law School and one of the nation's most venerated thinkers about such matters, offers a provocative--and refreshing--way to answer that question. -- The New York Times Book Review, Neil A. Lewis --This text refers to an out of print or unavailable edition of this title.
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His foundation for that assertion is the Declaration of Independence, which states that governments are founded to secure "the unalienable rights to life, liberty, and the pursuit of happiness" with which every person is born. He argues that the Declaration should be recognized as a constitutional document of the United States.
Black ties the Declaration to the Constitution through the 9th Amendment, which protects rights "retained by the people." The Supreme Court, however, has never articulated a commitment to human rights. Black argues that an open commitment to human rights would produce much clearer legal results.
Black's desire to see a more open commitment to human rights reaches well beyond a desire to have more convincing legal decisions. He argues that the human right to "the pursuit of happiness" demands that Congress has an "affirmative constitutional duty" to "devise and prudently to apply the means necessary to ensure, humanly speaking, a decent livelihood for all" (p. 133).
Such actions are needed, in Black's view, not as acts of compassion but "as an issue of constitutional justice. This kind of justice must be done, or we will never attain to any other kind of justice. The general diffusion of material welfare is an indispensable part in the general diffusion of the right to the pursuit of happiness" (p. 139).
Perhaps it is time that the United States underwent a Human Rights Revolution.
From a legal perspective, an excellent companion volume for Professor Black's book is A. L. Higginbotham, Jr's. (1996), "Shades of Freedom: Racial politics and presumptions of the American Legal Process." Both books focus on an ominous "legal&quo! ! t; process in American law that can best be described as dehumanization, or more accurately, "double dehumanization." See especially chap. 4 in A. J. Vetlesen's, 1994, "Perception, Empathy, and Judgment: An Inquiry into the Preconditions of Moral Performance," (e.g., p. 180)). Also see Susan Opotow's analysis of "moral exclusion" and the "scope of justice" and Michelle Fine & L. Mun Wong's discussion of "Perceived (In)Justice," in "Conflict, Cooperation, & Justice," (1995), edited by B. Bunker, J. Rubin, and Associates.
The only weakness I see in "A New Birth of Freedom" is that Professor Black too narrowly frames his analysis by focusing on the "Slaughterhouse Cases" of 1871. Many other cases are quite relevant as Higginbotham (1996) and a host of scholars show. For example, prior to our uncompleted unCivil War there was the case of Dred Scott v Sanford (1857). More recently, by 6-3 the ! ! U.S. Supreme Court (in City of Boerne v Flores, Bishop of S! an Antonio, and United States, 1997) struck down the legal and human rights concept of "unalienable" (religious) rights that Congress had reaffirmed in the Religious Freedom Restoration Act of 1993. Orlando Patterson (1991, pp. 404-405) in "Freedom in the Making of Western Culture" accurately traces this dehumanizing flaw in America (& Nazi Germany) back to ancient Greece and idealized philosophers such as Plato.
The most fertile ground for understanding the "legal" process of dehumanization that concerns Professor Black probably is in the area of prisoners' rights and the domains known as "criminal" and "juvenile" justice. See the book edited by Elihu Rosenblatt (1996), "Criminal Injustice: Confronting the Prison Crisis"; Human Rights Watch's (1996), "All Too Familiar: Sexual Abuse of Women in U.S. State Prisons"; and Jerome Miller's (1991) classic on juvenile injustice, "Last One Over the Wall.&! ! quot; On a much needed positive and promising note of valid "moral justice," see: John R. Fuller's (1998), "Criminal Justice: A Peacemaking Perspective"; Daniel Goleman's (1995), "Emotional Intelligence"; and the book edited by L. May, M. Friedman, and A. Clark (1996), "Mind and Morals: Essays on Ethics and Cognitive Science." These last three works are excellent supplements to Professor Black's noteable contribution to understanding the roots of the persistent flaws (identity biases)in American law and morality.