The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty.
by Timothy Sanderfur
This is a 6 star book that I wish people would read.
The author has done his research. The footnotes inform and are useful.
It was a good followup of reading, Terms of Engagement,
a book I reviewed on Goodreads, in that it gives more historical detail
of how the message of the Declaration of Independence has been subverted
by politics. I especially liked the chapters on the civil war, reconstitution, and
the passing of the 14th amendment. I understood more deeply the South's insistence
that they were not fighting to keep slavery but to defend state's rights. Of course, this
belief was promulgated after they lost the war and it was not honorable to further defend
slavery.
The author defines Substantive Due Process as necessary and imperative to uphold the Constitution's purpose–and intent–to build a fence around citizens to protect against rights violations by the government (the majority). Currently, the courts only apply that process to issues of freedom of speech and areas that involve religion. Other cases, especially relating to economic issues, use Rational Basis Review, a process that does not uphold individual rights. E.g., Kelo vs. New London, the 2005 decision to allow states to condemn private property and transfer it to private developers for profit. In this way, the State reaps the benefit of increased tax revenue. Even though the Fifth Amendment clearly states that takings be "for public use,"
Justice Paul Stevens "rationalized" the decision by writing that legislatures need "broad latitude in determining what public needs justify the use of the takings power."
The author also clarifies Judicial "Activism" and gives cases and decisions that show how the claim of "Activism" is wrong. What is really wrong is judicial abdication--where courts do not give the necessary scrutiny to protect individual rights.
When courts turn away from the Declaration's orienting principles, the "result is a body of law that prioritizes democracy over liberty–that encourages courts to defer to lawmakers and regulators and to shrug when politically influential factions exploit government power for their private benefit.
When members of the legal profession "adhering to the wolfish view that government has the basic right to rule, and that individual rights are only privileges given to people for society's benefit, refuse to defend constitutional guarantees that were written to give life to the Declaration of Independence."
It is time to defend the Conscience of the Constitution.
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- Reviewed in the United States on July 18, 2014
- Reviewed in the United States on April 29, 2014
