Celebrating July 4--Each in His or Her Way

Over at Brad DeLong's site (Berkeley Macroeconomist), Brad celebrates with an address to the nation given by FDR on July 4, 1942:  

For 166 years this Fourth Day of July has been a symbol to the people of our country of the democratic freedom which our citizens claim as their precious birthright. On this grim anniversary its meaning has spread over the entire globe--focusing the attention of the world upon the modern freedoms for which all the United Nations are now engaged in deadly war. ...

Never since it first was created in Philadelphia, has this anniversary come in times so dangerous to everything for which it stands. We celebrate it this year, not in the fireworks of make-believe but in the death-dealing reality of tanks and planes and guns and ships. We celebrate it also by running without interruption the assembly lines which turn out these weapons to be shipped to all the embattled points of the globe. Not to waste one hour, not to stop one shot, not to hold back one blow--that is the way to mark our great national holiday in this year of 1942.

To the weary, hungry, unequipped Army of the American Revolution, the Fourth of July was a tonic of hope and inspiration. So is it now. The tough, grim men who fight for freedom in this dark hour take heart in its message--the assurance of the right to liberty under God--for all peoples and races and groups and nations, everywhere in the world. 

Over at Volokh Conspiracy (conservative law professor blog) Randy Barnett--he the architect of the challenge to the health care law-- celebrates with a paean to  liberty and natural law: 

The assumption of natural rights expressed in the Declaration of Independence can be summed up by the following proposition:  “first comes rights, then comes government.”  According to this view: (1) the rights of individuals do not originate with any government, but preexist its formation;  (2) The protection of these rights is the first duty of government; and (3) Even after government is formed, these rights provide a standard by which its performance is measured and, in extreme cases, its systemic failure to protect rights — or its systematice violation of rights — can justify its alteration or abolition; (4) At least some of these rights are so fundamental that they are “inalienable,” meaning they are so intimately connected to one’s nature as a human being that they cannot be transferred to another even if one consents to do so.  This is powerful stuff.

Bobbi is off at music camp, so here at home, I celebrate with an appreciation of our living constitution.

Randy Barnett, unlike strict constructionists, is not troubled by unenumerated rights.  Here is Barnett on Lawrence and Griswold in 2003.  [Lawrence v. Connecticut, which found a right of privacy in the penumbra of the enumerated rights and struck down a prohibition of contraceptives; Lawrence v. Texas, wherein Justice Kennedy relied heavily on the concept of liberty to strike down sodomy laws]

Barnett takes a keen interest in justice Kennedy's development on the issue of liberty, and argues that  liberty would have been a better basis for Griswold than privacy and the substantive due process formulation.  Substantive due process has been used by the court to make most of the provisions of the Bill of Rights binding on the states.  Substantive due process holds that the constitution protects fundamental rights, even if they are not enumerated in the constitution, if they are a) grounded in our history and traditions, and b) implicit in a concept of ordered liberty.

Griswold expresses the idea of a living constitution that is adaptable over time.  Our traditions and our concept of ordered liberty change over time, and our constitution can change along with them.  This idea of a living constitution, of course, has been under attack for some time by the Federalist Society movement, scholars, judges and lawyers in many quarters.  This debate plays a big role in the current split on the Supreme Court. 

Randy Barnett is not advocating a "living constitution," but he is encouraging the court to reach outside of the constitution to natural law rights.  Barnett, a libertarian, may want to limit this to liberty interests.  All liberty interests should be protected by the court, it seems, without regard to whether the liberty interest is fundamental or not.  He points to the 9th Amendment for this proposition.  However, the 9th Amendment does not mention "liberty."  It generically refers to "other rights."   Once the court reaches outside the constitution, whether living or dead, where does it stop?

So Barnett has a line drawing problem.  How does the court decide what are natural rights, and how they should be protected?  The concept of a living constitution constrained in its interpretation by  being grounded in our history and tradition, and a concept of ordered liberty, and further constrained by stare decisis would seem to me to be a preferable program.

Long live the constitution, long live America, long live liberty.  Happy 4th of July.