Book Notes

A New Birth of Freedom: Human Rights, Named & Unnamed. By Charles L. Black, Jr. New York: Grosset/Putnam, 1997. Pp. 175. $22.95, cloth.

Contemporary American law finds the source of human rights in a variety of constitutional doctrines, ranging from substantive due process to the equal protection clause. Charles L. Black, Jr. enters this discourse in an attempt to renew and rework the legitimacy of human rights law in the United States. Black finds the source of a strong American human rights system in three “imperishable commitments”: the Declaration of Independ-

ence, the Ninth Amendment, and the privileges and immunities clause of the Fourteenth Amendment. In A New Birth of Freedom, he works to set up a three-part harmony, going beyond political and economic unity toward defining a moral unity for America.

Black begins his discussion with the “principal lacks” of American human rights law to show why the concept of human rights law in the US requires resuscitation. The enumerated rights are insufficient; the guarantees of post–Civil War amendments have become merely formal rights rather than substantive rights; and current doctrines, such as substantive due process, lack the strength and validity to guarantee a strong basis for human rights.

Black’s point of departure is that the Declaration of Independence should have the force of law. By demolishing one legal authority and establishing another, it was an act of constitution. The signers of the Declaration could have faced treason charges in their creation of a document that established legitimacy for a new nation. To Black, the Declaration represents general commitments that can give force to particular law.

The Ninth Amendment, which states that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,” represents more than moral philosophy for Black. He takes the reader through the different possible interpretations of this amendment and rests on stating that the Ninth Amendment encapsulates an idea of an evolving set of rights. These other rights must be on an equal footing with the enumerated ones. Black connects this reference to “retained” rights to the Declaration of Independence, which “retained” certain rights, like the pursuit of happiness, merely 13 years prior to the passage of the Ninth Amendment.

In his discussion of the role of the Fourteenth Amendment in renewing the legitimacy of human rights law in America, Black asserts that the courts should define privileges and immunities according to the rights delineated in the Declaration of Independence. Black spends a chapter on a structural and moral analysis of The Slaughterhouse Cases, which he feels nullified the intent of the amendment, and the incorporation of the rebel states after the Civil War. If privileges and immunities are not strong against the states, then basically the nation cannot secure national human rights, which was the purpose of the Civil War. Black interprets the clause as defining state citizenship according to national law; thus, states cannot abridge or define citizenship without encountering national human rights law.

Two major themes run throughout Black’s analysis of the three “imperishable commitments.” Black calls for an acknowledgement of the basic impact of the Civil War: state sovereignty is obsolete. Also, he attacks the use of legislative history as a method of statutory interpretation. In his discussion of time and the Constitution, Black attempts to demonstrate that language has not changed in any substantive way since the Constitution was signed. In his approach, Black first looks at the plain meaning of the authority itself, before consulting cases and other sources.

In Black’s attempt to bring Americans back to Revolutionary conceptions of freedom, he paints an overly rosy picture of American ideals. In this regard, Black’s restructuring of the legitimacy of human rights law in the United States loses some momentum during his description of the impact of the passage of time. His noble conception of the United States as a country that bases its existence as a superpower on its desire for greater global human rights elicits skepticism. This divergence, however, is not typical of the work, and does not detract from his primary analysis.

Black does not aim to give us specific steps to inspire this return to the basic values of the Declaration of Independence. His only specific policy-related discussion deals with affirmative duties to flesh out the right to pursuit of happiness with calls for the reinstatement of the Great Society nutrition programs. This, however, would be politically unfeasible in the present environment. Black lays the foundation for an intellectually sufficient and reasonable support for human rights law. Instead of focusing on limited doctrines, such as substantive due process, Black advocates moving away from them, and concentrating on the real questions: “(1) Is this a heart-crushing blow to the pursuit of happiness? And (2) Are the proffered justifications good enough to justify so heavy a blow?” Black does not hedge. Instead, he encourages all lawyers to think unhesitatingly about the scandal of resigning the Declaration of Independence and Ninth Amendment to oblivion.

In A New Birth of Freedom, Black aims to provide a substantive value system and a better system of reason from which to approach human rights and the general business of this nation. He invokes the spirit of President Abraham Lincoln’s Gettysburg address where Lincoln sought for America “a new birth of freedom.” Black urges us to return to our founding principles. In fact, the life of the Constitution, and of the nation, requires that we institute the legal obligation of the Declaration for human rights.

—Jaskaran K. Grewal

Copyright © 2001 by the President and Fellows of Harvard College
Harvard Human Rights Journal / Vol. 14, Spring 2001