A New Birth of Freedom: Human Rights, Named and Unnamed

Essay by jav2009 August 2009

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In A New Birth of Freedom, Charles L. Black, Jr., attempts to stem the tide of judicial conservatism that has dominated American constitutional law in the 1980’s and 1990’s. Black’s credentials are most impressive. A professor emeritus at Yale Law School and part-time instructor at Columbia Law School, he was part of the team of attorneys that successfully overcame legally mandated school segregation in the case of Brown v. Board of Education (1954), which remains a groundbreaking example of judicial activism, an approach to constitutional law that encourages sweeping judicial initiatives consistent with the text of the Constitution. Black has also been well-published in the fields of constitutional law and civil liberties, previously authoring books such as Structure and Relationship in Constitutional Law (1969), Capital Punishment: The Inevitability of Caprice and Mistake (1980), and Decision According to Law (1981). He has published numerous scholarly articles and spoken publicly to a variety of audiences on these and related topics.

The title of Black’s book comes from the Gettysburg address by Abraham Lincoln, to whom the book is dedicated. According to Black, Lincoln’s promise of “a new birth of freedom” was meant to be taken seriously and was not just a rhetorical convenience of the moment. Lincoln’s promise, however, has not been fully realized because of the failure of Americans to understand the true expanse of rights offered by the U.S. Constitution. This, in turn, is linked to three mistakes of constitutional interpretation: failure to realize the quasi-legal status of rights outlined in the Declaration of Independence, failure to utilize the Ninth Amendment to the Constitution (which strongly suggests the existence of rights not enumerated in the Constitution), and failure to properly implement the “citizenship” and “privileges and immunities” clauses of section 1 of the Fourteenth Amendment. In concert, these mistakes have...