Conscience and the Constitution (ebook)

Argumento de Conscience and the Constitution (ebook)

At stage center of the American drama, maintains David A. J. Richards, is the attempt to understand the implications of the Reconstruction Amendments--Amendments Thirteen, Fourteen, and Fifteen to the United States Constitution. Richards evaluates previous efforts to interpret the amendments and then proposes his own view: together the amendments embodied a self-conscious rebirth of America's revolutionary, rights-based constitutionalism. Building on an approach to constitutional law developed in his Toleration and the Constitution and Foundations of American Constitutionalism, Richards links history, law, and political theory. In Conscience and the Constitution, this method leads from an analysis of the Reconstruction Amendments to a broad discussion of the American constitutional system as a whole.

Richards's interpretation focuses on the abolitionists and their radical commitment to the "dissenting conscience." In his view, the Reconstruction Amendments expressed not only the constitutional arguments of a particular historical period but also a general political theory developed by the abolitionists, who restructured the American political community in terms of respect for universal human rights. He argues further that the amendments make a claim on our generation to keep faith with the vision of the "founders of 1865." In specific terms he points out what such allegiance would mean in the context of present-day constitutional issues.

Originally published in 1993.

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"Richards offers an astute analysis of anti-slavery consitutionalism and a powerful argument for the relevance of that material to constitutional interpretation in general."--Mark Tushnet, Georgetown University

"This book leaves no icon unturned, no guru unscathed, no 'school' unappraised. Richards's arguments are those of a philosopher of law--a major one indeed--and his own interpretations are worthy of the most respectful consideration."--Harold M. Hyman, Rice University

"Legal theorists and jurists seek clear answers, and Richards's volume provides a compelling one because of his broad, humanistic, interdisciplinary approach."--American Historical Review0Acknowledgments 1 Aims and methodologies 3 The Reconstruction Amendments as History 6 The Reconstruction Amendments as Political Theory 9 An Alternative Approach 16 2 Proslavery Constitutionalism versus the Theory of Union 21 Antebellum Constitutional Crisis: Slavery and the Founding 21 Proslavery Constitutionalism 28 The Constitutionalism of Union 42 Adams, Webster, and Story: Foundations of Theory of Union 43 Francis Lieber 46 Abraham Lincoln 50 3 The Argument for Toleration in Abolitionist Moral, Political, and Constitutional Thought 58 Abolitionist Ethical Criticism of Slavery: The Analogy of Anti-Semitism 59 The Argument for Toleration 63 Slavery as a Political Evil 73 The Political Evil of Racism 80 Abolitionist Constitutional Theory 89 Radical Disunionism 92 Moderate Constitutional Antislavery 95 Radical Constitutional Antislavery 97 Legitimacy of Revolution 104 4 The Second American Revolution and the Reconstruction Amendments 108 Revolutionary Principles 115 Constitutional Principles of American Constitution 119 Analysis of Political Psychology 123 Comparative Political Science 130 American Political Experience 133 Constitutional Justification and Community 134 5 A Theory of Equal Protection 149 Racism as a Constitutional Evil 150 Anti-Semitism as Racism 156 Racial Segregation as a Violation of Equal Protection 160 A Theory of Suspect Classification Analysis 170 Gender as a Suspect Classification 178 Sexual Preference as a Suspect Classification 191 6 The Nationalization of Human Rights 199 Slaughter-House Cases 204 A Theory of Privileges and Immunities 217 Enumerated Rights 221 Unenumerated Rights 224 7 Economic Justice and the Constitution 233 8 Conscience and Constitutional Interpretation 252 Appendix I: Constitution, Statutes, and Legislative History 259 Appendix II: Case Law 261 Bibliography 263 Index 285