The Conscience of the Constitution Quotes

“Gordon Wood, The Radicalism of the American Revolution (New York: Knopf, 1991); Gordon Wood, Empire of Liberty: A History of the Early Republic, 1789–1815 (New York: Oxford University Press, 2011).”
― Timothy Sandefur, The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty

“When Patrick Henry warned his colleagues at the Richmond ratification convention that “the language of We the People, instead of We, the States,” signaled “an alarming transition, from a confederacy to a consolidated government,” James Madison coolly answered that this was among the Constitution’s best features.6 The Articles had been based on “the dependent derivative authority of the legislatures of the states,” he said, but the Constitution would draw its authority “from the superior power of the people.”7 Although it did not consolidate the states in every way, the Constitution, once ratified, would create “a government established by the thirteen States of America, not through the intervention of the Legislatures, but by the people at large.”
― Timothy Sandefur, The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty

“Although parts of the amendment still provide real security for individual freedom today, the wrong done in that 1873 precedent still hampers protections for liberty today.”
― Timothy Sandefur, The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty

“Once slavery was abolished, the core of the changes that followed was found in the Fourteenth Amendment, which for the first time defined the terms of American citizenship and declared that no state could deprive people of their natural rights or the traditional rights inherited through the common law. Yet shortly afterwards, that amendment was crippled by a Supreme Court decision known as The Slaughter-House Cases.”
― Timothy Sandefur, The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty

“Noble as the ideas of the Declaration of Independence were, it was obvious before the ink was dry that they clashed with a central fact of everyday life in America: slavery.”
― Timothy Sandefur, The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty

“But to argue, like Filmer, Tribe, Sunstein, and Bork, that government comes first, and that it gives people freedom when it wills, and for its own purposes, is, as Locke concluded, the same as saying “that no man is born free.”
― Timothy Sandefur, The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty

“Women would then need to resort to the ballot box to request that protection—assuming the majority sees fit to give them the right/privilege to vote.”
― Timothy Sandefur, The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty

“Robert Bork used the same example to make just this argument. In a democracy, he argued, the majority has a boundless power to outlaw whatever conduct it finds objectionable, including conduct that takes place in private, harms nobody, and is not witnessed or overheard by anyone else.”
― Timothy Sandefur, The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty

“to presume that some people are fundamentally entitled to decide how much freedom others should enjoy. What Would It Mean if the State Did Create Freedom? The danger of confusing the state’s protection of prepolitical rights on one hand, with its creation of rights/privileges on the other, becomes clear when we ask whether the state creates, say, a woman’s right not to be raped.”
― Timothy Sandefur, The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty

“brings to mind the tribulations of those groups—blacks in the 19th century, women in the 20th, gays in the 21st—who have learned through struggle that freedom is not given, only claimed.”
― Timothy Sandefur, The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty

“If political leaders choose which rights to give citizens, then there must be a caste of leaders who enjoy greater freedom than do the citizens who are the recipients of these “rights.” That is, the rulers must stand on a higher plane from which they can hand down judgments about what rights are to be given to or withheld from the people below.”
― Timothy Sandefur, The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty

“This way of seeing things makes it impossible to distinguish free states from tyrannies, just rulers from unjust rulers, or healthy regimes from abusive regimes. In practice, it would mean that whatever political group happens to wield power, by arms or by propaganda, is, ipso facto, legitimate. Yet the whole point of the Declaration and the Constitution was to found a government on something more than accident and force. If rights and political legitimacy are created by accident and force, then there is no moral difference between the dictatorship of a military strongman and a free state governed by fair laws; whatever the political authorities choose to call “just” is so, by definition.”
― Timothy Sandefur, The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty

“This way of seeing things makes it impossible to distinguish free states from tyrannies, just rulers from unjust rulers, or healthy regimes from abusive regimes. In practice, it would mean that whatever political group happens to wield power, by arms or by propaganda, is, ipso facto, legitimate. Yet the whole point of the Declaration and the Constitution was to found a government on something more than accident and force.”
― Timothy Sandefur, The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty

“politics is then basically an act of will, not of reason.”
― Timothy Sandefur, The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty

“According to the social compact tradition articulated in the Declaration of Independence and the Constitution, government is legitimate because the people consent to it, thus agreeing in some sense to respect its determinations. But people can consent only because they have a basic right to decide whether or not to consent, a right that is not a mere privilege from the government.”
― Timothy Sandefur, The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty

“What’s more, as Tom G. Palmer has observed, if rights are only realms of freedom that the state positively enforces, then there would have to be an endless series of government enforcers. One could have a right not to be tortured by the police, for instance, only if there is a secondary police force charged with enforcing that right. But there must then also be a third set of monitors to ensure that the second set faithfully polices the police, and then another layer of monitors over them. Sunstein’s theory would require “an infinite hierarchy of people threatening to punish those lower in the hierarchy. Since there is no infinite hierarchy, we are forced to conclude that [this is] actually . . . an impossibility theorem of rights in the logical form of modus tollens: If there are rights, then there must be an infinite hierarchy of power; there is not an infinite hierarchy of power, therefore there are no rights.”
― Timothy Sandefur, The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty

“If a person must prove that he deserves to be free, then that person must first be free to make such a proof. Yet where does he get this freedom? The person would then be required to prove that he should have the right to prove the other right, and that would require another level of freedom, which the person must also prove—and so on, calling for an endless series of proofs. This may seem a strange observation, but abolitionists faced this exact problem during the Petition Crisis of the 1830s. For almost a decade, Congressman John Quincy Adams and others were forced to combat the Gag Rule, under which Southern representatives barred Congress from even receiving, let alone considering, petitions against slavery. Adams’s heroic struggle against this rule was a fight for the right of petition, one step removed from any debate over slavery.93 He was forced to argue that he should have the right to argue against the “peculiar institution.”
― Timothy Sandefur, The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty

“There, all people are seen as born equally free, meaning that each is presumptively at liberty to act, until those who would limit a person’s freedom give good reasons for such limits. This presumption of liberty is not just a rhetorical device or an arbitrary preference for a convenient starting point in philosophical debates. Rather, it makes clear that those who claim the right to rule others have the burden themselves to justify that claim. That is what the right to equal freedom means: just as the person who asserts a claim in any argument has the responsibility to prove that claim, so one cannot be expected to prove he ought to be free.”
― Timothy Sandefur, The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty

“he ruled that a person cannot sue the government because “there can be no legal right as against the authority that makes the law on which the right depends.”78 In another case, Abrams v. United States,79 Holmes wrote a dissenting opinion that many today regard as a classic defense of free speech80—indeed, it originated the metaphor of the “marketplace of ideas.”81 But reading the opinion, one soon encounters a chilling line: “Persecution for the expression of opinions seems to me perfectly logical.”82 The only reason we do not persecute people, Holmes went on, is because it is good for society to allow debates. Thus, government gives people the privilege of free speech—for its own purposes, not for the individual’s purposes—and it can withdraw that privilege when it chooses.”
― Timothy Sandefur, The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty

“Holmes believed that law is nothing more than the commitment to use force in the service of collective norms, which are merely the subjective preferences of a majority of the people. There are no “transcendental” principles of law, because law “does not exist without some definite authority behind it.”74 To suppose that it has any deeper meaning than the ruler’s arbitrary command, he said, is “churning the void in the hope of making cheese.”75 The idea that people have certain rights at all times and in all places is absurd: rights are only what a society’s power-wielders choose to allow. “All my life I have sneered at the natural rights of man,” he told a friend, and he meant it.76 His judicial writings were guided by the view that law is only an expression of power in a universe devoid of other meaning.”
― Timothy Sandefur, The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty

“What we call laws or rights are just arbitrary preferences enforced by violence, in just the same way that “a dog will fight for his bone.”69 A constitution is simply an effort to render that process less violent by subjecting the inevitable clashes to majority vote instead of battle. But in the end, politics is just war by other means.”
― Timothy Sandefur, The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty

“Holmes’s experience in the war taught him not that all people have a right to freedom, but rather that claims about right and wrong are really only illusions.67 Ethical principles, he believed, are subjective, emotional commitments that cannot be judged right or wrong. Ideas such as justice or moral good are only the expressions of arbitrary personal preferences and are no more rational than a person’s preference for one kind of beer over”
― Timothy Sandefur, The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty

“The profession of political science, he claimed, had “abandoned” the Declaration’s premise “that liberty is a natural right,” and had come to hold that freedom is created by government as a sort of privilege: “rights are considered to have their source not in nature, but in”
― Timothy Sandefur, The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty

“The Constitution’s foundation is the Declaration of Independence, and as slavery’s defenders were increasingly forced to reject its principles, and to defend racial inequality and hierarchy as good things, they found it increasingly difficult to maintain allegiance to the Constitution.”
― Timothy Sandefur, The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty

“Attacks on the principles of the Declaration began at an early point in American history. In the four decades before the Civil War, defenders of slavery explicitly rejected it, even calling it, as Senator John Pettit did in 1854, “a self-evident lie.”63 Horrified by this, antislavery politicians rallied to the Declaration. They developed a constitutional interpretation that emphasized liberty and equality, and they denounced slavery as incompatible with the”
― Timothy Sandefur, The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty