The Rule of Liberty

63 Pages Posted: 11 Apr 2017 Last revised: 21 Mar 2018

See all articles by Chris Kozak

Chris Kozak

Plews Shadley Racher & Braun

Date Written: April 7, 2017

Abstract

When doubt appears in civil-rights cases, liberal judges naturally gravitate towards the progressive outcome. In the same circumstances, conservative judges fall back on our traditional values of federalism and limited government. For this reason, conservative judges are often portrayed as enemies of civil rights. These judges typically respond to criticism by protesting that they are not prejudiced; they are only eschewing harmful “results-based” reasoning. “Law” they say, “is useless . . . if it varies from day to day and from judge to judge.” Traditional, limited-government values are the only way to provide stability in uncertain waters.

In this Article, I explore one of our forgotten traditions; a cousin of the well-known Rule of Lenity. For most of our history, the maxim behind the Rule of Lenity applied in another context: slavery and freedom. Based in the presumption that the natural law favored personal liberty, it required courts to interpret emancipations liberally. The canon—which I call the Rule of Liberty—was unquestioned in the United States until the South began to fear abolition. As the sectional crisis deepened, the South inverted the canon, presuming instead that the natural law favored slavery. This was a foundational principle of the U.S. Supreme Court’s reasoning in Dred Scott. After abolition, reactionary lawyers induced the Court to silently retain this presumption in its interpretation of the Reconstruction Amendments, and its ghost is still with us today.

The Rule of Liberty’s pedigree rivals even the most traditional canons of construction, and it was approved by every state in our Union. Its demise was not due to structural flaws; it was destroyed by Klansmen and Confederates intent on preserving slavery and white supremacy. But their view of the law has been forcefully repudiated by the blood of our patriots and by our Constitution, and so it is far past time to restore the Rule of Liberty to its rightful place in the modern constitutional order. I argue that this, at least, includes broader interpretations of the Thirteenth Amendment and greater deference to executive decisions that favor human liberty.

Keywords: Constitutional Interpretation, Thirteenth Amendment, Separation of Powers, Slavery, Involuntary Servitude, Jurisprudence

Suggested Citation

Kozak, Chris, The Rule of Liberty (April 7, 2017). Available at SSRN: https://ssrn.com/abstract=2948761 or http://dx.doi.org/10.2139/ssrn.2948761

Chris Kozak (Contact Author)

Plews Shadley Racher & Braun ( email )

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