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

Professor Charles Black is one of the giants of American constitutional law. As a law professor at Yale and then Columbia, he has written books and articles on topics such as the use of structure in interpreting the Constitution, desegregation, and state action that are among the most important and influential writings of the last half century. As a litigator, he participated in such landmark constitutional cases as Brown v. Board of Education.

His latest book is a reflection of the commitment to advancing human rights that has been characteristic of all his work for half a century.

This slim volume seeks to provide a better foundation than currently exists for protecting freedom and liberties in American society.

In A New Birth of [Freedom, Black begins by declaring: "The foundations of American human-rights law are in bad shape. They creak, they groan, for rebuilding."

He argues that the rights enumerated in the Bill of Rights are insufficient to protect fundamental liberties. Judicial protection of unenumerated rights is essential, he says.

Throughout this century, of course, the Supreme Court has recognized this and has safeguarded liberties not mentioned in the Constitution's text, such as the right to marry, the right to have custody of one's children, the right to procreate, the right to purchase and use contraceptives, the right to have an abortion, and the right to travel.

Yet, over the past 25 years, there has been a raging debate among scholars and justices over whether and when the Court is justified in identifying and protecting these rights.

Black argues that the problem is the lack of a sufficient intellectual foundation for safeguarding human rights. He says that protection of rights should be founded on three primary sources: the Declaration of Independence, the Ninth Amendment, and the Privileges and Immunities Clause of the Fourteenth Amendment.

Black explains how each of these sources of freedom has been buried, and he argues that as a result of this, the Court has had to invent substantive due process as the tool for recognizing unenumerated rights.

He says that substantive due process is so inherently problematic as to provide a shaky and questionable foundation for safeguarding liberties.

In the most provocative chapter, Black argues that there should be a constitutional right to a decent livelihood for all. Black, who also advanced this thesis in an important law review article several years ago, contends that there is an "affirmative constitutional duty of Congress diligently to devise and prudently to apply the means necessary to ensure, humanly speaking, a decent livelihood for all." Although there is no chance of this for the foreseeable future, he writes to a future generation and offers the constitutional framework for such a right.

It is obvious that Black wants this book to be read by a wide audience and not just lawyers and law professors. His commitment to protecting human rights is communicated on every page.

Black's book is simultaneously delightful to read and frustrating. It is written in clear and almost conversational prose.

Yet, the brevity and even simplicity of the book leave the reader frustrated. I wanted him to address the hard questions. Most important, how should the Court go about identifying and determining the content of unenumerated rights? Although they might be founded on the Declaration of Independence, the Ninth Amendment, and the Privileges and Immunities Clause, none of these sources discloses anything about the content of the rights.

To choose a single contemporary example, how should the Court have decided whether there is a constitutional right to physician-assisted suicide? My sense is that the shaky status for unenumerated rights has less to do with whether they are found under the Due Process Clause or the Privileges and Immunities Clause, and much more to do with the lack of agreement concerning how to determine what is a fundamental right.

Still, as with all Black's writings, the reader is left impressed by the elegance of his arguments and his prose and moved by his passion and his devotion to advancing human freedom. His new book is provocative and worth reading.

Erwin Chemerinsky is Sydney M. Irmas Professor of Law and Political Science at the University of Southern California Law School in Los Angeles.
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Copyright 1997, Gale Group. All rights reserved. Gale Group is a Thomson Corporation Company.

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Author:Chemerinsky, Erwin
Article Type:Book Review
Date:Dec 1, 1997
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