William Michael Treanor, The University of Chicago Law Review 55:3 (Summer, 1988), pp. 1016–40.

Abstract:

This review focuses on three of the key historical points that Walter Berns makes: his arguments that the Declaration of Independence is a Lockean document; that the Constitution encapsulates the political philosophy of the Declaration; and that the framers viewed the commercialization of society as a salutary development and were unambivalent champions of the right to property. Examination of these issues suggests that the ideological universe of the framers was far more complex than Berns indicates. While the revolutionary era witnessed a new concern with individual rights and a greater acceptance of the value of commerce, older notions of communitarianism, of public good, and of civic obligation remained powerful. In the revolutionary era and the early national period, the dominant ideological impulse was to attempt a synthesis that reflected both republican ideas and new realities, rather than simply to reject republicanism in favor of the brand of liberalism described by Berns. Thus, an attempt to honor the framers’ intent does not lead to Berns’s constitutional jurisprudence.

In addition, this review briefly examines another of Berns’s historical claims: he maintains that the fourteenth amendment’s due process clause was intended by its authors to refer only to procedural due process. This claim is important to Berns’s overall argument because it is his contention that no constitutional development after ratification of the Constitution fundamentally altered the role of the federal courts with respect to the states. In support of his conclusion, Berns asserts that the framers of the fourteenth amendment intended that the provision should have a very limited effect and that this intent should be respected. Berns’s contention that original intent (both of the framers of the Constitution and of the fourteenth amendment) can and must be outcome determinative raises issues beyond the scope of this review. But a look at pre-fourteenth amendment due process cases (cases to which recent scholars have paid little attention) offers an example of why textual interpretation is a far more complex matter than Berns indicates. Such examination also suggests one way in which an expansive reading of due process can be harmonized with framers’ intent.