Abstract
When California was admitted to the Union, 150 years ago, America was in the middle of a tremendous quarrel over slavery. Eleven years later, that quarrel became a Civil War. The question America faced then was whether the blessings of liberty, already enjoyed by free Americans, would be permanently denied to slaves and their descendants. Today we face a different challenge, the challenge of modern liberalism. But this time, the line between freedom and slavery is not so easy to see. Both today's liberalism and the older constitutionalism claim to represent the cause of liberty against slavery. But what each side means by "liberty" is not the same. From the point of view of the Founders' understanding, government today is no longer wholly devoted to securing our rights to life and liberty and government by consent. Actions that earlier Americans would have regarded as unquestionably permitted under the ordinary exercise of the right to liberty have been considerably restricted over the past century, especially since the 1960s. In particular, the older presumption that private associations (families, businesses, political parties) would be largely self-governing has been questioned in the name of "social justice" for racial minorities, women, children, the disabled, homosexuals, and other groups. For example, what we call "civil rights laws" have greatly limited the earlier right of any property owner to hire and fire at will. Endangered species laws have greatly limited the earlier right of any property owner to decide whether or not ...