I very much appreciate Mr. Sandefur’s kind words, and I likewise respect his extensive work on behalf of economic liberty.
Despite our agreement, I think we diverge on four of topics: (1) the identity of the individual rights secured by the Constitution, (2) the degree to which the Founders trusted the people as the guardians of these individual rights, (3) the confirmation of this faith by our history, and (4) the degree to which Progressives jurists have, in fact, been quite consistent in adopting a different account of both human rights and the role of the people. I’d like to address the first three disagreements in this post, but discuss the Progressives’ remarkable consistency in a subsequent post.
The Scope of Individual Rights
In his initial essay and responses, Sandefur gives a number of broad definitions of constitutional liberty. He seems to incorporate a variety of rights of individual autonomy, whether economic, sexual, or otherwise. Sandefur finds these rights protected by the Due Process Clause(s) and perhaps elsewhere.
I largely disagree with him. I think his view of the Due Process Clause is as implausible as the progressives’ interpretation of the Commerce Clause. Both interpretations do violence to the text of the respective clauses, render other clauses unintelligible redundancies, and are thoroughly inconsistent with the original understanding.
The matter, however, is somewhat extraneous to our conversation here, and was quite ably discussed two years ago at Cato Unbound.
The Founders’ Faith in the People
We also disagree as to how far we should entrust these rights to political majorities. Sandefur writes that to the authors of our Constitution, “countermajoritarian wasn’t the difficulty—majoritarian was the difficulty!”
But for the Founders, popular government was the primary solution to the fundamental difficulty: how to ensure governmental respect for individual rights. The Declaration of Independence plainly implies that popular government is the first line of defense. As Michael Zuckert has observed, the Declaration is in the form of a syllogism. The major premise is that whenever any government becomes destructive of individual natural rights, the people have a right to alter or abolish the government; the minor premise is the indictment against the King, showing that his government has become thus destructive; and the conclusion, therefore, is that the people rightfully abolish that government.
In reviewing the grievances, one sees that the King’s government had become destructive of individual rights primarily because his government has disregarded the political rights of the colonists and their elected representatives. In other words, the menace to the people’s right to representative government was a threat to their individual rights.
The Founders, however, understood that popular government, per se, was insufficient. Popular majoritarian government was the solution, but only partly so. As Publius explained in Federalist No. 51, “[a] dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.” As he further noted in Federalist No. 9, generations of experience had confirmed the efficacy of certain “auxiliary precautions,” for example (1) committing the legislative power to representative assemblies, (2) legislative checks and balances, (3) separation of powers (including federalism), (4) judges’ virtual life tenure, and (5) a large republic.
Still, this system is based, primarily, on a limited faith in the people: “As there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust, so there are other qualities in human nature which justify a certain portion of esteem and confidence. Republican government presupposes the existence of these qualities in a higher degree than any other form” (Federalist No. 55). The goal of the Constitution’s design was to foster the influence of popular reason—a reason respecting natural rights—but to frustrate popular passions: “But it is the reason, alone, of the public, that ought to control and regulate the government. The passions ought to be controlled and regulated by the government” (Federalist No. 49).
Faith in the People Justified by Our History
In many respects, the Founders’ faith in popular government has been vindicated by our history. Consider, for instance, the many grave injustices of Jim Crow. How many of these evils would have been avoided had the states obeyed the Fifteenth Amendment and, if necessary, Congress had enforced it? Southern states nullified the Amendment, Congress acquiesced, and republican government collapsed in many states. The lack of equal political rights left African-Americans—a majority or near majority in six states and a large minority in others—without the best safeguard for their natural rights.
Consider also two cases that Sandefur cites: Buck v. Bell and Kelo v. City of New London. Like Sandefur, I believe both cases involved a clear violation of due process of law. In Buck v. Bell, Virginia disregarded the traditional procedural rule that the state could not destroy part of a person’s body without a finding of serious criminal liability. In Kelo, the City of New London disregarded the traditional procedural rule that property could not be forcibly transferred from one person to a second private party without a finding of the first person’s liability to the second.
But both cases also involved a violation of republicanism. The legislatures transferred executive and judicial powers to unelected, unaccountable, unicameral organizations. In Kelo, the legislature gave these powers to a private non-profit association. In Buck, original jurisdiction over the case was assigned the “State Colony for Epileptics and Feeble-Minded,” an administrative agency, holding both executive and judicial authority. In both cases, faith was placed not in the people but in unaccountable experts.
The popular response to Kelo (though not to Buck) further recommends faith in the people. In forty-four states, the people or their representatives swiftly adopted measures to restrict the taking of private property for private use.
As to Buck v. Bell, the history of eugenics legislation also provides some reason for faith in the people. Coercive sterilization was entirely an elite project, a multi-decade effort to persuade the people to accept the alleged fact that modern progress required the forced application of science to the bodies of citizens.
But the people were squeamish. Initially the laws met with resistance, not only by some fuddy-duddy judges, but also by the public at large. In Oregon, for instance, a popular backlash, via a referendum, rejected the legislation that progressives had marshaled through the legislature. But by the mid 1920s, progressives had succeeded in persuading nearly all the elites—hence the 8-1 decision in Buck. Public resistance largely dissipated, with opposition confined to a few unfashionable religious groups.
Two other cases he mentions—Griswold v. Connecticut and Lawrence v. Texas—also partly corroborate the Founders’ faith. Assuming, arguendo, that the laws in question violated bona fide individual rights, the fact of virtual non-enforcement must be credited in part to the people. Through our history, our people have largely opposed the intrusive measures necessary to enforce laws regulating private sexual activity. Consequently, the people’s representatives in the executive branch have almost always refrained from such enforcement.
Yet if the people had transferred this executive authority to unaccountable experts, the result would have been quite different. If, for instance, Connecticut had established a “Board of Fertility,” armed with the powers of the modern regulatory state, and staffed by self-confident credentialed experts, such intrusions would surely have been frequent. Consider, for instance, the Eugenics Board of North Carolina. In the fifty years after Buck v. Bell, that agency carried out the forced sterilization of thousands of our fellow citizens.
Of course, many counterexamples of the people’s failure, by action or omission, could be cited. Indeed, the people of Virginia (in Buck) and Connecticut (in Kelo) should be faulted for acquiescing in the alienation of their duty and right of self-government, via the administrative state.
But if the people are to get the blame for bad laws, so too they must get the credit for good laws. In this regard, I take issue with Sandhya Bathija’s characterization of the 1964 Civil Rights Act as a minority victory—a law “achieved by minorities through the democratic process.”
To the contrary, the Act was a victory by the people and for the people. It was passed after extensive public debate by large, bipartisan majorities in Congress and signed by a president who was subsequently reelected by a large majority, in part because of his support for this legislation. The law served the general, not the particular welfare. It served the common good, rather than special interests of a minority. Our fellow citizens should be blamed for the delay, but praised for the achievement.