The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty Hardcover

by Timothy Sandefur

  76. Lochner v. New York, 198 U.S. 45, 76 (1905) (Holmes, J., dissenting).

  77. See, e.g., Boumediene v. Bush, 553 U.S. 723, 739–52 (2008) (reviewing common law contours of habeas corpus).

  Chapter 5

  1. Abraham Lincoln, “Address at Sanitary Fair” (April 18, 1864), in Lincoln: Speeches and Writings 1859–1865, Don Fehrenbacher, ed. (New York: Library of America, 1989), p. 589.

  2. 5 U.S. (1 Cranch) 137 (1803). See Mary Sarah Bilder, “The Corporate Origins of Judicial Review,” Yale Law Journal 116 (2006): 503–66; William Michael Treanor, “Judicial Review Before Marbury,” Stanford Law Review 58 (2005): 455–562; and Robert J. Reinstein and Mark C. Rahdert, “Reconstructing Marbury,” Arkansas Law Review 57 (2005): 729–834.

  3. Federalist No. 78 (Alexander Hamilton) in The Federalist, Jacob E. Cooke, ed. (Middletown, CT: Wesleyan University Press, 1961), p. 521. See also James Wilson, Lectures on Law, pt. 1, chap. XI, in Kermit L. Hall and Mark David Hall, eds., Collected Works of James Wilson (Indianapolis: Liberty Fund, 2007), vol. 1, p. 743 (Judicial review “is far from throwing any disparagement upon the legislative authority of the United States. It does not confer upon the judicial department a power superiour [sic], in its general nature, to that of the legislature; but it confers upon it, in particular instances, and for particular purposes, the power of declaring and enforcing the superiour [sic] power of the constitution—the supreme law of the land.”).

  4. “Appendix: Correspondence between Mr. Justice Field and the Other Members of the Court with Regard to His Retiring from the Bench,” 168 U.S. 713, 717 (1897).

  5. All judicial officers, after all, are required to take an oath to support “not a person, a party, an office, or even a nation, but the Constitution itself.” Kermit Roosevelt III, The Myth of Judicial Activism (New Haven: Yale University Press, 2006), p. 23.

  6. Federalist No. 10 (James Madison), in Cooke, ed., p. 57 (emphasis added).

  7. Ibid., p. 65.

  8. Federalist No. 51 (James Madison), in Cooke, p. 352.

  9. Letter from James Madison to James Monroe (October 5, 1786), in Writings of James Madison, Gaillard Hunt, ed., (New York: G. P. Putnam’s Sons, 1901), vol. 2, p. 273.

  10. James M. Buchanan and Gordon Tullock, The Calculus of Consent (Ann Arbor: University of Michigan Press, 1992).

  11. Ibid., p. 287 (“[T]he profitability of investment in [political organization] is a direct function of the size of the total public sector and an inverse function of the ‘generality’ of the government budget. . . . The organized pressure group thus arises because differential advantages are expected to be secured through the political process. . . .”).

  12. Federalist No. 10 (James Madison), in Cooke, p. 61.

  13. Federalist No. 51 (James Madison), ibid., p. 349.

  14. But see Kelo v. New London, 545 U.S. 469 (2005).

  15. But see Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012).

  16. See Federalist No. 84 (Alexander Hamilton), in Cooke, p. 579 (“Why . . . should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?”).

  17. Federalist No. 51 (James Madison), ibid., p. 351.

  18. See Federalist No. 71 (Alexander Hamilton), ibid., p. 482 (“When occasions present themselves in which the interests of the people are at variance with their inclinations, it is the duty of the persons whom they have appointed to be the guardians of those interests to withstand the temporary delusion in order to give them time and opportunity for more cool and sedate reflection. Instances might be cited in which a conduct of this kind has saved the people from very fatal consequences of their own mistakes, and has procured lasting monuments of their gratitude to the men who had courage and magnanimity enough to serve them at the peril of their displeasure.”).

  19. Federalist No. 78 (Alexander Hamilton), ibid., p. 527.

  20. Even Socrates, whose right to freedom of speech was spectacularly destroyed by the majority in Athens, still regarded himself as a creature of the nomoi, subservient even to the point of death. Plato, Crito, 50b-52d, in The Collected Dialogues of Plato, Edith Hamilton and Huntington Cairns, eds. (Princeton: Princeton University Press, 1973), pp. 35–37.

  21. Thomas Jefferson, “Notes on Virginia,” in Jefferson: Writings, Merrill Peterson, ed. (New York: Library of America, 1984), p. 245.

  22. Stephen Breyer, Active Liberty: Interpreting Our Democratic Constitution (New York: Knopf, 2005).

  23. Ibid., p. 5 (quoting Benjamin Constant, The Liberty of the Ancients Compared with That of the Moderns (1819), in The Political Writings of Benjamin Constant, Biancamaria Fontana, ed. (New York: Cambridge University Press, 1988), p. 316. Constant himself did not elevate the liberty of the ancients over that of the moderns. In his famous article, Constant contended that “our happy revolution” had created “freedom and peace” in a way that was “totally unknown to the free nations of antiquity”:

  You find among [the ancients] almost none of the enjoyments which we have just seen form part of the liberty of the moderns. All private actions were submitted to a severe surveillance. No importance was given to individual independence, neither in relation to opinions, nor to labor, nor, above all, to religion. The right to choose one’s own religious affiliation, a right which we regard as one of the most precious, would have seemed to the ancients a crime and a sacrilege. In the domains which seem to us the most useful, the authority of the social body interposed itself and obstructed the will of individuals. . . . Thus among the ancients the individual, almost always sovereign in public affairs, was a slave in all his private relations. As a citizen, he decided on peace and war; as a private individual, he was constrained, watched and repressed in all his movements; as a member of the collective body, he interrogated, dismissed, condemned, beggared, exiled, or sentenced to death his magistrates and superiors; as a subject of the collective body he could himself be deprived of his status, stripped of his privileges, banished, put to death, by the discretionary will of the whole to which he belonged. Among the moderns, on the contrary, the individual, independent in his private life, is, even in the freest of states, sovereign only in appearance. His sovereignty is restricted and almost always suspended. If, at fixed and rare intervals, in which he is again surrounded by precautions and obstacles, he exercises this sovereignty, it is always only to renounce it.

  Constant originally drew his distinction between ancient and modern liberty to emphasize the importance of individual freedom over and above social participation—precisely the opposite lesson that Justice Breyer draws.

  24. Breyer, Active Liberty, p. 37.

  25. Ibid., p. 49.

  26. Stephen Breyer, Making Our Democracy Work: A Judge’s View (New York: Knopf, 2010), p. 1.

  27. Ibid., p. 5.

  28. Ibid., p. 6.

  29. Ibid., p. 162.

  30. Ibid., p. 163.

  31. Ibid., pp. 163–64.

  32. See Eric Foner, The Story of American Freedom (New York: Norton, 1998), p. 140 (“[N]early all Progressives agreed that freedom must be infused with new meaning.”).

  33. John Locke, Second Treatise of Civil Government § 57 in Two Treatises of Government, rev. ed., Peter Laslett, ed. (Cambridge: Cambridge University Press, 1967), p. 324.

  34. John Dewey, “The Future of Liberalism,” Journal of Politics 32, no. 9 (1935): 225–30.

  35. Foner, p. 144.

  36. See Michael McGerr, A Fierce Discontent: The Rise and Fall of the Progressive Movement in America (New York: Oxford University Press, 2003), p. 81.

  37. Samuel J. Konefsky, The Legacy of Holmes and Brandeis (New York: Collier Books, 1961), p. 105.

  38. In his 1938 book, The Administrative Process (New Haven: Yale University Press, 1938), p. 155, James M. Landis, chairman of the Securities and Exchange Commission, argued that “[t]he rise of the administrative process represented the hope that policies to shape [economic] fields could most adequately be
developed by men bred to the facts. That hope is still dominant, but its possession bears no threat to our ideal of the ‘supremacy of the law.’ Instead, it lifts it to new heights where the great judge, like a conductor of a many-tongued symphony, from what would otherwise be discord, makes known through the voice of many instruments the vision that has been given him of man’s destiny upon this earth.” As Bruce A. Williams and Albert R. Matheny observe, this romanticism “allow[ed] Landis to avoid the troubling issue of the degree to which democratic values are contradicted by regulatory policy-making within administrative agencies.” Democracy, Dialogue, and Environmental Disputes (New Haven: Yale University Press, 1995), p. 15. I thank my colleague Damien M. Schiff for bringing this passage to my attention.

  39. Konefsky, p. 112.

  40. As Louis Menand has put it, the Progressives “shift[ed] the totem of legitimacy from premises to procedures. We know an outcome is right not because it was derived from immutable principles, but because it was reached by following the correct procedures.” Louis Menand, The Metaphysical Club (New York: Farrar, Srauss and Giroux, 2001), p. 432. Cf. Ralph Ketcham, James Madison: A Biography (Charlottesville: University of Virginia Press, 1990), p. 43 (“[James] Madison had at the foundation of his political education a supreme emphasis on the ends, not the means, of government. . . . A great gulf, therefore, separates the thought of Madison (and other founding fathers) from that of believers in such later concepts of . . . simple majoritarian democracy, who denied that principles of justice and virtue can be identified and made the foundations of government, and therefore have a higher sanction than the will of the majority.”).

  41. Menand, p. 432.

  42. See Grant Gilmore, The Death of Contract (Columbus: Ohio State University Press, 1974), pp. 16–21 (describing Holmes’ attempt to fashion a value-free theory of contract); G. Edward White, Tort Law in America: An Intellectual History (New York: Oxford University Press, 1980), p. 74 (“[I]n proclaiming the incomprehensibility or the current irrelevance of traditional moral values, the Realists, like their counterparts in history or political science or philosophy, were identifying themselves with moral relativism.”); and Albert W. Alschuler, “The Descending Trail: Holmes’ Path of the Law One Hundred Years Later,” Florida Law Review 49 (1997): 380–86 (detailing Holmes’ attempt to separate law from morals).

  43. Federalist No. 78 (Alexander Hamilton), in Cooke, p. 525.

  44. Letter from Oliver Wendell Holmes to Harold Laski (March 4 1920), in Mark De Wolfe Howe, The Holmes-Laski Letters 1916–1935 (New York: Atheneum Press, 1963), vol. 1, p. 249. See also Walter Berns, “The Supreme Court as Republican Schoolmaster: Constitutional Interpretation and the ‘Genius of the People,’” in The Supreme Court and American Constitutionalism, Bradford Wilson and Ken Masugi, eds. (Lanham: Rowman and Littlefield, 1998), p. 11.

  45. See Menand, p. 409 (“[R]ights are created not for the good of individuals, but for the good of society. Individual freedoms are manufactured to achieve group ends.”).

  46. Jefferson, “First Inaugural Address,” in Jefferson: Writings, p. 494.

  47. Bork, Tempting of America, p. 139.

  48. Ibid., p. 124.

  49. Ibid., p. 139.

  50. Ibid., p. 183; cf. Federalist No. 84 (Alexander Hamilton), in Cooke, p. 579 (“They [i.e., bills of rights] would contain various exceptions to powers which are not granted; and, on this very account, would afford a colorable pretext to claim more than were granted.”); Letter from James Madison to Thomas Jefferson (October 17, 1788), in Madison: Writings, Jack Rakove, ed. (New York: Library of America, 1999), p. 420 (explaining that a bill of rights must be “so framed as not to imply powers not meant to be included in the enumeration” of powers in Article I, Section 8).

  51. Bork, Tempting of America, p. 166.

  52. See Randy E. Barnett, “The Ninth Amendment: It Means What It Says,” Texas Law Review 85 (2006): 1–82.

  53. Robert H. Bork, “Neutral Principles and Some First Amendment Problems,” Indiana Law Journal 47 (1971): 10.

  54. Bork does acknowledge that the Bill of Rights restricts the majority—but he also holds that the Bill of Rights is itself a set of privileges granted by, and thus revocable by, the majority.

  55. See Harry V. Jaffa, Storm Over the Constitution (Lanham, MD: Lexington Books, 1999).

  56. 478 U.S. 186, 204 (1986) (Blackmun, J., dissenting) (citation omitted); Bork, Tempting of America, p. 121.

  57. Ibid., p. 122.

  58. Letter from Thomas Jefferson to James Monroe (May 20, 1782), in Jefferson: Writings, p. 779.

  59. Bork, Tempting of America, pp. 121–22.

  60. Ibid., p. 54; see also Mark R. Levin, Men in Black: How the Supreme Court Is Destroying America (Washington, DC: Regnery Publishing, 2005), pp. 26–33 (“[T]he framers did not intend to grant general authority to the judiciary to rule on the constitutionality of legislative acts. . . . Marshall’s ruling in Marbury was nothing short of a counter-revolution.”).

  61. Bork, Tempting of America, p. 54.

  62. 198 U.S. 45 (1905).

  63. 545 U.S. 469 (2005).

  64. David E. Bernstein, Rehabilitating Lochner (Chicago: University of Chicago Press, 2011).

  65. 198 U.S. at 53.

  66. Ibid. at 57.

  67. Ibid. at 61.

  68. Ibid. at 53.

  69. Ibid. at 56.

  70. Roscoe Pound, “Mechanical Jurisprudence,” Columbia Law Review 8 (1908): 605–23.

  71. Theodore Roosevelt, “A Confession of Faith” (1912), in The Works of Theodore Roosevelt: Social Justice and Popular Rule, Herman Hagedorn, ed. (New York: Scribner’s Sons, 1926), vol. 17, pp. 254, 264.

  72. Ibid., p. 262.

  73. Bernstein, Rehabilitating Lochner, p. 32.

  74. David N. Mayer, “The Myth of ‘Laissez-Faire Constitutionalism’: Liberty of Contract During the Lochner Era,” Hastings Constitutional Law Quarterly 36 (2009): 227.

  75. 291 U.S. 502 (1934).

  76. See, for example, FCC v. Beach Communications, Inc., 508 U.S. 307, 313–15 (1993) (detailing the “paradigm of judicial restraint” that is rational basis).

  77. United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938).

  78. Ibid. at 152, n.4.

  79. Bernstein, Rehabilitating Lochner, p. 122.

  80. David Bernstein, “The Role of Lochner in the Health Care Litigation,” Jurist Forum, March 21, 2012, http://jurist.org/forum/2012/03/david-bernstein-lochner.php.

  81. Timothy Sandefur, The Right to Earn A Living (Washington: Cato Institute, 2010), ch. 6.

  82. See, for example, David N. Mayer, Liberty of Contract: Rediscovering a Lost Constitutional Right (Washington: Cato Institute, 2011), p. 123, n. 37.

  83. An exception is the heightened protection for “privacy rights,” a legacy of the realignment within Progressive liberalism during the years following World War II. Some liberals came to reject morally-neutral Progressivism and returned to a natural-rights theory regarding certain privacy rights. Others resisted this innovation. Witness Justice Hugo Black’s dispute with Justice William O. Douglas in Griswold and similar cases. The same change can be seen in the efforts of civil rights advocates like Martin Luther King, who, though an ordinary Progressive on economic matters, invoked the Declaration of Independence to attack the segregation laws that Progressives had implemented a generation earlier.

  84. See, for example, Dolan v. City of Tigard, 512 U.S. 374, 392 (1994); United States v. Carlton, 512 U.S. 26, 41–42 (U.S. 1994) (Scalia and Thomas, JJ., concurring in judgment); Hettinga v. United States, 677 F.3d 471, 480–83 (D.C. Cir. 2012) (Brown and Sentelle, JJ., concurring).

  85. Kelo, 545 U.S. at 483.

  86. Ibid. at 484.

  87. Ibid. at 518 (Thomas, J., dissenting).

  88. Lochner, 198 U.S. at 56.

  89. Beach Communications, 508 U.S. at 323 n. 3 (Stevens, J., concurring in the judgment). See also City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 451 (1985) (
Stevens, J., concurring) (arguing for more realistic rational basis review).

  90. Adkins v. Children’s Hosp., 261 U.S. 525, 546 (1923).

  91. Thomas Reed Powell, “The Judiciality of Minimum Wage Legislation,” Harvard Law Review 37 (1924): 555–56.

  92. Roosevelt, Myth, p. 3.

  93. Ibid., pp. 24–36.

  94. Ibid., p. 29.

  95. Ibid., p. 33.

  96. Guinn v. Legislature of Nevada, 71 P.3d 1269 (Nev. 2003), reh’g denied, 76 P.3d 22 (Nev. 2003) (per curiam), cert. denied sub nom. Angle v. Guinn, 541 U.S. 957 (2004), overruled by Nevadans for Nevada v. Beers, 142 P.3d 339, 348 (Nev. 2006) (per curiam). I tell the story of this astonishing case in “A Private Little Bush v. Gore, or, How Nevada Violated the Republican Guarantee and Got Away with It,” Texas Review of Law & Politics 9 (2004): 105–45.

  97. Guinn, 71 P.3d at 1272.

  98. Ibid. at 1275.

  99. “Recent Case, Constitutional Interpretation: Nevada Supreme Court Sets Aside a Constitutional Amendment Requiring a Two-Thirds Majority for Passing a Tax Increase Because It Conflicts with a Substantive Constitutional Right,” Harvard Law Review 117 (2004): 977–78.

  100. Guinn, 76 P.3d at 22 (“Against . . . the democratic process . . . we balanced the interests fostered by the supermajority requirement.”).

  101. Breyer, Active Liberty, p. 48.

  102. Redistribution does not necessarily take the form of actual transfer payments. Any legislative action that has the potential of benefiting a particular group and burdening others will be subject to such pressures. Occupational licensing, for example, is routinely subject to rent-seeking pressures, as economic groups seek to protect themselves against competition from newcomers. See Sandefur, Right to Earn a Living, chapter 7. Because occupational licensing serves as a barrier to entry, established businesses often lobby the government to establish licensing regimes that will close the market to at least some degree, enabling the insiders to raise their prices securely. See, for example, Walter Gellhorn, “The Abuse of Occupational Licensing,” University of Chicago Law Review 44 (1976): 6–27.