The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty Hardcover
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Elsewhere, Scalia has made clear his disdain for the broader principles of the Declaration. In a dissenting opinion rejecting First Amendment protection for nude dancing, he derided the “Thoreauvian ‘you-may-do-what-you-like-so-long-as-it-does-not-injure-someone-else’ beau ideal,” because there was “no basis for thinking that our society has ever shared” that principle, “much less for thinking that it was written into the Constitution.”41 Yet the Declaration of Independence does incorporate this ideal by providing that government exists to secure the freedom to which every person is naturally entitled—as does the Constitution, with its reference to the rights of “liberty” and to the “other rights retained by the people.”42 The primacy of liberty means that the majority has no preeminent right to rule; it must justify any limits it imposes on individual freedom by reference to some genuine public principle, such as preventing people from harming one another. If the majority fails to make that justification, it has no grounds to complain when courts invalidate restrictions on freedom. By giving government power to secure individual rights, and requiring it to respect the more basic liberty of individuals, the Constitution does indeed implement the rule that one may act as one pleases so long as one does not hurt others. In the traditional Latin phrase, sic utere tuo ut alienum non laedas—one may do what one wishes if one harms no other person.
Of course, Scalia is right that the Declaration is not a detailed framework of government in the same way that the Constitution is, and it would do little to resolve most ordinary legal cases. But it is a part of our organic constitution—that is, one of the fundamental laws that constitutes our legal order and makes the American people a political unit. Like any written document, its meaning has sometimes been misrepresented. But properly understood, the Declaration instructs our political and legal institutions, and it ought to guide courts interpreting our basic law. Some judges have regarded it as such. Consider Grutter v. Bollinger, the 2003 case upholding the constitutionality of race-based admissions policies at the University of Michigan Law School. There, Justice Scalia joined Justice Clarence Thomas in denouncing the policy as a violation of the Fourteenth Amendment. But Scalia made a point of refusing to sign on to the short concluding paragraph of Thomas’s dissenting opinion. That was the paragraph in which Thomas supported his denunciation of government racial discrimination by invoking “the principle of equality embodied in the Declaration of Independence.”43
Does It Make Any Difference?
Why should it matter whether we regard the Declaration as part of our law? It matters for two reasons. First, judges and lawyers tend to ignore whatever falls outside the category of law. After all, the practice of law depends on honoring the difference between those pronouncements entitled to obedience and those that are not, and much of a lawyer’s time is spent figuring out which documents are so entitled, and why. Reflexively dismissing the Declaration as “not law” is a crude way of depriving it—and the principles it articulates—of respect in constitutional discourse. And this leads to the second reason why it makes a difference. The Declaration helps to orient our political and legal order and to coordinate the constitutional scheme in terms of justice. If we deem it out of bounds, our understanding of the Constitution itself may be distorted.
Today, the legal profession is dominated by adherents to varieties of legal positivism—realists, critical race theorists, postmodernists—who think of law only in terms of power, and of moral principles as disguised power gambits. To these thinkers, the Declaration’s principles are simply anathema. To regard it as law would undercut the legitimacy they assume for many of the legal doctrines they favor. If the Declaration—which says that all people have certain rights that no government may legitimately disparage—is a part of our fundamental law, then it would become clear how far beyond the orbit of the Constitution stands the work of such figures as Oliver Wendell Holmes, Robert Bork, or Cass Sunstein.
To emphasize: if the Declaration is a part of our law, it sets forth an explanatory principle for our legal institutions. Obviously, it will not tell us whether, say, the Miranda warning is the best way to ensure that a suspect’s Fifth Amendment rights are protected, or whether execution by electric chair is cruel and unusual punishment. But it gives us a direction in understanding the limits of government power, and helps us interpret such broad constitutional phrases as “privileges or immunities of citizens of the United States” or “due process of law” or “equal protection of the laws.” That the Declaration provides a philosophical framework rather than particular limits on personal behavior or instructions to government agencies does not make it any less a part of our Constitution. Some parts of the Constitution itself are also more like guideposts than specific commands for official enforcement.44 The Ninth and Tenth Amendments, for example, command nothing—but they serve as guides for understanding the rest of the document. Like them, the Declaration establishes a presumption—a legal pole star for interpreting constitutional language. Chief Justice John Marshall once observed that Congress’s authority to pass laws “necessary and proper” for effectuating its powers could not allow legislation inconsistent with “the letter and spirit of the constitution,”45 and in his recent decision in the case challenging the constitutionality of the Obama Administation’s health insurance legislation, Chief Justice John Roberts reiterated that “laws that undermine the structure of government established by the Constitution” and “reach beyond the natural limit of [Congress’s] authority” are not “proper.”46 The Declaration’s principles of equality and liberty help judges to understand the spirit of the Constitution, the structure of government it creates, and the “natural limit” of government power, and can therefore guide interpretations of the Necessary and Proper Clause. In short, as Senator Charles Sumner said, the Declaration is “the illuminated initial letter of our history . . . the national heart, the national soul, the national will, the national voice, which must inspire our interpretation of the Constitution, and enter into and diffuse itself through all the national legislation.”47
It is apt to mention Sumner, the Massachusetts abolitionist whose fiery speeches condemning slavery once provoked a South Carolina congressman to bludgeon him with a cane on the floor of the U.S. Senate. If the Declaration is relevant to any constitutional problem, it is particularly relevant to understanding the great legal achievement of Sumner’s generation: the Fourteenth Amendment. Ratified in 1868, that amendment, more than any other federal law, was meant to institutionalize the principles of the Declaration. The grueling civil war that Sumner and his fellow Republicans had just won centered on a controversy over those principles; so, too, during the debates over the writing of the amendment, its advocates repeatedly invoked the Declaration, as when Senator John Sherman told his colleagues that courts interpreting the amendment’s Privileges or Immunities Clause should refer to the Declaration of Independence to help define the rights of Americans,48 or when Senator Luke Poland explained that the amendment would ensure enforcement of “the very spirit of our system of government, the absolute foundation upon which it was established . . . in the Declaration of Independence.”49
The Declaration sets forth what we may call the regime philosophy of the nation. American institutions have a higher calling than those of mere kinship groups or tribes, which are governed by what Alexander Hamilton termed “accident and force.”50 The Constitution makes reference to the Declaration’s principles, both explicitly—as in its opening invocation of the “Blessings of Liberty” and “the People of the United States,” who make their first appearance as “one People” in the Declaration—and implicitly, as in the Ninth Amendment’s reference to rights “other” than those specified in the Bill of Rights. It is obviously true, as Justice Scalia has said, that the Declaration does not define the powers of federal courts. But when they are called upon to decide whether a person has been deprived of the “privileges or immunities of citizens of the United States,” or whether the government has violated the const
itutional promise that it will accord people “due process of law,” courts should refer to the Declaration’s explanation of the nature of rights, and the limits of government legitimacy. It is only a slight exaggeration to say that, as ancient Athens was consecrated to Athena, so the United States is consecrated to the principles enunciated in the Declaration of Independence. Disregarding those principles can sever our understanding of the Constitution from the wider political order of which it is a part.
Modern legal thinkers, pursuing that illusion of objectivity that consists of refusing assent to any moral propositions, often do just this. They endeavor to interpret the law without reference to the ends it aims to achieve, and even claim that the Constitution is compatible with whatever purpose political leaders choose to pursue. Thus, Justice Oliver Wendell Holmes famously said that the Constitution is “not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire. It is made for people of fundamentally differing views.”51 If that is true, then the Constitution presents no obstacle to political movements or government programs that alter the landscape of rights in dramatic and dangerous ways. If the Constitution is made for people who differ on fundamental matters, then those fundamental matters—including rights that the Constitution was written to fortify against political interference—are vulnerable to a political realm that can be irrational and unpredictable, influenced by prejudice, hatred, corruption, or demagoguery. On the other hand, if the Constitution is part of a larger set of principles, then some proposals are out of the question entirely. As Justice Robert Jackson put it, the purpose of the Constitution was to insulate our rights against “the vicissitudes of political controversy.”52
The Declaration makes clear that government is established to secure those rights. It is an employee, hired to protect the people—like a guard employed to prevent a bank from being robbed. The problem is that the government has such extensive powers that those in charge might pervert it and use it for foolhardy, destructive, or self-interested purposes, just as a bank guard might be tempted to rob the bank himself. This confronts the author of a constitution with a dilemma: in designing a government which is to be administered by fallible human beings, wrote Madison, “the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”53
Here we see again the importance of respecting the philosophical orientation that the Declaration of Independence provides: the reason for checks and balances within the constitutional order is to ensure that government serves its overall purpose of securing individual rights. If government existed for no purpose at all, or simply to benefit the ruler, there would be no reason to “oblige the government to control itself.” The Constitution’s careful separation of powers would be pointless. But the Founders understood their purpose well. Madison described the Federalist system as a “compound republic” with the states in tension against the federal government, which would in turn be divided into different branches to provide “a double security” to “the rights of the people”54—a deliberate echo of the Declaration’s reference to “securing rights.” And he made a crucial observation about the connection between liberty and order: “In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger.”55 A government that enables a single tyrant or a powerful group of influential insiders to exploit power to benefit themselves would expose citizens to the same dangers of violence and oppression that would exist in a country ruled only by warlords and strongmen. In other words, the extremes touch: a world without lawful protection, and a world in which government has become too powerful, both lead to the same evil consequences.
This is not a rhetorical flourish. It is an observation about the rational mechanics of lawful rule, which might be rephrased in economic terms: in a world without regular, enforceable guidelines and institutions to define and enforce private rights (that is, in a state of nature), individual actors will strive to gain as much control over resources as they can.56 Take, for example, a fish pond.57 Each will try to hoard access to it, investing heavily in fencing it off and otherwise defending it against rivals, or in discovering ways to confiscate their rivals’ gains. Such investments divert attention away from more productive undertakings and are thus economically wasteful.58 Each person will also tend to overexploit the resource, taking as many fish as possible because they cannot trust that others will not grab the remaining fish. In the absence of any authority to police each person’s rights, the race will go to the swift and the battle to the strong. But if the people agree to a system of rules to govern legitimate claims—a contract, a set of mores, or a police system that protects every person’s right to fish in the pond—each will gain because he can reduce his inefficient investments (in predation or defending against predation) and can instead focus his energies on productive activity. Each fisherman is also less likely to overexploit the resource since the police will guarantee the claims of rivals who are too poor or too weak or otherwise unable to enforce their own claims. Thus, in theory, a common system of rational rules improves economic efficiency by reducing wasteful expenditures in obtaining and defending resources. This is what makes the social compact rational.59
But imagine that the rules regulating the fishing pond become so complicated and confusing that they cannot be understood without expensive legal representation, or cannot be understood at all. Now, fishing rights can be obtained only by bribing the officials who guard the fishing hole. Those who are too poor or too weak to enforce their rightful claims are once again barred from access, or are again made vulnerable to predation. A convoluted system of rules riddled with unprincipled exemptions can become so arbitrary that it is as bad as having no meaningful rule at all—or worse. “It will be of little avail to the people that the laws are made by men of their own choice,” wrote Madison, “if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be tomorrow.”60
Rules that become so complicated essentially transform the pond back into a kind of common resource, to which access is gained not by force but by corruption, cleverness, or arbitrary political influence. This encourages the fishermen to switch their efforts to rent seeking—that is, finding ways to confiscate fish from others, or to fence off their own gains. Although these inefficiencies take the form of lobbying, payoffs, and complicated paperwork, instead of turf wars with weapons, they are in substance the same: rightful claims go unenforced, each actor wastes resources jostling with rivals,61 and the “the weaker individual is not secured against the violence of the stronger.”62 This is why government must be limited in scope and extent. The more complex and pervasive it gets, the more counterproductive it can become. By reminding us of government’s purpose and limits, the Declaration of Independence helps us to keep in mind the reasons for both creating and restricting political authority.
Sneering at the Rights of Man
Attacks on the principles of the Declaration began at an early point in American history. In the four decades before the Civil War, defenders of slavery explicitly rejected it, even calling it, as Senator John Pettit did in 1854, “a self-evident lie.”63 Horrified by this, antislavery politicians rallied to the Declaration. They developed a constitutional interpretation that emphasized liberty and equality, and they denounced slavery as incompatible with the Constitution.64
While their arguments seemed extreme at the time, events proved at last that the stop-gaps and compromises by which slavery had been perpetuated could no longer be sustained. That was because neither the Constitution of 1787 nor any other constitution can exist among p
eople of “fundamentally differing views.” Like a marriage, a constitution represents a fundamental agreement on shared principles, which leaves other, more mundane decisions to be settled through negotiation. A constitution provides a political framework for formulating specific policies, but it is built upon a basic assent to the moral precepts that underlie that framework, and these precepts are not the proper subject of democratic vote. The Constitution’s foundation is the Declaration of Independence, and as slavery’s defenders were increasingly forced to reject its principles, and to defend racial inequality and hierarchy as good things, they found it increasingly difficult to maintain allegiance to the Constitution.
As we will see, the Union’s victory in the Civil War gave antislavery leaders the opportunity to permanently rededicate the Constitution to the Declaration’s principles. But their efforts were only partly successful. The reaction against the classical liberal doctrines described in the Declaration, which began before the war and climaxed with the pro-slavery cause, survived the war and exerted a powerful influence on the next generation of intellectuals. In his 1903 book, A History of American Political Theories, Charles Edward Merriam, the University of Chicago’s first professor of political science, observed that the war’s end had not meant the triumph of anti-slavery arguments about the basic right to freedom—quite the opposite. “The Abolitionists thought that liberty is the birthright of all men,” he wrote, while “defenders of slavery thought it the possession of those only who are fit.” Forty years after the Gettysburg Address, Merriam was prepared to say that “[f]rom the standpoint of modern political science the slaveholders were right in declaring that liberty can be given only to those who have political capacity to use it.”65 The profession of political science, he claimed, had “abandoned” the Declaration’s premise “that liberty is a natural right,” and had come to hold that freedom is created by government as a sort of privilege: “rights are considered to have their source not in nature, but in law.”66