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

by Timothy Sandefur

  It is Soraya’s aunt Zahra, the village’s female elder, who stands as the symbol of lost lawfulness in the village. It was she who once selected Ebrahim to be mayor. Now it is she who confronts him, charging that his willingness to let Hassan and Ghorban-Ali exploit authority for their own purposes renders him unfit for that trust. “[Y]ou’ve lost everything,” she cries, “everything that gave you the right to be the head of our community: authority, honesty, courage, independence, goodness.”26 In other words, Ebrahim’s acts are no longer truly lawful because the qualities that would make his decisions law instead of mere words are absent. He is now only the shell of authority—the form of law, without substance. Now he may wield power and may sign legal documents purporting to legitimize “the illicit commerce that Sheik Hassan was carrying on in league with Ghorban-Ali,”27 but his signatures cannot make that commerce any less illicit, and “the vocabulary of officialdom” cannot make Soraya’s death lawful. It is Zahra who stands for the substantive principles of law, but without the authority to put them into practice, she is rendered an impotent witness as the political order degenerates into a “diabolical machine.”28 It is “the law of men, the law that men make and say it is the law of God,” she tells Soraya. “They have found you guilty, whereas you are not.”29 Like Sophocles’s Antigone, Zahra does not mistake the fiction of men’s will for the actual lawful order, and after the execution she defies Sheik Hassan’s decree that Soraya shall not be buried.30

  The Elements of Law

  Phrases like “true law” or “higher law” sound like mysticism to modern ears. But the idea does not rely on supernatural claims. It merely asserts that there are rational principles that limit the kinds of rules we can adopt, and those limits cannot rightly be overridden by fiat. This is a familiar idea. Principles of mathematics inhabit a realm of logical abstraction that cannot be observed in physical reality but nevertheless apply to our lives, limiting and guiding our choices. The logic of lawful rule similarly limits the kinds of things that government may do. For example, as Francis Bacon observed in 1620, a lawmaker cannot declare a law unrepealable, since a provision barring repeal could itself be repealed. Any attempt to create an unchangeable statute would be “void ab initio & ipso facto” simply “by the impertinency of it.”31 This restriction on the legislator’s power is not imposed by any statute, of course, but by the logic of lawfulness itself.32 And there are many similar abstract natural laws that restrict the power of lawmakers. For instance, the commonplace rule that a later-enacted law takes precedence over an older, contrary law is, as Alexander Hamilton wrote, “not derived from any positive law, but from the nature and reason of the thing.”33 Or consider a statute that was simply an unintelligible gibberish of symbols. Would it in fact be a law? How would we know? We could answer this question only by reference to abstract principles that limit and guide the legislator’s power.34

  This means that law is a thing with certain qualities, and an enactment lacking these qualities cannot be fairly described as law. In other words, like all human institutions, law is a combination of descriptive and normative: a convergence of “is” and “ought.” As philosopher Philippa Foot observed, knowing what a manmade thing is means knowing what a good thing of that kind would be.35 A bartender who leaves out the pineapple juice has made a bad piña colada—and if bad enough, it is not really a piña colada at all. In the same way, a law that lacks certain elements is a bad law, and if bad enough, is not even really a law at all.36 And the ingredients of law include generality, regularity, fairness, rationality, and public orientation.37 In other words, a law is a general rule that realistically serves some public, not merely private, goal.

  Daniel Webster put this point eloquently in his famous argument in the 1819 case of Dartmouth College v. Woodward—in words the Supreme Court quoted time and again throughout the 19th century as the best definition of the term. Law, Webster said, is

  “a rule; not a transient sudden order . . . to or concerning a particular person; but something permanent, uniform and universal. . . .” By the law of the land, is most clearly intended, the general law; a law, which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial. The meaning is, that every citizen shall hold his life, liberty, property and immunities, under the protection of the general rules which govern society. Everything which may pass under the form of an enactment, is not, therefore, to be considered the law of the land. If this were so . . . decrees and forfeitures, in all possible forms, would be the law of the land. Such a strange construction would render constitutional provisions, of the highest importance, completely inoperative and void. . . . There would be no general permanent law for courts to administer, or for men to live under. The administration of justice would be an empty form, an idle ceremony.38

  We know that these are the ingredients of a law by considering what law is supposed to accomplish—just as the ingredients of a cocktail are determined by what it is meant to taste like. To know whether a law is a good one or not, we must know the reason for establishing a law-making body. That reason is to give security and stability to individual rights, protecting them against the intrusions of others and against the interference of the government itself. Webster hinted at this when he paraphrased a passage from Edmund Burke: “‘Is that the law of the land,’ said Mr. Burke, ‘upon which, if a man go to Westminster Hall, and ask counsel by what title or tenure he holds his privilege or estate, according to the law of the land, he should be told, that the law of the land is not yet known; that no decision or decree has been made in his case; that when a decree shall be passed, he will then know what the law of the land is?’”39 When government acts according to no limit but its own discretion—when the citizen can only know what the rules are after the ruler announces them, and only for that moment, until the ruler changes them again—then the citizen’s rights are insecure; he is vulnerable to the self-interested or abusive acts of the ruler. He cannot make plans or deal with others safely and rationally. These evils follow regardless of whether the arbitrary power is wielded by a monarch or by a democratic voting majority.

  Webster’s definition of law was borrowed from William Blackstone, who explained in his Commentaries that law differs from a specific command, because a command is only “a transient sudden order from a superior, to or concerning a particular person,” whereas law is a “rule,” and therefore “permanent, uniform, and universal.”40 A statute that confiscates a particular person’s goods or purports to convict him of treason is not a law, because “the operation of this act is spent” upon that one person, and “has no relation to the community in general.” Such an enactment would be “rather a sentence than a law.”41 The same holds for statutes that confiscate the goods of a group, or deprive a group of liberty.42 If the legislature can violate their rights for no other reason than that they have too little political influence to defend themselves, then the legislature would have power to alter or destroy rights at will, contrary to the purposes for which the entire apparatus of legal procedure was established.

  Previous generations of lawyers called enactments whereby the majority enriched itself or vented its displeasure on politically disfavored groups “legislative deprivations,” and regarded them as quintessential violations of the due process of law requirement.43 As the Tennessee Supreme Court observed in an influential 1836 decision, a statute that seizes a person’s property “does not partake of the character of a law, for it forms no rule of action of that permanent, uniform and universal character which Blackstone . . . says constitute the fundamental principles of municipal law.”44 Instead, such a statute is more like a judicial decree. It takes a person’s property away and gives it to someone else in the manner of a court judgment, but without weighing evidence or legal precedent as courts do. Yet the point was not merely that such statutes violate the principle of separation of powers by intruding on the province of the courts, it was that if legislatures could deprive individuals or groups of the
ir rights simply by voting to do so, then the people would be exposed to lawless rule and would be no safer than they were in a state of nature. The legislature could erase their rights whenever it saw fit, for any reason or no reason. Rights would then be held not by lawful tenure, but simply by permission from the ruling majority.

  In his 1967 masterpiece The Morality of Law, legal philosopher Lon Fuller described eight ways in which the government can fail to make law even while claiming to do so. If it passes bills that do not create rules, for example, but only implement ad hoc policies without reference to general principles, then it is not enforcing a rule of law. If it abuses retroactive legislation so as to punish acts that were legal when they were committed, or if it passes contradictory or incomprehensible statutes, it would not be rightly regarded as a government of laws. A citizen living under such rule could not predict how the government would operate, or whether private agreements and rights would be enforced. On the contrary, such lawless rule would undermine whatever rules did exist and deprive them of their power to guide action and facilitate citizens’ choices. If the government fails to actually enforce or abide by the rules it announces, or changes those rules suddenly and without reason, it is not successfully producing law.45

  The 2010 report of the World Justice Project agreed with this argument, recognizing that “the rule of law must be more than merely a system of rules” because “positive law that fails to respect core human rights” is “at best ‘rule by law,’ and does not deserve to be called a rule of law system.” That report identified four universal principles recognized across all cultures as inherent in the rule of law: First, the government is subject to, and not superior to, the law; second, the laws are clear, public, stable, evenhanded, and protect fundamental rights such as persons and property; third, the procedures of enactment and enforcement are accessible, fair, and efficient; and fourth, the laws are actually enforced by independent, competent, and ethical officials.46 The law must be rational and comprehensible—so as to avoid the arbitrariness of “The Lottery” or “It’s a Good Life”—and must be general and oriented toward public goals—so as not to become a trick for predatory rulers as in The Stoning of Soraya M. But its rules must also be regular and basically fair. A purported law that lacks these requirements would not be a law at all, just as Alice’s “trial” before the Red Queen in Alice in Wonderland is too absurd to deserve the name “trial.”

  True, generality, fairness, and equality describe broad ideals that might be difficult to define and apply in any specific case,47 and they must accord some degree of discretion to the lawmaker. For example, an unyielding generality requirement that would bar the legislature from passing statutes applicable only to particular groups or individuals would be unworkable, since there are circumstances in which distinctions are appropriate. On the other hand, a monarch or a legislature that frequently resorts to specific commands rather than general rules is more likely to be ruling arbitrarily, or to be abusing power to serve private interests instead of the public interest. Likewise, regularity is an elastic concept. In some cases, a special rule for a special case is proper, and it is not easy to draw a line that excludes inappropriate special rules but also allows lawmakers sufficient discretion to react to unusual circumstances. Yet the fact that these principles are not mathematically precise does not render them invalid, nor does it mean that courts are incapable of applying them. Courts routinely employ abstract concepts like “the reasonable man,” “foreseeable under the totality of the circumstances,” “due diligence,” and “necessary and proper.” And courts applying the concepts of generality or regularity have developed a rich and useful body of case law to enforce constitutional limits.

  Consider, for example, the prohibition on “special laws” contained in many state constitutions. Special laws, which confer unique benefits on some discrete subset of the populace, violate the principle of generality and betray the inherent principle of lawfulness unless there is some legitimate reason for singling out a case as unique. Difficult as it may be to define special laws, it is still clear that they are an abuse of the lawmaking power. They are symptomatic of a government that legislates for the ruler’s self-interest or for the benefit of his cronies. As one court explained:

  The inherent vice of special laws is that they create preferences and establish irregularities. . . . [They thus replace] a symmetrical body of statutory law on subjects of general and common interest to the whole people . . . [with] a wilderness of special provisions, whose operation extends no further than the boundaries of the particular school district or township or county to which they were made to apply. . . . A public law is a measure that affects the welfare of the state as a unit; a private law is one that provides an exception to the public rule. The one is an answer to a public need, the other an answer to a private prayer. When it acts upon a public bill, a legislature legislates; when it acts upon a private bill, it adjudicates. It passes from the function of a lawmaker to that of a judge. It is transformed from a tribune of the people into a justice shop for the seeker after special privilege.48

  Such legislation is not, strictly speaking, law at all. It is a command or a dictate. It violates the principles of lawfulness from, as it were, both the internal and external point of view. By granting localized benefits to specific persons, special laws employ state power in an irregular manner not justified by any broader public purpose. But they also do violence to the democratic process of deliberation and public decisionmaking, thus encouraging “improvident and ill-considered legislation.” A law that concentrates benefits or burdens on constituents in one county will not be weighed or considered by legislators who represent different counties. And the legislature will “fritter[] away” its time “in the granting of special favors to private or corporate interests or to local communities,” instead of addressing problems of general importance.49

  How Substantive Due Process Works

  If a legislative enactment that fails the tests of generality, regularity, fairness, rationality, and public orientation is not a law, then enforcing it against a person would violate his or her right to due process of law. Under the Constitution, government may only deprive people of their rights if it acts within the principles of lawfulness. These principles are both procedural and substantive, and they distinguish lawful from unlawful state action. For the government’s acts to qualify as lawful, they must comply with formal procedures (e.g., the “rules of promulgation”), and they must also include the substantive elements like regularity, generality, and fairness. Form and substance cannot be separated here any more than they can be in the realm of physical reality, and the effort to treat “substantive due process” and “procedural due process” as separate categories collapses upon examination. Consider some examples.

  First, imagine that Congress were to pass a bill (say, requiring ship captains to maintain a list of passengers) but the president vetoes it. Having been vetoed, the bill does not become law, but this is only for procedural or formal reasons, not for substantive reasons or any objections relating to the bill’s content. Had the president signed it, nobody would deny its validity. But now that it has been vetoed, a harbor master who tries to enforce it by arresting a captain who fails to keep a list of passengers would be acting unlawfully—without the necessary legal authority. He would be depriving the captain of liberty without due process of law.

  The same reasoning applies where a purported law fails for substantive, and not for procedural, reasons. Thus, suppose Congress were to pass a bill, and the president were to sign it, which established an official religion for the United States. That bill would not be a law, even though it complied with the formal steps required to make a law, because the First Amendment denies Congress power to make any such law, regardless of the formalities: “Congress shall make no law respecting an establishment of religion.” And since that statute could have no claim to status as law, a sheriff who arrested a dissenter for violating it would be depriving that per
son of liberty without due process of law, just as in the first hypothetical. The arrest would be unlawful, not because of any formal or procedural shortcoming, but because the sheriff could not point to any duly constituted substantive authority to justify his actions.

  These two examples are relatively easy to follow since they rest on explicit constitutional limitations on government power. But there are also implicit or inherent limits on government power. These implicit limits are part of the very idea of law itself. No constitution or contract could hope to spell out the infinite commonsense principles that it presupposes or implies. Even the most airtight contract assumes certain unspoken elements, either because the parties consider them too obvious to require specification, or because the background laws create “gap fillers” that clarify the meaning of the terms. Implicit limits on lawmaking play a similar role in constitutional law. For example, in Clinton v. City of New York,50 the Supreme Court ruled that the Constitution did not allow Congress to give the president a line-item veto power. The Constitution does not explicitly prohibit the line-item veto, but the Court’s logic was irresistible: the Founders wrote down the entire procedure for making a bill into a law. They did not provide any alternative methods, but were “silent on the subject of unilateral Presidential action that either repeals or amends parts of duly enacted statutes.”51 The Founders’ “constitutional silence” was “equivalent to an express prohibition”52 against Congress devising any alternative methods of lawmaking. In other words, by specifying one procedure for making and vetoing laws, the Constitution implicitly bars Congress from creating others. It logically followed that Congress had no power to give the president a line-item veto, and the statute doing so could not be regarded as a law. In short, if the legislature passes a statute it lacks the authority to make, that statute has no standing as law, even if its fatal weakness is that it contradicts generally understood principles or the logical implications of the Constitution’s provisions, instead of any explicit prohibition.