The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty Hardcover
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By forbidding the government from depriving a person of life, liberty, or property except through due process of law, the Constitution bars legislators, presidents, or other government officials from going beyond the limits—whether explicit or implicit—on their authority. If the Constitution is a kind of contract among the people, then government is an agent, “hired” for the purpose of protecting individual rights. And inherent in its “employment contract” is the principle that it may not violate those rights, or act in ways that only serve the rulers’ own self-interests.
This argument is familiar from the realm of arbitration law. An arbitrator can settle a dispute between two parties only because the parties have chosen to let him. But their agreement to submit to his decision limits his powers, both explicitly and implicitly. It is not unusual for the parties to a dispute to later go to court seeking to challenge the validity of the arbitrator’s decision. In such a case, as the Seventh Circuit Court of Appeals once observed, “the plaintiff normally will be pointing to implicit or explicit limits that the contract places on the arbitrator’s authority—principally that he was to interpret the contract and not go off on a frolic of his own—and arguing that the arbitrator exceeded those limits.”53 Where an arbitrator acts in ways that the arbitration agreement does not authorize, his decision is invalid. One might even say that such an arbitrator has deprived the parties of their right to the “due process of their contract.” In the same way, government actions that the Constitution does not authorize violate the Due Process of Law Clause.
Classical liberals such as the Framers saw government not only as an arbitrator but also as a security guard. The people, anxious to protect their resources and freedoms, hire the government to protect them, just as the owner of a bank might hire an armed guard. But while this solves the problem of robbery, the bank owner now has a new problem: he has allowed the guard to enter his bank with a gun, and the guard might very well give in to temptation and rob the bank himself. If this were to happen, the guard’s actions would obviously exceed the terms of his employment contract and would lack legitimate authority.
This actually happened in a Florida case in 1986.54 A bank contracted with a detective agency to provide a guard, but the guard then conspired with third parties to help rob the bank. The bank sued the detective agency, arguing that the agency was responsible for its employee’s wrongdoing. But the court rejected this argument because the guard’s actions were a “classic case of an employee acting outside the scope of his employment. . . . [W]e think the employee was plainly off on a frolic of his own, [and] was in no way furthering the interests of his employer.”55 In other words, the guard’s authority as an employee existed only within the boundaries of the employment contract, so when he stepped beyond those limits, his acts lacked validity. This conclusion is obvious even though the contract contained no explicit provision against holding up the bank. That prohibition was implicit, because the whole point of the owner hiring the guard was to ensure against robbery. The owner need not write out a rule against the guard robbing the bank, because the contract contains both explicit and implicit, common-sense terms; acts that exceed those implicit limits are ultra vires and deprive him of his status as an employee just as surely as do acts that violate the contract’s explicit provisions.
When a court is asked to determine whether the government has violated the due process of law guarantee, it must approach the question the same way. It must decide whether the government has obeyed both the explicit and the implicit limits on its authority. As The Federalist explains, the Constitution is the instrument by which the people delegate power to the legislature, and when the lawmakers go beyond their bounds, courts must intervene to keep them “within the limits assigned to their authority” by pronouncing their illegal acts unenforceable and void.56 This is how courts ensure that the people’s “bank guard” does not fall prey to the temptation to rob the bank for himself.
How Implicit Limits Apply in Due Process Cases
What are the Constitution’s implicit limits on government authority? As with an employment contract, we can answer this question only by asking what the Constitution is designed to accomplish. And this requires us to address questions of political philosophy. It is not surprising that this obligation has generated so much debate throughout American history. Yet this is not, as many have claimed, an invitation to judges to do whatever they please: the principles of the Constitution’s political philosophy are not left up to the judges to invent, but are stated in the Declaration of Independence.
Justices James Iredell and Samuel Chase began the argument in Calder v. Bull,57 a 1798 case involving a state law that tried to set aside a trial court’s verdict in an inheritance lawsuit. That statute was a specific command, rather than a general law, and it sought to change the rules of litigation in the middle of the game. The Supreme Court justices had to decide whether this violated the Constitution’s prohibition on ex post facto laws, and although Chase and Iredell agreed in the end that it did not, their reasoning differed. Chase thought the Constitution imposes certain inherent restrictions on legislatures that bar them from “revis[ing] and correct[ing] . . . a decision of any of its Courts of Justice.”58 Even where the Constitution imposes no “express[] restrain[t]” on lawmakers, “[t]he nature, and ends of legislative power will limit” their powers.59 In other words, there are implicit restrictions on what government may do, and those implicit limits can be understood by considering the purposes of government, just as a bank guard’s authority is implicitly limited by the nature of his task:
The purposes for which men enter into society will determine the nature and terms of the social compact; and as they are the foundation of the legislative power, [those purposes] will decide what are the proper objects of [government authority]. . . . There are certain vital principles in our free Republican governments, which will determine and overrule an apparent and flagrant abuse of legislative power; [such as if the legislature tries] to authorize manifest injustice by positive law; or to take away that security for personal liberty, or private property, for the protection whereof the government was established. An ACT of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact . . . cannot be considered a rightful exercise of legislative authority. The obligation of a law in governments established on express compact, and on republican principles, must be determined by the nature of the power, on which it is founded.60
Justice Iredell disagreed, arguing that courts should not be in the business of interpreting the implicit limits on legislative authority. “The ideas of natural justice are regulated by no fixed standard: the ablest and the purest men have differed upon the subject.”61 In the absence of express constitutional prohibitions, courts must acquiesce even in legislation they think “inconsistent with the abstract principles of natural justice.”62
Justice Iredell’s hesitancy is certainly understandable; it would be easy for judges to exploit their power to interpret the Constitution’s implicit principles to nullify laws they simply dislike. Judges are often accused of doing just that. But this is a prudential concern, not a legal argument. Judges infer inherent principles all the time—as in Clinton v. New York, or in ordinary arbitration decisions, or cases interpreting employment contracts. They might abuse their authority when doing so, or reach incorrect decisions, but that does not show that the undertaking itself is improper. Wise as Iredell’s warnings might have been, they do not refute Chase’s logical position that governments are formed for certain purposes, and that their authority must be implicitly limited by those purposes. Judges must resort to political philosophy in making their decisions because the Constitution is not a morally neutral framework for empowering lawmakers. But the philosophical propositions on which the Constitution rests are set forth in the Declaration, which tells us that government exists to preserve the blessings of liberty and to secure individual rights by establishing lawful, non-arbitrary rule.
Nevertheless, Chase’s invocation of the principles of political philosophy has been condemned by many, especially in recent decades. Justice Scalia, who has scoffed at such ideas as “vague ethico-political First Principles,”63 has declared that the Constitution gives judges no power to define what rights are, or to “enforce the judges’ list [of rights] against laws duly enacted by the people.”64 Yet courts have done just this throughout legal history. Before the Revolution, common-law judges enforced individual rights by invalidating laws that clashed with basic principles of lawfulness or traditional protections. Even under the lenient rational-basis test of modern times—the “paradigm of judicial restraint”65—courts must still determine whether a challenged law rationally relates to a legitimate government interest, which obviously implies that some government interests are not legitimate. While courts have done a poor job of explaining which interests do and do not qualify, they have still ruled some things out of bounds. For example, they have made clear in a series of cases that government may not use its powers simply to burden or exclude disfavored groups as a sign of disapproval.66 This even applies to groups that have not traditionally received protection under the civil rights laws. As the justices explained in Romer v. Evans,67 the constitutional requirement that a law must “bear a rational relationship to an independent and legitimate legislative end” exists to “ensure that classifications are not drawn for the purpose of disadvantaging the group burdened by the law.”
In other words, when a court is asked to rule whether a challenged statute is lawful or arbitrary, it must be prepared to look past that statute’s form and examine its substance. The judge must determine whether the principle that the ruler purports to be advancing is genuine or only illusory. This will always be a normative question, but it is not up to the judges’ personal views. They must enforce the principles of the Constitution and the Declaration.
As long as judges are in the business of “saying what the law is,”68 they must enforce the substantive distinction between lawfulness and arbitrariness. A statute under which the government takes away a person’s life, liberty, or property without constitutional authority, or for no genuine public reason, or simply because the government wants to, is not a law as far as the Due Process of Law Clause is concerned, even if the majority supports that act. As the Supreme Court put it in 1884, law is “something more than mere will exerted as an act of power. . . . Arbitrary power, enforcing its edicts to the injury of the persons and property of its subjects, is not law, whether manifested as the decree of a personal monarch or of an impersonal multitude.”69
Some Examples of Substantive Due Process Cases
Because the question of whether or not the government has acted lawfully in a particular case necessarily involves considerations of political philosophy, substantive due process lawsuits have often become arenas for the clash between the wolf’s and the sheep’s definitions of liberty. Consider two 19th-century cases about government funding for railroads. In 1871, in Stockton & Visalia Railroad v. Common Council of Stockton,70 California’s progressive Chief Justice William T. Wallace upheld the constitutionality of a city ordinance that spent tax money to subsidize a privately owned railroad. Citing Jeremiah Black’s decision in the 1853 Sharpless case, Wallace began with the premise that, except where the Constitution explicitly limits the state’s power, the legislature “is politically omnipotent,”71 and its authority “embraces in its ample range whatever can be supposed to promote the interest of the body politic.”72 Since the Constitution did not explicitly bar the government from funneling tax dollars to private businesses, Wallace presumed that lawmakers may do what they like with the citizens’ earnings. True, the Constitution prohibited the taking of property except for public use, but it did not define “public use,” so the legislature could ascribe to that term nearly any meaning it chose.73 And anyone who argued that the Constitution implicitly barred the government from transferring tax money to politically influential corporations was just using legal arguments as a “mask” behind which to “oppose the right of the people to vote upon the question of local taxation.”74 Wallace would not allow such a “usurpation” of democratic power.75
His colleague, Justice Joseph Crockett, disagreed. Although he, too, upheld the ordinance, he thought Wallace’s extreme pronouncements about legislative power were dangerous. They would put the people “wholly at the mercy of the Legislature,”76 which “the framers of the Constitution could not have intended.”77 Where Wallace adopted the wolf’s premise that the legislature had a basic right to rule, Crockett held that it only had power to promote the genuine public good.
Three years later, the U.S. Supreme Court rejected Wallace’s approach when it struck down a similar ordinance in Loan Association v. Topeka.78 One of the archetypical substantive due process cases, Loan Association concluded that an ordinance which invested taxpayer money in a privately owned railroad was unlawful because it merely took property from some people and gave it to others for their own private benefit. A law is by definition public oriented, the justices explained, and “tax” means an assessment for public purposes, not for private ones. Although in some cases it might be difficult to draw the line between private benefits and public goods, using government power just to seize some people’s wealth for the benefit of others could not qualify as a genuine tax law, because it violated the principles of generality and public orientation:
There are limitations on [government] power which grow out of the essential nature of all free governments. Implied reservations of individual rights, without which the social compact could not exist, and which are respected by all governments entitled to the name. No court, for instance, would hesitate to declare void a statute which enacted that A. and B. who were husband and wife to each other should be so no longer, but that A. should thereafter be the husband of C., and B. the wife of D. or which should enact that the homestead now owned by A. should no longer be his, but should henceforth be the property of B.79
Since government was designed to protect these rights against arbitrary or wrongful deprivation, any government act which violated such rights, or used government power for private benefit rather than to accomplish the purposes for which government was instituted, would only be an act of force, and not of law. “This is not legislation. It is a decree under legislative forms.”80 The individual’s basic right to his earnings could not be intruded upon by government without legitimate justification. If the government took a person’s property for an invalid reason, then it did not matter whether it did so “under the forms of law”; such an act was “none the less a robbery.”81
A more recent example, Lawrence v. Texas,82 illustrates the continuing split between those who prioritize liberty and those who prioritize democracy in constitutional interpretation. In that 2003 case, the Supreme Court invalidated a Texas law that criminalized private, consensual sexual acts between adults of the same sex. If one adopts a constitutional interpretation oriented toward liberty, that decision is sensible. The statute was not a means of protecting individual rights, and its defenders made little effort to justify it in terms of liberty. They did not pretend that it ensured against innocent people being harmed in any way—it did not apply to rape, public indecency, or prostitution; it did not protect minors, or “persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused.”83 Nor did it involve same-sex marriage or adoption by same-sex couples. At times, the state claimed that the law promoted public morality, but the justices found this argument implausible, since the law applied to private conduct that was not witnessed by anyone.
Yet this did not matter to the statute’s supporters, because they did not believe that government power is limited to public conduct, or to acts that affect nonconsenting people. Instead, they believed the state could impose a burden on a disfavored minority simply to express disapproval, without having to account for its acts in terms of individual rights, because the st
ate has a basic entitlement to dictate how people may act. “The State of Texas,” fumed Republican Congressman Ron Paul, when the Court ruled the law unconstitutional, “has the right to decide for itself how to regulate social matters like sex, using its own local standards.”84 A spokesman for Concerned Women for America said that the decision “is further evidence that ‘We the People’ have virtually lost the right to govern ourselves because of judicial activists.”85 University of Texas law professor Lino Graglia was even more explicit. “The three basic principles of the Constitution,” he wrote, “are democracy . . . federalism . . . and separation of powers”—not individual freedom.86 The Lawrence precedent, he warned, would “presume unconstitutional all laws limiting ‘liberty,’” and this would “put on the states or national government the burden of justifying them,” which Graglia deplored.87 In short, Lawrence, like many other due-process cases, pitted those who think government has a fundamental right to rule, and that individuals seeking freedom must politely ask the majority to give them that freedom, against those who hold that individual liberty is an indefeasible right, which government may limit only when necessary to protect the rights of others.88 As Justice Kennedy observed in his Lawrence decision, if people are not hurting each other or seriously threatening the public, “[t]heir right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.”89