Legislative “Competency” Exists Only Within Constitutional Limits
Roosevelt argues that a judge should defer to the legislature whenever the legislature is better suited to balance the competing interests involved in a work of legislation. This “institutional competence factor” generally requires courts to presume laws to be constitutional, even though this will mean “strik[ing] down a good deal less than the Constitution actually prohibits,”153 because courts are typically less able “to determine the right answer” than are legislatures.154 Lawmakers can hold hearings, get advice from experts, ask for community input, and so forth, and are therefore in a better position than the courts to weigh the benefits and burdens of a proposed law. Thus “[i]f the legislature is acting in good faith—an important ‘if’—then the possibility of obtaining right answers to that question will be increased if the Court does not attempt to decide the matter itself but simply accepts the legislative judgment.”155
But this argument blurs the distinction between the right answer when it comes to policy and the right answer when it comes to constitutionality. When lawmakers debate what the tax rate should be, or whether the drinking age should be 21 or 18, it is proper for them to weigh the interests involved and draw a line that might not satisfy everybody. The matter is different when the legislature steps beyond its constitutional limits or violates individual rights. When that happens, its competence is irrelevant; the question is whether it has acted within its legitimate authority. Roosevelt seems to acknowledge this when he counsels courts to strike down laws where “things seem to have gone drastically wrong” in the legislative process.156 But without defining “wrong” or giving criteria for courts to detect it, this argument skips the most important question. Segregationists doubtless considered themselves to be acting in good faith when they violated the Fourteenth Amendment by separating the races. And nobody doubts that legislatures were competent at imposing segregation; indeed, they were disturbingly effective at it. The question at issue in Brown v. Board of Education and similar cases was instead whether such policies were within the legislature’s constitutional authority.
According to Roosevelt, the institutional competence factor should lead courts to uphold even laws that the Constitution’s language rules out of bounds, except when “defects in democracy” or historical abuses suggest that the legislature’s good faith has been compromised. But as we have seen, courts cannot determine whether democracy has been defective without considering the rent seeking problems to which Roosevelt gives short shrift. Nor can history alone help a judge decide whether a law that discriminates against an emerging minority (e.g., gays) should be treated like a bad-faith law that discriminates against a traditionally oppressed minority (e.g., blacks) and should therefore be treated skeptically—or like a restriction of a minority that deserves minimal judicial protection (e.g., alcohol drinkers), and thus left to the legislature’s discretion.157 That is a question about constitutionality, not policy. Matters of legislative competence play little role.
Nor can bad faith or oppression of minorities be the only reasons for courts to enforce the Constitution instead of deferring to legislative competence. Since elected officials enjoy only delegated, limited powers, they have no authority to go beyond constitutional limits even if they do so in good faith, and even if they carefully compare the costs and benefits of their actions. Nobody imagines that Congress had bad motives when it passed legislation to give the president a line-item veto, for example, or when it criminalized handgun possession within a certain radius of a school; nor was it incompetent to compare the costs and benefits of those proposals. Yet the Supreme Court rightly struck down those laws because Congress has no power to alter the constitutional method for passing or vetoing legislation or to regulate activity that falls outside its commerce power.158 Roosevelt’s approach, by contrast, would invite judges to underenforce the Constitution and to assume that legislative competency entitles lawmakers to transgress constitutional limits so long as they act in good faith. This risks allowing judges to use subjective criteria when detecting good faith and to unjustifiably expand legislative power.
Legislatures play an important role in our constitutional structure, and it would be wrong for courts to take over the policymaking role that elected lawmakers enjoy. But just as judges are poorly equipped to weigh the costs and benefits of proposed legislation, they are also not prepared to determine whether the legislature’s institutional competence is so great that it deserves the kind of underenforcing deference that Roosevelt recommends. The boundaries of legislative power should be set by the language of the Constitution, not by vague determinations of legislative competence, and courts are better equipped to decide where those constitutional boundaries lie than to decide whether those limits can be safely ignored or whether “leaving the legislature’s judgment undisturbed will lead to fewer errors” than enforcing the Constitution as written.159 Judges should focus on objective matters such as the text of a challenged law, its effects on the litigants, its impact on individual rights, the consequences of a precedent, and the explicit and implicit limits imposed by the Constitution. These matters will often be complicated, and judges will have to make hard choices. But assessing legislative competence does not help. Roosevelt’s prescription—that courts should usually accept a legislative decision “if the legislature could rationally have thought that it produces net benefits to society”—ignores the very purpose of the Constitution.160 That purpose is to put impervious boundaries around the legislature’s ordinary cost-benefit analysis.
The murky institutional-competence factor adds little to the question of the judiciary’s proper role except to perpetuate the Footnote Four dichotomy of individual rights: to encourage courts to under-enforce the Constitution and to abandon some rights to the mercies of lawmakers while more scrupulously safeguarding others. But when courts uphold an unconstitutional law on the ground that legislators are competent to legislate with regard to the general subject matter of that law, they shirk their responsibility in the name of vague appeals to democratic decisionmaking.
Progressivism’s Elevation of Procedure over Substance Must Be Abandoned
Finally, and most important, we cannot avoid the substantive values underlying our constitutional order. Ever since the Progressive Era, legal thinkers have searched in vain for some way to avoid normative issues, either because they suppose that such matters are just subjective personal preferences or because they hope that the bitter conflicts that erupt over these subjects can be avoided by transferring our allegiance to the democratic process itself. In the end, these efforts are futile, because promoting majoritarian democracy is itself a normative value. We cannot determine whether the legislature’s decision to discriminate against some minority is “reprehensible”161 or a “defect[] in democracy”162 without first having a preexisting idea of what a democracy ought to look like. We cannot say whether a legislature is competent to settle an issue, or whether it has fallen prey to unfair biases, without first having a substantive value (such as equality) to which we can compare it. No matter how we frame the question, we must know our normative goals before we can fashion appropriate means to achieve them. But if we have such goals, then democracy is not an end in itself, but a means toward advancing those goals. And such commitments give the judiciary a proper role—and a far better lodestar—in policing the boundaries of legislative discretion without deferring too much to the majority. Any theory of judicial deference based on moral agnosticism or on promoting process over substance must therefore be abandoned.
The argument that courts should avoid interfering because they are not as well equipped as legislatures to address complicated issues has some superficial plausibility. But a closer look reveals that it is more often an excuse for abdicating judicial duty. Litigants who argue over a law’s constitutionality, after all, are usually not asking a judge to impose some solution to a complicated social problem, or to weigh the benefits and costs of alt
ernative policies. They are asking the judge to decide whether what the legislature did choose meets constitutional standards. If a judge answers no and strikes down the law, he is not forcing legislators to do any particular thing but only declaring that they must not exceed the constitutional standard.163 This preserves legislative discretion within proper boundaries. Today’s deferential approach, by contrast, gives lawmakers power to choose their own boundaries—often, as Buck, Kelo, and Plessy prove, with disastrous results.
Toward a Theory of Pro-Constitutional “Activism”
We have seen that many flaws in the prevailing understanding of the courts’ role flow from assuming that the majority, or the legislature, has a basic right to govern others. This wolfish notion elevates the procedural means (democracy) over the substantive good (liberty), a fallacious approach with results that are often embarrassing, and sometimes horrifying. Judicial deference cannot be justified by the “amiable fiction” that voters can discipline officials who disregard the Constitution. Nor can it be defended on the grounds that the Constitution commits us to whatever emerges from the legislative process. Democracy is an important part of the constitutional system that protects our freedom—but it is only a part.
Of course, there is no perfect solution to the controversy over judicial activism. If any solution exists, it will originate in cultural attitudes toward the Constitution, not from lawyers’ debates. That controversy is, after all, symptomatic of a deeper conflict about political philosophy, one that finds expression not only in the “red-blue” electoral map but in differing attitudes about the basic purpose of government: whether it exists to protect freedom, or whether it exists to enforce the majority’s will.
What might a solution look like? A more wholesome understanding of the judiciary’s role—which would make room for both “activism” and deference when appropriate—would begin with the text and context of the Constitution itself. Proper judicial engagement would enforce the Constitution as written, with a healthy respect for its primary goal of securing individual rights, instead of making exceptions to its terms or viewing it as a living document that can be molded to serve political exigencies, as courts so often do today. This would require courts to declare laws invalid—even popular laws—if they violate the Constitution’s terms. On the other hand, courts should respect the role of the legislature where that role is clearly laid out in the Constitution.
For example, rather than interpreting the Commerce Clause to allow Congress to regulate virtually anything it considers worth regulating,164 the liberty-oriented approach would adhere to the “first principle[]” that Congress has only limited and enumerated powers.165 Rather than interpreting the Fifth Amendment’s public-use requirement as allowing seizures of property whenever the legislature claims that redistributing property would benefit society, this approach would counsel a strict reading of that clause to bar officials from seizing one person’s property for another’s private use. But on matters that are clearly delegated to legislatures, such as the power to lay and collect taxes, regulate the military, or issue patents, lawmakers would have broad discretion—within the boundaries of the Constitution.
There are three steps that we could take today toward restoring a proper balance to our constitutional system of judicial review. The first would be to eliminate the double standard by which some rights are given meaningful judicial protection while other, equally important rights are treated like “poor relation[s]”166 and accorded practically meaningless rational-basis scrutiny. That approach has no constitutional foundation, and leads to perverse results.
Second, and more fundamentally, courts should reexamine the Progressive inversion of constitutional priorities. For too long, legal and political elites have defined freedom as the right of the collective to enforce its will on individuals. By returning instead to the conception of liberty articulated in the Declaration—as the right of each person to do as he pleases with himself and the fruits of his labors, so long as he respects that right in others—we can properly understand how the Constitution preserves individual freedom by delegating a limited authority to democratic legislatures: rights exist prior to government and are the source of its legitimacy.167 While the rule of the majority is a valuable part of the constitutional structure, limits on freedom must be justified by some genuine public purpose and must be no greater than necessary to accomplish that goal.
Most important, a jurisprudence rooted in this nation’s substantive commitment to liberty must have a healthy respect for the natural-rights philosophy on which the Constitution was based. Modern theorists have claimed, with John Hart Ely, that “our society does not, rightly does not, accept the notion of a discoverable and objectively valid set of moral principles” to guide our constitutional course.168 But actually, the opposite is true. Americans in general share, and rightly share, a belief in the basic truth of the principles enunciated in the Declaration of Independence. Our Constitution was written on the premise that objectively valid political principles and human rights do exist and can be known by lawyers and laymen alike. Today’s abandonment of those principles has proven itself untenable and often destructive. Of course, as Chancellor James Kent said, judges should not render their decisions on “principles of abstract justice” alone.169 But fidelity to the Constitution requires their allegiance to the principles articulated in the Declaration and incorporated in the Constitution. Judges should interpret the Constitution in ways that prioritize liberty, not democracy, and they should not hesitate to strike down laws that trample on individual rights.
Americans differ over important political issues, and the controversy over judicial activism is one manifestation of these differences. But we cannot hope to resolve these disagreements by shrugging at them or by replacing our constitutional order of limited government with one in which the majority always wins. A constitution can survive only among people who agree on basic precepts regarding political authority, justice and injustice, right and wrong. Lawyers, judges, and law professors should resist the temptation to proclaim themselves above it all, and by a pretense of objectivity regard all moral and political values as mere matters of preference to be settled by majority vote. Some things cannot and should not be subjected to vote. Judges fail in their responsibility when they abandon individual rights to the mercies of the legislature. Upholding the Constitution requires judges—no less than legislators, governors, or presidents—to respect the primacy of liberty.
6. Conclusion
In calling the Declaration of Independence the “conscience” of the Constitution, I have used the word advisedly. Whether we imagine it as a still, small voice, or Jiminy Cricket from Disney’s Pinocchio, conscience is a quality within us that seems to stand outside our more mundane thoughts to guide our actions. It lies at the boundary between is and ought: it understands reasons and it gives reasons. It is the hallmark of a responsible person—or nation. When it comes to the American constitutional order, the Declaration of Independence gives us the standard: it stands above our political arguments to explain the basis and limits of rightful government. Readers of the Constitution should choose their route thereby.
Nineteenth-century Americans were curious about the conscience; philosophers debated its nature; writers sold children’s stories about it. Even Mark Twain’s greatest character, Huckleberry Finn, wrestles with his conscience before deciding, contrary to his upbringing, that his enslaved friend Jim deserves freedom. But no man of that era was more eloquent in discussing the conscience and its enemies than Frederick Douglass, himself an escaped slave, who as orator, newspaperman, diplomat, and civil-rights leader, is among America’s greatest intellectuals. In an 1860 lecture on the evils of slavery, Douglass keenly expressed that quality of indefeasible individual responsibility that entitles all humans to freedom, and that slavery’s defenders strove to deconstruct. The masters’ physical cruelty, Douglass told his audience, was actually a comparatively minor aspect of their barbarism:
It i
s only when we contemplate the slave as a moral and intellectual being, that we can adequately comprehend the unparalleled enormity of slavery. . . . The first work of slavery is to mar and deface those characteristics of its victims which distinguish men from things, and persons from property. Its first aim is to destroy all sense of high moral and religious responsibility. It reduces man to a mere machine. It cuts him off from his Maker, it hides from him the laws of God, and leaves him to grope his way from time to eternity in the dark, under the arbitrary and despotic control of a frail, depraved, and sinful fellow-man. As the serpent-charmer of India is compelled to extract the deadly teeth of his venomous prey before he is able to handle him with impunity, so the slaveholder must strike down the conscience of the slave before he can obtain the entire mastery over his victim. It is, then, the first business of the enslaver of men to blunt, deaden, and destroy the central principle of human responsibility.1
By depriving the slave of the power to choose for himself, and of the right to enjoy the fruits of his labors, the slave owner attempted to transform a man into a tool, into a device for the master’s use rather than an independent, thinking being entitled to liberty. Yet the enslaved person always retains the ability to think and choose for himself, to enjoy his wise choices, suffer for his bad ones, and yearn for his freedom. All mature adults have this inalienable quality of personal choice. To make him the tool of another is to deny the basic reality of human existence. People are fallible, with personal biases and imperfect knowledge, incapable of precisely weighing other people’s priorities or making good decisions for them. Attempting to do so clashes with each person’s moral responsibility and independent judgment. The evil of slavery was thus twofold: it denied self-responsibility, and it made the slave subservient to another fallible, possibly corrupt, human mind. No slave can ever truly have his self taken away and vested in another. And if all men are created equal, no master can boast a degree of moral perfection that might entitle him to try.
The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty Hardcover Page 20