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

by Timothy Sandefur

  31. Francis Bacon, Elements of the Common Lawes of England (London: John Moore, 1630), p. 77.

  32. Timothy Sandefur, “In Defense of Substantive Due Process, or, the Promise of Lawful Rule,” Harvard Journal of Law and Public Policy 35 (2012): 340, n. 222.

  33. Federalist No. 78 (Alexander Hamilton), in Cooke, p. 526.

  34. Lon Fuller, The Morality of Law, 2nd ed. (New Haven: Yale University Press, 1969), p. 63.

  35. Philippa Foot, Virtues and Vices (Berkeley: University of California Press, 1978), ch. 9.

  36. Fuller, The Morality of Law, p. 122: “To speak of a legal system as an ‘enterprise’ implies that it may be carried on with varying degrees of success. This would mean that the existence of a legal system is a matter of degree.”

  37. See, for example, St. Thomas Aquinas, Summa Theologiae, Fathers of the English Dominican Province, trans. (Westminster, MD: Christian Classics, 1981), p. 995; William Blackstone, Commentaries on the Common Law (London: A. Strahan, 1809), vol. 1, p. 44; John Austin, Lectures on Jurisprudence, 3rd ed., Robert Campbell ed. (London: John Murray, 1869), vol. 1, p. 95; Roscoe Pound, An Introduction to the Philosophy of Law, rev. ed. (New Haven: Yale University Press, 1954), pp. 25–47; H. L. A. Hart, The Concept of Law, 2nd ed. (New Delhi: Oxford India Paperbacks, 2002), pp. 21–25; Fuller, The Morality of Law, ch. 2; Tara Smith, “Neutrality Isn’t Neutral: On the Value of Value-Neutrality of the Rule of Law,” Washington University Jurisprudence Review 4 (2011): 55–60.

  38. 17 U.S. (4 Wheat.) 518, 580–82 (argument of Mr. Webster) (quoting Blackstone).

  39. Ibid. at 582. Burke’s actual wording was: “The properties of law are, first, that it should be known; secondly, that it should be fixed and not occasional. . . . No man in . . . any court upon earth, will say that is law, upon which, if a man going to his counsel should say to him, ‘What is my tenure in law of this estate?’ he would answer, ‘Truly, sir, I know not; the court has no rule but its own discretion: they will determine.’” Edmund Burke, “Speech on Parliamentary Incapacitation,” (January 31, 1770), in Writings and Speeches of Edmund Burke, Paul Langford, ed. (Oxford: Oxford University Press, 1981), vol. 2, p. 235.

  40. Blackstone, vol. 1, p. 44.

  41. Ibid.

  42. See, for example, Romer v. Evans, 517 U.S. 620, 634 (1996); City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 443 (1985); Merrifield v. Lockyer, 547 F.3d 978, 991–92 (9th Cir. 2008).

  43. Wallace Mendelson, “A Missing Link in the Evolution of Due Process,” Vanderbilt Law Review 10 (1956): 125–37.

  44. Jones’ Heirs v. Perry, 18 Tenn. 59, 69–71 (1836). But see Williamson v. Williamson, 11 Miss. 715, 744–46 (1844), which although not differing from the Perry court on general principles, upheld the constitutionality of a law similar to that at issue in Perry.

  45. Fuller, The Morality of Law, p. 39.

  46. Mark David Agrast et al., World Justice Project: Rule of Law Index 2010, p. 8, http://worldjusticeproject.org/sites/default/files/WJP%20Rule%20of%20Law%20Index%202010_0.pdf.

  47. “One would speak adequately if one were to attain the clarity that goes along with the underlying material, for precision ought not to be sought in the same way in all kinds of discourse. . . . [O]ne ought to be content, when speaking about such things and reasoning from such things, to point out the truth roughly and in outline, and when speaking about things that are so for the most part, and reasoning fro things of that sort, to reach conclusions that are also of that sort. . . . [I]t belongs to an educated person to look for just so much precision in each kind of discourse as the nature of the thing one is concerned with admits; for to demand demonstrations from a rhetorician seems about like accepting probable conclusions from a mathematician.” Joe Sachs, trans., Aristotle: Nichomachean Ethics 1094b (Newburyport, MA: Focus Publishing, 2002), p. 2.

  48. Anderson v. Bd. of Comm’rs of Cloud Cnty., 95 P. 583, 586 (Kan. 1908) (quoting Samuel P. Orth, “Special Legislation,” Atlantic Monthly, Jan. 1906, p. 69).

  49. Ibid.

  50. 524 U.S. 417 (1998).

  51. Ibid. at 439.

  52. Ibid.

  53. Chi. Typographical Union v. Chi. Sun-Times, 935 F.2d 1501, 1503 (7th Cir. 1991) (emphasis added) (citations omitted).

  54. Sunshine Security & Detective Agency v. Wells Fargo Armored Services Corp., 496 So. 2d 246 (Fla. Dist. Ct. App. 1986).

  55. Ibid. at 246–47.

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

  57. 3 U.S. (3 Dall.) 386 (1798).

  58. Ibid. at 387.

  59. Ibid. at 388.

  60. Ibid.

  61. Ibid. at 399 (Iredell, J., concurring).

  62. Ibid.

  63. McDonald v. Chicago, 130 S. Ct. 3020, 3058 (2010) (Scalia, J., concurring).

  64. Troxel v. Granville, 530 U.S. 57, 91–92 (2000) (Scalia, J., dissenting).

  65. FCC v. Beach Communications, Inc., 508 U.S. 307, 314 (1993).

  66. Romer v. Evans, 517 U.S. 620 (1996); City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985); Zobel v. Williams, 457 U.S. 55 (1982); Lawrence v. Texas, 539 U.S. 558 (2003).

  67. 517 U.S. at 632.

  68. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).

  69. Hurdado, 110 U.S. at 535–36. The Court quoted Webster’s oral argument in Dartmouth College, 17 U.S. (4 Wheat.) at 581.

  70. 41 Cal. 147 (1871).

  71. Ibid. at 161.

  72. Ibid. at 175.

  73. Ibid. at 168.

  74. Ibid. at 184.

  75. Ibid. at 191.

  76. Ibid. at 198.

  77. Ibid. at 199.

  78. 87 U.S. (20 Wall.) 655 (1874).

  79. Ibid. at 663.

  80. Ibid. at 664.

  81. Ibid.

  82. 539 U.S. 558 (2003).

  83. Ibid. at 578.

  84. Ron Paul, “Federal Courts and the Imaginary Constitution,” August12, 2003, http://www.lewrockwell.com/paul/paul120.html.

  85. Quoted in Barry Friedman, “The Importance of Being Positive: The Nature and Function of Judicial Review,” University of Cincinnati Law Review 72 (2004): 1264, n. 44.

  86. Lino A. Graglia, “Lawrence v. Texas: Our Philosopher-Kings Adopt Libertarianism as Our Official National Philosophy and Reject Traditional Morality as a Basis for Law,” Ohio State Law Journal 65 (2004): 1139–50, pp. 1140–41. Indeed, Graglia argued that collective decisionmaking is the source of individual rights. Ibid., p. 1141. See also Lino A. Graglia, “Jaffa’s Quarrel with Bork: Religious Belief Masquerading as Constitutional Argument,” Southern California Interdisciplinary Law Journal 4 (1995): 711 (“by actually enacting and enforcing such laws [i.e., that violate rights], a society effectively demonstrates that there is no such right in that society.”).

  87. Graglia, “Philosopher Kings,” p. 1140.

  88. See Randy E. Barnett, “Justice Kennedy’s Libertarian Revolution: Lawrence v. Texas,” 2002–2003 Cato Supreme Court Review (Washington: Cato Institute, 2003): 21–41.

  89. Lawrence, 539 U.S. at 578.

  Chapter 4

  1. Robert Bork, Coercing Virtue: The Worldwide Rule of Judges (Washington: AEI Press, 2003), p. 55.

  2. Perry v. New Hampshire, 132 S. Ct. 716, 730 (2012) (Thomas, J., concurring).

  3. Daniel Dennett, Darwin’s Dangerous Idea (New York: Touchstone, 1995), p. 74.

  4. True, the Constitution commands that its rules be followed—but the legislature has also commanded that its rules be followed. It is not possible to choose between these two without some broader normative standard by which to rank the alternatives.

  5. Federalist No. 33 (Alexander Hamilton), in The Federalist, Jacob E. Cooke, ed. (Middletown, CT: Wesleyan University Press, 1961), p. 207.

  6. Ibid.

  7. Thomas v. Sorrell, Vaughan, 330, 337, 124 Eng. Rep. 1098, 1102 (C.P. 1677).

  8. William Blackstone, Commentaries on the Common Law (London: A. Strahan, 1809), vol. 1, p. 156.

  9. Taylor v. Porter & F
ord, 4 Hill 140, 145-46 (N.Y. Sup. Ct. 1843) (punctuation altered; italics added).

  10. John Harrison, “Substantive Due Process and the Constitutional Text,” Virginia Law Review 83 (1997): 493–558.

  11. Ibid., p. 550.

  12. Ibid., p. 547.

  13. Ibid., p. 551.

  14. 261 U.S. 86 (1923).

  15. Ibid. at 91.

  16. Calder v. Bull, 3 U.S. (3 Dall.) 386, 388 (1798).

  17. Day v. Savadge, Hob. 85, 87, 80 Eng. Rep. 235, 237 (C.P. 1615). See John V. Orth, Due Process of Law: A Brief History (Lawrence, KS: University Press of Kansas, 2003), p. 24.

  18. Giddings v. Brown, in The Hutchinson Papers (Albany: Joel Munsell, 1865), vol. 2 pp. 1–25. See also Paul Samuel Reinsch, English Common Law in the Early American Colonies (Clark, NJ: Lawbook Exchange, 2004), p. 16.

  19. Frederick Mark Gedicks, “An Originalist Defense of Substantive Due Process: Magna Carta, Higher-Law Constitutionalism, and the Fifth Amendment,” Emory Law Journal 58 (2009): 619–20.

  20. Bowman v. Middleton, 1 S.C.L. (1 Bay) 252 (S.C. 1792).

  21. Trevett v. Weeden (R.I. 1786), reprinted in Bernard Schwartz, ed., The Bill of Rights: A Documentary History (New York: Chelsea House, 1971), vol. 1, p. 417. See also Gedicks, pp. 627–28.

  22. Gedicks, p. 644.

  23. Robert E. Riggs, “Substantive Due Process in 1791,” Wisconsin Law Review 1990: 1004.

  24. Federalist No. 78 (Alexander Hamilton), in Cooke, p. 526.

  25. Throughout The Federalist, Hamilton and Madison emphasized the importance of resisting popular sentiment in cases where “conduct of this kind has saved the people from very fatal consequences of their own mistakes.” Federalist No. 71, ibid., p. 482–83 (Hamilton); see also Federalist No. 63, ibid., p. 425 (Madison).

  26. 297 U.S. 1, 62-63 (1936).

  27. Charles Howard McIlwain, The High Court of Parliament and Its Supremacy (New Haven: Yale University Press, 1910), p. 150.

  28. James Madison, “Report on the Virginia Resolutions,” in Madison: Writings, p. 645. I am indebted to Professor Nicholas Rosenkranz for this observation.

  29. Quoted in Earl E. Pollock, The Supreme Court and American Democracy: Case Studies on Judicial Review and Public Policy (Westport, CT: Greenwood Publishing, 2009), p. 119; Gary McDowell, “The Perverse Paradox of Privacy,” in A Country I Do Not Recognize: The Legal Assault on American Values, Robert Bork, ed. (Stanford: Hoover Institution, 2005), p. 64.

  30. Raoul Berger, “‘Law of the Land’ Reconsidered,” Northwestern University Law Review 74 (1979): 11–12.

  31. Alexander Hamilton, Speech in the New York Assembly, Feb. 6, 1787, in The Works of Alexander Hamilton, Henry Cabot Lodge, ed. (New York: G. P. Putnam’s Sons, 1885), vol. 8, p. 29.

  32. Anonymous, 2 N. C. 28, 29–30 (1794).

  33. 15 N.C. 1 (1833).

  34. Ibid. at 9–10.

  35. Bradshaw v. Rodgers & Magee, 20 Johns. 103, 106 (N.Y. Sup. Ct. 1822); In re John & Cherry Streets, 19 Wend. 659, 676–77 (N.Y. Sup. Ct. 1838); In re Albany Street, 11 Wend. 149, 151 (N.Y. Sup. Ct. 1834).

  36. 13 U.S. (9 Cranch.) 43, 50–51 (1815).

  37. 27 U.S. (2 Pet.) 627 (1829).

  38. 17 U.S. (4 Wheat.) 518, 580–82 (1819) (argument of Mr. Webster).

  39. 60 U.S. (19 How.) 393, 450 (1856).

  40. Ryan C. Williams, “The One and Only Substantive Due Process Clause,” Yale Law Journal 120 (2010): 408–512.

  41. Congressional Globe, 39th Cong., 1st sess. p. 1089 (1866); see also ibid., p. 2459 (statement of Rep. Thaddeus Stevens) (Due Process Clause prevents states from “unlawfully depriving [persons] of life, liberty, or property”); p. 340 (statement of Sen. Edgar Cowan) (due process of law meant that “the rights of no free man, no man not a slave, can be infringed in so far as regards any of the great principles of English and American liberty”); p. 1294 (statement of Rep. James Wilson) (due process included the “great civil rights” referred to in the Civil Rights Act of 1866); p. 1833 (statement of Rep. William Lawrence) (due process means that “there [are] rights which are inherent, and of which a State cannot constitutionally deprive him,” and citing cases).

  42. Williams, p. 512.

  43. Putting aside for present purposes the anti-slavery argument that a slave could not rightly come within the “property” protected by the Due Process Clause.

  44. See Abraham Lincoln, “Address at Cooper Institute,” February 27, 1860, in Lincoln: Speeches and Writings 1859–1865, Don Fehrenbacher, ed. (New York: Library of America, 1989), pp. 111–30.

  45. 323 U.S. 214 (1944).

  46. 163 U.S. 537 (1896).

  47. Gedicks, p. 667.

  48. Ibid., quoting Michael Kent Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (Durham, NC: Duke University Press, 1986), p. 183.

  49. Letter from James Madison to Thomas Jefferson (October 17, 1788), in Madison: Writings, p. 420.

  50. See Federalist No. 84 (Alexander Hamilton), in Cooke, pp. 575–81.

  51. James Wilson, Speech in Pennsylvania Ratification Convention, in Debate on the Constitution, Bernard Bailyn, ed. (New York: Library of America, 1993), vol. 1, pp. 807–10.

  52. Letter from James Madison to Thomas Jefferson (October 17, 1788), in Madison: Writings, p. 420.

  53. Gedicks, p. 667.

  54. Poe v. Ullman, 367 U.S. 497, 542-43 (1961) (Harlan, J., dissenting).

  55. Ibid., p. 543 (internal citations omitted).

  56. See Eugene V. Rostow, “The Democratic Character of Judicial Review,” Harvard Law Review 66 (1952): 193-224, p. 194 (“The attack on judicial review as undemocratic rests on the premise that the Constitution should be allowed to grow without a judicial check. . . . But the Constitution of the United States does not establish a parliamentary government, and attempts to interpret American government in a parliamentary perspective break down in confusion and absurdity.”).

  57. See letter from James Madison to James Monroe (October 5, 1786), in Writings of James Madison, Ralph Ketcham, ed. (Indianapolis: Hackett Publishing, 2006), pp. 28–29 (“There is no maxim in my opinion which is more liable to be misapplied, and which therefore more needs elucidation than the current one that the interest of the majority is the political standard of right and wrong. Taking the word ‘interest’ as synonymous with ‘Ultimate happiness,’ in which sense it is qualified with every necessary moral ingredient, the proposition is no doubt true. But taking it in the popular sense, as referring to immediate augmentation of property and wealth, nothing can be more false. In the latter sense it would be in the interest of the majority in every community to despoil & enslave the minority of individuals. . . . In fact, it is only reestablishing under another name, and a more specious form, force as the measure of right. . . .”).

  58. Letter from James Madison to Thomas Jefferson (October 17, 1788), in Madison: Writings, p. 421.

  59. Federalist No. 10 (James Madison), in Cooke, p. 84.

  60. Ibid., pp. 79–80.

  61. Ibid., p. 79.

  62. Andrew T. Hyman, “The Little Word ‘Due,’” Akron Law Review 38 (2005): 34.

  63. Federalist No. 78 (Alexander Hamilton), in Cooke, pp. 524–25.

  64. Robert H. Bork, “Neutral Principles and Some First Amendment Problems,” Indiana Law Journal 47 (1971): 10. Bork stuck to his argument on this point, as well. See Robert H. Bork, “The Judge’s Role in Law and Culture,” Ave Maria Law Review 1 (2003): 28 (“The sole task of the [judge] . . . is to translate the . . . legislator’s morality into a rule to govern unforeseen circumstances.”) Note that Bork begged the question, because he assumes that impartiality is a value that a judge is bound to follow. Presumably, judges should be impartial if and only if the majority instructs the judge to be impartial. But then how does that account for Bork’s recognition (p. 76) of the “obvious moral rightness” of Brown v. Board of Education, given that there was no majority preference for equal treatment in that case?

  65. William H. Rehnquist,
“The Notion of a Living Constitution,” Texas Law Review 54 (1976): 704.

  66. Thomas Jefferson, letter to Judge Spencer Roane (September 6, 1819), in Jefferson: Writings, p. 1426.

  67. Nelson Lund and John McGinnis, “Lawrence v. Texas and Judicial Hubris,” Michigan Law Review 102 (2004): 1556.

  68. Nelson Lund, “Rousseau and Direct Democracy (With A Note on the Supreme Court’s Term Limits Decision),” Journal of Contemporary Legal Issues 13 (2004): 459–510, p. 466. See also ibid., p. 472 (“Hobbes . . . does not seem to establish, by adequate argument or evidence, the claims about natural or inherent rights that we find in the Virginia Declaration of Rights and the Declaration of Independence.”); p. 474 (“Locke appears not to have established what the Declaration of Independence says is self-evident. Like the Declaration, Locke just asserts it.”).

  69. Lund and McGinnis, p. 1591.

  70. Lund, “Rousseau,” p. 466.

  71. Lund and McGinnis, p. 1560 (emphasis added).

  72. Ibid., p. 1557.

  73. Borrowing the term from Samuel Scheffler, “Potential Congruence,” in Morality and Self-Interest, Paul Bloomfield, ed. (New York: Oxford University Press, 2008), p. 118.

  74. To name just two recent examples, Justice Clarence Thomas dissented in Lawrence v. Texas, 539 U.S. 558, 605 (2003) (Thomas, J., dissenting), while admitting that he believed the statute challenged in that case was “uncommonly silly.” Justice John Paul Stevens, author of Kelo v. New London, later acknowledged that he disagreed with the policy outcome but believed the decision was required as a matter of constitutional interpretation. See John Paul Stevens, “Judicial Predilections,” Nevada Law Journal 6 (2005): 4 (“My own view is that the allocation of economic resources that result from the free play of market forces is more likely to produce acceptable results in the long run than the best-intentioned plans of public officials.”).

  75. See Philip Soper, “In Defense of Classical Natural Law in Legal Theory: Why Unjust Law is No Law at All,” Canadian Journal of Law & Jurisprudence 20 (2007): 221 (“The assumption that natural law looses a judge to do whatever she wants, ignoring even clear texts, is wrong. Natural law . . . empowers her, at most, to reach decisions she believes are required by her own views of a sound, defensible moral and political theory.”).