The Conservative Sensibility Read online

  Connecticut’s Roger Sherman said that the central argument in the Constitutional Convention, of which he was an especially influential member, was “not what rights naturally belong to man, but how they may be most effectually guarded in society.”3 Justice William Brennan, the Supreme Court’s most consequential liberal in the second half of the twentieth century, said, “Our Constitution was not intended to preserve a preexisting society but to make a new one, to put in place new principles that the prior political community had not sufficiently recognized.”4 One can quarrel with Brennan’s choice of the word “society,” which encompasses much more than what the Constitution addresses, which is the structure and procedures of one of America’s many governments. Society, particularly American society, is characterized by fluidity and dynamism—a constant churning leading we know not where. Still, conservatives can agree with Brennan—if, but only if, by the Constitution putting “in place” new principles he means putting into institutional arrangements and processes the principles of the Declaration.

  The essential drama of democracy derives from the inherent tension between the natural rights of the individual and the constructed right of the community to make such laws as the majority deems necessary and proper. Natural rights are affirmed by the Declaration of Independence; majority rule, circumscribed and modulated, is constructed by the Constitution. The Declaration is not just chronologically prior to the Constitution, it is logically prior. As Timothy Sandefur writes, the Declaration “sets the framework for reading” the Constitution, so it is the Constitution’s “conscience”: By the terms with which the Declaration articulates the Constitution’s purpose—the purpose is to “secure” unalienable rights—the Declaration intimates the standards by which one can distinguish the proper from the improper exercises of majority rule. “Freedom is the starting point of politics; government’s powers are secondary and derivative, and therefore limited.… Liberty is the goal at which democracy aims, not the other way around.”5

  The progressive project, now in its second century, has been to reverse this, giving majority rule priority over liberty when they conflict, as they do, inevitably and frequently. This reflects the progressive belief that rights are the result of government; they are “spaces of privacy” that government “has chosen to carve out and protect.” This doctrine amounts to, and was intended as, the overthrow of the Founders’ vision, to which James Madison adhered throughout his life. In December 1835, at age eighty-four, eighteen years after he left the presidency, and seven months before his death, Madison wrote an “Essay on Sovereignty” in which he argued that “the sovereignty of the society” is “vested in and exercisable by the majority,” which “may do any thing that could be rightfully done.” However, “the reserved rights of individuals (of conscience, for example)” are “beyond the legitimate reach of sovereignty.”6 Or as the Supreme Court would hold, in that 1943 case about the rights of conscience, certain things are “beyond the reach of majorities.”7

  THE THIRD-MOST IMPORTANT AMERICAN

  The two most important Americans were presidents. Without George Washington, there would have been no country. Without Lincoln, a shattered nation would never have been reconnected with the Founders’ premises. The third-most important American, however, was one of fifteen siblings raised in a two-room log cabin, and a self-taught lawyer—he had one year of formal education and a six-week apprenticeship with a legal instructor. In his thirty-four years as chief justice of the US Supreme Court, John Marshall embedded constitutional reasoning at the core of American governance. When in 1792 Marshall, a rival (and cousin) who Jefferson detested, was contemplating seeking a seat in the House of Representatives, Jefferson hit upon the idea of putting this person where Jefferson thought he could do less harm. Writing to Madison, Jefferson said, “I think nothing better could be done than to make him a judge.”8 Thus was Marshall put on the path to establishing judicial review and making the judicial branch important to the supervision of democracy. But the path was long and winding before Marshall completed it.

  In 1215, in the Magna Carta, “John, by the grace of God King of England,” said that “to all free men of our kingdom” we have granted “all the liberties written out below, to have and to keep for them and their heirs, of us and our heirs.”9 This expansion of liberty by an act of the sovereign’s grace was progress and was followed by other incremental gains extracted from various sovereigns. Then, however, came 1776. Writing in 1792, James Madison said, “In Europe, charters of liberty have been granted by power. America has set the example…of power granted by liberty.”10 The change was from top down to bottom up: Rather than rights being granted by government to set people increasingly at liberty, people who are born free to exercise their freedom create a government for their convenience, and particularly to secure their natural rights that pre-exist government.

  George Washington underscored this on September 17, 1787, the final day of the Constitutional Convention, of which he was president. In his letter transmitting the document to Congress, Washington put in two sentences the distilled essence of natural rights theory, and of the unending debate about rights, unenumerated yet retained: “Individuals entering into society, must give up a share of liberty to preserve the rest.… It is at all times difficult to draw with precision the line between those rights which must be surrendered, and those which may be reserved.”11 Drawing that line is the fundamental and unending task of the judicial branch. This suggests how one should think about Article III of the Constitution: It is tertiary in order but not in level of importance. It is the constitutional culmination: The legislative branch writes laws, the head of the executive branch takes care that the laws are faithfully executed, at which point the judiciary is perpetually poised to scrutinize the content and application of the laws. Which makes the judiciary the epicenter of constitutional government.

  In the months before the September 1786 Annapolis convention that was called to consider remedies for the inadequacies of the Articles of Confederation, Madison read from the two trunks of books that he had asked Jefferson to send from Europe. They were books about ancient and modern confederations of states, and the lessons to be learned from their experiences. He noted that the articles of union for the Dutch confederacy stipulated that “everything done contrary to them [is] to be null and void.” This, says Noah Feldman, was “Madison’s first reference to the principle of constitutional supremacy.”12 In the American context, that principle would soon—seventeen years later, in the Supreme Court’s 1803 Marbury v. Madison decision—entail judicial review. This was, however, foreshadowed before 1786.

  One of Marshall’s recent biographers, Joel Richard Paul, notes that during the early 1780s Marshall served on Virginia’s Council of State, which had the power to disallow any action by the state’s governor. The governor was authorized by statute to remove justices of the peace, which Governor John Randolph did when Justice of the Peace John Price Posey misappropriated assets of an estate he was responsible for overseeing. Marshall persuaded his colleagues on the council that the statute giving the governor this power violated the spirit of the state’s constitution, which represented the “supreme permanent will of the people” (Paul’s words) and so must be superior to any state statute. Thus was intimated the principle of judicial review, which Chief Justice Marshall would establish two decades later.13

  Of all the unanticipated, or only dimly foreseen, American political developments since 1787—the emergence of political parties, presidential dominance of even the legislative process, the direct election of senators, the gradual but complete abandonment of the theory that the federal government’s powers are “few and defined”—none has been more consequential than the acceptance of judicial review.14 Nowhere in Articles I or III is there a constitutionally stipulated requirement that Congress acquiesce in any Supreme Court judgment or in the reasoning by which the court reaches it. Deference to the court’s decisions is a tradition, a practice hallowed by reiterat
ion. Paradoxically, the tradition was strengthened by the prestige that accrued to the court as a result of the 1954 Brown v. Board of Education of Topeka school desegregation decision, which was far in advance of public opinion, not just in the South but nationally. The prestige came because the court acted without reference to public sentiments, and by doing so addressed an injustice with which majoritarian institutions could not then cope.

  Only fifty-five of the seventy-four men chosen to attend the Constitutional Convention actually did so, and some of them were absent much of the time. Although they were young—more than a third of the delegates were in their thirties—they were remarkably seasoned: Thirty-nine had had congressional experience. They did not, however, confront this indisputable truth: If Congress is the sovereign arbiter of the parameters of its own power, then there is no institutional buttress for limited government. Therefore judicial review is not just implied by, it is required by the government’s constitutional structure. It is unlikely that the convention’s veterans of legislative cultures anticipated the coming role of the judiciary through judicial review of legislative acts. This practice was, however, implicit in, among other things, the Constitution’s Preamble.

  In the Constitutional Convention, Gouverneur Morris of New York was, historian Joseph J. Ellis notes, “the only delegate to speak more frequently than Madison,” and he spoke for those delegates who favored, as Madison did, a more national understanding of what they were drafting, as opposed to a state-centered confederation. Morris was the most important member of the Committee on Style and Arrangements, and in that role he accomplished a convergence of style and substance when he undertook to revise the preamble written by the Committee on Detail. The Committee’s preamble had begun, “We the people of the states of New Hampshire, Massachusetts, Rhode Island…” and on through the thirteen states. Morris replaced that with seven words: “We the people of the United States…” By this, which Ellis calls “probably the most consequential editorial act in American history,” Morris “smuggled the national agenda into the preamble.” This embedded “a crucial and clear presumption that the rest of the document was designed to finesse: namely, that the newly created government operated directly on the whole American citizenry, not indirectly through the states.”15

  The Supreme Court has defined citizenship as “the right to have rights.”16 It might better have said “the right to have one’s natural rights recognized and their exercise protected.” Until the second half of the twentieth century, personal rights were not emphasized as the bulwark of liberty. Rather, the structure of the regime—the allocation of powers among the three branches of the federal government and between the federal and state governments—was the bulwark. The word “bulwark” was a favorite of some important Founders. In Federalist 78, published on May 28, 1788, Alexander Hamilton said that a “strong argument for the permanent tenure of judicial offices” is that courts are to function as “bulwarks of a limited Constitution against legislative encroachments.”17 A year later, on June 8, 1789, James Madison, arguing in the House of Representatives for adoption of the Bill of Rights, said “independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive.”18 A bulwark is a defensive measure that deflects, contains, halts various forces of man or nature. The structure of the government as devised at Philadelphia in 1787, and supplemented by the Bill of Rights in 1791, is supposed to channel, contain, and sometimes frustrate the force of public opinion, including and sometimes especially the opinion of a majority.

  The idea that the federal judiciary wielding judicial review is an anomaly, grafted onto popular government, is mistaken. Such a judiciary is a republican institution in that it is connected to the people, but indirectly. Its members are nominated by the president and confirmed by the Senate. As Madison wrote in Federalist 39: “We may define a republic to be…a government which derives all its powers directly or indirectly from the great body of the people; and is administered by persons holding their offices during pleasure, for a limited period, or during good behavior.…It is sufficient for such a government, that the persons administering it be appointed, either directly or indirectly, by the people.”19 (emphasis added) Therefore it is natural and proper that the judiciary always has been, and is now more than ever, somewhat reflective of political concerns, aspirations, and passions.

  AN AMERICAN PARADOX

  It is paradoxical that in a nation where skepticism about government is at the core of the political philosophy bequeathed by the Founders, the elaboration and application of this political philosophy has been done largely by or through a government institution, the Supreme Court. There is a profound truth about the American polity and its history that is sometimes missed by even the most accomplished students of American history. It is often said that ours is a nation indifferent to, even averse to, political philosophy. And it is said that this disposition is a virtue and a sign of national health. The theory is that only unhappy nations are constantly engaged in arguing about fundamental things and that the paucity—actually, it is merely a postulated paucity—of American political philosophy is evidence of a contented consensus about our polity’s basic premises. For example, Daniel J. Boorstin, then a University of Chicago historian and later Librarian of Congress, published a slender volume, The Genius of American Politics, that appeared in 1953, during America’s postwar introspection about the nature and meaning of our nation’s sudden global preeminence. Boorstin’s argument, made with his characteristic verve and erudition, aimed to explain why our success was related to “our antipathy to political theory.” The genius of our democracy, said Boorstin, comes not from any geniuses of political thought comparable to Plato and Aristotle or Hobbes and Locke. Rather, it comes “from the unprecedented opportunities of this continent and from a peculiar and unrepeatable combination of historical circumstances.” This explains “our inability to make a ‘philosophy’ of them” and why our nation has never produced a political philosopher of the stature of, say, Hobbes and Locke, or “a systematic theoretical work to rank with theirs.”20

  Well. Leave aside the fact that James Madison was a political philosopher of such stature. He was such because he was also a practicing politician. And leave aside the fact, which it surely is, that The Federalist Papers, although a compendium of newspaper columns written in haste in response to a practical problem (to secure ratification of the Constitution), is a theoretical work that ranks with Hobbes’ Leviathan and Locke’s The Second Treatise on Civil Government. Considered in the second decade of the twenty-first century, as we stand on the dark and bloody ground of today’s political contentions, Boorstin’s book remains interesting, but primarily as a period piece. It is a shard of America’s now shattered consensus. Or, more precisely, it is a document from the calm before the storm of the conservative counterattack against progressives’ complacent assumption that their ascendancy was secure.

  The American argument about philosophic fundamentals is not only ongoing, it is thoroughly woven into the fabric of our public life. Far from being rare and of marginal importance, political philosophy is more central to our public life than in that of any other nation. It is implicated in almost all American policy debates of any consequence. Indeed, it is, like Edgar Allan Poe’s purloined letter, hidden in plain sight. All American political arguments involve, at bottom, interpretations of the Declaration of Independence and of the Constitution that was written to provide institutional architecture for governance according to the Declaration’s precepts. So, constitutional lawyers are America’s practitioners of political philosophy. One such, Randy Barnett, calls the Constitution “the law that governs those who govern us.” It is, he argues, properly read through the lens of the great document that preceded it, the Declaration of Independence. The Constitution was written to provide the practices requisite for a national life lived in accordance wit
h fifty-five words: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”21

  Those words are so familiar that the importance of two of them, a verb and an adjective, is insufficiently understood. Governments can derive many powers from the consent of the majority, but not all exercises of those powers are, simply because they flow from a majority, “just.” And governments are instituted to “secure” our pre-existing rights, not to bestow them. As Barnett insists, the great divide in America today is between those who believe, as the Founders did, that “first come rights and then comes government” and those who believe, as progressives do, that “first comes government and then come rights.” The former, he says, are adherents of the Republican Constitution. The latter have given us the Democratic Constitution.22

  The debate between these cohorts is, Barnett believes, “about the meaning of the first three words of the Constitution: ‘We the People.’ Those who favor the Democratic Constitution view We the People as a group, as a body, as a collective entity. Those who favor the Republican Constitution view We the People as individuals.” The choice between these two understandings has enormous consequences, especially concerning the proper meaning of popular sovereignty. A Republican Constitution is a device for limiting government, including government’s translation of majority desires into laws and policies when those conflict with the government’s primary task of securing the natural rights of individuals. A Democratic Constitution is a device for giving priority to the will of a collective, the majority. This Constitution expresses the desires of a majority of the people, allowing the majority’s will to prevail. Hence, any principle or practice, such as judicial review, that impedes the will of the majority is, say advocates of a Democratic Constitution, presumptively illegitimate until proven otherwise. And “the only individual rights that are legally enforceable are a product of majoritarian will.”23