The Conservative Sensibility Read online

  Barnett believes that, for decades now, American Lockeans have been losing ground to Hobbesians. Those who take their bearings from John Locke are “those for whom individual liberty is their first principle of social ordering.” Those who are Thomas Hobbes’ intellectual children “give priority to the need for government power to provide social order and pursue social ends,” even if the rights of individuals must be abridged in order to do so. Not all Hobbesians are progressives, but all progressives are Hobbesians because they say America is dedicated to a process—to majoritarian decision-making that legitimates the exercises of government power that majorities endorse. Not all Lockeans are libertarians, but all libertarians are Lockeans because they say America is dedicated to a condition: liberty. Hobbesians say the core American principle is the right of the majority to have its way. Lockeans stress rigorous judicial protection of individual rights, especially those of private property and the freedom of contract, that define and protect the zone of sovereignty within which people are free to act as they please.24

  The 1896 Plessy v. Ferguson decision, in which the Supreme Court deferred to the right of the majority to codify racial segregation under the rubric of “separate but equal,” was, Barnett argues, an example of the Democratic Constitution’s majoritarianism. He says the 1954 Brown v. Board of Education decision, affirming the individual rights of individual schoolchildren against a majority’s preference for segregated schools, represented long overdue fidelity to the Republican Constitution. Barnett has become a leader of those who are reasserting the natural rights tradition that was overthrown during progressivism’s long success in defining the nature of the Democratic Constitution and the judiciary’s permissive role in construing the government’s powers under it. But Barnett’s challenge to progressives is also, and perhaps primarily, a challenge to conservatives. He is summoning them to reexamine the philosophic premises that have impelled them to celebrate judicial modesty, understood as deference to majoritarian institutions. Hence Barnett disturbs the dogmatic slumbers of people who occupy various positions along the political spectrum.25

  As the ancients understood it, liberty was a weight to be shouldered, a burden of constant immersion in civic obligations. These obligations were not thought to impinge upon the private sphere of life because there was no clear distinction between the public and private spheres. The business of liberty was comprehensive; it took time and leisure, which often were provided by slavery. Modernity’s gift has been the ability and determination to sharply delineate private and public spheres, with the private being the zone of individual sovereignty. It is the realm of the household, the family, and the work that sustains both. This is the basis of the proposition that the Constitution of the first consciously modern nation, the United States, protects the sovereignty of private individuals, not the sovereignty of a public collective, “the majority.”

  THE FRAME OF SILVER FOR THE APPLE OF GOLD

  Natural rights are affirmed by the Declaration. Majority rule, circumscribed and modulated, is constructed by the Constitution. And a properly engaged judiciary is duty-bound to declare majority acts invalid when they abridge natural rights. This tension was illustrated in Elena Kagan’s confirmation hearing to be a justice, when she was asked if she believes there are natural rights that are not among the rights the Constitution enumerates. She replied: “I don’t have a view of what are natural rights, independent of the Constitution.” She added: “I’m not saying I do not believe that there are rights preexisting the Constitution and the laws, but my job as a justice is to enforce the Constitution and the laws.” And: “I think that the question of what I believe as to what people’s rights are outside the Constitution and the laws, that you should not want me to act in any way on the basis of such a belief.”26 Actually, we do want that. Natural rights, which are grounded in nature, are thus “independent of” the Constitution. They are not, however, “outside” of it because its paramount purpose is the protection of those rights.

  Madison and others originally resisted the idea of adding a Bill of Rights to the Constitution as it would emerge from the convention, for two reasons. They thought a Bill of Rights would be superfluous because the structure of the government itself—the separation of powers; powers dispersed among rival institutions—would suffice to guarantee the safety of the citizens from abusive government. And they thought a Bill of Rights would be potentially dangerous: By enumerating certain rights, others not enumerated might be disparaged. Madison and like-minded Framers relented, promising a Bill of Rights in order to facilitate ratification of the Constitution by the various state conventions, where anti-Federalists were demanding an enumeration of rights. When, after ratification, the First Congress began consideration of a draft of the Bill of Rights, Representative Theodore Sedgwick, who had sat in the Continental Congress, responded to a colleague who questioned why those who had prepared the draft had enumerated only certain rights. Sedgwick said: “They might have gone into a very lengthy enumeration of rights; they might have declared that a man should have a right to wear his hat if he pleased, that he might get up when he pleased, and go to bed when he thought proper; but [I] would ask the gentleman whether he thought it necessary to enter these trifles in a declaration of rights, under a government where none of them were intended to be infringed.”27 Sedgwick had a point: When you start enumerating rights, where do you stop? And why? And what are the consequences of stopping? This had been Madison’s point. The attempt to solve, or at least finesse, this problem is the Ninth Amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” If you believe, as Robert Bork did, that this amendment is a meaningless “inkblot,” you must believe that the Framers were slapdash draftsmen about this, and only this, provision.

  The Constitution is America’s fundamental law but not its first law. The Declaration appears on page one of volume one of the US Statutes at Large, and it is at the head of the United States Code under the caption “The Organic Laws of the United States.” Since the 1864 admission of Nevada to statehood, every state’s admission has been conditioned on adoption of a constitution consistent with the US Constitution—and the Declaration.28

  “The Constitution,” said Justice Clarence Thomas in a 1996 speech, “means not what the Court says it does but what the delegates at Philadelphia and at the state ratifying conventions understood it to mean.…We as a nation adopted a written Constitution precisely because it has a fixed meaning that does not change.”29 The meaning, however, is not fixed only by how the delegates and the conventions understood the immediate applications of what they were doing. If they understood their handiwork as providing institutional means to the Declaration’s ends, then the fixed meaning of the Constitution is to be found in its mission to protect natural rights and liberty in changing—unfixed—circumstances. Fidelity to the text requires fidelity to some things that were, in a sense, prior to the text—the political and social principles and goals for which the text was written. It was written in order to be instrumental to goals served by the principles.

  With an asperity born of exasperation, Antonin Scalia once wrote, “If you want aspirations, you can read the Declaration of Independence,” but “there is no such philosophizing in our Constitution,” which is “a practical and pragmatic charter of government.” Oh? Are we to conclude that philosophy is impractical and unpragmatic? There is no philosophizing in the Constitution—until we put it there by construing it as a charter of government for a nation that is, in Lincoln’s formulation, dedicated to a proposition that Scalia dismisses as “philosophizing,” the proposition that all men are created equal in possession of natural rights. In the words of constitutional scholar Walter Berns, the Constitution is related to the Declaration “as effect is related to cause.”30 Or as Lincoln said, the Declaration of Independence is the “apple of gold” that is “framed” by something “silver”: the Constitution. Silver is valuable a
nd frames serve an important function, but gold is more valuable and frames are of subsidiary importance to what they frame.31 Today, the apple nourishes those of us who believe that the judiciary has been too accommodating to legislatures that are too responsive to majorities.

  In an 1810 case, Fletcher v. Peck, Justice John Marshall gave scant comfort to those of us who think the judiciary should be more amenable than it usually is to the principle that much of what Congress does should be presumed to be constitutionally dubious. And Marshall then did not give encouragement to those who think the judiciary should be energetic in finding unenumerated rights to protect. He said judicial review must be wielded with “much delicacy,” and laws should be declared unconstitutional “seldom, if ever…in a doubtful case.”32 But why, when an act of Congress is constitutionally doubtful, should the doubts be disregarded? Or why should Congress be given the benefit of the doubt about its exercise of its powers? If the judicial ethic is that the judiciary should defer to even constitutionally dubious acts of Congress, why is that ethical? Such an ethic subordinates fidelity to the Constitution to the celebration of one part of that document: Article I. And this implies a suspension of judgment in order to pledge allegiance to majoritarianism. It is hardly hard-core libertarianism to hold that the freedom of individuals to enter into voluntary exchanges and other transactions, contractual or otherwise, is presumptively important and owed respect by the government, and therefore that government bears the burden of proving that an interference with this freedom is necessary for achieving a compelling public interest.

  The principle of judicial restraint, distilled to its essence, is that an act of the government should be presumed constitutional, and that the party disputing the act’s constitutionality bears the heavy burden of demonstrating unconstitutionality beyond a reasonable doubt. The contrary principle, the principle of judicial engagement, is that the judiciary’s primary duty is to defend liberty, and that the government, when challenged, bears the burden of demonstrating that its action is in conformity with the Constitution’s architecture, the purpose of which is to protect liberty. The government dispatches this burden by demonstrating that its action is both necessary and proper for the exercise of an enumerated power. A state or local government dispatches the burden by demonstrating that its act is within the constitutionally proscribed limits of its police power.

  But are there any longer such limits? There were in 1905. That there no longer are is suggested by the widespread—and mistaken—disdain for a Supreme Court decision made that year. For a century there has been a broad and durable consensus among progressive scholars of constitutional law that the court decided the 1905 Lochner case improperly. And there is a comparable consensus among progressive historians that the case defined an entire era of constitutional law and social policy. Sensible conservatives believe the case was correctly decided. And David E. Bernstein’s study of the Supreme Court’s record, and of the record of state courts, concerning states’ exercises of their police power regarding social legislation, refutes the theory that there was a “Lochner era,” meaning a prolonged period in which almost all social legislation was overturned by judicial rulings that imposed an unreasonably cramped interpretation of the states’ police powers.

  The Lochner episode began May 2, 1895, when the New York legislature enacted a law that began this way: “No employee shall be required or permitted to work in a biscuit, bread or cake bakery or confectionary establishment more than 60 hours in any one week, or more than 10 hours in any one day…”33 Little did the legislators know that they were providing fodder for the US Supreme Court, which in turn would fuel among progressives an indignation industry that is still manufacturing disapproval of the court’s decision. Ostensibly, New York’s legislature limited the permissible work hours of bakery employees in order to protect the workers’ health and safety. That is what the legislature said. If you believe that legislatures should be taken at their word, if you assume that they can be assumed to be candid about their motives, then the subsequent Supreme Court ruling was, indeed, as its critics say, an indefensible exercise of judicial power—an essentially legislative act. If, however, you have a less sentimental and more empirical approach to evaluating political behavior, and if you think courts should be similarly unenthralled when judging the work of legislatures, then Lochner v. New York richly repays reconsideration.

  Joseph Lochner, the immigrant from Bavaria who successfully challenged the law’s Constitutionality, was fined fifty dollars for violating the limits it placed on the employees of his Utica bakery. He argued that he and his employees had a right, absent a compelling government interest, to voluntarily contract for longer working days and weeks. Lochner did this with Aman Schmitter, who lived with his family above Lochner’s bakery. Lochner and Schmitter together exercised a right they said was not only rooted in the Anglo-American tradition but was antecedent to positive law and discoverable by reason. It was, in a word, natural and unalienable.34

  The political antecedents and legislative history of New York’s law demonstrate beyond peradventure that the law was an exercise in rent-seeking by large, unionized bakeries and the unions that represented those bakeries’ employees. Rent-seeking is an unfortunately opaque name that has come to be attached to an even more unfortunate practice. Adam Smith distinguished between three kinds of income: profits, wages, and rents. Rents are captured when a third party, most often a government, confers a benefit on one party by depriving a second party of access to opportunity. Tariffs, for example, confer rents on manufacturers of protected goods by depriving consumers of the ability to purchase competing imported goods without paying the price of the tariff. Occupational licensing restrictions, by limiting the entry of new competitors into professions, confer rents on those who are already established in the professions: The rents are the economic value of the government-imposed exemption from competition. Regulations can confer rents that handicap some participants in a market at the behest of rival interests, interests that succeed in what is called the “regulatory capture” of the regulating agency. The permutations of rent-seeking are as many as the administrative state is vast. Rent-seeking is the activity of attempting to increase one’s income without increasing the quantity or quality of the goods or services offered to customers. It is the attempt to manipulate public power for private advantage—to get government to improve your economic circumstances by conferring a benefit on you or a handicap on your competitors.

  The law that Lochner violated was enacted—this is not disputed—at the behest of the large unionized bakeries and the unions with which they dealt. In these bakeries, overtime work was rare. The purpose of the law was to burden small, family-owned, non-unionized competitors that depended on flexible work schedules. Lochner’s challenge to the law was, Bernstein notes, funded “almost entirely with donations from small retail bakers.” The fact that Schmitter swore in an affidavit that he had happily exceeded the sixty-hour work week in Lochner’s establishment in order to learn cake baking did not stay the hand of the state. New York filed a criminal complaint against Lochner. When the case reached the US Supreme Court, New York state’s remarkably short (nineteen pages) brief asserted that the maximum hours law was simply a health law, an exercise of the police power to protect the health of the public and of bakery workers. Progressives at the time were concerned about the influx of immigrants, and the state’s brief acknowledged that the law targeted immigrants’ bakeries because “there have come to [New York] great numbers of foreigners with habits which must be changed.”35

  The Supreme Court ruled, 5–4, for Lochner. It said that the production of “clean and wholesome bread” does not depend on limiting the hours of workers, who are “in no sense wards of the state.” And there was, the court held, no evidence that baking is an especially unhealthy profession. Hence the law was an unconstitutional “interference” with the liberty of contract.36 This is an unenumerated right, meaning one not specifically mentioned in the Con
stitution. But the Constitution affirms the existence of unenumerated rights. The Ninth Amendment says: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

  The main dissent offered by the Supreme Court’s minority radiated the statism that was the natural product of progressive paternalism. It was, this dissent said, legitimate for New York’s state government to exercise its police power to forbid workers, including willing workers, from working hours that might damage their “physical and mental capacity to serve the State, and to provide for those dependent upon them.” In another dissent, which became famous and influential, Justice Oliver Wendell Holmes asserted an almost unlimited government police power flowing from “the right of a majority to embody their opinions in law.” Notice that Holmes’ majoritarianism led him to assert an essentially unlimited right. It is the majority’s right to embody not just its opinions about proper protections of the public’s health or workers’ safety, but its opinions, period. Hence Holmes thought the right of an individual to liberty of contract should not be interpreted “to prevent the natural outcome of a dominant opinion.”37 Implicitly, Holmes was accepting the idea that any law enacted by a democratically elected legislature represents the will of a majority. In this regard, Holmes, who fancied himself a flinty realist immune to sentimentality, was adhering to an abstract and sentimental theory of democratic practice, a theory remarkably uninformed by empirical evidence available to anyone who even casually observes legislative practices, then or now.