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  Justice Antonin Scalia held that “[t]he whole theory of democracy…is that the majority rules; that is the whole theory of it. You protect minorities only because the majority determines that there are certain minority positions that deserve protection.…[Y]ou either agree with democratic theory or you do not. But you cannot have democratic theory and then say, but what about the minority? The minority loses, except to the extent that the majority, in its document of government, has agreed to accord the minority rights.”93 If, however that is the “whole theory” of democracy, then democratic theory is not very interesting. What is interesting is what begins after this theory is recognized as thin intellectual gruel. What should begin is reflection on the institutional and cultural measures necessary to increase the likelihood that majorities will be temperate and reasonable.

  In a 2006 interview, Supreme Court Justice Stephen Breyer said the Constitution is “basically about” one word—“democracy.”94 That word, however, appears in neither that document nor the Declaration of Independence. Democracy is America’s way of allocating political power. The Constitution was adopted to confine that power. It is supposed to confine it in order to “secure the blessings of” that which simultaneously justifies, and justifies limits on, democratic government: natural liberty. The fundamental division in American politics is between those who take their bearings from the individual’s right to a capacious realm of freedom and those whose fundamental value is the right of the majority to have its way in making rules about which specified liberties shall be respected, and to what extent. For the many Americans who are puzzled and dismayed by the heatedness of political argument today, Timothy Sandefur has a message: The temperature of today’s politics is commensurate with the stakes of today’s argument.

  Progressives, who consider democracy the source of liberty, reverse the Founders’ premise, which was: Liberty pre-exists governments, which, the Declaration says, are legitimate when “instituted” to “secure” natural rights. Progressives consider, for example, the rights to property and free speech as, in Sandefur’s formulation, “spaces of privacy” that government chooses “to carve out and protect” to the extent that these rights serve democracy.95 Conservatives believe that liberty, understood as a general absence of interference, and individual rights, which cannot be exhaustively listed, are natural and that governmental restrictions on them must be as few as possible and rigorously justified. Invoking the right of a majority to have its way is an insufficient justification.

  With the Declaration, Americans ceased claiming the rights of aggrieved Englishmen and began asserting rights that are universal because they are natural, meaning necessary for the flourishing of creatures with our natures. The perennial conflict in American politics, Sandefur says, concerns “which takes precedence: the individual’s right to freedom, or the power of the majority to govern.” The purpose of the post–Civil War’s Fourteenth Amendment protection of Americans’ “privileges or immunities”—protections that were almost entirely vitiated by an absurdly narrow Supreme Court reading of that clause in 1873—was to assert, on behalf of emancipated blacks, national rights of citizens. National citizenship grounded on natural rights would thwart Southern states that were then asserting their power to acknowledge only such rights as they chose to dispense. Government, the Framers said, is instituted to improve upon the state of nature, in which the individual is at the mercy of the strong. But when democracy, meaning the process of majority rule, is the supreme value—when it is elevated to the status of what the Constitution is “basically about”—the individual is again at the mercy of the strong: the strength of mere numbers. Sandefur says progressivism “inverts America’s constitutional foundations” by holding that the Constitution is “about” democracy, which rejects the Framers’ premise that majority rule is legitimate “only within the boundaries” of the individual’s natural rights. These include—indeed, these are mostly—unenumerated rights whose existence and importance are affirmed by the Ninth Amendment. Some conservatives will be discomfited by Sandefur’s analysis, which entails this conclusion: Conservatives’ indiscriminate denunciations of “judicial activism” serve progressivism.96 The protection of rights, those constitutionally enumerated and others, requires a judiciary actively engaged in enforcing what the Constitution actually is “basically about,” which is compelling majority power to respect individuals’ rights.

  In a book published in 2010, during his seventeenth year on the Supreme Court, Justice Breyer asked, “Why would people want to live under the ‘dead hand’ of an eighteenth-century constitution that preserved not enduring values but specific eighteenth-century thoughts about how those values then applied?”97 Why, indeed, if the Constitution is connected to no “enduring values”? And how could it be connected, if there are no enduring values in a world in which the only constant is the perpetual emergence of new “values”? A world in which the past is always a “dead hand.” One does, however, wonder what Breyer thinks his job is, given that he thinks that construing the Constitution consists in applying, or perhaps just pretending to apply, eighteenth-century “thoughts” in a twenty-first century that has its own “thoughts.” It is, surely, momentous that a member of the Supreme Court assumes that the American people do not want to live under the Constitution. Anyway, all laws are impositions of “dead hands” upon the present because all laws are supposed to continue in force beyond the instant of enactment. This is especially true of constitutions, which are, purposefully, candidly instruments of “dead hands” in that they are laws about how subsequent and lesser laws are to be made and applied. In 2010, Judge Don Willett of the Texas Supreme Court cogently addressed, and largely dissolved, the supposed “dead hand” and counter-majoritarian difficulties.98

  There are, he said, two different, but not equal, majorities involved. He began, as judicial review began, with Marbury v. Madison, in which Chief Justice John Marshall wrote: “The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written.”99 In distinguishing between proper judicial deference to legislative majorities and the dereliction of the judicial duty to police the excesses of majorities, Willett said: In our democracy, the legislature’s policymaking power “though unrivaled, is not unlimited.” The Constitution is supreme. When a legislature says a certain law is desirable, “desirable” is not a synonym for “constitutional.” Although “the political branches decide if laws pass,” it is for courts to decide “if laws pass muster.” So, “if judicial review means anything, it is that judicial restraint does not allow everything.” To avoid a “constitutional tipping point” where “adjudication more resembles abdication,” courts must not “extinguish constitutional liberties with nonchalance.” This requires fidelity to the supermajority against which other majorities must be measured. “There must remain judicially enforceable constraints on legislative actions that are irreconcilable with constitutional commands.”100

  But why “must”? Because, Willett said, the Texas Constitution, like the US Constitution, is “irrefutably framed in proscription.” It “declares an emphatic ‘no’ to myriad government undertakings,” even if majorities desire them. Judicial review means preventing any contemporary majority from overturning yesterday’s supermajority, the one that ratified the Constitution. Federal judges are accountable to no current constituency. But when construing the Constitution, they are duty-bound to be faithful to the constituency of those who framed and ratified it. This, Willett said, is the “profound difference between an activist judge and an engaged judge.”101 The former creates rights that are neither specified in nor implied by the Constitution. The latter defends rights the Framers actually placed there—and the unenumerated rights they acknowledged—and prevents the elected branches from usurping the judiciary’s duty to declare what the Constitution means.

  THE “RATIONAL BASIS” OF IRRATIONAL DEFERENCE

  Madison was uncharacteristically too sang
uine when he said in Federalist 51 that majorities will seldom form in an extended republic except on the basis of “justice and the general good.”102 What he did not anticipate, and could not have anticipated, was this phenomenon: As government has grown bigger in size, scope, and pretensions, it has become more attentive to small factions that do not claim to represent the will of the majority. The most that each faction claims is that a majority would favor what the faction favors if the majority were thinking clearly. Or that it knows better what is best for the majority. Or that it does not give a tinker’s damn what other factions think. The main problem of contemporary American democracy is not that majorities cause the government to make unwise or unjust decisions. Rather, the problem is that so much of what modern government does pertains hardly at all to any majorities.

  The Constitution creates institutions for the conduct of government business. It does not articulate principles about the proper goals of government. It does, however, intimate the broad contours of a general philosophy of government, with clear and powerful implications for government’s purposes. The Constitution does this with the separation of powers, one implication of which is that governmental efficiency, understood as nimbleness in acting with dispatch, is less important than, and in tension with, the need for mechanisms that slow, and perhaps block more government action, thereby encouraging deliberation, compromise, and limitations. Also, the Constitution’s Madisonian tapestry of separated powers, checks and balances, federalism, and guarantees of individual rights attests to what Professor Richard Epstein calls a “presumption of error.”103 The tapestry is designed to slow the political process because all government interventions in the processes of society’s spontaneous order are presumptively of dubious legitimacy. This is so because the government is presumed to not be a disinterested umpire but rather to be responsive to factional interests. This is now more frequently true than ever, and it is certain to become even more often true as government becomes bigger, more intrusive, and more opaque.

  This idea is anathema to those—today, probably an American majority—who believe that majority rule is the sovereign value that trumps all others. They believe that the degree of America’s goodness is defined by the extent to which majorities are able to have their way. Such people are bound to believe that it is the job of the judicial branch to facilitate this by adopting a modest, deferential stance regarding what legislatures do. And regarding what executive branch officials and agencies do. Here, judicial deference is said to be dictated by the plebiscitary nature of the modern presidency: Because presidents alone are elected by a national constituency, they are unique embodiments of the national will, and hence should enjoy the maximum feasible untrammeled latitude to translate that will into policies.

  The three-fold problem is that majorities can be abusive. And that some questions are not properly submitted to disposition by majority rule because there are some—actually, there are many—closed questions even in an open society. And that many things that majoritarian institutions do have nothing to do with the desires of majorities. So, we must ask: How aberrant—how frequent—are abusive majorities? A related but different question is: How often do legislatures act on behalf of minority factions? My belief, based on almost half a century observing Washington, the beating heart of American governance, is this:

  As government becomes bigger and more hyperactive, as the regulatory, administrative state becomes more promiscuously intrusive in the dynamics of society and the lives of individuals, a steadily shrinking portion of what the government does is even remotely responsive to the will of a majority. Rather, the more that government decides that there are no legal or practical limits to its proper scope and actual competence, the more time and energy it devotes to serving the interests of minority—often very small minority—factions. So, paradoxically, as government becomes bigger, its actions become smaller. As it becomes more grandiose in its pretensions, its preoccupations become more minute. Consider a few examples from government below the federal level.

  Ali Bokhari emigrated from Pakistan in 2000, settled in Nashville, became a taxi driver, and got a very American idea: He started a business to serve an unmet need. He bought a black Lincoln Town Car and began offering cut-rate rides to and from the airport, around downtown, and in neighborhoods not well served by taxis. After one year he had twelve cars. Soon he had twenty, and fifteen independent contractors with their own cars, and a website and lots of customers. Unfortunately, he also had some powerful enemies. The cartel of taxi companies had not been able to raise their rates since Bokhari came to town. Those companies, in collaboration with limo companies that resented Bokhari’s competition, got the city government’s regulators to require him to raise his prices and imposed many crippling regulations.104

  Sandy Meadows was an African-American widow in Baton Rouge. She had little education and no resources, other than her talent for making lovely flower arrangements, which a local grocery store hired her to do. Then Louisiana’s Horticulture Commission—there is such a body, for rent-seeking reasons—pounced. It threatened to close the store in order to punish it for hiring an unlicensed flower arranger. Meadows tried but failed to get a license, which would have required her to take a written test and to make four arrangements in four hours. The adequacy of the arrangements would have been judged by licensed florists who were acting as gatekeepers to their own profession, restricting the entry into it of competitors. Meadows, denied re-entry into the profession from which the government had expelled her, died in poverty. But the people of Louisiana were protected by their government from the menace of unlicensed flower arrangers.105

  Elsewhere in Louisiana, the monks of St. Joseph Abbey also attracted government’s disapproving squint. In 2005, Hurricane Katrina damaged the trees that for many years the monks had harvested to finance their religious life. Seeking a new source of revenue, they decided to make and market the kind of simple wooden caskets in which the abbey has long buried its dead. The monks were unwittingly embarking on a career in crime. Louisiana has a State Board of Embalmers and Funeral Directors. Its supposed purpose when created in 1914 was to combat diseases. It has, however, long since succumbed to “regulatory capture”: It has been taken over by the funeral industry that it ostensibly regulates. At the time the monks began making and selling caskets, nine of the board’s ten members were funeral directors. One of their principal sources of income is selling caskets. In the 1960s, Louisiana made it a crime to sell “funeral merchandise” without a funeral director’s license. To get one, the monks would have had to stop being monks. They would have had to earn thirty hours of college credits and spend a year as apprentices at a licensed funeral home to acquire skills they had no intention of using. And their abbey would have been required to become a “funeral establishment” with a parlor able to accommodate thirty mourners, and they would have had to install an embalming facility, even though they only wanted to make rectangular boxes, not handle cadavers. The law requiring all this rigmarole served no health or sanitary purpose: Louisiana does not stipulate casket standards or even require that burials be done in caskets. Furthermore, Louisianans can buy caskets from out of state—from, for example, Amazon, which of course sells everything. Obviously, the law was brought to bear against the monks to protect the funeral directors’ casket-selling cartel.106

  The government action used to prevent a Pakistani immigrant from entering into his chosen profession of operating a transportation company, and the government action that blocked an aspiring flower arranger from exercising her skill, and the government action that blocked the monks from supporting themselves by making and selling wooden boxes, and thousands of government actions like these, from coast to coast, should be, but usually are not, considered unconstitutional. They should have been struck down even though they issued from formally majoritarian processes—from elected officials or from regulatory agencies created by elected officials. They should have been struck down as violations of a natural ri
ght, the right that Lincoln understood as the right to free labor, the right that was, of course, at the core of the slavery crisis. It is the unenumerated, but surely implied, constitutional right to economic liberty. But laws abridging that right survive and proliferate because, since the New Deal, courts have largely stopped doing their duty to defend this economic liberty against its rent-seeking enemies.

  In a sense, the problem began in Louisiana sixteen years before the monks’ monastery was founded in 1889. It began across Lake Pontchartrain from the monastery, in New Orleans. That city had awarded some rent-seeking butchers a lucrative benefit. The city had made them into a cartel by requiring that all slaughtering be done in their slaughterhouses. Some of the excluded butchers went to court, all the way to the US Supreme Court, challenging this law. They lost when, in the 1873 Slaughterhouse Cases, the court, in a 5–4 decision, upheld the law that created the cartel. In doing so, the court effectively expunged a clause from the Fourteenth Amendment. The clause says: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” The court construed the phrase “privileges or immunities” so narrowly that it disappeared from constitutional law. This was a tragic fate for a phrase that was intended as shorthand for the full panoply of rights of national citizenship.

  Since the New Deal, courts have abandoned the protection of economic rights, including the fundamental right to earn a living without arbitrary and irrational government hindrances. Instead, courts have adopted the extremely permissive “rational basis” test for judging whether government actions are permissible. Courts almost invariably hold that if a government stipulates a reason—any reason—for a law or regulation that burdens economic activity, or even if the court itself can imagine a reason for the law or regulations, then the court should defer to the elected legislature, elected city council, or other majoritarian institution that produced the law or regulation. In 2004, the Tenth Circuit upheld an Oklahoma law requiring online casket retailers to have funeral licenses. To obtain such licenses, applicants are required to take several years of course work, serve a one-year apprenticeship, embalm twenty-five bodies, and take two exams. Upholding this travesty, the court wrote, with breezy complacency, that “while baseball may be the national pastime of the citizenry, dishing out special economic benefits to certain in-state industries remains the favored pastime of state and local governments.”107 The court did not say, but it might as well have said: Majority rule requires that courts only reluctantly and rarely engage in the judicial supervision of democracy, because majority rule is the value that trumps all others. There are, however, two things wrong with this formulation.