Many of my contributions to this blog will riff my forthcoming tome on the Constitution and its federalism, cleverly entitled The Upside-Down Constitution. The publisher’s (Harvard University Press) release date is February 15. However, you can already pre-order the book on Amazon.com. What exactly is “upside-down” about our Constitution? Keep reading to find out.
The ongoing debate between libertarian and more traditional constitutionalists is about something more fundamental than what standards of review to apply to which cases. What’s at stake in this disagreement is politics—its very survival, and in what form. Is this institution that is, or at least was, enlivened by argument among citizens to be replaced by a desiccated vision of rational claims adjudicated by courts?
The libertarian constitutionalists make a demand that appeals to common sense: that the government be required to justify any restrictions on liberty as reasoned rather than arbitrary.
In his excellent Our Republican Constitution (2016), for example, Randy Barnett writes of the “obligation of the servants of the people to explain [to courts] why their restrictions on the liberty of a fellow citizen and joint sovereign are not irrational or arbitrary.” This demand sounds fair enough. But it is rooted in a series of presumptions that fare better in the rhetorical aggregate than under careful (strict?) scrutiny.
The first is a dual maneuver whereby the buffering mechanism of the political community—whose “deliberate sense” acts through the government rather than the government’s acting, as a foreign agent, on it—vanishes, leaving only the regime and the individual member of the community standing in opposition to one another.
Second is the presumption—almost always contained, in question-begging fashion, in the premise of such arguments—that the courts are the appropriate forum for the individual and the government to present their claims.
The third is the idea that legislation—which in a regime devoted structurally to liberty is the product of a decentralized process of percolating compromises, not a top-down imposition of discrete reason-giving—ought to be, even can be, rational in any sense cognizable by a court.
Each of these presumptions is rhetorically appealing, intellectually attractive, and politically pernicious.
Start with the first: There is no community, no zōon politikon, in the libertarian constitutionalist worldview. One suspects that they would not dispute this. The political community does not exist, only individuals and the regime. This is a Hobbesian frontier and a Tocquevillian terror.
Thus the idea of a deliberate majority working its will, James Madison’s “vital principle of our free constitution,” is foreign. Indeed, the regime itself is foreign. It is an alien entity that must justify itself to the people because it is constantly assumed to be opposed to them, not an expression of the people’s deliberate will itself.
This mistakes Madisonian theory. On Madison’s understanding, two forms of abuse were possible: the regime abusing the people or majorities abusing minorities, a distinction he makes explicit halfway through Federalist 51: “It is of great importance in a republic, not only to guard the society against the oppression of its rulers; but to guard one part of the society against the injustice of the other part.”
The first scenario is the one to which the libertarian constitutionalists refer in describing a “government” on the one hand and an individual on the other. Yet Madison speaks not of an individual opposed to government, but of a political community opposed to government. He writes of guarding the “public rights,” not individual rights, against abuse by the regime, and the protection he proposes is not strictly judicial review but rather the general mechanism of separation of powers.
But what of legislation in which some people get this and others get that? Here it sounds much more like some of the people abusing other of the people, and Madison proceeds to say that this kind of abuse will be mitigated by the extended republic theory he elucidated in Federalist 10 and repeats in Federalist 51.
Significantly, the theory does not rely on any institution of government to restrain majorities, only on the natural conditions of an extended republic. Still less could it rely on courts constituted to be isolated from the republic, since Madison explicitly rejects empowering “a will not dependent on” majorities to control majorities.
The libertarian constitutionalist rejection of majority rule is ultimately a rejection of political community. For them, the individual stands exposed to the regime, protected not by the buffering influence of a Tocquevillian community in which he or she can participate, but by a buffer over whom he or she, by design, has no control—judges. Which buffer better secures rights?
That is precisely why, with respect to the second presumption, the case against rent-seeking legislation ought to be made by the citizen to the legislature.
It is certainly true that those who would restrict liberty ought to bear the burden of demonstrating the propriety of their proposals. They should not do so with false justifications that seek merely to tart up corrupt rents in the dress of legitimate politics.
But it does not follow that the place for demanding that demonstration is a court of law. The courts cannot judge of the objective intent of lawmakers, who—as the libertarian argument correctly presumes—are ingenious at inventing seemingly benign, if sometimes absurd, justifications for corruption. To place courts in the position of deciding whether a rationale for a law is adequate is to make them judges of whether that law is justified and good—in its very essence a legislative function.
The paradigmatic case of rent-seeking abuse, often taken as proof of judicial rubber-stamping under the rational-basis test, is the 1955 case of Williamson v. Lee Optical. But the effect of applying the rational-basis standard in that case was not to give permission for what could rightly be called favoritism. It was to force the issue of favoritism back into the legislative realm by saying that rent-seeking must be repealed by consent of the community.
Stopping rent-seeking by that means is, to be sure, less likely today because government has grown so complex and detailed. But that complexity, which breeds corruption, is itself the product of a longstanding constitutional settlement in which Americans, for good or ill—certainly often for ill—expect government to be an agent of economic distribution. The imperative is not to deny that reality but rather to constitutionalize that regime.
Thus point three: Legislation is often a collection of bargains and compromises. Progressives wanted it otherwise. The early Progressives spoke of “scientific legislation.” Woodrow Wilson complained that the decentralization of Congress resulted in policy with “little coherency.”
There is another word for this: “politics.” Politics is transactional in nature; some people receive this, others that. It involves compromises, bending, accommodation. To try any one discrete act of legislation, especially in isolation from the whole, on the grounds of discrete reason-giving is to misapprehend the nature of the legislative process, which is more Hayekian than Platonic. It is not directed by philosopher-kings. It is the product of a vast array of individual accommodations that accrete into a whole that—like the “market”—becomes falsely personified as though its behavior were susceptible of rational explanation.
That is a hot, ugly mess and no partisan of liberty should want it otherwise. Liberty assumes the dispersal and separation of power. Rational legislation in a form that conforms to discrete reason—to be assessed by judges, who are as human as the rest of us, according to theoretical standards—assumes the concentration of power.
It is true, as Phillip Hamburger has written, that judges’ oaths confer a judicial duty not to give effect to lower laws that violate higher laws. But in the American tradition, that higher law allocates to judges a certain place, and to politics a more prominent one, in the constitutional scheme. There are reasons for that difference. The dispersal of power, to which libertarians ought to be sensitive, is one. Legislation could only answer the tests they would apply if it were the product of powers they normally would not countenance.