This Republic of Federalism

Timothy Sandefur’s The Conscience of the Constitution contributes to the debate over the best way to limit the powers of the United States government in order to secure liberty. Sandefur, a lawyer and legal scholar, believes that Conscience“American constitutional history has always hovered in the mutual resistance of two principles: the right of each individual to be free, and the power of the majority to make rules.” (1) For Sandefur adherence to the natural rights theory of Declaration of Independence manages the tension between the two principles. Indeed, the Declaration is “more than a merely rhetorical statement.” It “sets the framework for reading our fundamental law,” the Constitution. (2) “Liberty,” he writes, “is the goal at which democracy aims, not the other way around.” (2)

Early American history, he claims, demonstrates that the Founders believed in the primacy of liberty, which they defined in Lockean terms. With this as his baseline, Sandefur both judges the rest of American history and advocates methods for limiting government. His advice for protecting liberty rests on historical assumptions that are too simplistic and fails to account sufficiently for American federalism.

In chapters three through five of the work, Sandefur defends the legal strategies he argues best protect America’s libertarian heritage, substantive due process and a properly conceived judicial activism. Here Sandefur shines in his ability to explain complex legal ideas to non-lawyers. His writing is clear. He uses numerous examples to illustrate his points and is worth reading carefully. Sandefur believes classical liberalism to be the official political philosophy of the Founding, although slaveholders distorted this commitment during the antebellum period. (119) The Fourteenth Amendment, however, in stating that “nor shall any State deprive any person of life, liberty, or property, without due process of law,” “recommitted the Constitution” to classical liberalism. (119)

For Sandefur, the “Due Process Clause, rightly understood, prohibits all arbitrary government action, including unjustified restrictions of individual liberty.” (71) He notes that many have separated the substance of due process from the procedures of the law, but “that distinction makes little sense.” (71) Using Plato’s argument in Euthyphro, Sandefur notes that “there is a difference between law and mere force” (72) which is due to some “objective criteria” beyond the mere command of a ruler. Thus, there is a difference between law and command. Law is not arbitrary, Sandefur notes, meaning that it must “accord with a rational explanatory principle.” (73) When the Fourteenth Amendment protects due process of law (rather than command), it rejects narrow positivism and supports the general principles of natural rights outlined in the Declaration of Independence. As Sandefur puts it, “[F]airness is required by the clause’s explicit commitment to law.” (96) In order for Congress to make good laws and judges to decide cases, they must begin with the question of the purpose of the Constitution. They must engage in “political philosophy.” (87)

For Sandefur “the principles of the Constitution’s political philosophy are not left up to the judges to invent, but are stated in the Declaration of Independence.” (88) The alternative – a focus completely on procedure – means that Americans would “declare that the law is whatever the ruling power enacts according to the rules of promulgation” thus making the “constitutional guidelines that control lawmakers and courts” appear “like pointless rituals” and thus arbitrary. (98) Sandefur finds that both progressives and conservatives, for different reasons, have defended a procedural approach that violates the principles of the Founding stated clearly in the Declaration. (121, 127-8) Additionally, both have attacked judicial activism and sought to limit the power of the judiciary. Sandefur finds these efforts misguided and defends judges who rule according to the principle of natural rights. He believes that a focus on natural rights, particularly property rights, would undermine the invasive welfare state that seeks to redistribute income and increase the power of government bureaucrats at the expense of natural rights to liberty and property.

Sandefur bases his recommendations on a politicized historical narrative of the Early Republic told in the first two chapters of the book. His perspective is essentially the Republican Party narrative developed during the 1850s. Heroic Americans risked all to fight a revolution to win independence and secure natural rights under a strong national government but were betrayed by evil, self-interested, hypocritical, slaveholding aristocrats who created numerous political, constitutional, and historical myths to justify their subversion of the Republic.[1] The largely virtuous North under Lincoln destroyed the arrogant South, and the Republicans, in passing the 14th Amendment, “overthrew the states’ rights vision of proud, autonomous states.” (59) Natural rights and the Declaration of Independence could again triumph. But the Supreme Court backtracked in the Slaughter-House Cases (1873), and another enemy soon entered the sanctum, the Progressives.[2]

There are many ways to respond to this narrative, but a consideration of some of the issues Sandefur mentions suggests a more complex story. Slavery is the most problematic issue for those who claim the Founders were natural rights libertarians. Sandefur recognizes this and lists slavery as one of the “embarrassing exceptions” to his claims about the Framers.[3] (125; also 33) His admission deserves further exploration.

On Tuesday, August 21, 1787 the delegates at the Philadelphia Convention took up the question of whether to insert a clause into Article IV of the proposed Constitution to ban the transatlantic slave trade. Luther Martin of Maryland, the leading proponent of state sovereignty at the convention, argued that the Constitution should ban it because, according to Madison’s Notes, “it was inconsistent with the principles of the revolution and dishonorable to the American character to have such a feature in the Constitution.” John Rutledge of South Carolina, a slaveholder himself, disagreed with Martin’s suggestion and condemnatory tone:

Religion & humanity had nothing to do with this question. Interest alone is the governing principle with nations. The true question at present is whether the Southn. States shall or shall not be parties to the Union.

Oliver Ellsworth of Connecticut then chimed in:

The morality or wisdom of slavery are considerations belonging to the States themselves. What enriches a part enriches the whole, and the States are the best judges of their particular interest. The old confederation had not meddled with this point, and he did not see any greater necessity for bringing it within the policy of the new one.[4]

Later in the summer the delegates decided to ban interference with the slave trade for twenty years.

There are several interesting points here that contradict Sandefur’s overall narrative. First, it was Luther Martin, a states’ righter representing a slave state, who spoke against slavery because of its violation of the principles of the Revolution. Second, South Carolinian John Rutledge and New Englander Oliver Ellsworth argued that the question of the slave trade be left to the states. The next day in debate Ellsworth voiced his opinion that if slavery “was to be considered in a moral light we ought to go farther and free those already in the Country.” He predicted that slavery would not last long in the United States. Ellsworth did not defend slavery in the abstract but at the same time agreed that the question should be decided on a state-by-state basis. In other words, far from being a natural rights absolutist, the proud Yankee Ellsworth was willing to allow a federal “solution” to the issue.[5] Either Sandefur’s depiction of the Founders as partisans of natural rights protected by a powerful National government falls apart here, or, we could conclude ahistorically that Rutledge and Ellsworth were not “founders.”

Like slavery, religious freedom also fell prey to federalism. Sandefur quotes approvingly Thomas Paine’s celebration of the natural right to religious freedom as a legacy of the Revolution. (11-12) Certainly, Revolutionary principles advanced the principles of religious freedom, especially in Virginia – that evil bastion of slaveholding – where James Madison took the lead in disestablishment. (12)[6] But in that locus of virtue, New England, religious establishments, at least in Massachusetts and Connecticut, lasted for fifty years. Sandefur admits this: “Although government establishments of religion would linger in the United States for decades afterwards, Americans came to agree that each person has a basic right to form his own religious beliefs and to practice according to his conscience without being dictated to be political leaders.” (13) He is correct in the long run, but in the half century after Independence the federalism enshrined in the Constitution limited the exercise of religious freedom in the United States.

The examples of slavery and religious freedom demonstrate that the founders, despite their rhetoric or current frustrations with their hypocrisy and inconsistency, sacrificed natural rights for federalism. What then are we to make of Sandefur’s claims that “the Constitution’s text implicitly incorporates the classical liberal political philosophy of the Founders?”(119) Edmund Burke, in Reflections on the Revolution in France, addressed a similar issue in dealing with the natural rights radicals in England and France. Burke wrote:

The moment you abate anything from the full rights of men, each to govern himself, and suffer any artificial, positive limitation upon those rights, from that moment the whole organization of government becomes a consideration of convenience. This it is which makes the constitution of a state and the due distribution of its powers a matter of the most delicate and complicated skill. It requires a deep knowledge of human nature and human necessities, and of the things which facilitate or obstruct the various ends which are to be pursued by the mechanism of civil institutions. The state is to have recruits to its strength, and remedies to its distempers. What is the use of discussing a man’s abstract right to food or medicine? The question is upon the method of procuring and administering them. In that deliberation I shall always advise to call in the aid of the farmer and the physician rather than the professor of metaphysics.[7]

One does not have to be a Burkean conservative to appreciate that very thing he describes, the abatement of natural rights for the purpose of ruling communities, occurred at the Founding, especially regarding the enslavement of Africans. The reality of America’s constitutional federalism demonstrated that compromise and custom limited applications of natural rights. To describe the Founders as a coherent group of classical liberals does not account for all of the historical evidence. They often interpreted freedom in terms of federalism rather than a national application of natural rights.[8]

Sandefur also mentions, but does not discuss at length, the issue of economic development. In his excellent discussions of the Lochner and Kelo Supreme Court decisions, Sandefur claims, “According to the Constitution’s Framers, the function of a government was not to foster government plans for economic development but to protect individual rights against violations by the state.” (136) If Sandefur is correct here, then his support of the nationalists of the Early Republic, not to mention John Quincy Adams, Lincoln, and Daniel Webster, is puzzling, for all three men endorsed plans for the federal government to encourage economic growth through national banks, federally-funded infrastructure projects, and protective tariffs. In the Early Republic, many Jeffersonians – those evil states’ righters – advocated the point Sandefur endorses here, laissez faire. This brings to mind a point made by historian William Freehling about finding a liberal tradition in antebellum America:

It is striking how often ante bellum statesmen who were ‘liberal’ on economic issues were ‘conservative’ on slavery. Andrew Jackson, Roger B. Taney, James K. Polk, Martin Van Buren in the early stages of his career, John Randolph of Roanoke, and Amos Kendall spring to mind. Conversely, the great antislavery politician often espoused neo-Federalist economic doctrines. One thinks of John Quincy Adams, Abraham Lincoln, Charles Sumner, William Seward, and even William Lloyd Garrison. Considerations like this make it difficult to establish a ‘liberal’ tradition in ante bellum American politics.[9]

Given Freehling’s remarks, the political narrative Sandefur uses does not help to uncover a tradition of classical liberalism in Early America that consistently applied the natural rights interpretation of the Declaration to the issues of slavery and citizenship as well as to property rights and limited government interference in the economy. Granted, there were individuals in nineteenth century America advocating just that but the prevalence of issues of westward expansion, economic development, and nationalism ensured that they would be a minority.[10] My question to Sandefur is the following: would a more accurate historical narrative of the Early Republic that took into account the federalism of the Founding period alter the strategies you suggest in chapters 3 -5 of your book?

[1] Susan-Mary Grant, North Over South: Northern Nationalism and American Identity in the Antebellum Era(Lawrence, Kansas: Univ. Press of Kansas, 2000), explains the origins of this northern sectionalist ideology that masqueraded as an honest, virtuous, national account. Eric Foner explored the development of the Republican ideology in his now classic Free Soil, Free Labor, Free Men: The Ideology of the Republican Party before the Civil War (New York: Oxford University Press, 1970).

[2] One can follow this narrative on the following pages of Sandefur’s book: 2-3, 5-6, 11-13, 18, 22-23, 33-70.

[3] Here are Sandefur’s full quotations: “Noble as the ideas of the Declaration of Independence were, it was obvious before the ink was dry that they clashed with a central fact of everyday life in America: slavery. Americans grappled with this conflict for almost another century, and in the process they confronted even more directly the dilemma of which takes precedence the individual’s right to freedom, or the power of the majority to govern.” (33) “Of course, the Framers believed that even important interests were not sufficient to justify violating individual rights (with, of course, such embarrassing exceptions as slavery).” (125)

[4] James Madison, Notes of Debates in the Federal Convention of 1787, (Athens, Ohio: Ohio University Press, 1966), 502-503. On Ellsworth, see Michael C. Toth, Founding Federalist: The Life of Oliver Ellsworth (Wilmington, Delaware: ISI Books, 2011).

[5] Madison, Notes of Debates in the Federal Convention, 504.That was not a good solution as there was a significant increase in the importation of Africans to the US during that twenty-year window. See: Robert William Fogel and Stanley L. Engerman, Time on the Cross: The Economics of American Negro Slavery (New York: W. W. Norton, 1995), 24-25. A measured, well-written judgment on the Constitution and its relationship to slavery can be found in Don E. Fehrenbacher, The Slaveholding Republic: An Account of the United States Government’s Relations to Slavery (New York: Oxford University Press, 2001), 15-47. On the period between the Revolution and the closing of the transatlantic slave trade in 1808 see two works: Ira Berlin, Many Thousands Gone: The First Two Centuries of Slavery in North America (Cambridge, Massachusetts: The Belknap Press of Harvard University Press, 1998), 290-324. Matthew Mason, Slavery and Politics in the Early American Republic (Chapel Hill: University of North Carolina Press, 2006), 9-41. Mason begins with colonial America in his particularly solid overview.

[6] On this point see two new books on Madison: Kevin R. C. Gutzman, James Madison and the Making of America (New York: St. Martin’s Griffin, 2012), xxvii, 39-48. Jeff Broadwater, James Madison: A Son of Virginia & a Founder of the Nation (Chapel Hill, NC: University of North Carolina Press, 2012), 24-27.

[7] Edmund Burke, Reflections on the Revolution in France, ed. J.G.A. Pocock (Indianapolis: Hackett Publishing Co., 1987), 53.

[8] Scholar Aaron N. Coleman has pointed out to me the significance of John Marshall’s 1833 decision Barron v. Baltimore in reference to this point. I would also recommend Forrest McDonald, Novus Ordo Seclorum (Lawrence, Kansas: University Press of Kansas, 1985), for a view of the Founding that demonstrates the intellectual complexity of the period.

[9] William Freehling, Prelude to Civil War: The Nullification Controversy in South Carolina, 1816-1836 (New York: Oxford University Press, 1992), 346.

[10] One thinks of William Leggett here, whose writings are accessible through the Liberty Fund edition. Democratick Editorials: Essays in Jacksonian Political Economy, ed. Lawrence H. White (Indianapolis: Liberty Press, 1984).