Prof. Kerr asks a good question, one that touches on a point that differentiates my argument from that of some of my allies, and one that gives rise to another point that I think strengthens my view. How should a judge act if the American people were to ratify a constitutional amendment that explicitly adopted existing precedent and rejects the Declaration as a guide for constitutional interpretation? In such a case, I would argue that judges would be bound to comply with that amendment—with certain important exceptions.
If the Constitution were amended to declare, say, that “commerce” in Art. I sec. 8 includes economic activity that has the potential to interfere with the national economy when aggregated, then that would ratify existing practice and would be legitimate. In fact, I advocate something like this, myself. I believe that a constitutional amendment ought to be proposed to constitutionalize things that I think are not constitutional—various parts of the regulatory welfare state, for example. Were such an amendment proposed, I have no doubt that it would pass overwhelmingly—although I would vote against it. But even knowing I’d be outvoted, I would favor such an amendment being proposed and ratified, because it is better to have the Constitution clear on these things. Such an amendment would give constitutional legitimacy to the welfare state which it currently lacks—and would rectify the problem we now have in our constitutional law, where judges strain and force the text’s meaning (e.g., the commerce clause) or ignore whole swaths of it (e.g., the public use clause, the due process clause, the privileges or immunities clause) in order to rationalize the existence of institutions that are, in fact, unconstitutional. It is because judges bend over like Chinese acrobats to find some way to uphold unconstitutional laws that we have many of the problems with our existing precedent.
The “exception” would be when it comes to natural rights. According to the classical liberal system that is the Constitution, the people have the right to consent—or to “enshrine their policy views”—only within certain boundaries. Consent is limited because of what it is. Consent is not a “skyhook,” or an arbitrary starting point for political philosophizing. It is, rather, a derivative of a prior conception of equal freedom. It is because we are equally entitled to freedom—because we have rights—that we have the right to consent. As Jefferson said, “the people in mass” are “inherently independent of all but moral law.” The Declaration says this, but what justifies it is not that the Declaration says it, but that it’s true.
Compare this with the modern approach advanced by the Progressives in the early 20th century. By substituting democracy for liberty as the central constitutional value, the Progressives came to argue that “the people can choose” any political institution they like—freedom or its opposites. The power of the majority is thus taken as an irreducible primary, and liberty as derivative of it. Liberty is justified because the people choose it, and the authority of the majority to choose is justified by…well, nothing. Arbitrary desire. Emotion. Physical force. Here, democracy is a skyhook—derived from and depending on nothing; an arbitrary postulate. The positivist approach sees the Constitution as a procedural framework only, which can be turned to serve any ends the majority desires. In the words of Holmes’ Lochner dissent, the Constitution “is made for people of fundamentally differing views.” I consider this both false and inadequate. The Constitution—any constitution—is made for people of fundamentally shared views—people who agree on the basic principles, but differ about the specific policies. In the case of the U.S. Constitution, those basic principles are articulated in the Declaration. Those principles are true—not mere opinion. (Indeed, as they purport to be “truths,” the Declaration’s principles are of such a nature that they cannot be entertained as matters of mere opinion any more than the statement “water is wet” can be held as a mere opinion.) Approaching the Constitution as Holmes suggests, as a purely procedural framework with no normative orientation, leads to crazy outcomes—it renders the phrase “due process” unintelligible, for instance, and it makes the checks and balances system into a set of arbitrary rituals and taboos. Approaching the Constitution from the classical liberal perspective, by contrast, provides an explanation of why we have things like checks and balances, or a Bill of Rights, or textual references to “liberty” and “due process of law.” The positivist wertfrei approach simply leaves too many loose ends to count as a good descriptive theory.
The classical liberal conception explains these things and requires no arbitrary postulates or rituals. Government-by-consent depends on equal liberty. Equal liberty depends on human nature. Our understanding of human nature is based on observation of reality. (I cannot get much further into these complex matters; I refer the intrigued reader to these excellent works on the subject.) Natural law sets a moral framework within which constitutional law must operate, in the same way that constitutional law sets a framework within which statutory law must operate. Any attempt to use consent to cut off the basic freedom that is prior to consent is logically invalid and politically illegitimate. This isn’t a matter of choice, by the people or anyone else; it’s a matter of reason and the nature of the thing. Government by consent is inherently limited by the moral framework whereby consent is itself justified. This is why the Declaration is written in the order in which it is written: first, all people are created equal, with certain rights, and among these rights is the right to “decide” on their political institutions—but only to secure rights. If government becomes destructive of these ends, it is the right of the people to alter or to abolish it. One cannot legitimately vote to deprive someone of his rights in the same way and for the same reason that one cannot sell property one does not own. Thus an amendment that sought, for example, to reintroduce slavery, or implement a pogrom, would never be justifiable or legitimate in any circumstances.
This raises the fascinating question of whether a constitutional amendment can itself be unconstitutional—to which I answer yes. What allows the people “to decide” is the more basic conception of individual liberty—that is, they can consent only within the boundaries of justice. (Analogously, an amendment that deprived a state of its two senators, or that purported to be an amendment without getting the requisite votes, would be unconstitutional.) Those boundaries are very broad, but they are limited. An amendment that sought to undo these principles and reintroduce slavery or implement a pogrom would be unconstitutional because it would simply not be a constitutional amendment. It would be an arbitrary assertion of force; in fact, it would be an act of war.
But it turns out that I need not take shelter in such abstractions, because, in fact, the Constitution has been amended, more than once, to disapprove of the existing status quo and to embrace the principles of the Declaration of Independence. I speak of the Ninth and Fourteenth Amendments. The Ninth Amendment has been sufficiently explained by Prof. Barnett. That amendment specifies that the constitution shall not be interpreted in ways that deny or disparage other rights retained by the people—that is, the natural rights with which they are endowed by nature, that pre-exist the state—and their common law rights. But as I argue in chapter 2 of my book—and will explain in my next blog post—the Fourteenth Amendment, too, declares that the Constitution should be interpreted in light of the classical liberal principles first articulated in the Declaration.
The text of the Constitution is what makes classical liberalism constitutional. What makes classical liberalism right—and what makes classical liberal regimes legitimate—is the truth of the propositions it embodies.
Update 2: Yes, Prof. Kerr understands me correctly. As the principles of the Declaration are true, they are true always and everywhere, and a government established contrary to those principles is, to the extent of that contrariness, illegitimate. A Nazi or Bolshevik constitution is not a legitimate constitution–it is an act of arbitrariness or war against the people–and the people have the right to alter or to abolish such “government” and institute new government…et cetera. And, as I’ll discuss in my next post, to the extent that the U.S. government operates contrary to those principles, its actions, too, are illegitimate acts of usurpation, and deserve to be treated as such. One excellent source on this point is St. George Tucker, whose 1803 edition of Blackstone added an entire fifth volume to explain the revolution that had taken place in the understanding of legitimacy and to reject Blackstone’s notion that the legislature possesses “supreme, irresistible, absolute, uncontrolled authority.” Like Tucker, I hold that, on the contrary, sovereignty, to be legitimate, must be based on antecedent recognition of individual rights. Thus my argument in The Conscience of The Constitution combines political philosophy and constitutional law. If this seems unusual to modern eyes, it would not have to the founders, who sought to “establish good government from reflection and choice,” instead of “accident and force.” It is the happy situation of the United States to have a Constitution founded, in the main, on correct political principles.