The clash between the classical liberalism of the Constitution—which holds that individual rights are primary, and democracy is secondary, and limited by individual rights—and the “wolf’s view” of politics—which holds the power of the majority as primary, and sees rights as privileges given to the individual by the majority—persisted into the twentieth century. Although the Court had dealt the death blow to the Privileges or Immunities Clause, it did continue, in a limited way, to protect individual rights under the Due Process of Law Clause of the Fourteenth Amendment. This was through the doctrine now called “Substantive Due Process.” (In Chapters 3 and 4 of The Conscience of The Constitution, I explain why Substantive Due Process is the correct reading of the Due Process Clause—notwithstanding the mountains of scorn heaped on it by both left and right. But I won’t repeat that here, since I touched on the issue when I last guest-blogged here, and also wrote about it at Cato Unbound two years ago.)
The focus of the clash was never so much the concept of “substantive due process”—which was almost universally accepted until the New Deal era—as it was over the nature of sovereignty and the relationship between liberty and democracy. Those who held that government power was primary, and individual rights only privileges extended by the state never went away; on the contrary, by the opening years of the twentieth century, they had made significant advances.
The intellectual history here has yet to be fully explored—and is beyond the scope of my book—but I suspect that the general outlines of the story are these: the intellectual class of the Confederate cause, having been stripped by the Fourteenth Amendment of eligibility for office, and now no longer brash young men, moved into the universities, where they taught political theory and law to the rising generation—students who would become the leaders of the Progressive era—or found other ways to lay the intellectual foundations for the political institutions that would come. Ex-Confederates were prominent, for example, at the California Constitutional Convention of 1878-79.
Even if there is no direct connection between the intellectual leaders of the old Confederacy and the rising Progressive movement, the new thinking was strikingly parallel. During this period, the ideas of Hegel—whose Historicism is remarkably similar to the antirationalism of John C. Calhoun—were having a profound impact on American political philosophy, north and south. By the time Charles Edward Merriam—first professor of political science at the University of Chicago—wrote his 1903 History of American Political Theories, he could conclude that the classical liberal views of the anti-slavery constitutionalists had been abandoned. “The Abolitionists thought that liberty is the birthright of all men,” he wrote, while “defenders of slavery thought it the possession of those only who are fit.” But “[f]rom the standpoint of modern political science the slaveholders were right in declaring that liberty can be given only to those who have the political capacity to use it.” Political scientists had “abandoned” the Declaration’s premise that “liberty is a natural right,” and returned to the States Rights doctrine that freedom is a privilege given by the state: “rights are considered to have their source, not in nature, but in law.”
No legal thinker represents this trend more clearly than Justice Oliver Wendell Holmes, Jr. Holmes took delight in ridiculing the notion of individual rights. “All my life,” he said, “I have sneered at the natural rights of man.” And he meant it. That idea rested on the notion that there are such things as knowable principles of justice, when in reality, Holmes believed, there was only physical violence and pre-rational emotional preferences. The idea of, say, the right not to be raped or murdered, has no more validity than a person’s preference for one type of beer over another. Legal and constitutional protections for rights are simply an aggregation of arbitrary personal preferences that the majority are willing to kill or die for. But that means that one can have no rights valid against the state: “there can be no legal right as against the authority that make the law on which the right depends,” he wrote. The idea of a right valid against the state was like “shaking one’s fist at the sky, when the sky furnishes the energy that enables one to raise the fist.”
One might note that it is entirely possible to shake one’s fist at the sky, notwithstanding. Holmes’ snide style barely concealed the fact that he was setting up a straw man of the classical liberal conception of rights—caricaturing it an arbitrary or mystical assertion, which it is not—which he could knock down and replace with an Hegelian, Historicist theory whereby the individual is only the creature of history and society. (Holmes is sometimes wrongly likened to Thomas Hobbes; in fact, Hobbes held that politics is reducible in principle to rational choice and that there is a basic natural right to defend one’s life. Holmes rejects these propositions.) Rights are thus the (fundamentally arbitrary) gift of the collective to the individual.
We’ve seen how this influenced his understanding of free speech—making it no longer an individual right, but a sort of temporary grant from the state for the state’s own benefit. But it also comes to the fore in his famous Lochner dissent, when he wrote that “the word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion,” unless a person “necessarily would admit“ that the law in question intrudes on “fundamental principles as they have been understood by the traditions of our people and our law.” The reader might be puzzled at how the word liberty could mean anything other than to prevent the outcome of a dominant opinion. Yet in Holmes’ view, liberty really meant power—and his preference (remember, there are no principles, only preferences) was for the power of the majority: the dominant opinion ought to prevail. It was perverse to say otherwise, unless that opinion was contrary to—to what? Logic? Principles of justice? No—tradition. Arbitrary historical accident. On the contrary, only once in the dissent does Holmes unapologetically employ the word “right”: when referring to “the right of a majority to embody their opinions in law.” Nowhere does Holmes question the substance or derivation or justification of this “right.”
Holmes’ rejection of the concept of individual rights—or, rather, his reversal of liberty and democracy as political priorities—is also on display in his famous quip that “If my fellow citizens want to go to hell, I will help them. It’s my job.” That was not, in fact, his job. The Constitution establishes a federal judiciary not to ease Americans’ path to Hell, but as part of an effort to keep them out of it. Hamilton explained in Federalist 78 that it was “far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.”
The courts never fully endorsed Holmes’ extreme notion of “judicial restraint.” But that idea had a powerful influence, particularly through his acolyte, Justice Felix Frankfurter, and in later years, among conservatives like Robert Bork, who argued that Holmes had not been hostile enough to the idea of individual rights. One even gets a whiff of it in Chief Justice Roberts’ statement in the Obamacare decision, when he declared that “It is not [the Supreme Court’s] job to protect the people from the consequences of their political choices.” On the contrary, that is exactly the Court’s job. The Constitution creates a legal boundary around politics, so as to protect individual rights against being trampled by politics—or, as Justice Robert Jackson put it, “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”