Our Constitution is a “republican” constitution, designed to protect individual liberty, rather than a “democratic” one that privileges the will of the majority.
As the Declaration of Independence affirmed, it is “to secure these rights” that “Governments are instituted among Men.” Those who wrote and ratified the Constitution largely rejected the more “democratic” aspects of their own state governments — which they thought violated the rights of the minority — in favor of a new form of republican government.
Their innovation expressly limited the power of Congress, deliberately hamstrung the power of democratic majorities through a series of checks and balances, and expressly recognized the enumerated and unenumerated rights retained by the people. Then, the Constitution was put in writing to provide the law that governs those who govern us. Some eighty years later, Republicans in Congress amped up the protection of individual rights against state infringement by adding the Thirteenth, Fourteenth, and Fifteenth Amendments.
Under this rights-protecting scheme, Congress may only legislate on truly national issues — like defense and trade — with the states providing a diversity of approaches to health and safety, criminal justice, and what we now call “social issues.” This system empowers individuals to protect their liberty by migrating to the state with their preferred mix of laws, including states whose legal climates better protect economic opportunity. Such “voting with our feet” helps avoid a constant divisive power struggle, in which political winners impose their will on the losers who must relinquish their liberty or engage in an endless political war of all against all.
But how do we confine Congress to its limited powers and stop the federal and state governments from infringing upon individual liberty? In our federal system of three co-equal branches of government, each branch has an independent duty to obey the constraints of the Constitution and check the others. When a case or controversy arises between the government and a member of the sovereign people, it falls to the Judicial Branch to say whether Congress has exceeded its powers.
Some have claimed that what we call “judicial review” was invented by Chief Justice John Marshall in Marbury v. Madison. But delegates to the Philadelphia convention rejected an external “counsel of revision” as a check on Congress, in part because they assumed the judiciary would negate laws that exceeded Congress’s powers. At the convention, Gouverneur Morris said that a “law that ought to be negatived will be set aside in the Judiciary department.” Luther Martin said that “the Constitutionality of laws … will come before the Judges in their proper official character. In this character they have a negative on the laws.” George Mason said that “in their expository capacity of Judges,” they “could declare an unconstitutional law void.” Roger Sherman thought that a proposed congressional power to nullify state laws was “unnecessary, as the Courts of the States would not consider as valid any law contravening the Authority of the Union.” And James Madison said, a “law violating a constitution established by the people themselves, would be considered by the Judges as null & void.” Judicial review was understood not as a selectively applied “power” to invalidate laws (which would invite “activist” discretionary exercises of deference), but as a duty to follow the “supreme law of the land” where a state or federal statute conflicted with the Constitution.
This judicial “duty to void” was no secret confined to the Philadelphia Convention. Similar statements were made by James Wilson in the Pennsylvania ratification convention; by Oliver Elsworth (the second Chief Justice) and John Marshall in Virginia, by William Davie in North Carolina, and by Luther Martin in Maryland. Indeed, the available evidence illustrates that this element of the original meaning of the “judicial power” transcended disagreements between the Federalist supporters of the Constitution and their Antifederalist opponents.
Such was the settled understanding of the judicial role until the Supreme Court began invalidating “progressive” legislation as “arbitrary” and “irrational” restrictions on liberty, and held some national laws beyond the enumerated powers of Congress to enact. Progressives such as Teddy Roosevelt loudly condemned these justices for impeding the will of the people, and for failing to defer to the more majoritarian or democratic branches. After President Franklin Delano Roosevelt had appointed all but one of the justices, progressive historian Arthur Schlesinger, Jr. described those New Deal Court justices who had begun protecting some civil liberties as “activists” for abandoning the judicial “restraint” that progressives had been loudly advocating for 50 years.
Then, during the Warren Court Era, some political conservatives picked up the progressive mantra to criticize the “activism” of the Court. Republican presidents, beginning with Richard Nixon, started seeking “restrained” justices who would not thwart the popular will. But in the wake of the Court deferring to Congress to uphold the Affordable Care Act’s individual insurance mandate, many are now reconsidering their commitment to judicial deference.
Properly conceived, judicial “restraint” means judges who are constrained by the original meaning of the text of the Constitution. The term judicial “activism” should either be abandoned as empty, or reserved for times when the Court has failed to enforce the text of the Constitution, whether to uphold or invalidate a “popularly” enacted law.
In addition to the enumeration of Congressional powers and certain rights, the Ninth Amendment expressly recognizes the unemumerated liberty “rights … retained by the people,” and the Fourteenth Amendment protects the unenumerated “privileges or immunities of citizens of the United States” from being abridged by their states. But effectuating these express clauses does not require judges to identify and protect specific unenumerated rights. Instead, they must hold Congress to its enumerated powers. And they must also confine states to the proper exercise of their police powers by realistically assessing whether a restriction on liberty is irrational or arbitrary, as the Court used to do, rather than blindly deferring to legislators or agency officials, who may be restricting individual liberty simply to benefit special economic interest groups, rather protecting the general public.
In the future, presidents need to select judges with a demonstrated commitment to following and enforcing the original meaning of the text of the Constitution — judges who have the backbone to stand up for our republican constitution against the other branches, and even to a majority of the public. Protecting the liberties of We the People demands no less.
Randy Barnett is the Carmack Waterhouse Professor of Legal Theory at Georgetown Law, where he directs the Georgetown Center for the Constitution.
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