The Conscience of The Constitution: An Introduction

It’s great to be back guest-blogging at The Volokh Conspiracy. And it’s well-timed, because just the other day , Prof. Volokh quoted one of my favorite passages from Lincoln, one I use on the first page of The Conscience of The Constitution.

The theme of my book is that the clash of these two conceptions of liberty—the right of the individual to be free, and the alleged right of some people to tell others how they may live—sets the background for understanding many of the most important conflicts in constitutional law. I argue that the central value of the U.S. Constitution is to protect individual liberty—the “sheep’s view” of freedom—and not, as the consensus of today’s lawyers, judges, and law professors seems to hold, the “wolfish” notion that people have a basic right to control the lives of others. I argue that the primacy of liberty was the basic premise of the classical liberalism that lies at the foundation of American constitutional system—that is articulated in the Declaration of Independence—and that ought to guide our interpretation of the nation’s fundamental law. I call this the “conscience” of the Constitution.’

The American founders held that people are inherently free—that is, no person has a basic entitlement to dictate how other people may lead their lives. Although today it’s common for intellectuals to dismiss the notion of natural rights as mysticism or emotionalism, it is actually a sound philosophical position. People are “created equal” in the sense that they possess their own selves (and can’t give them up; hence “inalienability”). Given that initial position of individual freedom, there must be some good reason for limiting freedom. This entails government by consent—we have the right to a say as to how we are governed—but democracy is only an instrumental good, serving the more basic end of freedom, and is not an end in itself. Freedom is thus not a gift from the state or the majority—it isn’t just the wolf’s choosing not to harm you. Instead, freedom is each person’s birthright. Government cannot legitimately limit our freedom unless it gives good reason for doing so. And “good reason” means not arbitrary ipse dixit, but a rational principle that actually benefits people and respects their freedom.

This black-letter classical liberalism contrasts with the notion that rights are grants from the sovereign which the sovereign may revoke when it chooses. As Madison wrote, “In Europe, charters of liberty have been granted by power. America has set the example…of charters of power granted by liberty. This revolution in the practice…may…be pronounced the most triumphant epoch of [world] history.”

One example of how the founders overthrew the rights-as-privileges model is in religious freedom. Pre-Revolutionary British law extended religious toleration to (some) dissenting sects, and writers like Locke and Blackstone (very different in their views of rights) were proud of British toleration. But Jefferson, Madison, Paine, and others rejected this approach because it implied that religious freedom was a gift from the ruler which the ruler might legitimately withhold. When George Mason drafted the Virginia Declaration of Rights, the young Madison, who served on the drafting committee, insisted that the word “toleration” be stricken from the draft and replaced with “liberty” for just this reason. Or, as Jefferson observed in Notes on Virginia, “The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbour to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg.” Government could therefore have no legitimate role there.

Sadly, in our day, leaders of opinion in the law–on both left and right—have reverted to the older conception, which views rights as permissions given to us by government, which government can revoke at will. Where the founders viewed liberty as the central constitutional value—calling it a “blessing” in the very first sentence of the Constitution—lawyers and politicians today now generally see democracy as the Constitution’s primary value, and liberty as a gift extended to us by the majority for the majority’s own purposes. Modern legal intellectuals (present company excepted) generally embrace the wolf’s view of freedom—as the right to tell others how to live their lives. And those rights that receive protection are generally secured only because they are seen as serving larger collective ends.

Take, for example, free speech. The founders believed that we have the freedom of speech because we are fundamentally free, and no person has a right to restrict our freedoms, unless we are harming others. They viewed expressive rights through a property-rights model. As Madison wrote, we each have a property in our opinions. But with the coming of the Progressive era, this model was replaced with a democracy-centered model in which speech was valued as instrumental to majoritarianism. The pivotal document here is Justice Holmes’ opinion in Abrams v. United States. This opinion, with its memorable metaphor of the “marketplace of ideas,” is typically viewed as the beginning of modern free speech jurisprudence. Thus the naïve reader would be shocked to find Holmes writing, “Persecution for the expression of opinions seems to me perfectly logical.” Holmes goes on to explain that free speech is a socially-beneficial privilege, a permission the majority gives to the individual to enable the majority to formulate its opinions and impose its will. Where the founders saw democracy as an instrument for protecting freedoms such as speech, Holmes and his modern followers see freedom of speech as an instrument in the service of collective power. The consequences of this reversal of polarity can be seen in the title of Cass Sunstein’s book, Democracy And The Problem of Free Speech. As Richard Epstein quipped, free speech isn’t the problem.

The recharacterization of rights as serving the state, rather than vice versa, climaxed in the New Deal bifurcation of rights into preferred rights like speech and voting, and the “poor relations” rights, like property or the right to earn a living. Although that division was blurred somewhat as a result of the nation’s confrontation with fascism in World War II, and with segregation afterwards, it still persists today via the judicial prejudice manifested in anything-goes “rational basis scrutiny.” Some, including Prof. Sunstein, are now even trying to diminish constitutional protection for speech rights, because they think doing so would better serve democratic ends.

In Conscience, I argue that this basic dichotomy—the sheep’s view of freedom versus the wolf’s view—isn’t just an argument about political philosophy. It’s a central, yet disregarded, part of our law. Notwithstanding the claims of some, including Justice Scalia, the Declaration is part of our law, as much as the Constitution itself. As a corporate document, it proclaims the American nation and defines the foundation of the union; as a constitutional document, it creates the “people” who later make their appearance as “We the people” in the Constitution’s opening line; as an interpretive statute, it articulates the guiding principle for understanding the Constitution. Reading the Constitution to serve classical liberal ends is not, as liberals and conservatives so often claim, fraudulently inserting our subjective preferences into the text—it is enforcing the principles the system was written to embody.

The Constitution was written on the presumption that a people are fundamentally free, and that democracy is an instrumental—and dangerous, and limited—good. I argue we’ve gone astray by inverting those priorities. But we cannot hope to answer constitutional questions rightly on the wolf’s premises; attempting this is means operating the constitutional machinery while ignoring its instructions –acting while disregarding its conscience.