January/February 2014

The Conscience of the Constitution

“Freedom is the starting point of politics; government’s powers are secondary and derivative, and therefore limited,” according to Timothy Sandefur. In The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty, Sandefur, a Cato Institute adjunct scholar and principal attorney at the Pacific Legal Foundation, explores this insight, arguing that an overemphasis on democracy by today’s legal community devalues the primacy of liberty. That principle, which was most eloquently expressed in the Declaration of Independence, is the light by which we must guide our understanding of the country’s political and legal institutions. “Liberty is the goal at which democracy aims,” he writes, “not the other way around.”

Sandefur begins by looking at the Declaration of Independence and how Progressive intellectuals upended its principles to prioritize democracy over liberty. “In what can only be called a complete reversal of the Founders’ perspective, judges, lawyers, political scientists, politicians, and journalists today generally see democracy as the source of liberty, and hold that the most basic principle of our Constitution is not that each person deserves to be free, but that we all have a right, collectively, to govern each other,” he writes. According to Sandefur, the growth of government power at the expense of individual rights — demonstrated in everything from the abuse of eminent domain, to the censorship of speech, to intrusions on our rights of personal privacy — all “have their origin in this basic reversal of priorities.”

The country grappled with the dilemma between the individual’s right to freedom and the majority’s power to govern perhaps most directly in the institution of slavery. After the Civil War was fought, the Fourteenth Amendment — which, according to Sandefur, “for the first time defined the terms of American citizenship” — helped recommit the country to the primacy of liberty. Unfortunately, that amendment was crippled by the Supreme Court’s decision in the Slaughter-House Cases. As Sandefur details in full, the damage done from that 1873 precedent still hampers protections for liberty to this day. Sandefur next turns his attention to the controversial legal doctrine known as substantive due process, which has played an important role in protecting individual rights against state interference.

Although substantive due process has been denounced by both left and right, Sandefur maintains that it serves as a significant protection against government arbitrariness and is a legitimate — even crucial — element of our constitutional law. In effect, the requirement “puts legally enforceable boundaries around the power of government, and those boundaries are built on the foundation of equal liberty articulated in the Declaration and the Constitution.

Finally, Sandefur examines the ongoing debate about “judicial activism” — the charge that our democracy is being sabotaged by judges who ought to be more deferential toward legislatures. “If the left and right agree on nothing else,” he writes, “they share a conviction that judges — particularly unelected federal judges — frequently exceed the scope of their office and impose their own political views from the bench.”

But in fact, a vigorous, independent judiciary is essential for a legal order that is dedicated, as ours is, to securing individual rights. Today, more Americans are realizing the dangers of expanding the scope of government.

“Lawyers, judges, and law professors, adhering to the view that government has a basic right to rule, and that individual rights are only privileges given to people for society’s benefit, refuse to defend constitutional guarantees that were written to give life to the principles of the Declaration of Independence,” Sandefur writes. The time has come, he concludes, to secure the blessings of liberty not only for ourselves, but for future generations as well.