The Curmudgeonly Clerk has an interesting response to my criticism of Orrin Hatch. At the same time, a review in the latest Claremont Review of Books makes some similar points. Here are some thoughts.
First, let me reiterate that the point in my original post was not necessarily to attack the idea of a Constitutional Amendment banning same-sex couples from being married. I am opposed to such an amendment, but that’s a discussion I’ve engaged in many other times. My main point was about Sen. Hatch’s rhetoric, and that of many other conservatives, in attacking the judiciary. In the article appearing under Sen. Hatch’s name, we find the following passage:
To permit a handful of liberal judges to force this radical change on the entire nation is wholly inconsistent with the right of people to govern themselves. This debate over same-sex marriage is fundamentally a question of who decides important matters of public policy in a constitutional democracy. Judges who usurp the role of legislatures by imposing their preferred policies on the people dramatically undermine democracy’s vitality and legitimacy. I fear that we have lost sight of this fundamental principle.
The problem is, the exact same words could have been applied to criticize any of the great cases in the Supreme Court’s history, from Brown v. Board of Education to Texas v. Johnson to—well, you name it. In all of these cases, the fundamental question is whether the majority has a right to govern a certain aspect of our lives, or to govern them in a certain way. The plaintiff will say “No, the Constitution forbids the majority from doing this.” And indeed, the Constitution is fundamentally a limit on the extremely dangerous power of the majority. So, employing rhetoric that judges shouldn’t “usurp” or shouldn’t “impos[e]” or “force” is extremely dangerous, I think, because it undermines the most important role of the judiciary, which is to act as what the Clerk and others call a “counter-majoritarian” institution.
The Constitution, as they say, is a law for laws—a law valid against the government. Sen. Hatch and others who criticize the judiciary in these terms are coming dangerously close, at least, to arguing that the government should be subject to no law. They are essentially arguing for lawlessness. That’s why I referred to Lincoln’s great attack on lawlessness in his Lyceum Speech.
Now, the Clerk emphasizes that judicial review was not the founders’ primary fortress against majority tyranny (a concept which, in an earlier post, the Clerk seemed to reject entirely.) And he seems to accuse me of misquoting Madison:
Sandefur quotes from the Federalist No. 51 to good effect, but, notably, No. 51 does not concern the judiciary in particular. Rather it concerns the general concept of separation of powers and explictly notes that, “[i]n republican government, the legislative authority necessarily predominates.” Significantly, immediately upon noting this circumstance, Madison goes on to write that the check designed to ameliorate the legislative authority is a bicameralism. The judiciary is not even mentioned in the paragraph from which Sandefur quotes. Indeed, the judiciary barely receives any attention whatever in Federalist No. 51. Moreover, as I myself have often contended, Madison begins his discussion in the quoted paragraph by observing that, “[a] dependence on the people is, no doubt, the primary control on the government.”
In fact, Federalist 51 and its progenitor, number 10, do support my argument. Madison did, rightly, believe that a dependence on the people is the primary control on government. But he acknowledged that the people can be led astray by prejudices and passions, to oppress the minority. There are two solutions to this, according to 51: “There are but two methods of providing against this evil: the one by creating a will in the community independent of the majority that is, of the society itself; the other, by comprehending in the society so many separate descriptions of citizens as will render an unjust combination of a majority of the whole very improbable, if not impracticable.” Madison goes on to defend the latter option, but judicial review is clearly something similar to the first option: creating a will of in the community independent of the majority. That is the point of Hamilton’s later explanations of the importance of judicial independence.
Note: we must keep in mind Tim’s Rule of Life Number 15: Madison is always smarter than you are. He sees that even the judiciary is not independent of the will of the majority. In Federalist 10 he writes that
[n]o man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity. With equal, nay with greater reason, a body of men are unfit to be both judges and parties at the same time; yet what are many of the most important acts of legislation, but so many judicial determinations, not indeed concerning the rights of single persons, but concerning the rights of large bodies of citizens...? Justice ought to hold the balance between them. Yet the parties are, and must be, themselves the judges; and the most numerous party, or, in other words, the most powerful faction must be expected to prevail.
In other words, Madison’s greater reliance on popular checks and balances than on judicial review is actually predicated on his distrust of the majority, not on a belief that the people, en masse are to be relied upon to obey the Constitution.
Fortunately for all concerned, the founding generation was wise enough to realize that they could be misled. Like Odysseus being lashed to the mast, they thought ahead and created an independent judiciary, telling it to act, as Hamilton says, as “an intermediate body,” to intercede whenever they or their elected representatives would go too far, and “to secure a steady, upright, and impartial administration of the laws.” And indeed, to this day the people retain the power to abolish the entire judiciary if they choose. They have not done so. It is therefore deplorable that a Senator would argue in terms that suggest that the entire judiciary is illegitimate, and that the majority is always right.
A more serious article is this one, in the CRB. Morgan, at least, is honest enough to say that he thinks Cooper v. Aaron was wrong, although he doesn’t go so far as the conservative Lino Graglia, who once told a Congressional Committee that since Marbury v. Madison, the Court had never been right to strike down a law as unconstitutional. (Sorry, I have no link for that, but it is true.) Morgan says “[o]f course a version of what we today call ‘judicial review’ can indeed be discerned in the founding, but freewheeling judicial policy-making surely cannot.” This is the sort of sentence everyone can agree with, because it says absolutely nothing, unless one makes clear—which Morgan does not—where the line between “policy-making” and “judicial review” is. I don’t deny that there is such a line, but since the whole point of this argument is to establish where it should be drawn, Morgan’s statement merely begs the question.
Nevertheless, Morgan is largely right when he—quoting the same passage from Federalist 51 I quoted—concludes that “the court party in contemporary America have altogether lost faith in the framers’ system of structural protections for individual and minority rights, and have opted for an aristocracy of the robe, ‘separate from society.’ This, rather than folderol over whether the policy-making power of the judiciary has increased, is what we should be talking about.” The problem is, when conservatives talk about “judicial activism” in Hatch’s terms, they are ignoring the extremely important reasons for judicial review. The expansion of government power has led to such an epidemic of the public choice effect—at least half of which is cheered on by conservatives—that we are in large measure justified in such a “loss of faith.”
And look at what it leads to—the same old tired ill logic that the Clerk then goes on to employ: “The matter at issue is really whether same-sex marriage is, in Hamilton’s words, one of those matters enumerated by our ‘limited Constitution.’ That is, the question is whether marriage is a right guaranteed by our Constitution such that it falls within the Constitution’s ‘certain specified exceptions to the legislative authority.’” A more thorough misstatement of the problem at hand cannot be imagined. This is not the matter at issue at all! The matter at issue in Goodridge and such cases is whether the government is given the right to legislate on this matter in the first place. Now, perhaps that answer is yes, but the Clerk is trying to shift the burden of proof onto untenable ground. The Constitution is not a general grant of all power, with “certain specified exceptions”; it, and all constitutions, is a specification of certain things government may do, leaving us otherwise free. As Madison said, “In Europe, charters of liberty have been granted by power. America has set the example and France has followed it, of charters of power granted by liberty. This revolution in the practice of the world, may, with an honest praise, be pronounced the most triumphant epoch of its history, and the most consoling presage of its happiness.” The presumption of liberty is reflected throughout the Constitution—for example, when, in the Fourteenth Amendment, the states are prohibited from “abridg[ing]” or “depriv[ing]” people of the freedoms that they—by clear implication—possess already.
The burden is on those who would govern, not on those who would be free. In the cases that are usually criticized by those attacking the power of judicial review, the question is whether the majority has a right to take away a person’s freedom—not whether the person should be free to begin with, since that is asking a person to prove a negative, which is clearly illogical. Morgan says that “Justice Kennedy’s opinion for the Court in Lawrence v. Texas...created a new right to engage in homosexual relations without state interference.” But it did no such thing. Instead, it demanded that the state justify itself when it attempts to deprive people of liberty—something the Fourteenth Amendment clearly requires of the state. When the state cannot meet that burden, it has no authority to govern, and it is therefore right for the judiciary to step in. Goodridge did not, as the Clerk claims, “announce hitherto unknown rights.” It simply said: 1) The Constitution prohibits the state from drawing certain distinctions without good reasons, 2) The state has drawn a distinction, 3) are its reasons for doing so good ones? It found that the answer was no. That is not the same as “announc[ing] hitherto unknown rights,” and the Clerk ought to be ashamed of mischaracterizing the case in this way, whether or not he agrees with its outcome. He is usually more honest than this.
Most importantly, it is not only right for the judiciary to step in when the state fails to justify itself in depriving people of liberty, but it is also extremely dangerous to encourage, by denunciations of the judiciary, the notion that the majority has legitimate authority to bind us in all cases whatsoever, or in all cases not specifically enumerated in the Bill of Rights. The Clerk, and Hatch, and others, say that the courts are “legislating” or “making policy,” when they have done no such thing. What policy did Lawrence make? What legislation did Goodridge enact? None. All these decisions said was, “Legislature, you have gone farther than you are allowed to go.” It was not the courts that legislated in these cases, it was the legislature that had legislated—and gone beyond the Constitution in doing so. By attacking judicial review (one of very few dams that stand between us and the onrushing flood of the Absolute Rule of The Mob), Sen. Hatch, and the Clerk, are threatening a serious constitutional catastrophe.
Of course we shouldn’t be governed by the courts. But our government itself should be. That is the important principle to keep in mind, and the one that conservative miners and sappers are laboring now to destroy, just as the left destroyed it in the 1930s. Then, the left demanded that the Court retreat, and allow the legislature to tell us how to use our property, and how to earn our bread. Today, the conservatives are demanding that the Court retreat to allow the legislature to tell us whom we may sleep with, and whom we may marry. But the Constitution was not written in order to give power to the majority—the majority already has power, with or without a Constitution, because they have strength. The Constitution was written to hinder the majority, to protect us, to pen up this massive monster that can crush us at a single blow. And we are seeing those who claim to believe in the Constitution arguing that we ought to open the gate, dismantle the fence, invite greater and greater power to the legislature, which “is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex.”
Again, I am not saying that the Amendment process is inappropriate; the Clerk is right that it, just like judicial review, is provided for in the Constitution. What I’m saying is that Sen. Hatch and other conservatives, by arguing that “a handful of liberal judges” should never “force this radical change on the entire nation” because that would abridge “the right of people to govern themselves,” are engaging in a rhetorical device that is extraordinarily dangerous. Senators are supposed to “refine and enlarge the public views,” but instead Sen. Hatch is flattering the majority with talk of the “right of the people to govern themselves,” without explaining that there are limits on this so-called “right,” or what those limits are, or the fact that the Courts are a central part of policing those limits. And that is demagoguery.
Update: Ed Brayton puts it better:
the conservatives have it backwards when they claim that whenever the courts restrain the majority from passing a law that they have “discovered a new right in the constitution.” It’s backward because it starts from the assumption that the government has whatever power it chooses to take and the individual must assert a legitimate right against such efforts in order to defeat them. The reality, however, is that the presumption is in favor of individual liberty, not in favor of state power to regulate. The individual is presumed to have the right to do something unless the government (i.e. the majority) can assert a legitimate authority to regulate the conduct in question.
However, I am under no illusions—under the current law, courts do put the burden on those who would be free. This presumption in favor of government was largely a result of the New Deal, as Prof. Barnett explains in his new book. It is untenable as a matter of political philosophy and Constitutional law. See further Sadler v. Langham, 1859 WL 738, *7 (Ala. 1859).
Update 2: Randy Barnett posts on the same subject.