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The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty Hardcover – January 7, 2014
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"Now the nation no longer lacks what it has long needed, a slender book that lucidly explains the intensity of conservatism's disagreements with progressivism. For the many Americans who are puzzled and dismayed by the heatedness of political argument today, the message of Timothy Sandefur's The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty is this: The temperature of today's politics is commensurate to the stakes of today's argument." -- George Will, The Washington Post
"This is an excellent book. I was just going to write it myself.... This book should be in everyone's library." --Hadley Arkes
"A passionate and vigorous defense of the constitution of liberty." --Jeffrey Rosen, National Constitution Center
"A wonderful book.... One of the best minds on Con Law in the U.S." --Hugh Hewitt
"The Conscience of the Constitution posits a role for the Fourteenth Amendment in protecting natural rights from abuse at both the federal and state level. It is a great defense of individual liberty." --Senator Rand Paul
From the Inside Flap
The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty documents a vital, forgotten truth: our Constitution was written not to empower democracy, but to secure liberty. In fact, the word "democracy" does not occur in either the Constitution or the Declaration of Independence. Yet, to author and constitutional scholar Timothy Sandefur, the overemphasis on democracy by today's legal community--rather than the primacy of liberty, as expressed in the Declaration of Independence--has helped expand the scope of government power at the expense of individual rights.
Now, more than ever, the Declaration of Independence should be the framework for interpreting our fundamental law. It is the conscience of the Constitution. "Liberty comes first and order arises from it," states Sandefur. "We have gone astray in our constitutional understanding because we have upended that relationship."
The Conscience of the Constitution traces this upheaval back to the timeless conflict between freedom and power that gave rise to the Civil War and that was revived again by the Supreme Court's disastrous ruling in the 1873 Slaughter-House cases. Sandefur then examines the origins of controversial legal theories such as "substantive due process" and "judicial activism" and defends them against a wave of arguments from both left and the right. Although both sides of the political spectrum criticize the courts today for protecting individual rights too effectively, Sandefur shows that in reality judges have often abdicated their duty to rein in government abuses.
Today, more and more Americans are witnessing their individual freedoms threatened and destroyed by the continually expanding grasp of government. While Americans will always differ over important political issues, our Constitution was meant to ensure that some things should not be settled by majority vote. In The Conscience of the Constitution, Timothy Sandefur presents a dramatic, richly compelling new challenge to the status quo of constitutional law.
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To illustrate, I would like to highlight one instance of this and compliment the author for his interesting discussion of standards of review in constitutional decisions. In law school, we were simply presented with the standards and the circumstances under which each applies. We memorized them and that was that. There was never, not one single time, any discussion of whether these standards have any footing in the Constitution, and most significantly, of why different standards of review are applied to cases arising in different substantive contexts. This may simply have been a failing of my particular law school, but I admit, somewhat sheepishly, to never having, until now, thought about this question the author raises, and I echo his alarm at the un-evenhandedness this introduces into the courts' review processes.
Having said all that, the book has some serious flaws. The author does an excellent job of arguing that individual liberty as described in the Declaration of Independence and the Constitution should take precedence over progressive era majoritarianism, by pointing out that majority rule even in a democracy can lead to tyranny as surely as dictatorial rule. He gives examples in case law to illustrate this point, but the discussion often results in logical conundrums that are neither pointed out and discussed nor resolved. For example, he points to progressive-era legislative enactments and gives the example of minimum wage laws. Presumably (but not clearly spelled out), laws that force employers to provide a minimum wage to their employees are an infringement on the employers right to enter into any contract that he and the employee can agree on and are, therefore, a violation of the employer's liberty. The same argument appears in his discussion of Lochner v. New York, but in both instances, there is never really a discussion, other than in the most superficial way, of the liberty interest of the more powerless party to this "negotiation." He views minimum wage laws as an instance of overreach by the majority, deplores them for that reason, and leaves it at that.
This viewpoint seems too cut and dried for me. There are instances where I would agree that mob rule is a very bad thing indeed, for example mob rule in the Southern states against a black underclass whose liberty interests were severely infringed upon. But a majoritarian enactment providing a floor under underprivileged workers whose bargaining power is all but non-existent is different. As the author rightly points out, rent-seeking exists at all levels. Today's legislators are beholden to big money interests employing expensive lobbyists that exert powerful pressures on legislatures to enact laws that benefit them, to the detriment of large swaths of the population. Bargaining power is not equal under these circumstances (and probably never has been). The freedom of the worker to negotiate any contract he wants to negotiate is simply illusory under these circumstances. It is the noble freedom to proudly say no to the brutal demands of an employer while the children at home go hungry. It is, in effect, simply the freedom to agree to whatever conditions are imposed upon him. The role of the majority enacting minimum wage laws in this instance, however, is not only entirely benign in that it does not attempt to take anything away from the minority in order to further its own ends but, more relevantly, is benign because it deprives itself of some of its own liberty in order to ensure that the social order is not entirely skewed towards the rich and powerful. It seems to me, then, that a discussion of the particular purposes for which the majority employs its power would have been valuable.
Things, then, are not as simple as the book's liberty vs. majority rule focus would suggest. The greatest flaw of the book is that it never really discusses the hard, competing values inherent in any social situation, legislative enactment, or court decision. It simply comes down on the side of liberty and if liberty is upheld, all is well. Lochner, in this view, reached the right result because it upheld the employer's liberty. The author assures us - in one half sentence - that the court considered the economic impacts on employees. I would have been interested in a more in-depth discussion of the author's thoughts of the decision's impact on the affected bakery workers. To be sure, he mentions the freedom to enter into any contract the two sides desire to enter into, but this is simply too formulaic. People need work and are often not in a position to resist employer abuse and overreach. What if an employer demanded that the employee work sixteen hours a day, every day? Would liberty then not result in brutal sweatshop conditions? Would we want to live in a society where such things are acceptable? If we only look at liberty, then by all means, this should be allowed. But the result of such thinking is that the rich and powerful will always be able to take advantage of those that inherently have much less bargaining power. Their liberty, after all, has been protected.
Interestingly, in Kelo v. New London, where the majority truly inflicted grave harm on a powerless individual by taking her property for a private purpose, the author deplores this and sides with the powerless. Well, it seems to me that, if a pure emphasis on liberty can lead to such disparate results as those in Lochner and in Kelo, then something is missing from the discussion. We all live in the real world and our conscience tells us that allowing the powerful to take ruthless advantage of those among us who are most powerless is as wrong as taking someone's property because a lawless majority - aided and abetted by a laissez-faire court - decides that it would somehow benefit the economy. How should we think about these hard questions? How do we balance these competing considerations? A simple appeal to liberty can't be all there is to it. I don't have all the answers and would not wish to inflict them on the reader if I thought I did, but I want to point out that this book has a way of skirting these hard questions at every step. For this reason, it is, for me, at times too superficial and probably too ideologically based.
Does the Constitution exist to protect democracy, or do democratic elements of the republic exist to protect individual liberty?
Is it possible that critics of "judicial activism" on the Right and Left have mistaken their preferences for Constitutionality?
Should judges defer to legislatures because the latter are "of the people", and legislative mistakes are easier to clean up than judicial precedents?
Timothy Sandefur grapples with these and related questions in a book that sets the Constitution in the context of the Declaration, and maintains that the former cannot be properly understood or applied without the principles of individual liberty espoused in the latter.
'Progressives', on the Right and Left, have convinced several generations of Americans that the Constitution favors majoritarianism over individual rights, democracy over liberty. Sandefur, however, says that legislatures incline toward tyranny as easily as monarchs, and that courts see their role properly when they restrain lawmakers within the bounds of the Constitution as seen through the lens of the Declaration.
'The Conscience of the Constitution' makes a compelling, thoughtful case, in accessible and vigorous prose, that we need to return to a jurisprudence, as well as a framework for lawmaking and implementation that couples these two founding documents.
Important concepts from the book:
The power structure is based on "we the people." According to Jefferson, although it was the sovereign states that represented the people in order to ratify the Constitution, that it was the people who unified into a nation whose government was limited in duties and particularly in scope to preserve the freedom (life, liberty, and the pursuit of happiness) of the people. Essentially, he was saying that by adopting a constitution, as opposed to other forms of government like parliament, that the rights of the people superseded not only the Federal government, but also the State government. The doctrine of separation of powers is supposed to protect the people at all three levels - the legislative, executive, and the judicial branches are to provide checks and balances against each other so that the rights of the people are preserved.
This means that the current progressive activism is incompatible with the Constitution and what it was designed to do. Progressive interpretation has crept into our society by Inserting a political agenda, personal opinion, or big-money interest into a law, judicial decision, or executive order makes the action or decree outside the boundaries of the constitution and are null and void because of that. The only rule of law that stands are those that do not trample on the rights of the people.
Progressivism has turned the Constitution upside down. Rather than representing "we the people" the government has been morphed back into absolute sovereignty exercising power OVER the people, like what 1776 was fought against. It is not the Constitution that is outdated because Lockean rights of the people are timeless. It is the subversion of the Constitution and abuse of power that is the real problem.
The book explains Constitutional protections for "the minorities against the tyranny of the majority." Without protection for the least of people, the Constitution cannot stand and reverts back to absolute sovereignty. "The Constitution does not provide that whatever the majority decrees is law. Instead, it carefully limits the power of the majority by drawing a legal boundary around it, restricting what voters and elected officials may do.Read more at location 2250" "Since the Constitution takes precedence over the will of the majority, it is proper for courts to enforce the Constitution—which is the supreme law—even against the majority. Courts do not stand outside of the constitutional structure, they are a part of that structure, the purpose of which is to restrict political power.Read more at location 2252"
There are a couple of weak points that could have been better explored by the author. I was particularly interested in the States rights arguments after reading Nullification by Thomas Woods, Jr. How sovereign states fit into the concept of delineating power between the people, the states, and the federal government is crucial to understanding the Constitution. Somehow, I think I missed this. The discussion said the states do not have the power to secede from the union and then it launched into concepts of absolute sovereignty. State sovereignty doesn't go that far, but yet is distinct from the power of the people . But perhaps this is irrelevant after the 14th Amendment that would make the States more like an organ in the body of the federal government. As such, a state would be a mini-Federal government with similar powers and limitations? The ultimate issue in my mind is what are the boundaries of the State regarding the issue of succession? And even if the States were not meant to retain this power, then does this mean that a collection of people have the right to secede from the union? I don't really know, but would be interested in further commentary on this point.
All in all though, this was a very illuminating book that was much better than law school.