In a 2006 interview, Supreme Court Justice Stephen Breyer said the Constitution is “basically about” one word — “democracy” — which appears in neither that document nor the Declaration of Independence.
Democracy is America’s way of allocating political power. The Constitution, however, was adopted to confine that power in order to “secure the blessings of” that which simultaneously justifies and limits democratic government — natural liberty.
The fundamental division in American politics is between those who take their bearings from the individual’s right to a capacious, indeed indefinite, realm of freedom and those whose fundamental value is the right of the majority to have its way in making rules about which specified liberties shall be respected.
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.
The argument is between conservatives who say American politics is basically about a condition, liberty, and progressives who say it is about a process, democracy. Progressives consider, for example, the rights to property and free speech as, in Sandefur’s formulation, “spaces of privacy” that government chooses “to carve out and protect” to the extent that these rights serve democracy.
Conservatives believe that liberty, understood as a general absence of interference, and individual rights are natural and that governmental restrictions on them must be as few as possible and rigorously justified. Merely invoking the right of a majority to have its way is an insufficient justification.
With the Declaration, Americans ceased claiming the rights of aggrieved Englishmen and began asserting rights that are universal because they are natural, meaning necessary for the flourishing of human nature. “In Europe,” wrote James Madison, “charters of liberty have been granted by power,” but America has “charters of power granted by liberty.”
Sandefur, principal attorney at the Pacific Legal Foundation, notes that since the 1864 admission of Nevada to statehood, every state’s admission has been conditioned on adoption of a constitution consistent with the U.S. Constitution and the Declaration. The Constitution is the nation’s fundamental law but is not the first law.
The perennial conflict in American politics, Sandefur says, concerns “which takes precedence: the individual’s right to freedom, or the power of the majority to govern.” The purpose of the post-Civil War’s 14th Amendment protection of Americans’ “privileges or immunities” was to assert, on behalf of emancipated blacks, national rights of citizens. National citizenship grounded on natural rights would thwart Southern states then asserting their power to acknowledge only such rights as they chose to dispense.
Government, the framers said, is instituted to improve upon the state of nature, in which the individual is at the mercy of the strong. But when democracy, meaning the process of majority rule, is the supreme value the individual is again at the mercy of the strong, the strength of mere numbers. Sandefur says progressivism “inverts America’s constitutional foundations” by holding that the Constitution is “about” democracy, which rejects the Framers’ premise that majority rule is legitimate “only within the boundaries” of the individual’s natural rights.
The protection of rights, those constitutionally enumerated and others, requires a judiciary actively engaged in enforcing what the Constitution is “basically about,” which is making majority power respect individuals’ rights.