In response to: How Constitutional Originalism Promotes Liberty
In his famous, breakthrough speech at the Cooper Union in New York, Lincoln remarked on those black slaves who had not thrown in with John Brown. Even though, as he said, they were “ignorant”—even though they had no formal education—they had the wit to see that the schemes of this crazy white man would not conduce to their own wellbeing. They were not book-learned, and yet they were, in Madison’s phrase “moral agents”: they had the capacity to think seriously about their own wellbeing—and the wellbeing of others—and for that reason they did not deserve to be annexed to the purposes of other men without their consent.
“Moral agents” could reason about matters of right and wrong, and therefore they could understand also, as Lincoln notably said, that they cannot coherently claim a “right to do a wrong.” As Thomas Aquinas caught the first principle of practical judgment, the right or the good is that which we’re obliged to do; the wrong and the bad are the things we are obliged to refrain from doing. As Lincoln put it in the debate with Stephen Douglas, if one thought it “wrong” for some men to hold other men as slaves, one couldn’t hold at the same time that people should be free to do it. Even those “moral agents” without formal education may have a sense, then, of the things they have no right to choose, for themselves or others, in the name of their own freedom or liberty.
The notion of “liberty” is logically connected, then, to the idea of that moral agent, who can reason about the rightful and wrongful uses of his freedom. The liberty that a constitution would seek to protect is a “rightful” liberty, a liberty directed to things that are innocent, legitimate, not wrongful. And so when we are asked about a Constitution that protects liberty we might as aptly say that our concern is really with a Constitution that seeks to encourage and protect the rightful or “justified” uses of liberty. A Constitution may do that by helping to bar the choices that are wrongful, and encouraging the things that are rightful. To invoke a familiar word, we might as aptly say that the end of government is to secure, as much as practicable, the conditions of “justice.”
Ilya Somin is right, then, when he points out that a good Constitution will protect many other things apart from “liberty.” As it seeks to do justice, it seeks to protect people from the wrongful taking of their lives, the wrongful taking of their property or income, and the wrongful restriction of their own freedom.
This is what we used to call the protection of “natural rights”: It was not that we have a right to life everlasting, or a right never to have our property taken in the form of taxation. And any law, forbidding or commanding certain acts, will be restricting our liberty in some way. My liberty may be impeded when the Fire Department, blocking off a street, forecloses the shortest way for me to walk home. But that restriction may be patently justified by the concern to protect lives, including my own. That is quite different from a “rule,” imposed by local convention, and barring people of a certain color or ethnic character from stepping foot in the “wrong” neighborhoods.
It was quite revealing in this respect, several years ago, when the authorities in New York ordered the inspection of bags and briefcases of people entering the subway. There had been a scare over threatened bombings, a threat that the city was taking seriously. The revealing part came in the concerns vividly raised then about a “constitutional issue” here. What constitutional issue? The answer that sprang up most quickly was an interest in privacy and a violation of the Fourth Amendment on “searches.” And the remedy would be sought through a challenge in the courts.
What was curiously filtered from this view was the perspective of the American Founders. As James Wilson had famously said, the purpose of this new Constitution was not to invent new rights but to secure and enlarge the rights we already had by nature. The protection of natural rights was the very purpose, the defining end of the Constitution. And from that perspective, the branch of government protecting constitutional rights in the subways of New York was not the judiciary. It was, rather, the municipal government that was seeking to protect innocent people on the subways from the lawless, unjustified taking of their lives.
But at the same time, a government committed to the protection of natural rights is a government that bears the burden of justification for its acts. And once again it is the connection to the moral ground of the law that explains how those burdens of justification should be assigned. The explanation begins with the nature of that moral agent who alone has a claim to all dimensions of his “liberty.”
Even in this age of animal liberation we don’t find ourselves signing contracts with our horses and cows; nor do we seek the “informed consent” of our household pets before we authorize surgery on them. But we continue to think that those beings who can give and understand reasons over matters of right and wrong deserve to be ruled with a rendering of reasons in a regime that elicits their consent to the terms on which they are governed. As Aristotle taught us, the mark of the political order is the presence of law, and law springs from the nature of one kind of creature, that creature with the capacity for moral reasoning.
The key to the matter, then, is the connection between the very logic of a moral judgment and the logic of law: In the strictest sense, a “moral” judgment moves beyond statements of merely personal taste or private beliefs; it speaks to the things that are right or wrong, just or unjust more generally or universally—for others as well as ourselves. In the corresponding way, the law moves by overriding claims of private choice, personal freedom, subjective belief. It imposes a rule of justice that claims to hold for everyone who comes within the reach of the law. The laws that bar the killing of the innocent override claims of personal convenience and private interest, and even “sincere beliefs” that the victim is not really human.
In the classic understanding, we do a portentous thing when we impose laws on other people, and that move will always call for a justification, an explanation of what makes it just or rightful for others as well as ourselves. Those creatures we call “moral agents” have a presumptive claim to all dimensions of their freedom, and the burden lies with the law in supplying a moral justification for overriding that freedom.
When liberty is connected in this way to its moral ground, we find that the law would begin on terms that are quite at odds with what we’ve been hearing of late even from conservative commentators in the law. For the law would begin with this premise: that ordinary human beings have a presumptive claim to all dimensions of their freedom, and not merely to the liberties that were set down in the first eight amendments to the Constitution.
But quite recently, some conservative writers, deeply concerned about “judicial supremacy” or a judicial “activism” run amok, have sought to find the remedy in a state of affairs that would invert these moral, libertarian premises. These conservatives would set the presumption in favor of the validity of those laws enacted by people who were elected as legislators, and who remain responsible to the voters who elected them. That “remedy” would remove, in a stroke, the presumption of liberty and the burden of moral reasoning that should be borne by legislators as they seek to override that personal freedom on any matter.
My late friend, Robert Bork, when he was a judge on the D.C. Circuit, invoked the First Amendment to protect the freedom of a sculptor in practicing his art. That was quite an implausible stretch under the First Amendment, for the protection of speech and of the press was meant for the protection of political speech, the speech engaged in controversies over the making of laws. And yet the argument was perfectly plausible if taken to the ground of these anchoring premises: that there is a presumptive claim to all dimensions of our freedom. That was the understanding expressed by Federalists such as Theodore Sedgwick in the debate, in that first Congress, about a Bill of Rights. As Sedgwick remarked, why should we doubt for a moment that, in a republic, we would of course have a freedom to assemble and speak? If we had to specify things so elementary, why would we not, he asked, go on then to seek explicit protections for our right to get up the morning, to walk down the street, to wear a hat?
Aaron Director, Robert Bork’s legendary teacher at the law school of the University of Chicago, would make the telling point that freedom of the press seemed to have a primacy for writers and professors, who made their livings in speaking and writing. But for ordinary people, the freedom to make a living at an ordinary, legitimate calling may be even more vital. For that was the freedom they needed for such elementary things as supporting their families.
There was nothing trivial about the freedom at stake for Jacob Maged in Jersey City, in 1934, when he was fined $100 and sentenced to three months in prison, with his wife and daughters forced to step into his place in running his dry cleaning business. And his offense? He had pressed a suit for one of his customers for only 35 cents instead of the 40 cents mandated under the National Recovery Act (NRA) before the Supreme Court, mercifully, put that Act away. And just as mercifully, Jacob Maged’s sentence was suspended. We have curiously filtered out of our history the war waged by the New Deal and by Progressives on “little people” like Jacob Maged.
Or we no longer remember the war waged even before the New Deal by advanced thinkers in New York when they brought the full force of the law down on Leo Nebbia for the anti-social act of subverting the controls on the price of milk. The price of milk had been set at nine cents per quart. But Leo Nebbia, in his selfish passion to make a living for himself, had the audacity to sell two quarts of milk for 18 cents—and throw in a loaf of bread.
These are the kinds of cases that surely stand behind Somin’s critique of John Hart Ely. Ely sought to rein in the power of judges but give a special commission to those unelected wielders of power when it came to defending the freedoms necessary to engage in the politics of this republic. In the voice of Aaron Director, we might ask why the freedom of writers should elicit that high level of solicitude among judges rather than the plight of the Jacob Mageds and Leo Nebbias of this world.
Somin and I find ourselves separated here from other friends doing “conservative jurisprudence,” who have so recoiled from the wreckage of “judicial supremacy” or “judicial activism” that they would have the judges recede deeply from their engagement in these kinds of cases. The remedy for serious mistakes done by judges is, curiously, to enjoin the judges to hold back from judging. Left aside is the most obvious corrective: If judges have made grave mistakes in appealing to principles of right that have not been set down in the text of the Constitution, the most apt remedy would be to correct the mistakes—not to remove judges from the vocation and discipline of judging.
We may leave to another time the strange bugaboo over “substantive due process.” But as Daniel Webster observed, in his argument before the Court in the Dartmouth College case, why are judges there in the first place if they are simply to honor as law anything passed by a legislature in a formally correct way, with all the trappings of legality? There is no way for judges to avoid judging whether the laws restraining freedom are finally “justified” or “unjustified.” A remarkable self-hypnosis of our time can be found among the judges who decry “substantive due process” while persistently moving past the forms to judge the substance of the law being challenged.
But even more remarkably screened out of the picture, or lost to memory, has been the teaching of Abraham Lincoln and an earlier generation on the rightful powers of the political branches in narrowing, confining, and finally overturning a decision of the Court. As Russell Hittinger once pointed out, Lincoln could not have raised his hand on March 4, 1861 and taken an oath to defend the Constitution if the decision of the Court in the 1857 Dred Scott case was to be seen now as part of that Constitution, as though it were woven into the text itself.
Lincoln marked off the problem rather precisely: The political branches would respect the decision of the Court as it bore on the litigants before the Court in the case at hand. But if the Executive and Congress thought that the principle articulated in the case was not defensible, they would not be obliged to adopt that principle in the measures that came under their hands as legislators or executives. Lincoln, his Attorney General, and the Congress went on then, in a series of dramatic measures, to reject the premises and the principles that composed the judgment of the Court in Dred Scott.
In our own time, oddly enough, it has been the Democrats who have acted more often on Lincoln’s understanding in trying to cabin and render null the decisions that American liberals find uncongenial. And they manage to do that while nevertheless professing their disbelief that anyone would challenge decisions of the Court.
In the aftermath of the Civil War and the early part of the 20th century, we found judges working readily under these constraints erected by the political branches. And yet, at the same time, they took seriously the freedom of ordinary people in running laundries, as well as the freedom of corporations. The grand, summoning opinion to defend these freedoms was offered by the redoubtable Stephen J. Field in his dissenting opinion in the Slaughter-House Cases (1873). That was the first judicial test of the Fourteenth Amendment.
Field’s colleagues were willing to accept a large measure of local regulation, including the arrangement of local monopolies. And yet, Field’s perspective was not wholly overborne. It seems to come as a surprise to many people that the so-called laissez-faire judges were willing to sustain virtually all measures that had a plausible connection to the public health or safety. They would sustain restrictions on laundries in San Francisco with fires burning all night. But they would see something else engaged when the local authorities would approve licenses for laundries in virtually every case, but find an excuse to refuse the licenses to businesses run by the Chinese.
Somin complains that the judges were willing to give so much slack to the local ordinances, reflecting the local sentiments—and the groups that were politically connected. His concern is that far too much authority was left unchallenged as local government went about offering, or withholding, the license to be in business. And yet that assessment is quite dramatically countered by the example of Justice Sutherland, striking down a system of licensing so entrenched that it would bar people from entering a rival business. In New State Ice Co. v. Liebmann (1932), Sutherland dealt with Justice Brandeis, who as ever went soaring off in dissent. The latter made his famous, impassioned plea for federalism, with legislatures free to engage in bold, imaginative new schemes in regulating private business for a public good.
Sutherland delicately stripped away the façade of stirring rhetoric. For what was engaged here, as he explained on behalf of the majority, was nothing especially novel or imaginative:
Stated succinctly, a private corporation here seeks to prevent a competitor from entering the business of making and selling ice. It claims to be endowed with state authority to achieve this exclusion. . . . The control here asserted does not protect against monopoly, but tends to foster it. The aim is not to encourage competition, but to prevent it; not to regulate the business, but to preclude persons from engaging in it. There is no difference in principle between this case and the attempt of the dairyman under state authority to prevent another from keeping cows and selling milk on the ground that there are enough dairymen in the business; or to prevent a shoemaker from making or selling shoes because shoemakers already in that occupation can make and sell all the shoes that are needed.
The judges, in our own time, are quite as capable of making the government justify itself when it would impose crippling costs or the kinds of licensing that quash ordinary people trying to make a living in small business. Nothing in the structure of the Constitution withholds from judges the freedom to see things with that perspective. Nothing but doctrines offered by the professoriate has worked to induce the judges to back away from ordinary people in prosaic occupations. And the judges back away even as they use their powers to remake our most fundamental institutions, along with our understanding of the “human person,” that being who is a bearer of rights. The political class that emerged in the aftermath of the Civil War had no such romantic illusions about the judges and the courts expanding human freedom by remaking human nature.
If any of the judges had borne those illusions, they were broken in a manner quite impossible to miss when the Court handed down the decision in Dred Scott. Lincoln led a national movement to counter and overturn that decision, and so no one could remain unaware that the Court had come to the threshold of making slavery national in scope. Chief Justice Taney did not shrink from making explicit that anchoring point in the case, that black people “had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect.”
For a vast population of human persons, the possibilities of human “liberty” were explicitly foreclosed at a high level of authority. And nothing in the text or structure of the Constitution seemed to cast up any signals that the Constitution was being subverted here.
The argument, then as now, was whether that closing down of human liberty flowed from the principles of the Constitution, or whether it was a corruption of the deep principles that underlay a government founded on “the consent of the governed.” Lincoln famously recalled Senator Pettit of Indiana, who declared that the self-evident truth of the Declaration of Independence was a “self-evident lie.” Senator Pettit held a high office in a republic, a regime that drew its character from that underlying principle of the Declaration that “all men are created equal”—that it was wrongful to rule human beings in the way that human beings were compelled to rule dogs and horses. Senator Pettit showed the most radical contempt for the very principle on which his own authority ultimately rested. If that didn’t constitute a deep corruption of the political order, we would be pressed to find a better example.
But we remind ourselves also that the familiar trio of “life, liberty, property” reflected an axial scheme of rights: One needed “life” before one could exercise liberty; one needed liberty before one could set one’s hand to labor and acquire property.
If the decision in Dred Scott marked a deep corruption of the Constitution, then what could we say of a decision that removed a whole class of human persons from the deepest commitment of the law to the protection of human life? James Wilson had pointed out, in the first of his notable lectures on law, that if we had natural rights, rights that flowed to us by nature, as human beings, they had to begin when we ourselves began to be. And so, he said, the law casts its protection over human life:
when the infant is first able to stir in the womb. By the law, life is protected not only from immediate destruction, but from every degree of actual violence, and, in some cases, from every degree of danger.
By the logic of natural rights, the law should bear the burden of justification when it would displace the freedom of a person to pursue his own ends, or when it would it impair his freedom by taking a portion of his property, or his material means, in taxes. But in the axial ordering of things, life does come first. And so it should be quite as clear to our libertarian friends that, if the law bears a burden of justification when it takes a portion of a man’s income, it should bear an even deeper burden when it removes a whole class of human beings from the protections cast over human life. If the decision in Dred Scott marked a deep flaw in the record of our Constitution in protecting liberty, the decision in Roe v. Wade surely had to mark a failure, or corruption, even deeper, for this decision struck at the very meaning of “the human person” as the bearer of rights.
But if these decisions could be charged, as I say, to corruptions of judgment, they do not necessarily mark faults in the Constitution itself. The example of Senator Pettit would remind us that institutions can become corrupted precisely because the individuals who fill their offices may become corrupted. And the possibility of that corruption—that falling away—is simply immanent in human nature.
The Founders did not suppose that the Constitution itself would become the chief source of the moral instruction needed to sustain the structure of governance set forth in its text. And yet that structure did work as a powerful auxiliary device for a government that lived off, and through, the giving of reasons. When a President needed the concurrence of a legislature of two houses; when each of the houses had to persuade the other to accord with its measures; this was a system persistently requiring people in office to give reasons or justifications for what they were doing. And even a person on the losing side of an election or a legislative vote may still come into a court of law and demand to know the justification for subjecting him to that law.
We have become so used to the phrase “separation of powers” that we may not notice the way that structure works to promote a more strenuous moral judgment. John Locke caught the sense of this when he remarked, in the Second Treatise, that:
the legislative power is put into the hands of divers persons who, . . . have by themselves, or jointly with others, a power to make laws, which when they have done, being separated again, they are themselves subject to the law they have made; which is a new and near tie upon them to take care that they make them for the public good.
Translation: It makes a profound difference if the legislator knows from the beginning that the measure he would enact into law will not be in his own hands to enforce. That law would be put in the hands of others to administer, and put then perhaps in the hands of someone who is not your political friend. The high point of caution, then: Be careful not to set down as a law for others what you would not see enforced with its full rigor against yourself.
In other words, the logic of the separation of powers works to render operational the Categorical Imperative or the “universalizability principle”—that we should be quite willing to apply to ourselves the rules we would lay down for others in the way of acting rightly or justly.
As we look more closely, then—as we get drawn into the rights that are protected under the Constitution—we would be drawn to those deeper principles underlying the text. That would bring us back to what Alexander Hamilton called those “first principles” on which “all subsequent reasonings must depend.” The remedies that would strike us these days as most novel, for the most vexing issues in our law, may simply come to us in the style of Plato’s Meno: that we simply unlock the meaning that has been in the Constitution all along, and we learn, perhaps for the first time, what was always there to be learned.
 Hadley Arkes, The Return of George Sutherland: Restoring a Jurisprudence of Natural Rights (Princeton University Press, 1997), pp. 278-79.
 60 U.S. 393, at 407.
 James Wilson, “Of the Natural Rights of Individuals,” in The Works of James Wilson (Harvard University Press, 1967) (originally published in 1804), Volume II, pp. 585, 591.
Ilya Somin’s thesis in his Liberty Forum essay is modest and hedged. Confining himself to “the circumstances of the United States for the foreseeable future,” he argues only that, among the “plausible competitors,” originalism is “likely to be” the theory of constitutional interpretation that best protects the components of “ ‘negative’ liberty defended by most…
The point of Ilya Somin's able and humane Liberty Forum essay is to show libertarians how to deploy originalism as a doctrine to maximize “negative liberty” in America. He doesn’t claim to establish that negative liberty is good, or that its maximization accords with living in the truth or with dignity. It’s enough to say…
I would like to start by thanking Law and Liberty for hosting this symposium, and Hadley Arkes, Peter Lawler, and Ed Whelan for their thoughtful comments on my initial essay. I had planned to complete this reply much earlier. But just as constitutional originalism sometimes has difficulty taking account of new developments, so my original…