Foundation News

“Securing the Blessings of Liberty”

Sep 16, 2016

Slightly more than 225 years ago, on May 25, 1787, representatives of all thirteen states came together in Philadelphia to create the blueprint for the government for their newly independent country. Appropriately enough, the Constitutional Convention convened in Independence Hall, and equally fittingly, General George Washington was elected to chair the proceedings. Benjamin Franklin, Alexander Hamilton, and James Madison were among those delegates joining Washington in the hot debates, hard-won compromises, and months of drama. (Franklin—together with George Clymer, Robert Morris, George Read, Roger Sherman, and James Wilson—was one of the six statesmen to sign both the Declaration of Independence and the Constitution.) The delegates adopted and signed the final version in September of that year, but not until three-quarters of the states ratified it would it become official.

To celebrate this year’s Constitution Day (September 16), a number of Fellows in Constitutional Studies are offering their views on various aspects of one of the most transformational documents in world history and the foundation for the United States of America.

Risa L. Goluboff, 2009

For her contribution to the Foundation’s Constitution Day forum, Risa L. Goluboff shares her insightful article “Dispatch from the Supreme Court Archives” (first published in Stanford Law Review, Vol. 62, 2010), in which she traces the evolution of the Justices’ opinions on various Constitutional issues, ranging from Papachristou v. City of Jacksonville to Roe v. Wade. She later developed these (and other) arguments at length in her Fellowship-supported book Vagrant Nation: Police Power, Constitutional Change, and the Making of the 1960s (Oxford, 2016). As she makes clear, the archival documents she examines “invite us to think both more deeply and more broadly about who was engaged in constructing the intellectual framework of modern fundamental rights, about where in the Constitution such rights would be located, and about what the contours of such rights would be.”

Follow this link to view Risa L. Goluboff’s article “Dispatch from the Supreme Court Archives” (first published in Stanford Law Review, Vol. 62, 2010).

Risa Goluboff is Dean, Arnold H. Leon Professor of Law, and Professor of History at the University of Virginia School of Law.


Richard Primus, 2008

We often think of the Constitution as a device for limiting our government. There are good reasons for thinking of the Constitution that way. Limited government is an extremely important principle. Human liberty depends on preventing governments from directing every aspect of our lives, so preventing government from having too much power is a central aspect of healthy constitutionalism.

As we mark the day on which the Philadelphia Convention approved the original Constitution, however, we should remember that preventing government from being too strong is not the only task of the Constitution. Nor was it the task on which the Framers were focused at Philadelphia. Their major project was to draft a Constitution that would create a more powerful government. In the 1780s, facing the problems that arose from the lack of a strong central authority, the Framers set out to create a government that would do more. As they recognized, a government that does too little can be as great a threat to liberty as a government that does too much.

At different times in history, Americans have struggled with both problems. Sometimes meeting the most important challenges has required focusing on those aspects of the Constitution that limit government, and sometimes meeting the most important challenges has required focusing on those aspects of the Constitution that empower Americans to use government to solve their problems. Just as a car needs both an accelerator and a brake pedal, the Constitution builds both empowerment and limitation into the system. Wisdom in constitutional decisionmaking requires finding the right balance between the two, and appreciation of the Constitution requires seeing the value both in limiting government and in empowering it.

Richard Primus is the Theodore J. St. Antoine Collegiate Professor at the University of Michigan Law School.

Randy Barnett, 2008

Judges Must Protect Individual Liberty from Legislative Abuse

As I explain in my new book, Our Republican Constitution: Securing the Liberty and Sovereignty of We the People, our Constitution is a “Republican constitution” designed to protect individual liberty rather than a “Democratic constitution” designed to privilege what is called the “will of the majority.”  As the Declaration of Independence affirmed, it is “to secure these rights” that “Governments are instituted among Men.” Those who wrote and ratified the Constitution largely rejected the more “democratic” aspects of their own state governments — which they thought violated the rights of the minority — in favor of a new form of Republican government.

Their innovation expressly limited the power of Congress, deliberately hamstrung the power of democratic majorities through a series of checks and balances, and expressly recognized the enumerated and unenumerated rights retained by the people.  Then, the Constitution was put in writing to provide the law that governs those who govern us.  Some eighty years later, Republicans in Congress amped up the protection of individual rights against state infringement by adding the Thirteenth, Fourteenth, and Fifteenth Amendments.

Under this rights-protecting scheme, Congress may only legislate on truly national issues — like defense and trade — with the states providing a diversity of approaches to health and safety, criminal justice, and what we now call “social issues.”  This system empowers individuals to protect their liberty by migrating to the state with their preferred mix of laws, including states whose legal climates better protect economic opportunity.  Such “voting with our feet” helps avoid a constant divisive power struggle, in which political winners impose their will on the losers – who must relinquish their liberty or engage in an endless political war of all against all.

But how do we confine Congress to its limited powers and stop the federal and state governments from infringing upon individual liberty? In our federal system of three co-equal branches of government, each branch has an independent duty to obey the constraints of the Constitution and check the others. When a case or controversy arises between the government and a member of the sovereign people, it falls to the judicial branch to say whether Congress has exceeded its powers.

Some have claimed that what we call “judicial review” was invented by Chief Justice John Marshall in Marbury v. Madison.  But delegates to the Philadelphia convention rejected an external “counsel of revision” as a check on Congress, in part because they assumed the judiciary would negate laws that exceeded Congress’s powers.  At the convention, Gouverneur Morris said that a “law that ought to be negatived will be set aside in the Judiciary department.” Luther Martin said that “the Constitutionality of laws . . . will come before the Judges in their proper official character.  In this character they have a negative on the laws.” George Mason said that “in their expository capacity of Judges,” they “could declare an unconstitutional law void.” Roger Sherman thought that a proposed congressional power to nullify state laws was “unnecessary, as the Courts of the States would not consider as valid any law contravening the Authority of the Union.”  And James Madison said, a “law violating a constitution established by the people themselves, would be considered by the Judges as null & void.”  Judicial review was understood not as a selectively applied “power” to invalidate laws (which would invite “activist” discretionary exercises of deference), but as a duty to follow the “supreme law of the land” where a state or federal statute conflicted with the Constitution.

This judicial “duty to void” was no secret confined to the Philadelphia Convention. Similar statements were made by James Wilson in the Pennsylvania ratification convention; by Oliver Elsworth (the second Chief Justice) and John Marshall in Virginia, by William Davie in North Carolina, and by Luther Martin in Maryland.  Indeed, the available evidence illustrates that this element of the original meaning of the “judicial power” transcended disagreements between the Federalist supporters of the Constitution and their Antifederalist opponents.

Such was the settled understanding of the judicial role until the Supreme Court began invalidating “progressive” legislation as “arbitrary” and “irrational” restrictions on liberty, and held some national laws beyond the enumerated powers of Congress to enact. Progressives such as Teddy Roosevelt loudly condemned these justices for impeding the will of the people, and for failing to defer to the more majoritarian or democratic branches.  After President Franklin Delano Roosevelt had appointed all but one of the justices, progressive historian Arthur Schlesinger, Jr. described those New Deal Court justices who had begun protecting some civil liberties as “activists” for abandoning the judicial “restraint” that progressives had been loudly advocating for 50 years.

Then, during the Warren Court Era, some political conservatives picked up the progressive mantra to criticize the “activism” of the Court. Republican presidents, beginning with Richard Nixon, started seeking “restrained” justices who would not thwart the popular will.  But in the wake of the Court deferring to Congress to uphold the Affordable Care Act’s individual insurance mandate, many are now reconsidering their commitment to judicial deference.

Properly conceived, judicial “restraint” means judges who are constrained by the original meaning of the text of the Constitution. The term judicial “activism” should either be abandoned as empty, or reserved for times when the Court has failed to enforce the text of the Constitution, whether to uphold or invalidate a “popularly” enacted law.

In addition to the enumeration of Congressional powers and certain rights, the Ninth Amendment expressly recognizes the unenumerated liberty “rights . . . retained by the people,” and the Fourteenth Amendment protects the unenumerated “privileges or immunities of citizens of the United States” from being abridged by their states. But effectuating these express clauses does not require judges to identify and protect specific unenumerated rights. Instead, they must hold Congress to its enumerated powers. And they must also confine states to the proper exercise of their police powers by realistically assessing whether a restriction on liberty is irrational or arbitrary, as the Court used to do, rather than blindly deferring to legislators or agency officials, who may be restricting individual liberty simply to benefit special economic interest groups, rather protecting the general public.

Constitution Day is the perfect time to urge presidents to select judges with a demonstrated commitment to following and enforcing the original meaning of the text of the Constitution — judges who have the backbone to stand up for our Republican constitution against the other branches, and even to a majority of the public.  Protecting the liberties of We the People—each and every one—demands no less.

Randy Barnett is the Carmack Waterhouse Professor of Legal Theory at Georgetown Law, where he directs the Georgetown Center for the Constitution. His book, Our Republican Constitution: Securing the Liberty and Sovereignty of We the People was published in April by Harper-Collins.

Image: Courtesy Sotheby’s Books and Manuscripts Department