Even before the Constitution was ratified, essayists such as Alexander Hamilton, John
Jay, James Madison, and George Clinton had picked up quills, dipped them into
inkwells, and penned constitutional commentary on parchment. Shortly afterward,
these constitutional writingsFederalists and Antifederalists opinionswere published
in broadsides and in contemporary newspapers. The ink on the Constitution
had barely dried when Americans raised questions pertaining to originalism and the
Although many politicians today ignore and many Americans overlook the Constitution,
Timothy Sandefurs latest book, The Conscience of the Constitution, is part of
a recent wave of conservative/libertarian scholarship that asks questions regarding
original intent, the purpose of the Constitution, and how best to defend liberty.
(Representative works include Clark M. Neilly III, Terms of Engagement: How Our
Courts Should Enforce the Constitutions Promise of Limited Government [New York:
Encounter Books, 2013], and F. H. Buckley, The Once and Future King: The Rise of
Crown Government in America [New York: Encounter Books, 2014].)
Scholars are currently interested in constitutional originalism because many
have questioned the constitutionality of recent legislation, including the Affordable
Care Act of 2010 and the political profiling of certain organizations by the Internal
Revenue Service. So how does one determine the constitutionality of such legislation
and actions or learn the original intent of the framers and the meaning of
the Constitution? Sandefur argues that the primary answer is in the Declaration
of Independence and the natural-rights theory that informed its drafting and
approval. [The Declaration]. . . must guide our understanding of our political and
legal institutions (p. 2). It is in this document and the Constitution, Sandefur
continues, that Americans learn that all people are naturally born free, and may
use that freedom to create a political and legal order that respects and protects their
rights (p. 2).
In making his case, Sandefur stresses that liberty and order are profoundly
interrelated (p. 1). Many Americans, however, erroneously believe they are in opposition.
And at times, the latter is true; too much order can actually produce tyranny,
and freedom without any rules can be anarchy. Sandefur challenges what he considers
a modern understanding that liberty arises out of order. Au contraire, he writes, for
liberty comes first, and order arises from it (p. 4). He also is worried thatmodern-day
Americans, unlike the Founders, are more concerned with the majority (democracy)
than with individual freedom.
To reorient the nation toward the principles stated in the Declaration of
Independence and to protect individual liberty, Sandefur calls for two things: a better
understanding of substantive due process in the Fourteenth Amendment and a
more active judiciaryan activism conceptually rooted in the Declaration of Independence
(chapters 35). He argues that a proper use of substantive due process,
with an understanding of natural rights as expressed in the Declaration, will guarantee
individual liberty. In doing so, he challenges liberal and conservative justices and legal
theorists; he believes both have weakened the judiciary and sacrificed individual
liberty for the sake of democracy. Sandefur is confident that in an active judiciary
rooted in Lockean natural rights, justices will not make law haphazardly. Instead, they
will preserve individual liberty and interpret the Constitution, Sandefur claims, as
informed by the Declaration of Independence.
Leaving aside Sandefurs explanation of substantive due process, I focus here on
two parts of his work that gave me pause: an active judiciary and the deemphasizing
of federalisms importance during the founding and early-republic eras.
Although Sandefur correctly identifies a real threat to libertythe expansive
tendencies of government, especially since the Progressive Erahis recommendations
in chapters 35, I fear, may inadvertently contribute to the centralizing state
that he hopes to undo. Although the work uses history in chapters 1 and 2 as a
foundation to build upon a strategy to secure liberty, Sandefurs narrative does not
accurately reveal the nuanced history of the founding and the early-republic eras or
present a comprehensive account of those eras. His purpose, to be sure, is not to
provide a complete history. Considering that he uses history to undergird his recommendations
to secure liberty, however, he should have cited certain classics, such as
Forrest McDonalds Novus Ordo Seclorum: The Intellectual Origins of the Constitution
(Lawrence: University of Kansas Press, 1985), or recent works, such as Pauline
Maiers Ratification: The People Debate the Constitution, 17871788 (New York:
Simon and Schuster, 2010), or more primary sources from state ratification conventions
or the Federalist/Antifederalist debates so that readers would be assured
that he is familiar with various interpretations and both primary and secondary
sources to present an authoritative historical narrative. Instead, his solutions are
based on a history that seemingly lays the groundwork for a legal case rather than
an understanding of the time as it was. I am not here promoting relativism. I am
declaring that the study of history should not be based strictly on philosophical
approaches and that historians should avoid selective use of sources to achieve
The Conscience of the Constitution overlooksintentionally or unintentionally
intermediaries such as states, institutions, and religious denominations. These
imperfect institutions have sometimes encroached on individual liberties. They
have at other times checked an increasingly centralizing power and protected
individual liberties. Without mediating institutions, an individual is naked and
helpless before Leviathanor the Minotaur, as political economist Bertrand de
Jouvenel describes centralizing power. It is easier to suppress the liberty of an
individual than the liberty of an individual who is part of an intermediate organization
or a state.
Federalism is an example of an organization of intermediate bodies that can
check an overly energetic government. Sandefur encourages more judicial activism
that is grounded in what he considers the conscience of the Constitution (p. 2).
He acknowledges that when enforcing constitutionality and the law, judges must
address questions of political philosophy (p. 87). In asking for the meaning of the
Constitution, however, judges cannot do whatever they please (p. 88). Sandefur
writes, The principles of the Constitutions political philosophy are not left up to the
judges to invent but are stated in the Declaration of Independence (p. 88). When I
read this, I wondered: Where will we find these activist judges, these oracles in the
conservative/libertarian movement? One of Thomas Jeffersons greatest concerns
was the growth of the judiciary, a body he believed that was working in his time to
place all great and small and foreign and domestic governmentalmatters inWashington.
Sandefurs recommendation may lead Americans to trust primarily in a few jurists
to protect individual freedom. A belief in a few jurists protecting individual liberty
seems almost as elitist and as antidemocratic (in the sense of being anti-individual) as
the Progressives belief that they could run peoples lives better than the individuals
could themselves. It is possible for a robust judiciary, even one oriented to the
Declaration of Independence, to turn into an elitist few who unwittingly give the
government more power to protect a helpless American people as an abstract whole.
Maybe I am too cynical. It is plausible, indeed, that an active judiciary, with a concern
to secure liberty, can act temporarily as a check on government encroachment. What
will be the state of liberty, however, when an active judiciary is replaced with another
set of jurists with a different philosophy?
In its historical narrative and its argument for a greater emphasis on the Declaration
of Independence, Sandefurs work has a particularly gaping omission: the
importance of state ratification conventions. Over time, James Madison remarked on
several occasions, including on the floor of Congress and in personal correspondence,
that the state ratification convention debates were the key that unlocks the meaning
of the Constitution. At the respective conventions representing the people of
their communities and of their states, delegates debated the pros and cons of adopting
the Constitution and clarified the meaning of constitutional phrases and the
governments proper role. The ratification process gave the Constitution its authority.
Article 7 of the Constitution spells out this process.
Sandefur seems to be unaware that the Declaration of Independence was in
many ways an observation of what had recently happened in the respective colonies.
Indeed, expressions of independence had occurred in the colonies before the Declaration
of Independence was penned. In fact, in many ways they were prerequisite.
Although similar events occurred elsewhere, North Carolina is illustrative. For
instance, North Carolinas Fourth Provincial Congress passed the Halifax Resolves
on April 12, 1776, by a unanimous vote (eighty-three to zero). (That date is on
the current North Carolina flag, and the event was commemorated previously on the
states license plates with the slogan First in Freedom.) In that document, the
North Carolina legislative body empowered its Continental Congress delegates
to cooperate with delegates from other colonies and, if needed, to withdraw from
Great Britain. The Declarations antecedents thus lie at the local level.
Even at the community level, North Carolinians showcased expressions of independence
before July 4, 1776. On May 31, 1775, the Mecklenburg County
Committee of Safety issued the Mecklenburg Resolves, wherein the committee dissolved
civil and military commissions and formed certain Rules and Regulations
for the internal Government of this County. After the Halifax Resolves yet
before the Declaration of Independence, the Vestry of St. Pauls Church in Edenton,
North Carolina, issued The Test. This local body fanned the flames of independence
by declaring that unconstitutional parliamentary taxation should be resisted
to the utmost, and it pledged to maintain and support the Continental and
Provincial (North Carolina) Congresses and abide by their resolutions because in
both they are freely represented by persons chosen by themselves.
The importance of federalism is also evident in the creation of state constitutions
and their continuation as such after the ratification of the U.S. Constitution.
North Carolina did amend its 1776 constitution in 1789, but the change only
expanded the list of North Carolina towns allowed to elect state senators. The Constitutions
ratification did not alter the state constitution in its form or in its authority.
Although government is (and has for a long time been) encroaching on individual
liberty, a better understanding of our nations history might inform different recommendations
to secure liberty. Sandefurs solutions, I fear, may further (or at a minimum
maintain) government encroachment, for it is much easier for a centralizing
authority to conquer individuals than intermediaries consisting of individuals. Although
Sandefurs concerns for libertys protection are commendable and he has identified
the primary culprit in the growing encroachment on liberty, his recommendations are
built on historical sandy soil. A more comprehensive understanding of Americas
pasta firmer foundationwould have prompted solutions that include federalism
and intermediaries as a means to defend individual liberty.