Thursday, March 20, 2014

A Republic if We Can Keep It: The Constitution as a Check

Mrs. Powel of Philadelphia: “Well Doctor, what have we got—a Republic or a Monarchy?”
Dr. Benjamin Franklin: “A Republic, if you can keep it.”

-- Upon exiting the Constitutional Convention of 1787, Philadelphia

Last week, Boston Globe columnist  Jeff Jacoby decried what has transpired in New London, Connecticut in the aftermath of the Supreme Court’s historic decision in Kelo v. New London. Kelo upheld, by a 5-4 vote, a broad interpretation of the State’s eminent domain power, endorsing the principle that under the Takings Clause of the 5th Amendment, “public use” includes the seizing of private property by the State and the transfer of that property to another private party in pursuit of an economic development agenda.

Jacoby wrote, “[H]omeowners were dispossessed for nothing. Fort Trumbull was never redeveloped. Pfizer itself bailed out of New London in 2009. The Kelo decision was a disaster…”

In her dissenting opinion in Kelo, Justice Sandra Day O’Connor wrote, “The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process.” O’Connor was right, just as Jacoby is right to bemoan what has transpired in New London.

However, O’Connor and Jacoby fall victim to the same logical fallacies: that a power that can be abused should not exist at all and that the Constitution, rather than the People, is our most sturdy bulwark against tyranny.

Indeed, it is the machinery of democracy—separation of powers, checks and balances, the voting booth—that forms the greatest safeguard of liberty. Congress has the power to declare war, but it must answer to the People. The President can make treaties, but he too must face the citizens at the polls. In the end, the Constitution is not meant to save us from ourselves. It merely gives us a Republic, which we the People must keep, as Benjamin Franklin famously said in 1787.

Scene at the Signing of the Constitution of the United States
Howard Chandler Christy, 1940
Kelo is far from the only case that poses questions related to constitutional vs. political checks. In National Federation of Independent Business v. Sebelius (the Obamacare case), Justice Scalia famously asked Solicitor General Donald Verrilli whether the government could force Americans to purchase broccoli. Verrilli chose to try to differentiate broccoli from health insurance, but the best answer to Scalia’s question was to explain that political rather than constitutional checks must be relied on to limit the scope of Congressional and Executive authority.

Indeed, then-Solicitor General Elena Kagan (disclosure: When Kagan was Dean of Harvard Law School we had several interactions concerning the school’s relationship with the independently-run Harvard Law Record) answered this query best when confronted by Senator Tom Coburn (R-OK) during her confirmation hearing.

Sen. Coburn asked, “If I wanted to sponsor a bill and it said, ‘Americans, you have to eat three vegetables and three fruits every day,’ and I got it through Congress and it’s now the law of the land, got to do it, does that violate the commerce clause?” Kagan responded, “Sounds like a dumb law.”

In other words, while there may be no constitutional limit to Congress passing such a law, the reason that Coburn’s hypothetical will never come to pass is because our politics would not allow it. The genius of our system assumed the vitality of those political checks and therefore permitted a broad enumeration of powers without the fear that the powers would be “taken to their limit.”

[As a side note, whether the government could force an individual to eat broccoli is a different matter entirely. I believe that the long-standing respect for bodily integrity at common law would mean that such a law would be a violation of 5th Amendment Due Process (which is superseded only in very narrow circumstances of absolute necessity, see generally Jacobson v. Massachusetts, 197 U.S. 11 (1905) (upholding mandatory vaccination under the 14th Amendment)).]

In The Tempting of America, conservative legal scholar Robert Bork—once himself a nominee to the Supreme Court—declared, “Judges and lawyers live on the slippery slope of analogies; they are not supposed to ski it to the bottom.”

Bork was describing how the creation of new constitutional principles by judges (as opposed to the application of old principles to new circumstances) had the unintended consequence of generating additional principles even further separated from the original constitutional text.

However, Bork’s elegant phrase can also be used to support a different idea about American constitutionalism: namely, that while power can inevitably be abused, that does not mean that the power—standing alone—must be curtailed. Rather, it imposes on each of us, as citizens of the Republic, a duty to keep close watch on our officials, ensure the vitality and transparency of our public institutions, and engage with the great struggles of our time.

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