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 5^th 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 5^th 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 14^th 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.

First Principles of American Politics

“History will also give occasion to expatiate on the advantage of civil orders and constitutions, how men and their properties are protected by joining in societies and establishing government; their industry encouraged and rewarded, arts invented, and life made more comfortable: The advantages of liberty, mischiefs of licentiousness, benefits arising from good laws and a due execution of justice. Thus may the first principles of sound politics be fixed in the minds of youth.” 

-- Benjamin Franklin, Proposals Relating to the Education of Youth in Pennsylvania, 1749

Last night, the U.S. Senate passed a $1 trillion, ten-year farm bill by a vote of 68-32. The bill made for strange bedfellows—with Elizabeth Warren (D-MA), the heir to the seat once held by the Liberal Lion, Ted Kennedy, joining conservative Senators like Marco Rubio (R-FL) in voting against the bill, while Barbara Boxer (D-CA) joined the likes of John Thune (R-SD) in voting for the bill.

One of the more intriguing splits involved the two Democratic Senators from New York. Chuck Schumer, the Brooklyn-born senior Senator who still resides in Kings County, voted yea, while Kirsten Gillibrand, the Albany-born resident of Brunswick, New York, voted nay. What explains this divergence?

Simply put: I don’t know. It could be that the two Senators, weighing the balance between “modest” cuts to the federal Food Stamp program and reform to federal crop insurance, came to different conclusions about the merits of the bill. That laughter you hear is from political operatives, who would say, “Get real. This is about politics, pure and simple.” They’d argue that Gillibrand is an upstate Senator with possible national political aspirations seeking to boost favorability with urban audiences and shore up her “left flank,” while Schumer—safe in his status as one of the Senate’s top Democrats—could “afford” to join Senator Majority Leader Harry Reid (D-NV) in supporting a large, bipartisan piece of legislation.

In pondering this question, I thought of Benjamin Franklin’s commentary on the “First Principles” of the American body politic and of Alexis de Tocqueville’s belief that America’s Democracy was grounded in “generative principles.”

If it seems to you like political leaders in America are often driven my principles far removed from those espoused by Franklin and Tocqueville, you’d be right. Indeed, far from summoning the high-minded ideals of popular sovereignty, equality of rights, and justice, many politicians’ first instinct when confronted with a problem or an idea is to ask: what’s in this for me? All too often, the first principle—if one exists at all—is whether an idea makes for good press, regardless of whether it is good policy; whether a problem can be addressed by a solution that pushes off the day of reckoning until another time.

This state of affairs should not surprise us—not when so many of our leaders view political office as an end onto itself rather than a means to an end (i.e. something to be preserved, rather than used).

We can do better than that—and it starts by demanding from candidates what their “first principles” are so that we know precisely what will determine their choice on the tough votes and how they will approach our nation’s most intractable problems.

I don’t think there is any one set of first principles that is inherently right for every individual. That said, my own philosophy includes the following:

·      The first goal should always be to understand the scope of the problem presented—often it is more complicated than it appears at first glance.

·      We should determine whether government can/should play a role in solving the problem. Over time, government has proven itself capable of doing some things very well (building collective infrastructure) and others not so much (acting as a venture capitalist).

·      Assuming that the problem can be solved with some form of government intervention, we should strongly consider the simplest method that imposes the least onerous requirement on individual liberty. In other words, the solution should be narrowly tailored to fit the problem at hand.

·      In balancing the costs and benefits of a particular policy (or even in identifying the scope of a problem), we must prioritize the needs of the most vulnerable.

·      We should embrace an “active” government (in Alexander Hamilton’s parlance) that is willing to experiment with new ideas to solve old problems.

·      Children deserve special protection. What does this mean? It means that the community, as parens patriae, has a duty to assist children in achieving an independence of spirit. This does not mean vast intervention in the parental realm, but it does mean that we acknowledge that certain behaviors are out of bounds for parents to impose on their children and that we, collectively, must intervene in those situations.

·      We should assume that present sacrifice for future benefit is the appropriate path. The burden of proof should be on those who would take today and pay tomorrow, not the other way around.

This is just the start of my list. You may agree or disagree with some/all of these. What’s most important is we have first principles to guide our decision-making and that we demand a politics defined by service and sacrifice, not self-aggrandizement.