Majority Rule vs. Natural Rights

eagleIn a 2006 interview, Justice Stephen Breyer stated that the U.S. Constitution is “basically about democracy,” which if nothing else, proves the willful ignorance of our federal judges.

The word democracy doesn’t  appears in either the Declaration of Independence or the Constitution.  The Constitution was adopted to confine that power in order to “secure the blessings of” that which simultaneously justifies and limits democratic government – natural liberty.

The fundamental division in politics is between those who take their bearings from the individual’s right to a capacious, indeed indefinite, realm of freedom, and those progressive liberals like Justice Breyer whose fundamental value is the right of the majority to have it their way in making rules about which specific liberties are respected.

For the many who are puzzled and dismayed by the heatedness of political argument today, the message of Timothy Sandefur’s The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty is this:  The temperature of today’s politics is commensurate to the stakes of today’s argument.   And that argument is between conservatives who say that politics is basically about a condition – liberty,  and progressives who say it is about a process –  democracy.

Progressives, who consider democracy as the source of liberty, reverse the Founder’s premise that liberty preexisted governments, which the Declaration of Independence says are legitimate only when ‘instituted to secure’ natural rights.

Progressives consider the rights to property and free speech as ‘spaces of privacy’ that the government chooses to carve out and protect only to the extent that these rights serve democracy.  Conservatives believe that liberty, understood as a general absence of interference, and individual rights, which cannot be exhaustively listed, are natural and government restrictions on these rights must be as few as possible and rigorously justified.   Invoking the right of a majority to have its way is an insufficient justification.

The perennial conflict in American politics which takes precedence, according to Timothy Sandefur, an attorney at the Pacific Legal Foundation,  is the individual’s right to freedom, or the power of the majority to govern.  The purpose of the post-Civil War’s 14th Amendment protection of “privileges or immunities,” protections vitiated by an absurdly narrow Supreme Court reading of that clause in 1873, was to assert on behalf of emancipated blacks, national rights of citizens.  National citizenship grounded on natural rights would thwart Southern states asserting their power to acknowledge only such rights as they chose to dispense.

Government according to the framers, was  instituted to improve upon the state of nature, in which the individual is at the mercy of the strong.  But when democracy  [majority rule] is the supreme value, when it is elevated to the status of what the  Constitution is really  about, the individual is again at the mercy of the strong, the strength of mere numbers.

The Supreme Court’s indiscriminate denunciations of judicial activism serve progressivism. The protection of rights, those Constitutionally enumerated and others, requires a judiciary actively engaged in enforcing what the Constitution is about – forcing majority power to respect individual rights.

America is a Constitutional Republic, not a democracy.   The critical difference between a Republic and a Democracy is the fact that a Constitutional Republic has a Constitution that limits the powers of the government.   It also spells out how the government is structured, creating checks on its power and balancing power between the different branches.   The goal of our founding fathers was to avoid the dangerous extreme of either tyranny or mobocracy.

“They [who] seek to establish systems of government based on the regimentation of all human beings by a handful of individual rulers call this a new order.  It is not new and it is not order.”   FDR Memorial, D.C.

George Wills, Washington Post

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