Sponsored by
The Federalist Society and
NYU Journal of Law & Liberty.
UPDATE 11/21/13: Summary of Event
1. Professor
Barnett’s Speech
· For 100 years,
judicial review has been under attack as being inconsistent with popular
sovereignty.
o “Judicial
activism” was coined in 1940s by Arthur Schlesinger to describe 1940s anti-New
Deal judiciary.
· Some claim
judicial review invented “out of whole cloth” in Marbury.
o But Marshall
only referred to duty of judges to follow the law, especially the Constitution.
o Power not specifically
enumerated in the Constitution
o Unelected judges
vs. majoritarian popular sovereignty a classic dichotomy
· Chisholm v.
Georgia (1793 – 4 years after Constitution)
o Citizen sued
state of GA
o “The judicial
power of the US shall extend to controversies between a state and citizens of
another state.”
o Members of the
public could sue a state because sovereignty lies with the people, not the
government. No unified “opinion” of the court at the time, just distinct
opinions for each Justice. Unified opinion was started by John Marshall.
· J. Wilson’s
Chisholm Opinion
o J. Wilson was
present for first written draft of Constitution and first law prof at UPenn.
o “The sovereign,
when traced to this source, must be found in the man.”
o Only reason a
free man is bound by human laws is that he binds himself.
o States are just
aggregates of individuals
o States make
contracts like anyone else.
· J. Jay’s
Chisholm Opinion
o “Joint and equal
sovereigns of this country.”
§ People are
sovereigns of this country.
§ Fellow citizens
are equal sovereigns
o If anyone is S,
it’s we the people. Not legislatures, which represent the majority. The
majority is not the same thing as the people as a whole.
· Ask what each
person could have been presumed to have consented to. If no consent, then no
sovereignty.
o Originalist
perspective?
§ Barnett: Not
making an originalist view here. Not sure how prevalent it was. Prevalent
enough to get James Wilson and John Jay, but not sure how popular compared to
more conventional majoritarian concept of popular S.
· Other sources
that preserve individualist nature of popular sovereignty
o Lysander Spooner
§ Great
abolitionist Constitutional writer – “Unconstitutionality of Slavery.” Ppeople
cannot be presumed to have given up their rights. Justice is the only principle
people can be presumed to have agreed to.
o John Locke, 2nd
Treatise
§ Men give up
state of nature when they enter society. Employed analysis similar to Spooner’s
far earlier. Life, liberty, and property. No natural creature can be supposed
to willingly make their situation worse. Individual can only be supposed to
have consented to common good, aka life, liberty, and property.
o Edmond Randolph
§ Also on the 5
person committee that drafted the Constitution. When asked by George Washington,
observed that legislature governed by written constitution may be presumed to
be left at large for things “communicable by the people” providing that it
doesn’t trample on anything that people cannot be presumed or supposed to have
confided in the legislature – aka paramount or fundamental rights. No enumerated
powers; like at state level, only unenumerated powers.
o Calder v. Bull (1978)
§ Known for clash
between J. Chase and J. Iredell.
·
J.
Chase asserted “the great first principles of the social compact” that restrict
the “rightful exercise of legislative authority.”
·
J.
Iredell seemed to assert a far more unlimited conception of legislative power
in the absence of any express constitutional limit.
§ Overlooked: Chase
also explored popular sovereignty
·
Chase:
when underlying law is such that people wouldn’t rationally consent to it, it
is “against all reason and justice” to assume people have given legislature
such power. E.g. laws that take property from person A and give it to person B.
·
We
must ask if a free and rational person have consented to the legislature’s law.
If not, no sovereignty.
· Steps in Prof.
Barnett’s Argument
o (1) Sovereignty
rests not in the government, not in the majority of people, but in the people
themselves considered as individuals.
o (2) To be
legitimate, the government must receive the consent of all these sovereign
individuals. All of them!
o (3) In the
absence of an express consent by each person, however, the only consent that
can be attributed to everyone is a consent only to such powers that do not
violate their retained fundamental rights
o (4) The
effective protection of these rights retained by the people is what assures
that the government is actually conforming to the consent that it claims to be
the source of its sovereignty.
o (5) Only if these
demands are met are laws binding on the individual.
· John Locke and
Due Process: Government must secure everyone’s property by addressing the
“three defects” of nature
o (1) Want of a
known, standing law accessible by everybody. Addressed by legislature.
o (2) Need that
everyone had to enforce own rights but difficult to do because Addressed by
executive power
o (3) Absence of
an impartial magistrate to adjudicate disputes over one’s rights. Addressed by
independent, neutral judiciary. “Judiciary will be “an impenetrable bulwark
against…encroachment of rights stipulated for in the Constitution.” – Madison.
· New Deal – U.S. v. Carolene Products (1938)
o Where the
existence of a rational basis depends upon facts beyond the sphere of judicial
notice, judges can inquire of those facts and challenge statutes and parties
can present factual evidence.
§ While Congress
may regulate, distinctions drawn must be rational
o Rational basis
to prohibit milnut milk commerce (milk with veggie oil)
§ Court considered
allegedly great benefits of milkfat in our diet. Lengthy footnotes.
§ Milnut Company
was allowed to bring evidence into court to challenge the rational basis of the
ban.
· Williamson v.
Lee Optical (1950s)
o Law banning
opticians at glasses stores from providing services in competition with
ophthalmologists.
o Concerned another
act of protectionist legislation. Tried to make it illegal to be lenscrafters
to not damage business of in-state ophthalmologists.
o Lower court
opinion provided presumption of Constitutionality then allowed company to
provide evidence that would disprove rational basis
o Barnett:
Presumption should be on liberty, not Constitutionality. Different burden of
proof. But not arguing that here. What’s important is individual citizen is
allowed to meet this burden.
· Ninth and Tenth
Amendments
o Barnett: Both
suggest popular S in the people as individuals. People, not their agents, deserve
the benefit of the doubt in cases.
· Prof. Barnett’s
form contracts analogy
o “Contracts of
adhesion”
§ Kessler’s pejorative
term. Barnett doesn’t use. Myriad terms in fine print presented to consumers on
a take it or leave it basis. Unlikely that legal dispute will arise, so irrational
for most consumers to learn about knowledge of technical terms in the fine
print. Consumers like Prof. Barnett are rationally ignorant, and companies know
this. True that by consenting w/o reading consumers run some risk. But when
authors know form K won’t be read, it cannot be presumed that consumers have
manifested their consent to particularly onerous provisions within the K.
Modern courts will examine Ks for fundamental fairness (e.g. Carnival Cruise) and bad faith.
o For laws,
consent is “at best theoretical, supposed, or presumed”
§ Unlike form
contracts that at least get a signature.
§ Laws are also
given to us on a take it or leave it basis, don’t get to negotiate.
o Maybe we should
call laws “statutes of adhesion.” That’s what they are.
§ As Locke
intended, is statute truly enacted in good faith to protect the common good –
to serve literally everyone – or to serve a special interest or subgroup of the
people. Lochner is an example of the latter – legislature tried to go after
small, nonunion, ethnic bakeries.
· Summary
o (1) People are
sovereign. In absence of express consent, bust be assurance that law w/I
legislature power
o (2) Laws that
restrict liberty arbitrarily are not within power because no rational person
would consent to them
o (3) Legislatures
cannot be judges in own case
o (4) Due process
requires that each person can contest irrationality of liberty restrictions
before independent tribunal of judges.
o (5) Jay/Wilson/etc
conception differs from modern substantive due process doctrine.
· Final point
o Securing rights
and securing consent of the governed are equal goals. One cannot be elevated
before the other. Meaningful judicial review of an action that restricts
liberty of people secures life, liberty, and property.
2. Burt Neuborne’s
Response
· FedSoc is one of
the last places in academic life where you get serious discussions.
o Never agreed
with what he’s heard at a FedSoc operation, but never seen a cheerleading
operation either. Always a serious debate.
· Barnett’s
lecture is extraordinary, deep, and thoughtful and has big implications.
· Remarkable
confluence between Randy’s approach and approach of Ronald Dworkin
o And even Rawls!
· People sometimes
forget that left libertarians and right libertarians are much closer together
than they are to people in the middle (who are basically statists).
o Neuborne is left
libertarian, Barnett is libertarian, and they are a lot closer to each other
than to the folks who govern.
o Strong
libertarian values should be asserted to prevent states from violating
liberties.
· Left and right
libertarians disagree over what to do bout equality.
o Left
libertarians say they are in favor of taking the state out of lots of things
but nervous about power vacuum created that would then be filled by private
powers that may have highly unequal effects. Left libertarians are always
looking over their shoulder for what will happen to equality once you pull the
government out. Left libs will say let the government make the race a fair one,
but once the race starts stay out. But right libs say once you let the
government’s nose in, you can never get it out. But on most things left and
right libs
· If Ronnie Dworkin
was here speaking instead of Burt, he’d say “I feel comfortable with your
ideas.”
o Only difference
is that Randy is talking about national rights with judges obliged to make
determinations on whether a natural law has been violated by the government.
Dworkin would say his ideal judge would also look at natural law – but Dworkin
would say natural lawis the best, most ideal aspects of the culture. Rights
that relate to human dignity that requires that they all be treated in a
particular way. Dworkin’s theory also empowers the judge to break
Constitutional ties by recognizing cultural values.
· Downside of
Dworkin and Barnett’s concept of popular S
o Will lead to
radically different outcomes in court cases. Once you’ve armed the judge to
enforce natural rights, no two judges will agree about what they are. Judge has
to make fine-tuned judgments about what the majority of the population can
insist on what the rest do.
· Neuborne on
natural laws (!)
o “Natural laws
are one of the great inventions of the human mind. Millions of people have
marched behind the concept of natural laws.” Concept that the very nature of
things imbue people with rights. Natural law is wonderfully effective at saying
what it is not. Not genocide. Not crimes against humanity. Not racist
domination. Not totalitarian dictatorship. Easy to say what it’s not. Go from
Kant to Locke to Rousseu. But what is it? It’s both too intuitive too
subjective to provide strong guidance to judges.
o I could build
you a natural law argument in favor of abortion. I could build you a natural
law argument against abortion. In favor of gay marriage, or against
homosexuality. Essentially unharnessed ideas of naked rationality and naked
natural law gives judges hardly any guidance at all about how to manage
society.
o When Dworkin was
alive, Neuborne told him tha this concept of human dignity didn’t provide any
guidance to Judges either. Where does a Judge go in order to make the judgment
of what natural law or rationality requires? The moment the Judge goes inside
herself to answer the question, you’re betting a lot on Judges. Judges become
kings and can make tremendous judgments with essentially no check. Randy would
argue that assessing Constitutionality of a statute is not quite as wide open
as BN is presenting it. And a lot of regulations are silly, true. But humans
operate within our own ability to perceive. You’d need a genuine Herculean
judge (Dworkin concept) to follow Barnett’s steps.
· Neuborne’s
experience
o One thing BN has
learned from being ACLU lawyer is that “I don’t care if Judge wears a black
robe, or president is legitimately elected. All I care about is that it’s all a
big club. Monopoly of force in the community. I’m not prepared to give someone
a club and say ‘police rationality, please.’ Just as I would not be prepared to
give this to the President or a legislature the same power.”
· What if Randy
disagrees with the judge? What if the Judge says it’s rational and Randy
doesn’t? If everyone needs to be on board, can 6 guys in Idaho create their own
state? Judge dips bucket into the brooding omnipresence in the sky of natural
law. What he pulls out might be different from what you or I would pull out. A
model that encourages citizens to hold themselves above the law because they
must individually consent is “ultimately a little dangerous and I would oppose
it quite strongly.”
· Chisholm was a suit to enforce Rev war debt
after English banking houses bought debt out. Two SC businessmen were operating
as pawns seeking to enforce Rev War debt against the state. Neuborne had
concern Brits would just acquire states back post war from an economic perspective
(joke)! Not irrational for GA to say that when they joined a Union we didn’t
think we’d give up control over process by which we’d repay Rev War debt. Very
first thing the state did after Chisholm was to make it a felony punishable by
debt and burial in unhallowed ground to conform to the writ of the SC in
Chisholm! And then one year later 11th Amendment passed on this
issue. Story of Chisholm is crazy.
· Left and right
libertarians agree that we are free individuals but we have ceded some power to
the state. But we have ceded only as much as they can do consistently with the
recognition of our dignity as human beings. Challenge is to build mechanism to
tell us how much we ceded and how much we didn’t cede.
3. Prof.
Barnett’s Response
· Burt Neuborne,
state rightist. Never thought he’d see the day! New position for you, Burt.
· Point of
agreement: Arm a judge with natural law, and natural law is too indefinite to
create line drawing. Barnett agrees with this. Titled his book “Structure of
Liberty” with subtitle “Justice and the Rule of Law” making argument that
fundamental rights are too abstract. Disagrees with a lot of libertarians.
Natural rights are derived from closing off our views to personal
particularities. Natural laws can’t be used to resolve many cases, so we need a
rule of law to flesh out what natural rights require. Barnett doesn’t advocate
that judges should make up rights as they go along. But Judges must ask the
legislature or the executive what the theory of governance is. Both because we
want to know the ends articulated are proper ends, and also such that the means
matches the ends to see if that’s really what you’re doing or whether or not
it’s a “pretext” (Marshall’s McCullough v. Maryland language).
· Judges still
look at rationality even where there is no fundamental rights allied, e.g. gay
marriage.
· First comes
rights, and then comes government. The Lockian view.
· Barnett loves
Burt Neuborne’s argument that “government is a big club.” Not like FedSoc club,
like weapon. Burt: “after Citizen’s united, it’s also a big club!”
· Judicial
negation is not legislation.” Saying no to the legislature is not using a big
club against the people, it’s telling the legislature that they can’t use their
big club against the people.
· Libertarians are
all for equality and they actually believe it. First duty of government is the
equal protection of those rights.
o No consensus on
what equality is other than equal protection. Once it’s anything more than
that, putting that power in the judiciary is in fact putting a club in the
Judge’s hands. That’s why judicial mandate much be far narrower.
· Dangerous
doctrine to give to hypothetical 5 crazy individuals in Montana.
o
But
majoritarian idea of sovereignty is far more dangerous and way more fear-inducing
that than five guys in Montana.
o
Is
in fact a movement out there – people use the term sovereign citizens. Barnett
isn’t happy with them and doesn’t use some terms because they use them.
Uncomfortable that his argument could be adaptd by these folks. But everything
gets adapted these days. Don’t back off idea just because of the fringe.
· Burt is right
that Constitution is meant to protect debtors by creditors. But as a result
they created republic rather than democracy. Lot of different minorities out
there.
o
Even
GM creditors get protection btw. Legally, can’t be forced by the president to
take a haircut outside contract law (as Obama did).
4. Questions
· Mechanics of
rational review by justices? Also, by setting this concept as a mechanism, will
you make selection of Justices even more of a political process? Would this be
super problematic?
o Barnett: This paper
is only for state court judges, not SC, so not that concerned with the
political issues. As a practical matter this works at the district court.
Barnett favors a presumption of liberty, obviously given the book, but has
learned since publication that as important as that is, even more important is
the ability to get in court and contest the presumption even if it is against
you. New Deal court reaffirmed this power in Carolene Products itself. Barnett
didn’t cite Lochner, he cited Carolene
Products! Williamson: If you tell us the good public health story we
presume you’re right. But if you can’t even tell us a story or if we don’t
believe your story we won’t (and in the economic realm its typically just
passing out favors to the well-connected).
· Enforcement?
o Barnett
§ Enforcement
mechanisms may be unjust, but laws could still be binding on us. Might be
unjust for there to be a government monopoly on delivering mail, but nothing
unjust about delivering mail. Service that used to be valuable, though you used
to get real stuff delivered too. Have to separate out government monopoly part
of it from the service part of it. Laws can bind in conscience even if they are
not a product of consent of the governed. Not saying we have a legal system
that could do this, but hypothetically possible if we followed the Conclusion
the way it’s written.
o Neuborne
§ Sentenced to
teach Evidence at NYU for life. Not sure how he’d try a rationality case. What
would I do? Conflicting expert testimony? Why is the Judge institutionally
superior to make distinction between two experts over the legislature? Barnett:
Legislature is paid off by people. Also, Williamson example. After expert
testimony, everyone agreed that a tech does it at the ophthalmologist so what’s
the difference, no rational basis. You’ve already been to the doctor, why go
back? Burt assumed a fact not in evidence – legislative hearings are complete
shams that don’t consider evidence, wheras courts do consider evidence.
5. Wrap-Up
Conversation
· Barnett: Worked
with Dworkin, affected view of liberty ever since. This is a due process of
legislation argument, so we’re more in agreement than you thought, Burt.
· Barnett: Laws
are written by special interest groups, or at best staffers with text provided
from special interest groups. This is how we must think about legislatures,
must focus on reality. Doesn’t think it’s a good use of time to testify on the
hill unless it’s going to have a public forum on TV e.g. healthcare.
· Neuborne: I
still testify at legislative hearings all the time. “My wife says I’m incapable
of turning down an invitation to hear my own voice.”
· Neuborne:
Suppose I make a deal with you. Give Judge a suspensive veto, Judge looks at
what legislature did and says I can’t find a rational basis. So I’m putting a
stay on the law and remanding it for Barnett, you should take six months and
think about this approach and come back for another round.
· Barnett: It
would be better than what we have now, but not as good as saying no. L can make
new law anyways.
· Neuborne: But go
to legis process. You can’t go back forever. A remand would keep the thing
salient. L would know J was looking at it.
· Barnett: We have
a fundamental disagreement, but great talk.
