Randy Barnett (Georgetown University Law Center)
with commentary from Burt Neuborne (NYU School of Law; Brennan Center for Justice).
Lunch will be served.
For over one hundred years, what we call the power of judicial review has been under attack as inconsistent with the concept of popular sovereignty based on the consent of the governed. Judicial restraint is thought to be required because the power of judicial review is counter-majoritarian, by which is meant it runs counter to the collective or majoritarian popular sovereignty that justifies our Constitution.
In this lecture, Barnett contests the majoritarian conception of popular sovereignty that leads some to question the legitimacy of judicial review. Building upon the opinions of James Wilson and John Jay in the Supreme Court’s first great constitution case, Chisholm v. Georgia (1793), he identifies an alternative individual conception of popular sovereignty that is entirely compatible with a nondiscretionary duty of judges to invalidate legislation that unconstitutionally infringes upon the rights retained by the people. Indeed, given the fact that the consent of the governed upon which popular sovereignty rests can only be presumed or supposed, the judicial examination of laws restricting the liberties of the people essential to the legitimacy of the government established by the Constitution of the United States.
Sponsored by The Federalist Society and NYU Journal of Law & Liberty.
UPDATE 11/21/13: Summary of Event
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.
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).
· 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 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.
§ 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.