My Reply to Patterson: TR Begat AK

Let’s hope that our (!) Jean Yarbrough, and perhaps even Scott Yenor and Ronald Pestritto will respond to Bob Patterson below. Here’s my two cents, based on an analysis of TR’s “The Right of the People to Rule” speech from 1912.

The speech features both an ingenious riff against complacent conservative employment of the phrase “tyranny of majority,” and an attack upon the courts’ employment of the due process clause to strike down social reform legislation. By focusing on the latter, we can see how poorly TR positioned the America to defend the family in the long run. For it turns out that one of the most necessary defenses of the family was an originalist understanding of the Constitution. TR didn’t have that, despite his and other progressives’ attacks upon judicial activism. Most charitably considered, he squandered a turning-point opportunity to insist upon originalism in the name of social justice.

Many state and federal courts of the time were using the newly-developed doctrine of “substantive due process” to locate within the 14th Amendment (and in similar state constitutional provisions) an implicit right to contract freely. This right meant that an employee could not be much limited in the sort of contract he might enter into with employers. In this way, laws restricting work-hours, setting wage-minimums, or addressing other workplace issues, that is, laws which seemed necessary to much of the public for regulating an industrialized economy, were often struck down as unconstitutional. The judicial application of the doctrine, while never as extensive as some accounts of the era suggest, was put to rest in the late 30s by a newly liberal court. However, within three decades liberal justices began to engage in essentially the same substantive due process maneuver, now with respect to sexual and reproductive issues as opposed to economic ones, by finding an implicit “right to privacy” in the 14th Amendment, and thus paving the way for Roe v. Wade, Lawrence, Goodridge, etc.

Most conservatives, and especially social-con ones, denounce right-to-privacy jurisprudence not simply as anti-family, but as granting far too much power to the judiciary and as being based upon “living constitution” interpretational theory. The origin of this theory is easily traced to the progressives, even though they were ready to curtail the judiciary’s power in certain ways.

In the “Right of the People to Rule,” TR said let the people use a referendum to overrule judicial rulings, but only regarding the decisions of state supreme courts, and only in cases in which the police power (state authority to enact laws regulating their citizens’ “health, safety, and morals”) had been curtailed on the basis of the new judicial doctrines. He quoted Oliver Wendell Holmes’ statement that “the police power extends to all the great public need” and may be used just as the “prevailing morality” directs. Thus, TR reasoned, those court decisions determining the boundary between police power and the due process limits must be ultimately endorsed by the people. Interestingly, he suggested they must also be decided according to the original understanding of those rights:

Until within the last sixty years . . . “property” meant tangible property; “liberty” meant freedom from personal restraint . . . About 1870 our courts began to attach to these terms new meanings. Now “property” has come to mean every right of value which a person could enjoy, and “liberty” has been made to include a right to make contracts.

His remedy was thus both an application of direct-democracy on Holmesian grounds, and, as we see in this passage, what might seem to be originalism. For despite the shop-worn characterization of 1870s-1930s economic due process jurisprudence as having been entirely a creature of a “laissez-faire” ideology, today’s originalists, most of whom are fairly free market on policy questions, denounce it as jurisprudence. It went beyond what the terms of the 14th Amendment were taken to mean when adopted. Just as originalists cringed when Justice A. Kennedy declared in Lawrence that the American conception of liberty, and thus the meaning of the 14th, expands over time, they would have agreed with TR’s suggestion in 1912 that it was wrong for the courts to expand the meaning of the word “liberty” in a pro-capitalist manner.

But TR, alas, immediately followed the passage quoted above with this one:

Now, I do not believe that any people, and especially our free American people, will long consent that the term “liberty” be defined for them by a bench of judges. Every people has defined that term for itself in the course of its historical development.

That may seem to oppose Kennedy-like “judicial activism,” but consider it carefully. He does not say that the American people ought to develop their definition of it exclusively through the amendment process provided by the Constitution. He rather suggests that if they change it, they will do so through various processes connected to their “course of historical development.” He has no fundamental problem with the idea and definition of liberty being changed, so long as this occurs in accord with the people’s wish. (We might also note here his, and Kennedy’s, errant conflation of the idea of liberty in general , with the specific personal right to liberty protected by provisions like the 14th.) While he would have thought it outrageous that the American idea of liberty might develop, as it was explicitly said to have by Kennedy, to include a right to sodomy (more precisely, a right of individuals to not have their consensual sexual relationships denigrated by laws), he could not with consistency disagree with the contention of today’s defenders of living constitution decisions that justices act properly so long as they change the definition of liberty in conformity with the people’s will .  And it is easy enough, from a progressive standpoint, to add that it is best for justices to consult the people’s not-quite-yet-existing but trending-towards will when they do consider a change of definition.

By placing his ultimate emphasis not upon the Constitution’s textual meaning but rather upon its development, TR paved the way for our situation today, in which the right of the people to rule their Constitution has given way to a right of judge-rulers to do so more thoroughly than ever. And as Bob Patterson knows well, the family is endangered because of it.