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OF FOXES AND HEN HOUSES: LEGISLATED RIGHTS AND AMERICAN FOUNDING ERA THOUGHT ABOUT LEGISLATIVE AUTHORITY TO DEFINE THE SCOPE OF FUNDAMENTAL RIGHTS.

I. INTRODUCTION

It is commonplace for Americans to think of government as a necessary evil. Mistrust of government has deep roots in our history and culture, as represented in the famous antebellum quip of Henry David Thoreau: "I heartily accept the motto,--'That government is best which governs least'...." (2) Thoreau elaborated, "Government is at best but an expedient; but most governments are usually, and all governments are sometimes, inexpedient." (3) Even at this early date, Thoreau was drawing on American political thought that was by then well established. Sixty years before, at the founding of the new federal government, James Madison appealed to sentiments already widespread in his day when he wrote in a similar vein: "It may be a reflection on human nature that... devices should be necessary to control the abuses of government. But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary." (4) Since people are unangelic, government is necessary. But since the people who control the government are also unangelic, government is at best a necessary evil; it cannot be trusted, and must be controlled.

Applying these insights, Americans have designed governmental systems largely assuming that government officials will try to enlarge their own power for selfish ends. (5) The systemic designs seek to divide power among different institutions and then build in opportunities for each to check the aggrandizement of the others. (6) It is assumed that the institutions will willingly use these checks, if for no other reason than to protect themselves and promote their own desires for power. Americans have further assumed that many limitations on governmental power ought to be written down in some authoritative source of fundamental law--such as a Constitution--and that the judicial branch of government will exercise one of its allocated checks under this Constitution by giving effect to this fundamental law and not legislative enactments whenever the two conflict in the concrete cases before the courts. In this way, judges may serve as a check on the legislative power and assure that it does not exceed the bounds set for it in the Constitution. (7) Otherwise, it is thought, legislatures will too often ignore or misapprehend those bounds, and infringe the people's rights.

This Symposium volume of the Faulkner Law Review is dedicated to a discussion of a book published this year entitled Legislated Rights, (8) which is concerned with institutional arrangements in government that will best protect human rights. The book's central argument is that legislatures, and not courts, can and should have the primary responsibility for creating, defining, and protecting human rights. American legislatures often take a large role in creating and defining various sorts of rights, but when it comes to fundamental rights declared constitutionally, American legislatures have not been thought to possess primary definitional authority. Thus, the book's central claim may challenge the prevailing American view that the judiciary is the institution primarily responsible for defining the reach of constitutional rights imposing legislative duties, particularly duties of legislative inaction.

The Faulkner Law Review is a journal dedicated to the study of the Anglo-American legal tradition, so perhaps a consideration of early American thought in these matters will not be out of place. In Part I of this essay, I describe in broad terms the thought of the American Founders with regard to separation of powers, checks, and limited government. I also describe a growing body of criticism of those views with regard to judicial review power specifically. In Part II, I explain where I think Legislated Rights fits within that body of criticism, as I set forth in greater detail the argument presented in the book. I also highlight some areas of conflict with early American theory, as well as areas where disagreement may not exist. The American Founders reached their conclusions about judicial review based on both theory and experience, and in Part III, I briefly canvass both their experiences and their theories. Along the way, I point out a few elements of the argument in Legislated Rights that may call for a more robust defense in light of the experiences and theories of the Founders. In Part IV, I draw attention to the need for further empirical evidence to substantiate the book's claim that legislatures should be given greater authority, and courts less, in defining fundamental rights.

II. EARLY AMERICAN CONCEPTIONS OF SEPARATION OF POWERS, CHECKS, AND CONTROLS ON GOVERNMENT

A. The Concepts in Broad Strokes

The broad outline of the American Founders' political theory will be well known to most readers. In early American political thought, governments existed primarily to prevent and discourage the worst things human beings might do to one another--the actions that spring from their unangelic natures. In the words of the Declaration of Independence, Americans took it for a "self-evident" truth that all human beings are "endowed by their Creator with certain unalienable Rights,... among [which] are Life, Liberty, and the Pursuit of Happiness," and that "to secure these Rights, Governments are instituted among Men...." (9) The very purpose of government, then, was "to secure these Rights." In accordance with the Lockean thought from which it was derived, this theory did not conceive of "rights" as entitlements against nature, fate, or the Creator; (10) thus, there was little anticipation that such "unalienable Rights" entitled holders to be protected from events such as diseases, natural disasters, or poverty that might take away life, liberty, or the ability to pursue happiness. (In this, the early American conception of rights differed rather starkly from conceptions implicit in many declarations of human rights today.)" Rather, "rights" were thought to entail corresponding human duties that were mostly understood as duties not to interfere with the life, liberty, or property of another, rather than duties to provide these if they were lacking. (12) Thus, in early American thought, governments were instituted to protect human beings from other human beings who might otherwise actively interfere with life, liberty, or property. In other words, since men were not angels, certain rights against the misdeeds of others needed securing, and governments were necessary for this.

The theory recognized, however, that its dim view of "unangelic" human nature had created a difficulty: if government is necessary because we cannot assume human beings will be angelic to one another, what can we assume about the human beings who govern? They are no more angels than the rest of us. Since they are mere mortals, will they not be susceptible to the same corrupting impulses as other human beings?

The Founding Generation adopted no rosy view of governing officials; if anything, they often assumed those who govern would be more corruptible than others. In this they anticipated the famous sentiment of Lord Acton, who remarked a century later that "[pjower tends to corrupt and absolute power corrupts absolutely." (13) The Founders were clear that government officeholders were just as liable to corruption, or more so, than the average person, and provision had to be made for this likelihood. One possibility in the face of governmental corruption, of course, was violent revolution. Foreseeing the corruptibility of governors and governments, and claiming to see it evidenced in their own British governing authorities, the authors of the Declaration of Independence stipulated this further self-evident truth: "[W]henever any Form of Government becomes destructive of these Ends [securing the rights of life, liberty, and the pursuit of happiness], it is the Right of the People to alter or to abolish it, and to institute new Government...." (14)

But violent revolution was not ideal, to put it mildly, and one would obviously wish for other mechanisms to check government corruption and tyranny before violence became necessary. Those who designed the American federal government had these concerns very much in view. Madison, in a classic statement of American political theory, analyzed the situation this way:
If angels were to govern men, neither external nor internal controls on
government would be necessary. In framing a government which is to be
administered by men over men, the great difficulty lies in this: you
must first enable the government to control the governed; and in the
next place oblige it to control itself. (15)


When we realize that human beings are corrupt and often seek to harm each other in the absence of some superintending referee, we wish for government to "control the governed." But when we realize that governments and governing officials are at least as prone to corruption as the rest of us, we wish for controls and limits on government itself--or in Madison's words, a government that is "oblige[d] to control itself." We seek a government that is powerful enough, but not so powerful that it cannot be controlled.

What controls might work? There are several contenders, and not all are mutually exclusive. At the Founding, and today, democracy has been widely thought to be one primary control on government, or perhaps the primary control. By "democracy," I mean not only recurring elections for public offices, but also widespread, equal voting rights for adults as well as the rights to organize politically, to be eligible to hold office, to campaign for office, and so forth. Democracy is thought to provide a check on officeholders by forcing them initially and periodically to gain the approval of a majority or plurality of the voters who live under their rule. The American Founders generally agreed on the need for representative democracy. Yet, they also mistrusted an overreliance on democracy, as manifested by the fact that, of the three branches of federal government they created, only one half of one branch was to be elected directly by the people. (16)

The mistrust of democracy was founded not just on theory, but on experience. As Madison put it: "A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions." (17) By the 1780s, while democracy was still just a theory in most of the world, to be studied only in books, Americans had already gathered long experience with democratic self-government in the colonies as well as the newly independent states. And, to say the least, not all of it was positive. The Founders thus adopted a plan for government that made use of democratic elections as a "primary" control on government, but supplemented that method with extensive "auxiliary precautions."

As Madison describes these precautions in Federalist 51, they include the separation of powers of the federal government into different departments or branches of government, such "that each may be a check on the other," and the system of federalism whereby distinct sovereign state governments continue to exist at a more localized level to provide a check on the sovereign federal government--and vice versa. (18) In all this, he claimed, "[a]mbition must be made to counteract ambition." (19) The self-interest and ambition of those holding governmental power would operate to check their fellow officeholders in cases of excessive ambition or corruption.

For reasons that will be discussed below, (20) yet another auxiliary precaution for controlling government was thought to be the written specification of the powers and limits of the government institutions, taking the form of a written constitution. Such a constitution would be held to constitute fundamental positive law for the community. While it would not specify all the important legal principles of the community, or all that was necessary for human wellbeing, it was to specify the most important legal principles and rules that bound the government--creating, organizing, empowering, and limiting the institutions of democratic government that would henceforth govern the community.

Elaborate rules and mechanisms were built into the United States Constitution in an attempt to enable inter-branch infighting, as a means of balancing the powers of the federal branches relative to one another, and rendering each of them capable of exerting certain limiting power over the others. Importantly, the Framers saw the judicial branch as playing a vital role as one of the three branches in this process--a branch that would, like the other two branches, ambitiously assert its own power from time to time to reduce the power of one or both of the other branches, and of the states as well. (21)

B. The Growing Critique

Today, however, a growing body of scholarship suggests that systems like this are not sufficiently responsive to the needs, felt preferences, or rights of the governed. (22) In short, the critics argue that such elaborate systems of checks, including strong judicial review, are not democratic enough (and perhaps were never even intended by the American Founders). (23) And, with regard to such systems, no branch has come under more criticism recently than the judicial branch. (24) The argument, in brief, is that in a system where unelected, lifetime-appointed judges have a real capacity to check and reduce the power of the other, democratic state and federal branches, those judges subvert the rule of law by essentially re-writing fundamental law in any way they want, unchecked. Thus, outside the academy, President Trump rails against "so-called judge[s]" who have the arrogance to regard his actions as contrary to fundamental law; (25) while within the academy, scholars such as Robert Lowry Clinton claim in extended works that "democracy" is "under attack" by "one of the gravest threats of all: the rise of federal judicial supremacy in America," a power grab "rooted in elitism" which assumes "that ordinary people are not really fit--and therefore are not entitled--to govern themselves...." (26)

Among those who have spoken with concern about this body of criticism is retired Justice Sandra Day O'Connor. In remarks published in the Wall Street Journal, she observed with dismay that "[t]he ubiquitous 'activist judges' who 'legislate from the bench' have become central villains on today's domestic political landscape," and that populist critics "routinely score cheap points by railing against the 'elitist judges,' who are purported to be out of touch with ordinary citizens and their values. Several jeremiads are published every year warning of the dangers of judicial supremacy and judicial tyranny." (27) Her considered conclusion was that, "while scorn for certain judges is not an altogether new phenomenon, the breadth and intensity of rage currently being leveled at the judiciary may be unmatched in American history." (28)

The precise villain in these stories, it turns out, is often some assertion of the power of "judicial review," which means the power of a court to declare that an executive or legislative actor has acted contrary to law, and that the act is therefore void of any legal effect, at least in the case before the court. Some critics oppose judicial review altogether, (29) while others claim to support "true" judicial review but oppose some supposed extension of it; the harmful extension is usually given a fright-name such as "judicial supremacy," (30) "judicial sovereignty," (31) "judicial tyranny," (2) or "judicial imperialism." (33) The general themes running through all these arguments, however, are these: that judges, especially unelected judges purporting to exercise judicial review power in systems of designed checks and balances, are making law rather than interpreting or applying it; that they are out-of-touch elites who do not care enough about the will of the majority; that they prioritize individual rights over the rights of the community; that they are issuing opinions based on policy preferences rather than any sort of principled interpretation of fundamental law; and that their assertions of power are actually assertions of supremacy over all of government, unfairly hobbling legislatures and executives who are actually better equipped and more qualified to make these sorts of determinations. The criticisms usually grow more pointed in direct correlation to the authority of the source of law being interpreted: the higher the law the judge is (allegedly) applying, the more problematic the assertion of judicial power in the minds of the critics. Hence, the cases drawing the most ire from the critics tend not to be statutory construction cases, but rather constitutional cases (or cases involving some other fundamental law) in which a court declares a legislative or executive act to be contrary to the Constitution (or other fundamental law) and therefore void.

III. A DESCRIPTION OF LEGISLA TED RIGHTS

A. The Central Argument

Legislated Rights seems to fit comfortably within this body of criticism, although it is concerned with highlighting the relative competencies of the legislative branch in particular. Published in 2018 by Cambridge University Press, this treatise is a careful work written by six co-authors, all of whom were supervised in their doctoral work by John Finnis (to whom, in fact, the book is dedicated). (34) The authors hail from all over the world: Gregoire Webber and Bradley W. Miller, working in Canada; Paul Yowell and Richard Ekins, working in the United Kingdom; Maris Kopcke, working in Spain; and Francisco J. Urbina, working in Chile. Although each chapter is attributed to a different primary author, the authors intend that the book be read more like a monograph than like an edited collection, and thus "the book as a whole" should be regarded as "jointly authored." (35) For convenience, I will use the term "the Authors" to refer to all of the above as authors of any portion of the book under consideration.

The thrust of the Authors' argument is that legislatures, not courts, can and should have the primary responsibility for creating, defining, and protecting human rights. (36) The Authors wish to contest the prevailing notion that "human rights are the special province of the courts and that legislation represents a threat rather than a means of protecting them." (37) The term "human rights" is not being used in a narrow or specialized sense here, but is meant to include all the legal rights humans have; hence, the term as the Authors use it encompasses not only, or even primarily, "standards for courts to enforce against political authorities," but instead all "the aspects of human wellbeing" that are articulated in or implied by the Universal Declaration of Human Rights, the European Convention on Human Rights, and "similar treaties and domestic bills of rights." (38) These rights, in the Authors' view, "should be actively pursued and promoted by all authorities responsible for a community," with "legislatures hav[ing] the central and strategic role....," (39) So, for example, the Authors assert that earthquake building codes should be seen as human rights laws because they help secure the right to life specified in a bill of rights or other fundamental law, and earthquake building codes should be written primarily by legislators. (40) Similarly, the Authors include within the field of human rights many other common legislative enactments, including drug safety requirements, nutrition labeling requirements, pollution regulations, and rules for government provided healthcare. (41)

The Authors obviously aim to correct what they deem to be widespread misunderstandings about governmental institutions as well as the nature of human rights. Too often, the Authors contend, human rights discourse has assumed that "the legislature is a chief threat to rights and courts the main or only forum where human rights are vindicated, typically by correcting the abuses of the legislature....," (42) The Authors want us to understand that there is no reason to assume that legislatures will systematically fail to protect human rights in the absence of outside review. In fact, they argue, legislatures can and should consider human rights all the time as they make law, weighing the different rights claims of affected parties, reasoning about these, forming and revising reasoned proposals for legal change, engaging in reasoned debate over the various proposals and rights claims, and ultimately choosing a legal change that will "secure human rights as an integral part of promoting the common good of the political community in all of its complexity." (43) Thus, the Authors "argue that the legislature is capable of principled, reasoned deliberation, and the central case of legislative action consists in reasoned deliberation to promote the common good, which has as its concern the wellbeing and rights of all persons in community." (44) This means that "the legislature should not be willing to ignore the interests of some persons or to sacrifice their vital needs and goods"; rather, legislatures should pursue "the common good," meaning "that set of conditions that enable each and every member of the community to realise his or her wellbeing, both individually and cooperatively with others." (45) The Authors argue that legislatures are more suited than courts to this task of weighing and evaluating competing rights claims and, accordingly, defining the proper scope of rights. (46) And in the "central case," the legislature will do all this, and do it well.

Of course, it is a far different thing to say what a legislature should do than to say what it does do, or even what it is prone to do. The former, normative claim seems rather unobjectionable, as far as it goes. (After all, no one supports judicial review because of fears about what legislatures should do.) But to evaluate the plausibility of the latter, descriptive claims, understanding the Authors' use of "the central case" is crucial. The Authors plainly admit that many real-world examples illustrate the failure of particular actual legislatures to live up to these ideals; however, they "deny that such legislation was or is a central case of legislative action." (47) The Authors do not cite any empirical studies documenting the frequency of occurrences of the "central case" and do not claim it occurs in even a majority of the cases of legislative action--in fact, they disclaim any assertion that the central case "is normal or usual in the sense of empirically regular or statistically likely." (48) Rather, the "central case" is the Authors' ideal for legislative action which they also believe is possible in the real world. As a descriptive matter, they are merely trying to persuade readers that the central case is possible--that real legislatures are capable of acting in this way. (49) And when it comes to courts, they want the reader to understand that courts make plenty of mistakes, and therefore, assigning courts the primary responsibility for defining and protecting human rights has a number of underappreciated costs--costs which might well outweigh any costs associated with assigning the legislature this role. (50)

B. Harmony and Dissonance with Early American Conceptions

As should be evident by now, the Authors do not adopt a particularly American point of view regarding these issues. Yet, many of their claims seem accurate and important, even viewed through the lens of traditional American assumptions. On the other hand, a few of their claims stand in stark contrast to American operating assumptions. Highlighting the areas of harmony and dissonance will help to focus the remainder of the discussion in this Essay.

First, the Authors' analysis of the nature of rights seems particularly useful, even from an American point of view. It seems important and correct to stress, as the Authors do, that legal rights are meaningless unless corresponding duties are specified in law; (51) for example, enacting "the right to life" into positive fundamental law does not tell us what duties are owed to the right-holder, and by whom, which are details we must know in order to enforce a legal "right to life" and make it a lived reality. (52) Does the "right to life" entail a duty of the government merely to abstain from murder, or also to provide food and lifesaving medical care? Does it entail a duty of other, nongovernmental actors to provide these things to those at risk of dying? Which nongovernmental actors, and under what circumstances? Whoever defines the scope of the right must specify attendant duties, or risk making the right unenforceable and meaningless at its inception. At whatever point these duties are specified with requisite particularity, that is when the duties will become real for legal purposes, and potentially enforceable. The Authors are correct to draw attention to this.

Other points of agreement might be found in the specification of certain legislative competencies. For example, if "human rights" is defined broadly to include positive rights to demand things like government-provided healthcare and housing, or privately provided services or jobs, the scope of the right (and the government's corresponding duties to provide resources or enforcement venues) are issues probably better left to the legislature than to courts, for many of the reasons the Authors state. (53) (In fact, in the United States, with few exceptions, we have not declared such rights in our constitutions--especially not in our federal Constitution--and have largely left the creation and definition of such rights to legislative bodies.) A similar intuition would hold for fundamental rights of a procedural sort guaranteeing only that "binding law" or "the law of the land" will be followed, or that action will be taken only "according to law"; (54) it is unsurprising and unobjectionable that legislatures likely will, as a matter of course, have the primary role in defining the practical scope of that sort of right, as they write or amend the body of law that comprises "the law of the land."

Moreover, it seems absolutely correct that legislatures should and do have a role to play in interpreting fundamental rights in the course of their own activities; in other words, legislatures can, and sometimes do, take into account legal rights as they decide which laws to pass, sometimes even limiting themselves by refusing to pass a measure on the ground that it would violate a fundamental or constitutional right. (55) This sort of interpretation is a job not just for courts, but for every governmental institution as it carries out its legitimate functions.

But aside from these less contestable claims, what remains of the Authors' thesis? What remains would seem to be the most controversial part: the suggestion that judicial review is either overused or altogether unnecessary, because legislatures can define the proper scope of rights better than courts can, even as to those negative fundamental rights intended to limit legislatures themselves. (56) It is this portion of the Authors' thesis that I wish to address in the remainder of this Essay, by contrasting it with the views of the American Founders.

Although this argument is not really new--James Bradley Thayer argued as early as 1893 in an influential article for the primacy of the legislature over the judiciary in American constitutional interpretation (57)--it is an argument largely antithetical to the assumptions and approach of the American Founders. (58) While a few of the American Founding generation--especially some Anti-federalists--would have agreed that unelected federal judges in particular posed a danger of grabbing legislative prerogatives and becoming too powerful, (59) the Authors' suggested solution would probably have surprised even these early critics. The Authors recommend entrusting the legislature with greater power to define the extent of constitutional rights and duties. Most of the American Founders would have been greatly puzzled by such claims, especially as related to rights that are intended to impose limits or duties on legislatures themselves--the very rights they would have regarded as most necessary to include in the fundamental positive law. Despite their occasional protests about excessive federal judicial power, even the Anti-federalists did not want to trust the new Congress with final authority to decide when it had and had not violated the written limits of the Constitution--especially the written limits enshrined in the Bill of Rights that the Anti-federalists had so warmly insisted on adding to the Constitution. The most prominent Federalists disagreed with the Anti-federalists on much else but agreed with them on this point: it was unthinkable that Congress would be given the power to decide authoritatively the meaning and limits of the rules by which it was constitutionally bound. (60) That would defeat the very purpose of the rules, rendering them a nullity. In short, that would be allowing the fox to guard the hen house.

Both theory and experience, but primarily experience, led the Founders to their conclusions about the role of judicial review and written constitutional rules in limiting legislative and executive institutions. Considering the Founders' experience and theory, in turn, will more precisely demonstrate points of disagreement between the Authors and the traditional American view, and perhaps present some challenges to the portion of the Authors' project that recommends enhancing legislative prerogatives over authoritative constitutional interpretation.

IV. EXPERIENCE AND THEORY INFLUENCING THE AMERICAN FOUNDING

A. Experience

The Founders were led to their conclusions not just by theory, but even more by experience with democratic legislatures. Considering their experiences, and the lessons they drew from them, sheds light on the American attitude toward judicial review and its crucial role in protecting fundamental rights.

Before the states became states, they were British colonies, and the colonial experience with legislatures--stretching well over a century--was formative in American political theory. Of course, the legislatures relevant to the colonial experience were Parliament and the colonial legislatures. Parliament made laws in the exercise of sovereign legislative authority; from 1700 onward, those laws were supreme in all the empire's dominions, the only exception being the limitation sometimes suggested by American colonists that even Acts of Parliament could be void if they were unconstitutional. (61) Yet, in legal theory and practice that were well established in England by this time, the monarch or Parliament might from time to time invest certain dependent bodies, including trading and colonizing companies, with limited lawmaking powers, provided always that the laws they made were not "repugnant to" or in conflict with the laws of England. (62) Such repugnancy limitations had been enforced by judicial authorities in England for centuries, even before the era of New World colonization, (63) so that "[b]y the time that English corporations began to settle North America, English law had developed a well-established practice of voiding corporate ordinances that were repugnant to the laws of the nation." (64) Not only this, but it was well settled that "[t]he granting authority could not authorize a bylaw or charter provision in violation of the limits" imposed by the more fundamental laws of the nation, even if the granting authority was the king himself. (65)

In colonial experience, this meant that although a popularly elected colonial legislature might have wide legislative powers within a given colony, the laws it passed were not allowed to conflict with British statutes and ordinances, common law, or the constitution, which were all deemed to emanate from a sovereign power superior to that of the colony. (66) Such limits on colonial legislative power were not left to be defined by the discretion and wisdom of the limited legislature itself, but were functionally interpreted and enforced primarily by English courts--notably the Privy Council sitting as a court of law (67)--so that "[t]o all colonial Americans, judicial control of this sort would have been entirely familiar; to the American colonial lawyer, it was second nature." (68)

As soon as the colonies declared their independence, they began to write and ratify constitutions that replaced their colonial charters. (69) Yet, the new written state constitutions, unlike the colonial charters, were obviously not thought to be inferior to higher law emanating from English authorities such as Parliament. Rather, the theory was that the people were now sovereign, and the written constitution of a state was an expression of their sovereign will enacted into fundamental law, which became the supreme positive law in the sovereign state. (70) In these constitutions, the people created, empowered, and organized the new government institutions under which they would live--and importantly, following the model of the British legal hierarchies, they also wrote explicit limits for those state government institutions, since it was assumed from experience that their government institutions must be authoritatively constrained. (71) In this way, the written colonial charters, which had not been supreme law, were replaced by written constitutions, which did constitute supreme law. And simultaneously the colonial legislatures, which had been subject to the written limits contained in the colonial charters (and the laws of Parliament), were replaced by state legislatures, which were subject to written limits contained in the new state constitutions that had replaced the charters. (72) By 1784, seven states had inserted additional written limits into their constitutions in the form of bills of rights. (73) And quite naturally, during the period from 1776-1789, all these limits on legislatures came to be enforced, as they always had been, judicially--no longer by English courts, but now by state court judges exercising powers of judicial review. (74)

A sizable body of scholarship now demonstrates how judicial review power came to be exercised and accepted, first in the new state courts and then in the new federal courts. Between 1776 and 1787, the state courts of at least seven different states exercised powers of judicial review to evaluate whether acts of state legislatures conformed to stipulations found in higher, fundamental law, declaring such legislation void if the court found it inconsistent with the fundamental law. (75) In notable cases such as Commonwealth v. Caton in Virginia, (76) Holmes & Ketcham v. Walton in New Jersey, (77) and the Ten-Pound Act Cases in New Hampshire, (78) among others, state courts exercised judicial review power by declaring state statutes to be inconsistent with the state constitution or other fundamental law and, therefore, legally void. The exercise of such power was thus well known in the states even before the Constitutional Convention of 1787, (79) so much so that Elbridge Gerry, speaking at that convention, appealed to common knowledge in remarking that "[i]n some States the Judges had (actually) set aside laws as being agst. the Constitution. This was done too with general approbation." (80)

This handful of cases, however, scarcely constrained the "then-current trend" of the arrogation of power to the state legislatures. (81) A large part of the problem appeared to be that holding office as a state judge often depended on either periodic popular election or periodic appointment by the legislature; additionally, legislatures were often given complete control over judicial salaries and fees, and some states even provided that judges held office at legislative pleasure. (82)

The results were weak judiciaries and domineering legislatures that could not seem to control themselves. (83) In the eyes of many well-informed observers, including James Madison, the state legislatures during this period had enacted a torrent of statutes that infringed individual liberties found in fundamental law. (84) In the words of one thorough study of the period,
It very soon became evident that theoretical limitations had as a
practical matter been displaced by the incompatible reality of
legislative supremacy. As a result, legislatures assumed the
prerogative of themselves judging whether or not they had strayed
beyond the bounds fixed in the constitution, but the occasions of open
admission that they had acted 'contrary to the spirit of the
constitution' were very rare indeed. In all the states the drift was
toward subversion of the original design of limited constitutional
government and its replacement by the unrestraint of English
parliamentary hegemony. (85)


Here, then, we have a sort of laboratory experiment where a number of democratic legislatures were employing the principles of legislative primacy for which the Authors of Legislated Rights seem to contend. The American Founders witnessed the experiment, and were not happy with the results.

The Authors of Legislated Rights respond, not with evidence about how most legislatures act, but with evidence that it is possible for legislatures to act well. They cite a few examples of legislative enactments protecting human rights (86) and then argue that however badly legislatures may perform from time to time, these are "aberration[s]" (87) or "pathologies," (88) and legislative aberrations should not be taken to be the central case. The central case is obviously normative, but the Authors treat it as descriptive (to an indeterminate extent) as well. Take, for example, the Authors' assurances that legislatures are not "inherently biased against minorities," (89) and that when making laws, "the legislature deliberates about what rights persons have prior to any legal specification and how best to instantiate and realise all rights in legal form" (90) using "moral reasoning informed and framed by empirical and technical reasoning," (91) thus "promoting the common good of the political community in all of its complexity." (92) Or, consider the Authors' glowing description of the process of lawmaking:
[T]he point of legislation is to change the law reasonably, which
requires the exercise of rational agency, and hence an agent. The
legislative assembly is an institution that is structured to exercise
such agency. In legislating well, legislators consider what should be
done, relying on a complex mix of moral, empirical, and technical
reasoning, and choose a course of action. Rights are central to good
legislative deliberation, being the ends for which the legislature acts
or bearing on the means it chooses to some other end. The well-formed
legislative assembly reproduces the community in a form fit to reason
and choose, such that legislation is intelligibly thought the choice of
the self-governing community. (93)


All this, of course, describes only the so-called central case of lawmaking; but as a descriptive matter, where does the central case occur in practice? Is it the norm, or the exception?

Such claims about what legislatures do would likely strike most of the Founders (many of whom had served in legislatures) as out of touch with reality; in fact, they might well wonder whether the Authors had ever seen a real legislature in action. The state legislatures known to the Founders had passed laws impairing debts and the obligation of contracts, (94) seizing private property, (95) inflating currency, (96) denying the right to trial by jury, (97) attainting named individuals, (98) and persecuting adherents of minority religious faiths, (99) among other enactments that the Founders deemed to be violations of fundamental rights. (100) The lesson they took from this experience is that even in a democracy, legislatures in particular needed to be subjected to written limits and external checks. In the words of James Madison in Federalist 48:
The legislative department is everywhere extending the sphere of its
activity and drawing all power into its impetuous vortex....[I]n a
representative republic where the executive magistracy is carefully
limited... it is against the enterprising ambition of [the legislative
assembly] that the people ought to indulge all their jealousy and
exhaust all their precautions.... I have appealed to our own experience
for the truth of what 1 advance on this subject. Were it necessary to
verify this experience by particular proofs, they might be multiplied
without end. I might collect vouchers in abundance from the records and
archives of every State in the Union. (101)


Thus, the actual practices of early state legislatures served to reaffirm the need for judicially enforced limits, at least in the minds of many prominent statesmen of the period. Even in a democracy, legislatures were prone to overreach. James Iredell, an influential early apologist for the new federal Constitution, is representative of the skeptical mindset that prevailed among the Founders. Iredell tried to rein in the state legislature in his home state of North Carolina by appealing to the legal principle that "the power of the [legislative] Assembly is limited and defined by the [state] constitution," (102) and wistfully lauded the "Republic where the Law is superior to any or all the Individuals, and the Constitution is superior even to the Legislature, and of which the Judges are the guardians and protectors." (103)

But if this was the ideal, state judges had not been entirely successful in their assigned task. Madison claimed that "[t]he short period of independency has fdled as many nages [of state statute books] as the century which preceded it," (104) and that more pressure for a new federal Constitution was created by the injustice and multiplicity of state statutes than by the weaknesses of the Articles of Confederation. (105)

While Madison believed that bills of rights contained in the state constitutions had been largely ineffectual when they were most needed, (106) he applauded the efforts of state judges when the judges attempted to enforce constitutional limitations on the imperious state legislatures; (107) and he supported the move to add a bill of rights to the new federal Constitution by noting that the more independent federal judiciary would have the power to enforce these provisions by declaring void any acts of Congress inconsistent with the stated rights. (108) To be sure, he thought other devices would be more effective than judicial review in controlling congressional abuses, chief among these devices being the diversity of factional interests that would be found in a large and diverse republic. (109) But he still embraced judicial review as a useful ancillary precaution. And he was not alone. The actual experiences of the leading American Founders with popularly elected legislatures and dependent judiciaries had convinced them of the danger that unchecked legislatures would swiftly acquire inordinate powers, dominate the other branches of government, and enact a multiplicity of laws violating private rights.

In sum, the experiences of the colonies and states seem to have led leading statesmen of the Founding era to adopt two widely shared assumptions: (1) that written constitutions, emanating from the sovereign people, formed a fundamental positive law that both empowered and limited all governmental institutions, including legislatures; and (2) that these limits would and should be imposed, inter alia, by judges exercising powers of judicial review as they resolved concrete cases or controversies.

Those who attended the Constitutional Convention at Philadelphia in 1787 certainly seemed to agree that they were drafting a Constitution that was intended to limit all the institutions of the new central government, including Congress, and that these written limits would be imposed by federal judges exercising powers of judicial review. There was no thought that Congress needed no written limits. Just as surely, there was no thought that Congress should be allowed unilaterally to amend or define the scope of the written limits. Those limits were to be a matter of supreme positive law, and the supreme law would (as in the colonial era) be authoritatively interpreted and applied to affected parties by judges. Each institution or branch of government would surely interpret constitutional limitations as it went about its business, but no one expressed the view that the legislature should be granted an authoritative interpretive power over those limits, or the "primary" role in defining those limits. There was certainly no assertion, for example, that the legislature could be trusted to evaluate competing claims of rights and then authoritatively define the reach of (for example) the constitutional prohibitions against ex post facto laws or bills of attainder. (110)

Instead, fully ten delegates during the Convention made remarks asserting that the federal judges would have judicial review powers (two other delegates questioned that proposition during the Convention, but later assumed, during the ratification debates, that judicial review was a feature of the new system). (111) Further, every delegate who spoke about judicial review after the Convention, as well as everyone else who discussed judicial review in the ratification debates--Federalist and Anti-Federalist alike--agreed that judicial review was part of the federal system (although some disagreed as to whether that was a good thing). (112) As Alexander Hamilton had argued in Federalist 78, independent federal judges, appointed for life, would be entrusted with making sure Congress, in particular, stayed within the limits set forth in the Constitution. (113) St. George Tucker, an eminent judge and law professor in Virginia, who has been termed "arguably the most important American legal scholar of the first half of the nineteenth century," (114) probably summed up the prevailing legal understanding when he wrote about the federal courts in 1803:
And herein consists one of the great excellencies of our constitution:
that no individual can be oppressed whilst this [judicial] branch of
the government remains independent, and uncorrupted; it being a
necessary check upon the encroachments, or usurpations of power, by
either of the other. Thus, if the legislature should pass a law
dangerous to the liberties of the people, the judiciary are bound to
pronounce... whether such a law be permitted by the constitution....
The judiciary, therefore, is that department of the government to whom
the protection of the rights of the individual is by the constitution
especially confided, interposing it's [sic] shield between him and the
sword of usurped authority, the darts of oppression, and the shafts of
faction and violence. (115)


Hard experience, more than anything else, led the Founders to embrace a system in which "the judiciary... is that department of the government to whom the protection of the rights of the individual is... especially confided." This sort of system, of course, would seem to be the polar opposite of the one for which the Authors of Legislated Rights contend, where "legislatures have the central and strategic role in realising human rights," (116)--even constitutional rights--and where the system abandons the notion that "only a judicially enforced bill of rights will secure a commitment to rights." (117)

B. Theory

Alhough the American Founders' views were largely driven by experience, the supporting theory was certainly not absent. Several leading Founding era theorists believed they could explain very well why legislatures were prone to disregard rights, and why the judiciary and not the legislature should be given primary responsibility for deciding when the legislature had overstepped its constitutional limits. (118)

1. Negative Rights and American Constitutionalism

At the outset of this discussion of theory, it is important to reiterate that most of the rights found in the original Constitution and Bill of Rights in the United States are negative rights--that is, rights imposing governmental duties of inaction. This accords well with Enlightenment theory, which greatly informed the American Founding, but stands in stark contrast to the theories animating many of the human rights protected in fundamental law around the world, and listed in various human rights declarations.

Declarations such as "[e]veryone has the right to life" (119) or "no one shall be... subjected to arbitrary interference with his privacy" (120) do not specify, even implicitly, who is bound in what ways, and may be interpreted as binding even nongovernmental actors in various ways, as the Authors rightly note. But such declarations are mostly absent from the U.S. Constitution, which greatly prefers formulations specifying (implicitly or explicitly) that only governmental actors (some or all) are bound, and that they are bound to refrain from acting. (121)

This points to a related difference: Rights specified in the U.S. Constitution, unlike many rights specified elsewhere around the world, have much more to do with a relatively narrow field of judgments about the proper purposes and limits of government than the broad field of judgments about what each and every person needs for human flourishing, or about "the wellbeing and rights of all persons in community." (122) The significance of this difference is that, while legislatures (influenced by broad judgments about human nature and ethics and justice and morality) might be essential for judging what each and every person needs for wellbeing in community, legislatures are presumably less necessary for deciding what the sovereign people require of their legislature by banning the legislature from passing (for example) laws abridging the freedom of speech. It is not obvious that deciding the reach of that positive law limit ought to involve considerations of what every person needs for wellbeing in community, particularly if one is committed to the idea of a Constitution whose meaning does not change over time. Perhaps even the people themselves, in writing and ratifying their Constitution, did not aim so high as to specify what every person needs for wellbeing in community, but instead merely intended to specify what they thought necessary for good government. If so, and if "freedom of speech" can be understood as a fixed legal concept enshrined in fundamental law at a particular time in the past, then perhaps judges and not lawmakers are best suited to declare the boundaries of the concept. As Alexander Hamilton, (123) John Marshall, (124) and other American Founders conceived of things, decisions about the reach and meaning of existing written positive law limits on government were matters of legal interpretation. Such decisions required, not a (legislative) knowledge of what every person currently needs, but a (judicial) knowledge of what the sovereign people declared once upon a time in their supreme law.

2. Judicial and Legislative Competencies

The Authors respond to this by claiming that this sort of argument "takes for granted that the relevant constitutional law [is] rule-like and fit for ready enforcement. If constitutional rights were closely specified propositions, clearly ruling out certain courses of action, then the courts would be well placed to apply such propositions to legislation" because "[t]his application would call for no legislative reasoning on the part of the court"; but when constitutional rights are written in somewhat vague terms (as they usually are), the practice of judicial review will "simply... introduce arbitrary judicial power and frustrate the legislature acting for the common good." (125) In fact, the Authors go on to complain that since "judicial review is not a predominantly technical exercise--like proofreading," the result has been that "human rights litigation is increasingly a second forum for lawmaking (or law-unmaking) proposals that have failed a legislative vote...." (126) In other words, because the judges are not just proofreading as they interpret the Constitution, they are really making and un-making laws however they wish, which, of course, is illegitimate for anyone except legislatures.

What the Authors have done here is to define "legislative reasoning" and "law-making" so broadly that they leave no room for judges to do much of anything. Judges are allowed to be glorified proofreaders, perhaps, but not much else; this is apparently the extent of the legitimate judicial function as they see it. The Authors elsewhere caution that "[t]he legislature should be an agent, not a machine"; (127) but one might respond that the same is true of courts. In the Authors' view, properly functioning judges would seem to be little more than machines, applying laws that are so concrete and clear that there is no need for discretion or interpretation. One wonders what sort of "judgment" the Authors think judges are competent to exercise. Are judges even competent to interpret and apply statutes that declare rights? (Statutes are often vague.) Are they competent to interpret and apply statutes, but not the Constitution? Are they competent to interpret and apply all positive laws, as long as their application extends no further than the particular named litigants in the case before them? The competency required for each of these tasks (correctly interpreting the relevant vague preexisting law) seems exactly the same, whether the legal right is found in a statute or the Constitution, and whether the decision applies to the named parties alone or to everyone in the country. A judge surely uses no less legislative (or moral) reasoning in deciding the meaning of statutory texts like "person" (128) or "discriminate against any individual... because of such individual's... sex" (129) than in deciding the meaning of constitutional terms like "freedom of speech," (130) and this is so no matter how many or few people are bound by the decision. Denying judges this sort of reasoning is to deny the power of judging altogether.

In American theory, it has always been the accepted responsibility of American judges to interpret positive laws and apply them to concrete people and disputes, even when the positive law is in some respects vague. If the process of interpreting vague positive law involves skills and expertise that are essentially legal and technical, it would seem judges are especially suited to that task, whether that positive law is found in a statute, an ordinance, an administrative regulation, or a written constitution. And this, indeed, was the view of the leading advocates of the Constitution. Federal judges would not be granted the task of "making" law, but would be granted the important and discretion-laden task of "expounding" law, a distinction Caleb Strong noted in the Constitutional Convention of 1787. (131)

This view was elaborated by Alexander Hamilton in Federalist 78:
The interpretation of the laws is the proper and peculiar province of
the courts. A constitution is, in fact, and must be regarded by the
judges as, a fundamental law. It therefore belongs to them to ascertain
its meaning as well as the meaning of any particular act proceeding
from the legislative body. If there should happen to be an
irreconcilable variance between the two, that which has the superior
obligation and validity ought, of course, to be preferred....
[A]ccordingly, whenever a particular statute contravenes the
Constitution, it will be the duty of the judicial tribunals to adhere
to the latter and disregard the former.
It can be of no weight to say that the courts, on the pretense of a
repugnancy, may substitute their own pleasure to the constitutional
intentions of the legislature. This might as well happen in the case of
two contradictory statutes; or it might as well happen in every
adjudication upon any single statute.... This observation, if it
proved anything, would prove that there ought to be no judges distinct
from that body. (132)


Hamilton's response seems just as valid today as when it was written. Judges interpret vague laws and apply them to concrete, real-world disputes. Judges need not, and cannot, wait until the positive law (whatever its source) is sufficiently detailed in "closely specified propositions, clearly ruling out certain [or enough] courses of action." (133) Judges must resolve disputes today, applying the admittedly vague positive law as best they can, before it gets clarified by a legislature or other authoritative source. This interpretive process requires judicial skill, not legislative skill; it requires judicial reasoning, not "legislative reasoning." In short, this process is law interpretation (or law "expounding"), not law making. Admittedly, there is a difference. But if the Authors are right about the location of the line between the two, it becomes very unclear what "law interpretation" is, other than something that could be done by a machine. Any meaningful role for judges, exercising judgment, seems to be squeezed out.

Conversely, however, recognizing a sufficient space for the reasoned judgment of judges in the process of interpreting vague laws does not squeeze out the role of the legislature. Even if courts exercise strong judicial review powers and significant discretion in interpreting vague laws, legislatures are still competent to write new laws that promote the common good in any number of ways; legislatures are still competent to amend or revoke a statute when they believe the courts misinterpreted it, supplying sufficient detail to render the former interpretation impossible; Congress is still competent to write laws reorganizing or dismantling the federal courts, restricting their jurisdiction, or denying them appellate jurisdiction, if Congress wants to limit their powers; Congress is still competent to impeach and remove individual federal judges from office in cases involving "High Crimes and Misdemeanors"; (134) and Congress is still competent to write and propose amendments to the Constitution in sufficient detail to render impossible an earlier judicial interpretation of constitutional text, and to bypass the courts throughout the amendment process until ratification by the states is complete. One need not deny most of the checks inherent in the legislative function (and Hamilton certainly did not) in order to push back on the Authors' cramped conception of judicial function and reserve a real interpretive role, and a meaningful check on the legislature, for the judiciary.

Hamilton argued the natural suitability of judges as opposed to legislators for the admittedly discretion-laden task of legal interpretation. Yet, their discretion was not to be what he called an "arbitrary discretion." Here is how he described the expertise necessary for judges as opposed to legislators:
[A] voluminous code of laws is one of the inconveniences necessarily
connected with the advantages of a free government. To avoid an
arbitrary discretion in the courts, it is indispensable that they
should be bound down by strict rules and precedents which serve to
define and point out their duty in every particular case that comes
before them; and it will readily be conceived... that the records of
those precedents must unavoidably swell to a very considerable bulk and
must demand long and laborious study to acquire a competent knowledge
of them. Hence it is that there can be but few men in the society who
will have sufficient skill in the laws to qualify them for the stations
of judges. (135)


Thus, "skill in the laws," as defined here, is the requisite technical expertise for judges, but not legislators. Consider how this works in practice. Judges, unlike legislators, must be trained extensively in order to master both a body of knowledge (the codes and precedents) and a set of reasoning skills. Because neither the "strict rules" of the code books nor the "precedents" of the courts will be sufficiently detailed for everyone to agree how they apply to most new cases that progress to litigation, chief among the skills a judge must master will be reasoning by analogy--finding a fit between earlier precedents and general rules, on the one hand, and the current case in all its detail, on the other. This sort of skill, which is the everyday work of judges, constitutes the heart of legal interpretation and application. In Hamilton's view, training in these skills and areas of knowledge made judges most suited for the role of interpreting and applying all law, including the fundamental law, to all those bound by it, including legislatures.

Nor did any legislative competencies suggest that the legislature should have some sort of final say on the scope of fundamental law in individual cases of alleged judicial malfeasance. Hamilton alluded to the disparity in legislative and judicial competencies when he rejected the suggestion that a legislature should have authority to veto judicial interpretations of fundamental law:
And there is still a greater absurdity in subjecting the decisions of
men, selected for their knowledge of the laws, acquired by long and
laborious study, to the revision and control of men who, for want of
the same advantage, cannot but be deficient in that knowledge. The
members of the legislature will rarely be chosen with a view to those
qualifications which fit men for the stations of judges; and as, on
this account, there will be great reason to apprehend all the ill
consequences of defective information, so, on account of the natural
propensity of such bodies to party divisions, there will be no less
reason to fear that the pestilential breath of faction may poison the
fountains of justice. The habit of being continually marshaled on
opposite sides will be too apt to stifle the voice both of law and of
equity. (136)


Hamilton's understanding was that, while legislative competencies fitted the legislature for law making, they did not fit the legislature for the task of interpreting or expounding any preexisting law, including fundamental law. These were tasks for the judiciary, and judicial competencies equipped it well for these discretion-laden tasks.

3. Institutional Checks and Legislative Conflicts of Interest

But apart from particular judicial competencies, the Founders theorized that there was inherent value in placing a check on the legislature, to be applied by an institution external to and independent of the legislature. In American Founding era theory, which assumed that governing officials would be unangelic from time to time, the external check inherent in judicial review was necessitated by the very idea of constitutionalism. If written constitutional rules were to have any real bite, they must be interpreted and applied by someone other than the official to be bitten. The fox could not be allowed to guard the hen house himself.

At its simplest level, this insight relates to conflicts of interest. Foxes who guard hen houses have obvious conflicts of interest. The Founders took this to be equally true of any legislature interpreting constitutional provisions that were intended to bind the legislature. As Hamilton noted:
From a body which had had even a partial agency in passing bad laws we
could rarely expect a disposition to temper and moderate them in the
application. The same spirit which had operated in making them would be
too apt to operate in interpreting them; still less could it be
expected that men who had infringed the Constitution in the character
of legislators would be disposed to repair the breach in the character
of judges. (137)


For legislatures filled with ambitious officials striving for power (as the Founders assumed all government institutions were), the conflict of interest in cases that pit the legislature's own statutes against the Constitution is obvious. But a conflict of interest is not so obvious when a court is exercising judicial review power, unless the court is interpreting some legal provision intended to bind courts. Even if we assume judicial mistakes, when judges are evaluating an alleged conflict between a statute that does not bind courts and a constitutional provision that does not bind courts, judges are not obviously self-interested in the result, and their mistake may be just as likely to undervalue the challenger's rights claim against the statute (thus repeating what must have been an earlier error by the legislature) as to overvalue it. (138)

(This undervaluing becomes even more likely if we assume the existence of some published reasons or evidence persuasive enough to convince the legislature, however wrongly, that the statute was justifiable.) Not so with legislatures. If a legislature is given authority in a similar situation to decide whether the constitutional provision forbids the legislature's own statute, the legislature would seem to have a recurring and systematic incentive to undervalue the challenger's rights claim and narrow the scope of the constitutional right.

The Authors apparently think too many unconstrained judges exercise lawmaking powers; but the Founders, in light of their experiences with legislatures, thought the problem was exactly the opposite: too many unconstrained legislatures exercise judicial powers. This is the problem judicial review was designed to address, and it was at its heart a conflict of interest problem, in which the fox had been allowed to guard the hen house. Notice how Madison, in describing this problem, defines the overlap between legislative and judicial determinations:
No man is allowed to be a judge in his own cause, because his interest
would certainly bias his judgment, and, not improbably, corrupt his
integrity. With equal, nay with greater reason, a body of men are unfit
to be both judges and parties at the same time; yet what are many of
the most important acts of legislation but so many judicial
determinations, not indeed concerning the rights of single persons, but
concerning the rights of large bodies of citizens? And what are the
different classes of legislators but advocates and parties to the
causes which they determine? [And in such cases] the most powerful
faction must be expected to prevail.... [Many legislative]
questions... would be differently decided by [different] classes, and
probably by neither with a sole regard to justice and the public
good.... [A] predominant party [may thus] trample on the rules of
justice. Every shilling with which they overburden the inferior number
is a shilling saved to their own pockets. (139)


To the Authors, no doubt, this seems unduly pessimistic about the abilities of legislators to rise above faction and self-interest; the Authors insist that "the legislature is capable of principled, reasoned deliberation... to promote the common good, which [is]... the wellbeing and rights of all persons in community." (140) To Madison and most of the Founders, however, this sort of insistence by the Authors would have seemed unduly optimistic. In the words of Madison: "It is vain to say that enlightened statesmen will be able to adjust these clashing interests and render them all subservient to the public good. Enlightened statesmen will not always be at the helm." (141) Similarly, in the words of Hamilton, there is great reason to fear that, "on account of the natural propensity of [legislatures] to party divisions,... the pestilential breath of faction may poison the fountains of justice" and "stifle the voice both of law and of equity" when the fundamental rights of a minority are at stake. (142)

The Authors again reply that this sort of argument "begs the question by presuming that legislators acting jointly do not... attend to the values that constitutional law affirms." (143) A first response might be that in advocating a reduced role for judges, the Authors seem to have equally assumed that judges "do not... attend to the values that constitutional law affirms," while for some reason refusing to assume the same about legislatures. But more to the present point, placing an external check on the legislature (or any other branch) does not assume that the checked branch never respects constitutional values and limits, or that it never considers these as it writes laws. Likewise, the perceived need for a check does not depend on any assumption that the checking branch is infallible. The placement of a check merely assumes that the checked branch will respect constitutional values and limits more faithfully in practice if it is subject to an external independent check than if it is not. There would seem to be good reasons to assume this, including the common intuition that people follow rules more closely when they are sometimes accountable to someone else for their rule-following.

Aside from the Authors' lack of empirical data to disprove these theoretical claims and prove their own (such as historical data comparing the operation of legislatures without judicial checks to those with judicial checks), the Authors also seem to lack a satisfying theoretical answer. Why, in theory, would we expect a legislature that is not subject to an independent external check to abide by constitutional limits just as much, or more, than a legislature that is subject to such a check? The description of the "central case" of legislative activity does not answer that question, because, at most, the central case tells us only what is sometimes possible for a legislature. It does not posit anything about the effect of external checks on legislatures acting outside the central case, much less about how often legislatures act either within the central case or outside it. Why, in theory, would we expect a legislature subjected to an external check to conform to constitutional limits no more faithfully than a legislature that is not subject to such a check?

In fact, the Founders' primary argument in favor of judicial review was that it creates a check on the legislature, administered by someone who is external and independent. Admittedly, courts will make mistakes in this role, but the fact that courts sometimes err in their checking function is not a sufficient reason to reject the check altogether. As Hamilton said, a court may make mistakes in interpreting any sort of law, and the fact that a court may make mistakes is no reason to deny it the power to interpret laws altogether. (144) Nor is the risk of a legislature's mistakes a reason to deny the legislature all lawmaking power. Any checking institution may make mistakes. Executives may erroneously veto wise legislation; Congress may erroneously impeach and remove a good executive; the Senate may erroneously refuse to ratify a permissible treaty, or erroneously deny consent to a permissible appointment to executive office. For that matter, the people may erroneously vote for a corrupt candidate. But we do not usually think of these risks as suggesting that the check is not necessary at all, or that it does more harm than good.

Moreover, there is surely some American experience suggesting that the Supreme Court's checking function, voiding statutes when they are deemed inconsistent with fundamental law, has been valuable. Whatever the source of the Court's definition of fundamental law--natural law, common law, interpretation of the text or original meaning of the Constitution, conceptions of justice, autonomy, equality, and fundamental fairness, or understandings of our own legal traditions involving ordered liberty--it has probably been valuable to allow some institution like this, independent of and external to the legislature, to check at least the most extreme legislative excesses.

This point is made abundantly clear by our own history. Legislatures in the United States have approved a host of egregious laws whose harms were only halted when they were voided by the Court. These include, among many others, laws requiring forcible human sterilization, (145) laws forbidding nonwhites from serving on juries, (146) laws requiring all children to attend state-operated schools, (147) laws forbidding the teaching of any foreign language, (148) laws forbidding interracial marriage, (149) laws suspending the right to jury trials in capital cases where U.S. citizens were captured and held by the military in peaceful U.S. territory; (150) and laws requiring children to pledge allegiance to the United States against their will and the convictions of their families. (151) Brown v. Board of Education, (152) invalidating laws mandating racial segregation in public schools, was just the tip of the iceberg when it comes to egregious legislative enactments from American history. Every one of the above laws was voided by the U.S. Supreme Court, but only because the Court interpreted fundamental constitutional law in ways that were hotly contested at the time. Should the courts have stayed out and allowed "democracy" to have its way? It was only the Court that protected human rights against the abuses of the democratic legislatures in each of these cases--abuses that I think are universally (or very nearly so) acknowledged by Americans today to have been abuses.

The Authors point out that abuses and failures by courts must be considered as well; but many of these failures (as in the Plessy (153) and Korematsu (154) cases to which the Authors allude) (155) simply upheld earlier abuses by the legislature. Thus, those examples cannot count as reasons to shift protective power from courts to legislatures. The only examples of judicial failure that can count in this regard would have to be cases in which the courts voided legislative enactments that are universally recognized today as having actually protected human rights, and also as having been within the legislature's constitutional power to enact. (156) Dred Scott v. Sandford (157) may well be an example here, but other examples from the Supreme Court's precedents seem to be quite rare. (158) Whatever the number of such cases, it would seem to pale in comparison to the number of undoubted judicial success stories--that is, cases in which the Court has voided a law that is universally acknowledged today to have infringed human rights. So how much harm is judicial review demonstrably causing? The undoubted human rights violations of legislatures--even if we only count the ones the Supreme Court has corrected--would seem to far outnumber the undoubted human rights violations of the Supreme Court in which the relevant legislature was not involved as a complicit antecedent violator.

It is instructive that Hamilton, in the classic statement of American political theory about the need for independent judicial review, alludes to the legislature specifically as the branch most in need of a check by an independent judiciary. Although the legislature was the closest institution to the people, inasmuch as its members were directly elected (at least in the lower house), a check on the people's representatives was still essential. In fact, in Hamilton's view, this check actually protected democracy, by assuring compliance with the will of the people as expressed in the higher law of the Constitution:
The complete independence of the courts of justice is peculiarly
essential in a limited Constitution. By a limited Constitution, I
understand one which contains certain specified exceptions to the
legislative authority; such, for instance, as that it shall pass no
bills of attainder, no ex post facto laws, and the like. Limitations of
this kind can be preserved in practice no other way than through the
medium of courts of justice, whose duty it must be to declare all acts
contrary to the manifest tenor of the Constitution void. Without this,
all the reservations of particular rights or privileges would amount to
nothing.
Nor does this conclusion by any means suppose a superiority of the
judicial to the legislative power. It only supposes that the power of
the people is superior to both, and that where the will of the
legislature, declared in its statutes, stands in opposition to that of
the people, declared in the Constitution, the judges ought to be
governed by the latter rather than the former. They ought to regulate
their decisions by the fundamental laws rather than by those which are
not fundamental. (159)


4. Objections to Systems and Objections to Interpretations

Hamilton's description of the logical necessity of subordinating statutes to the Constitution raises a question whether critics of judicial review power are really criticizing not the existence of judicial review power, but particular uses of it. Surely there can be no objection when the judiciary, in a case properly before it, does what Hamilton suggests and gives priority to the Constitution above a statute when the two are in obvious conflict. (What else should the court do?) Therefore, the objection must arise only when the two are not in obvious conflict. The objection will be, not that the court resolved an obvious conflict in favor of the Constitution, but that the court identified an obvious conflict when, in reality, one did not exist, thereby allowing the court to void a law that was really permissible.

But of course, constitutional challenges to a statute almost always involve a live dispute about that very question: whether an obvious conflict with constitutional law exists. That question cannot be answered without constitutional interpretation. Thus, the critic's determination that there was really no obvious conflict is itself an exercise requiring constitutional interpretation, in which the critic is deeply engaged. The objection to judicial review power may therefore be, at its heart, not so much an objection to judicial power as such, but an objection to some of the court's interpretations of the Constitution in particular cases--an objection which itself almost always employs a contestable constitutional interpretation.

Some of the Authors' objections to judicial power seem to be of this sort. The Authors imply that judges should decide constitutional questions only when the constitutional text is "rule-like and fit for ready enforcement" in "closely specified propositions." (160) But this is, perhaps, just to say that the Authors want judges to interpret the Constitution the way they would, finding obvious conflict where they would, and avoiding decisions in constitutional cases where they think the constitutional text is insufficiently "rule-like and fit for ready enforcement." The Authors complain that "human rights litigation is increasingly a second forum for law-making (or law-unmaking) proposals that have failed a legislative vote," (161) and "failed for reasons that have nothing to do with contempt or disregard for any person or group." (162) But one wonders how such claims could be objectively proved. Claims like this seem to be just another way of saying that the Authors believe the contested legislation in some particular cases was permissible and enacted with proper regard for all interests concerned--surely contestable propositions for most statutes facing constitutional challenge in the U.S. Supreme Court--and also that the judiciary in those particular cases voided the legislation by interpreting the Constitution in a way the Authors believe to be erroneous (an evaluation that will likewise depend on contested constitutional interpretations).

Understood this way, perhaps the critics (and the Authors) do not really think judges always lack the competency to interpret fundamental law and bind that interpretation on others; rather, the disagreement is with some of the courts' particular interpretations. Sometimes, presumably, even the critics think fundamental law is relatively clear. In cases where the critics see obvious conflict between fundamental law and a statute, they think the judges are acting legitimately to pronounce the statute void; but in cases where they do not see obvious conflict, due to their own particular interpretation of the fundamental law, they are outraged when the judges decide the case and declare a statute void--they think the judges are now no longer interpreting law at all, but "making it."

And sure enough, "obvious conflict" between a statute and the Constitution seems to be very much in the eye of the beholder. So it is that most of those on the Left who criticize the Supreme Court for asserting "judicial supremacy" do not seem too upset by cases like Ohergefell v. Hodges (163) or Roe v. Wade; (164) while most of those on the Right who criticize the Court for assertions of "judicial supremacy" cite Roe and Ohergefell (and of course Dred Scott) (165) as their primary exhibits, but do not seem too upset by exercises of judicial power in cases like Citizens United v. FEC, (166) Trinity Lutheran Church of Columbia, Inc. v. Comer, (167) United States v. Lopez,, (168) or Masterpiece Cakeshop v. Colorado Civil Rights Commission. (169) And neither side seems to express much disagreement, these days, with the raw exercises of judicial power in Brown v. Board of Education (170) and Loving v. Virginia. (171) (The Authors themselves do not seem too upset by Brown; they just believe it did not accomplish much.) (172) So maybe the critics are not really worried about judicial power as such; they are just worried that their particular understanding of preexisting fundamental law or the will of the people will not control the judiciary. And critics on both sides of the political aisle are probably right to anticipate such possibilities, although an objective observer might well believe judicial independence in this regard is a positive rather than a negative feature of the system.

The American Founders were aware of such criticisms, but they suspected the cure (attempting somehow to strip the judges of power) would be worse than the disease. Hamilton, noting some critics' desire to have federal judges removable for "inability," responded this way:
[A]ll considerate men will be sensible that such a provision would
either not be practiced upon or would be more liable to abuse than
calculated to answer any good purpose.... An attempt to fix the
boundary between the regions of [judicial] ability and inability would
much oftener give scope to personal and party attachments and enmities
than advance the interests of justice or the public good. (173)


As just noted, today's critics' disagreements with particular judicial approaches and interpretations do indeed seem closely correlated to "personal and party attachments and enmities." The critics are fond of claiming that judges in particular cases were driven by bias rather than an objective interpretation of the "real" Constitution; but as Hamilton recognized, claims of judicial incompetence and bias are often themselves subjective and biased, grounded as they are in contestable claims about the "true meaning" of the Constitution. Or to say it another way: the particular abuses of judicial power identified by the critics are not likely to be widely agreed, on objective grounds, to be abuses of power (or, if one prefers, violations of human rights); the claims of "abuse" or "rights violation" often boil down to nothing more than partisan disputes about which legislation is wise and how to interpret the Constitution. And although such disputes were predictable, Hamilton thought partisan disputes with judges about particular legal interpretations were not good grounds for stripping judges of power, either individually or collectively.

5. The "Least Dangerous " Branch

In fact, Hamilton claimed there were good reasons to assign review power to the judiciary, even if it made mistakes from time to time in interpreting the fundamental law. Hamilton acknowledged that judges would make mistakes. But unlike today's critics of so-called "judicial tyranny," Hamilton argued that this state of affairs was not to be greatly feared and would not result in real tyranny because the judicial branch would not realistically be able to overwhelm the other branches:
[I]n a government in which [the departments] are separated from each
other, the judiciary, from the nature of its functions, will always be
the least dangerous to the political rights of the Constitution;
because it will be least in a capacity to annoy or injure them. The
executive not only dispenses the honors but holds the sword of the
community. The legislature not only commands the purse but prescribes
the rules by which the duties and rights of every citizen are to be
regulated. The judiciary, on the contrary, has no influence over either
the sword or the purse; no direction either of the strength or of the
wealth of the society, and can take no active resolution whatever.
It... [has] merely judgment; and must ultimately depend on the aid of
the executive arm even for the efficacy of its judgments.
... [T]he judiciary is [thus] beyond comparison the weakest of the
three departments of power;... [and] though individual oppression may
now and then proceed from the courts of justice, the general liberty of
the people can never be endangered from that quarter; I mean so long as
the judiciary remains truly distinct from both the legislature and the
executive.... [A]s liberty can have nothing to fear from the judiciary
alone, [liberty] would have everything to fear from its union with
either of the other departments. (174)


These arguments are still well worth our attention. In Hamilton's view, even an out-of-control judiciary that "makes law" will be limited to deciding only the meaning and operation of existing law, and only when concrete disputes come before it. It, therefore, does not present the same level of danger to human rights as an out-of-control legislature, which may range at will across all aspects of human life, making new rules on any subject whatsoever. Which of the two institutions, even if malfeasant (that is, acting outside the "central case"), presents the greater threat to "the general liberty of the people"? Hamilton believed the malfeasant legislature undoubtedly presented the greater threat, for reasons set forth in the passage above. The Authors seem to disagree, but they do not seem to develop a counter-theory that would explain why judiciaries (even those with judicial review power) are more powerful or influential than legislatures. Tellingly, for example, they do not discuss the myriad powers that are typically retained and exercised even by those legislatures checked by judicial review.

6. Summary

We have now examined some of the tensions between the Founders' theory and the Authors' theory. The Authors' theory seems to be that we have no good reason to assume legislatures cannot be trusted to protect fundamental rights, while we do have good reasons to assume that they have capacities that judges lack for accurately defining rights in terms of what everyone needs, and therefore we should trust legislatures more, assigning legislatures more power (and courts less) to authoritatively define fundamental rights. The theory adopted by the American Founders, by contrast, basically assumed no one in power could be extensively trusted--not legislatures, and not courts either. While some of the Founders' arguments were rooted in the particular competencies of judges, their theory also led them to expect occasional judicial malfeasance, because judges were not angels. Judicial review was therefore not premised on assumptions of judicial integrity or infallibility so much as on assumptions of everyone's selfish ambition. The Authors seem to recognize the very real danger of misbehavior and "law-making" by judges--perhaps even assuming it will happen regularly when judges are given power to define legal rights--but they resist the assumption that legislatures will similarly misbehave. The Founders, however, assumed that everyone would misbehave. The Authors fear that courts will misinterpret the Constitution for their own selfish, ambitious ends (or perhaps to "remake society" as they wish). The Founders, however, depended on this to some extent. As Madison said, "Ambition must be made to counteract ambition." (175) Whether a judge faithfully applies constitutional law or "makes" constitutional law may be largely in the eye of the beholder; but either way, the judge may still serve as a useful check on a legislature that otherwise would become too powerful.

V. THE CRUCIAL NEED FOR EMPIRICAL EVIDENCE

Much of the Authors' work seems designed to point out weaknesses in various widely held theories. In fact, on the whole, the Authors' arguments seem directed more toward theoretical claims than empirical claims. In particular, the Authors' reliance on the "central case" of legislative behavior seems designed, not to win the empirical argument about how legislatures actually behave, but to win the theory argument about how they might possibly behave (and, in particular, to debunk a miscellany of theory claims made by Ronald Dworkin). (176) The Authors think the conventional views about legislative inclinations and disabilities, and about judicial fitness as a protector of fundamental rights, is grounded in flawed theory, and their project is to demonstrate the flaws in the theory.

But in the United States at least, the drive to establish judicial review was never primarily based on theory; it was grounded primarily in observations of how actual legislatures behaved. Therefore, responses dedicated to demonstrating the flaws in certain theoretical assumptions, without accompanying empirical evidence, would never have persuaded the American Founders. The American mistrust of legislatures was born primarily of personal experience, perceived experience, and historical observation. Indeed, the American Founders were practical people trying to solve practical problems under time pressure, and their approach is largely reflected in the words of Patrick Henry: "I have but one lamp by which my feet are guided; and that is the lamp of experience. I know of no way of judging of the future but by the past." (177) To predict what democratic legislatures would do in the future, they looked to what democratic legislatures had done in the past. They thought they saw plenty of examples of legislative overreach, to the detriment of the people's rights, and this led them to institute practical but imperfect additional checks, such as written constitutional limits and an independent judiciary with judicial review power, to try to curb the worst legislative excesses.

We now have over two hundred years of additional experience with the institutional framework they created, as well as experience around the world with both checked and unchecked elected legislatures. What have been the results for human rights? For the American Founding generation, and perhaps for many others, this would be the key question to answer before adopting any proposed changes to the system.

It would be difficult to argue that the rights declared in the Constitution are less effectively protected in America today than they were at the time of ratification over two centuries ago. Human rights protections seem to have expanded both at home and around the world during that period of time, as did the mechanism of judicial review by independent judiciaries. At the same time, while written constitutional rights declarations have also proliferated worldwide, there is mounting evidence that the presence of such declarations by itself is not, and has not been, strongly correlated with human rights protections in practice. (178) To evaluate the Authors' proposed shift in institutional authority, we need to know which institutional arrangements positively affect human rights in practice. Yet the Authors admit that they do not offer any empirical statistics about that; and while they can elaborate a central case of good lawmaking, they have no evidence that "the central case [of legislative activity]... is normal or usual in the sense of empirically regular or statistically likely." (179) Without such evidence, skeptics will likely remain unconvinced that legislatures can be trusted in the absence of significant judicial enforcement of constitutional norms. And certainly, any move to alter current arrangements would seem to demand empirical evidence of this kind.

Admitting that they do not offer a scientific empirical study of legislative behavior, the Authors do present some isolated empirical evidence: they present several instances of failures by the United States Supreme Court to protect minority rights, and several instances of congressional successes in protecting minority rights, to remind us that we cannot assume legislatures will be less likely than courts to protect minority rights. So, for example, the Authors direct our attention to the federal Civil Rights legislation of the 1960s (180) to prove that rights-protecting legislation is possible, and they point to Dred Scott v. Sandford (181) to show that the Supreme Court sometimes fails to protect fundamental rights, including minority rights, and sometimes attacks such rights itself. (182)

One problem with such evidence is that the examples of legislative success in the United States come from a system with strong judicial review already in place. If judicial review is in fact effective in protecting fundamental rights, the reason may lie partly in the incentives it provides to the legislature on the front end, as the legislature writes laws. In some cases, the legislature may be dissuaded from writing a rights-infringing statute because the legislature knows the judiciary will void it. And in other cases, the legislature may act to protect rights only after the judiciary has already acted on behalf of an unpopular minority. The Civil Rights Acts of the 1960s were, after all, preceded by Brown, which arguably had at least some effect on public attitudes, providing cover for lawmakers and increasing the political feasibility of gathering a majority to support the civil rights statutes. Similarly, the federal Religious Freedom Restoration Act of 1993 (183) was (as the statutory text explicitly recognized) (184) preceded by Sherbert v. Verner (185) and Wisconsin v. Yoder, (186) cases in which the Supreme Court had already established the precedent of applying strict scrutiny to governmental actions burdening the religious exercise of unprotected minorities. Examples like these might be multiplied.

But the larger objection to the Authors' evidence is that it falls short of what is needed to support a change. We simply do not know how often legislative missteps occur relative to judicial missteps in our own system, nor do we know how well legislatures have protected human rights in systems that rely less on judiciaries for rights enforcement. Thus, we cannot know if a change would represent a move from the frying pan into the fire. If one wants to show that judicial review as currently practiced may be unnecessary, one will need more than theory; presumably, one ought to consider evidence from systems without judicial review, and compare their human rights record to the record of systems with judicial review. If one wants to show that legislatures should be granted more power in the authoritative declaration and interpretation of fundamental rights, one must consider how well such systems have protected human rights in practice. Perhaps scientific comparative studies are difficult to come by at present, (187) but something more is needed than the Authors are presenting. Isolated examples of abuses of judicial review power are not enough. Systems without judicial review seem to have performed no better, and perhaps a good deal worse, in protecting the most foundational human rights; for example, evidence of abuse arising in systems lacking independent courts and strong judicial review, such as the Soviet Union and its Eastern European satellite states, might be thought to create at least some presumption that such systems are not very effective in practice at protecting human rights. (188)

The Authors seem to suggest, however, that the lack of data itself calls for certain changes--changes in both assumptions and institutional authority. Without comparative data, they definitely want to change what they term the "axiomatic" assumption in "modern human rights discourse,... [that] only a judicially enforced bill of rights will secure a commitment to rights." (189) They are keen to disprove assertions, such as St. George Tucker's, that "the judiciary" should be "that department of the government to whom the protection of the rights of the individual is... especially confided." (190) Rather, they argue that the primary "department" protecting "the rights of the individual" should be the legislature. (191) They want to upend Tucker's metaphor that portrays the judiciary as "interposing [a] shield between [the individual] and the sword of usurped authority." (192) They dispute any notion that legislatures should not or cannot be trusted in protecting individual rights, or that courts can be relied on as the primary defenders of rights or expositors of fundamental law. "Too often," according to the Authors, "these theses are simply assumed or implied in human rights discourse, without analysis or defence," (193) in response to which the Authors offer their book, which "spells out these theses, criticises them, and proposes counter-theses to replace them" (194)--but without sufficient empirical data to either prove or disprove the theses and counter-theses.

The American Founders would not have thought their theses were "simply assumed... without analysis or defence." They analyzed legislative tendencies at great length in their writings, (195) and they defended their theses chiefly by reference to hard experiences with actual legislatures. The Authors, however, dismiss this experience evidence as being outside the "central case" of legislative activity. In this way, evidence of experiences with actual legislatures can be set aside by the Authors as irrelevant, thus requiring critics who might doubt their claims to prove a negative: that no legislature in the world ever acts, or has ever acted, as the "central case" describes. Such proof will obviously be impossible.

Of course, one response to this is to note that the same might be said of all the examples the Authors give of bad behavior by courts: these are simply outside the "central case" of judicial activity. One is then left with the following uncontroversial facts: sometimes legislatures misbehave when they make laws, sometimes courts misbehave when they use judicial review power, and yet both are still capable of using these respective powers correctly and reasonably, and sometimes do. The Authors presumably conclude from these inconclusive facts that judicial review cannot "necessarily" be justified. But these facts also fall short of justifying any particular change, including (as advocated by the Authors) in the direction of enhancing the authority of legislatures (and reducing the authority of courts) for defining the scope of fundamental rights. The Authors tell us to trust legislatures more than courts, but do not give us enough empirical evidence to show that this trust has been earned by real unchecked legislatures.

In fact, at some points the Authors seem to claim that since the evidence is so equivocal, they are not actually taking a position on judicial review. For example, after listing several theoretical reasons to think judges might err in various ways, the Authors ask:
Are these pathologies of judicial review worse than the risks of
governing a political community without the protections offered by
judicial review? That is not a question that can be answered in the
abstract, and nothing in what precedes suggests that the answer ought
to be one or another. (196)


And similarly, they admit that they "do not claim that there is an overall balance sheet of competing risks that can be drawn up so as conclusively to make the case for or against judicial review of legislation." (197) But then the Authors' central claim about legislatures is a bit of a mystery. If we cannot be certain whether or how much judicial review is needed to protect human rights, how can we be certain that courts need less power, and legislatures more, in protecting human rights? Likewise, why should anyone believe that giving legislatures more power over defining the scope of human rights is necessarily a sound response to the risk of non-central cases of adjudicating? It will not do to respond by saying the evidence is equivocal and the jury is still out.

Of course, if the Authors are not really talking about judicial review at all, and are only arguing that most (but not all) of the "human rights" (defined very broadly) that are protected in fundamental law around the world are in fact (and should be) spelled out and given life primarily by legislatures and not courts, perhaps there is not so much disagreement after all. But then why disclaim any notion that these insights apply with less force to fundamental negative rights (characteristic of the American Bill of Rights) than to fundamental positive rights? (198) And why devote an entire chapter of the book to asserting that judicial review may not even be necessary at all? (199) Why the push to convince readers that courts should be given less authority in defining human rights? To the extent the Authors mean to apply their insights to fundamental rights imposing duties of legislative inaction, and to the extent the Authors are claiming that judicial review by an independent judicial branch is not necessarily a sound response to the possibility that the legislature will fail to respect those rights and limits, the Authors' claims are strongly contested by American Founding era theory and practice.

One particular episode of American legal history, long postdating the Founding era, may be instructive here. Within five years of the Civil War, the states ratified the Thirteenth, Fourteenth, and Fifteenth Amendments of the Constitution: the Thirteenth prohibited slavery, the Fifteenth prohibited states from racial discrimination in their suffrage laws, and the Fourteenth bound several other new obligations on states directly. Importantly, each of these amendments contained a new and unique feature: each one, in its final section, granted Congress new powers to "enforce" the provisions of that amendment, including the rights it declared, "by appropriate legislation." (200) Here it would seem the fundamental American law is explicitly authorizing the sort of legislative involvement that the Authors envision in the process of creating and defining fundamental rights.

One point to make about this is how unique it is among the American Constitution's rights declarations; none of the rights contained in the Bill of Rights, for example, was accompanied by a grant of enforcement power to Congress. One might also note that this language is far from giving Congress the primary or final authority for detailing the scope of the rights contained in these amendments (and the Supreme Court has said as much)." (201)

More importantly, however, the negative rights contained in the Civil War Amendments bound, not Congress or the federal government, but the states. It was Congress, and not the state legislatures, that was given legislative powers to enforce the provisions of these amendments that bound the states. In other words, Congress was given enforcement power to write laws defining how these declarations would bind other governments, not itself. (In this respect Congress is playing a role similar to that of a court exercising judicial review power--defining how constitutional declarations will bind other government actors, not itself--thus avoiding the conflict of interest problem.) And indeed, it is extremely difficult to believe any of the supporters of these amendments would have wanted such enforcement authority to be granted to state legislatures rather than Congress. In the aftermath of the Civil War, it was precisely the state government institutions--including legislatures--that the supporters of these measures wanted to bind. It would have been unthinkable to allow state legislatures a significant or authoritative role in deciding the meaning of the limits under which they were now bound. Given the strong resistance to these amendments in many states (especially after the end of Reconstruction), the perceived effect of such a course would have been to make those limits a nullity. And yet this seems to be the path the Authors would advocate for all human rights, even those intended to bind legislatures. The Authors' inclinations along these lines, at least, stand in stark contrast to the teachings of American experience and theory--and not only in the Founding era.

VI. CONCLUSION

The American Founders were led by both theory and experience to design a governmental system of separated powers, including judicial review power in an independent judiciary. They believed judges had particular competencies that suited them to this work, but they did not adopt the system primarily because of those competencies, or because they assumed judicial perfection. On the contrary, they assumed that both courts and legislatures would err from time to time--which is exactly what the Authors' evidence shows to have actually occurred. To adopt or maintain a system including strong judicial review, one need not assume that courts make fewer mistakes than legislatures, much less that courts will not make mistakes and that legislatures are prone to them. One need only recognize the wisdom of H.L. Mencken's observation that "[c]onscience is the inner voice which warns us that someone may be looking." (202) Ambitious officials may well perform more conscientiously, or at least more in line with constitutional requirements, in systems where an independent judiciary exercises strong judicial review powers, because those officials know that someone else with authority and independence may be looking.

If all government officials are more or less ambitious and power-hungry, then legislatures will certainly have systematic and regular incentives to interpret limits on themselves narrowly and not broadly. But no one should be allowed to be judge in his own cause. Conflicts of interest should be avoided; foxes should not be allowed to guard hen houses. When applied to governmental institutions, this intuition led the American Founders to suspect that checked institutions will behave better--more conscientiously in line with fundamental rights and constitutional limits--than unchecked ones. Judicial review was one attempt to place the check in an independent institution that, unlike the legislature, did not have a systematic vested interest in the outcome. The Founders believed there was value in the check itself, even if that check were imperfectly exercised.

Such beliefs are grounded in theories that may or may not be confirmed by real-world experience, and everything would seem to hinge on this. In short, we will probably not be able to know whether any theory about government is correct until it is tested against alternatives in the real world. This was certainly the attitude most representative of the American Founders.

The American experience since the Founding provides some empirical data. Some look at the American experience and see judicial tyranny and a plethora of human rights violations enabled or even enacted by the judiciary; others see a rather laudable record of human rights protections by the judiciary, at least compared to what had come before. But until such time as more empirical studies become available, rigorously comparing the human rights records of systems with and without strong independent judicial review, changes to our system with regard to judicial responsibilities for rights protection would seem to be difficult to justify. Americans today are not, after all, living under governments that protect comparatively few human rights, from an historical perspective. We are comparatively blessed. And as Justice O'Connor once remarked in another context, "Why would we trade a system that has served us so well for one that has served others so poorly?" (203)

Andy G. Olree (1)

(1) Professor of Law, Faulkner University, Jones School of Law. B.B.A., Harding University; J.D., University of Chicago Law School. This essay is an invited contribution to the 2018 Faulkner Law Review Symposium volume on "The Role of the Legislature in the Anglo-American Legal Tradition."

(2) HENRY DAVID THOREAU, WALDEN AND CIVIL DISOBEDIENCE 224 (Owen Thomas ed., W.W. Norton & Co. 1966) (1849).

(3) Id.

(4) THE FEDERALIST NO. 51, at 322 (James Madison) (Clinton Rossiter ed., 1961).

(5) See THE FEDERALIST No. 6, supra note 4, at 54-59 (Alexander Hamilton); THE FEDERALIST No. 10, supra note 4, at 77-80 (James Madison).

(6) See infra Part 1(A).

(7) See infra Part III.

(8) GREGOIRE WEBBER, PAUL YOWELL, RICHARD EKINS, MARIS KOPCKE, BRADLEY W. MILLER & FRANCISCO J. URBINA, LEGISLATED RIGHTS: SECURING HUMAN RIGHTS THROUGH LEGISLATION (2018).

(9) THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776).

(10) See JOHN LOCKE, TWO TREATISES OF GOVERNMENT 348, 395-99 (Peter Laslett ed., Cambridge Univ. Press 1963) (1690).

(11) See generally LOUIS HENKIN, THE AGE OF RIGHTS (1990).

(12) Id. at 83-89, 101, 144.

(13) John Emerich Edward Dalberg, Letter I, in LECTURES ON MODERN HISTORY ACTON-CREIGHTON CORRESPONDENCE 9 (London: MacMillan & Co.) (1887), http://oll.libertyfund.org/titles/2254.

(14) THE DECLARATION OF INDEPENDENCE, supra note 9.

(15) THE FEDERALIST NO. 51, supra note 4, at 322 (James Madison).

(16) While the members of the House of Representatives would be elected by the voters of their respective local districts every two years, the Senators were to be chosen by the legislatures of their respective states, and the President and Vice President were to be chosen by electors chosen by the states. U.S. CONST, art. 1, [section][section] 2-3; id. art. II, [section] 1. The judges in the federal judicial branch were to be chosen by the President with Senate approval and would serve for life. Id. art. II, [section] 2; id. art. Ill, [section] 1. One might also note the fact that, even for those offices subject to election by the people, suffrage rights were far from universal; in fact, probably only about one-sixth of the adult population of the United States in the 1780s was eligible to vote, due largely to exclusions based on race or enslavement, gender, and property ownership. FORREST MCDONALD, Novus ORDO SECLORUM: THE INTELLECTUAL ORIGINS OF THE CONSTITUTION 161-62 (1985).

(17) THE FEDERALIST NO. 51, supra note 4, at 322 (James Madison).

(18) Id. at 322-25.

(19) Id. at 322.

(20) See infra Part III(A).

(21) THE FEDERALIST NO. 78, supra note 4, at 464-72 (Alexander Hamilton).

(22) One representative example of such scholarship that has received much attention is SANFORD LEVINSON, OUR UNDEMOCRATIC CONSTITUTION (2006). For examples of other works skeptical of the current American instantiation of separated powers and judicial review particularly, see infra note 24.

(23) For examples of original intent arguments, see ROBERT LOWRY CLINTON, MARBURY V. MADISON AND JUDICIAL REVIEW (1989); Larry D. Kramer, Foreword: We the Court, 115 HARV. L. REV. 4 (2001).

(24) See, e.g., LARRY D. KRAMER, THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW (2004); MARK TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS (1999); CLINTON, supra note 23; RAOUL BERGER, GOVERNMENT BY JUDICIARY (2d ed. 1997); Kramer, supra note 23; Lino A. Graglia, United States v. Lopez: Judicial Review Under the Commerce Clause, 74 TEX. L. REV. 719 (1996); Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 GEO. L.J. 217 (1994). See also infra notes 27-28 and accompanying text (noting the trend).

(25) See Ashley Killough, Supreme Court Nominee Gorsuch Calls Trump's Tweets 'Disheartening', CNN POLITICS (Feb. 9, 2017, 12:14 PM), http://www.cnn.com/2017/02/08/politics/gorsuch-trump-tweets/.

(26) Robert Lowry Clinton, Democracy, the Supreme Court, and Our Two Constitutions, 8 FAULKNER L. REV. 1, 3 (2016).

(27) Sandra Day O'Connor, Op-Ed., The Threat to Judicial Independence, WALL STREET JOURNAL, Sept. 27, 2006, at A18, https://www.wsj.com/articles/SB115931733674775033.

(28) Id. See also Ming Chin, Judicial Independence Needs to be Protected From Both Internal and External Threats, ABA JOURNAL, (Sept. 27, 2018, 6:05 AM), http://www.abajournal.com/news/article/protectingJudicial_independence_from_both_internal_and_external_threats (showing a California Supreme Court Justice's collection of recent examples of public expressions of anger toward judges and attempts to subject state and federal judiciaries to greater degrees of political or democratic control, or to reduce their powers).

(29) See, e.g., TUSHNET, supra note 24; see also WEBBER ET AL., supra note 8, at 200 ("Judicial review is not necessarily a sound response to the risk of non-central cases of legislating.") (emphasis in original).

(30) See, e.g., Clinton, supra note 26, at 4-5.

(31) See, e.g., Kramer, supra note 23, at 13-15.

(32) See, e.g., Steven W. Fitschcn, Impeaching Federal Judges: A Covenantal and Constitutional Response to Judicial Tyranny, 10 REGENT U. L. REV. 111(1998).

(33) SEE, E.G., MATTHEW J. FRANCK, AGAINST THE IMPERIAL JUDICIARY: THE SUPREME COURT VS. THE SOVEREIGNTY OF THE PEOPLE (1996); JOHN AGRESTO, THE SUPREME COURT AND CONSTITUTIONAL DEMOCRACY 134 (1984).

(34) WEBBER ET AL., supra note 8, at x.

(35) Id. at viii.

(36) Id. at vii.

(37) Id.

(38) Id.

(39) Id. (emphasis in original).

(40) WEBBER ET AL., supra note 8, at 16-17.

(41) Id. at 17, 75-84.

(42) Id. at 2.

(43) Id. at 3.

(44) Id. at 6.

(45) Id.

(46) WEBBER ET AL., supra note 8, at 75-115.

(47) Id. at 4,9.

(48) Wat 4.

(49) Id. at 3-4, 6.

(50) Id. at 194-200.

(51) See id at 27-48.

(52) For the Authors' discussion of the "right to life" specifically, see id. at 16-17.

(53) See WEBBER ET AL., supra note 8, at 55-85.

(54) See id. at 18-19. See also european convention on human rights [Constitution] Sept. 3, 1953, art. 6(2), quoted in Webber ET AL., supra note 8, at 18 ("Everyone charged with a criminal offense shall be presumed innocent until proved guilty according to law") (emphasis added).

(55) webber ET AL., supra note 8, at 11-14.

(56) Id. at 181-200. Somewhat confusingly, the Authors do also say that "the practice of judicial review under a bill of rights" is not "inconsistent with the theory of legislated rights defended in this book, including the account of legislation as reasoned activity and the claim that legislatures have primary responsibility for the specification of human rights." Id. at 200. But they are quite clear that "judicial review is not necessarily" justified, id. at 200 (emphasis in original), and that "legislatures [should] have the central and strategic role in realising human rights," id. at vii, because "legislatures are able to secure human rights through modes of protection that courts cannot provide by way of judicial review," id. at 1. I conclude from all this (and in light of their numerous pointed criticisms of what they call "pathologies of judicial review," id. at 180-200) that the Authors are dissatisfied with judicial review as it is currently practiced in the United States (among other places), and they advocate either using it less or abolishing it altogether.

(57) See James B. Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 HARV. L. REV. 129, 138-42 (1893).

(58) In my claims about the understandings of the "American Founders" or the "leading American Founders," I do not mean to assert that no one back then disagreed about these matters. I do assert, however, that there was at that time a dominant understanding of these matters among the Constitution's most ardent and public supporters, as well as some others, and it is this understanding I am referencing in this Essay. See infra Part III and sources therein cited.

(59) See, e.g., Brutus, Essays XII and XV, in 2 THE COMPLETE ANTI-FEDERALIST 426-27, 438-42 (Herbert J. Storing ed., 1981) (1788) (arguing that unchecked judicial review power of federal judges would make their power superior to that of the national and state legislatures, and that the new Constitution should be opposed on this ground).

(60) See infra Part III(B).

(61) 1 JULIUS GOEBEL, JR., HISTORY OF THE SUPREME COURT OF THE UNITED STATES 83-95 (Paul A. Freund ed., 1971).

(62) Id. at 52-53, 56-57; Mary Sarah Bilder, The Corporate Origins of Judicial Review, 116 YALE L.J. 502, 513-35 (2006).

(63) Bilder, supra note 62, at 522-35.

(64) Id. at 534.

(65) Id. at 526 & n.122; see GOEBEL, supra note 61, at 59.

(66) GOEBEL, supra note 61, at 60-83.

(67) Id.; Bilder, supra note 62, at 535-41.

(68) Barbara Aronstein Black, An Astonishing Political Innovation: The Origins of Judicial Review, 49 U. PITT. L. REV. 691,692-93 (1988).

(69) GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC, 1776-1787, at 127-32 (1969).

(70) Bilder, supra note 62, at 541-45.

(71) Id.; GOEBEL, supra note 61, at 96-109.

(72) GOEBEL, supra note 61; Black, supra note 68, at 692-96.

(73) GOEBEL, supra note 61, at 101.

(74) SCOTT DOUGLAS GERBER, A DISTINCT JUDICIAL POWER: THE ORIGINS OF AN INDEPENDENT JUDICIARY, 1606-1787, at 41-321 (2011) (extensively surveying judicial activity bearing on judicial review and judicial independence in each of the thirteen states prior to 1787); Bilder, supra note 62, at 543-45; GOEBEL, supra note 61, at 109-19, 125-42; Saikrishna B. Prakash & John C. Yoo, The Origins of Judicial Review, 70 U. CHI. L. REV. 887, 929-35 (2003); William Michael Treanor, Judicial Review Before Marbury, 58 STAN. L. REV. 455, 473-97 (2005).

(75) See, e.g., WOOD, supra note 69, at 453-63; GOEBEL, supra note 61, at 125-142; GERBER, supra note 74; PHILIP HAMBURGER, LAW AND JUDICIAL DUTY 395-461 (2008); Prakash & Yoo, supra note 74, at 929-34 & n.169 (2003) (collecting cases); Treanor, supra note 74, at 473-97 (2005); Bilder, supra note 62, at 541-45.

(76) 8 Va. (4 Call) 5 (1782).

(77) There is some question whether the court ever issued a written opinion in this case. See GERBER, supra note 74, at 243. The case is discussed in detail, with sources, in HAMBURGER, supra note 75, at 407-22.

(78) These were a series of cases decided by state courts in 1786-87. The cases are discussed in detail, with sources, in GERBER, supra note 74, at 115-20; HAMBURGER, supra note 75, at 422-35.

(79) Philip Hamburger notes that, although some local controversies were provoked before 1787 by state court decisions that held statutes unconstitutional, the debates were "lopsided" in favor of the supporters of such decisions, with the critics having "to fight against widely assumed ideals" substantiating the existence and legitimacy of judicial review power. HAMBURGER, supra note 75, at 462.

(80) James Madison, Notes of Committee of the Whole House (June 4, 1787), in 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 97 (Max Farrand ed., 1911) [hereinafter FARRAND'S RECORDS].

(81) GOEBEL, supra note 61, at 141-42.

(82) WOOD, supra note 69, at 154-61; GOBBEL, supra note 61, at 96-100. See also GERBER, supra note 74, at 67 (arguing that the reason Virginia had "far more precedents for judicial review" in its state courts than any other state did was that it was one of only two states that had "completely constitutionalized the principle of judicial independence" (emphasis in original)). One episode from Rhode Island illustrates how much courage was required for a judiciary to void a legislative enactment under these circumstances. "After the decision was announced [in a case invalidating a state statute], an angry state legislature summoned the judges and demanded that they explain their actions.... The legislature thereafter replaced four of the five judges [at the expiration of their one-year terms]--retaining only the one who, on the day the decision had been explained, offered no basis for his vote." Treanor, supra note 74, at 478; see Prakash & Yoo, supra note 74, at 937. James Madison was familiar with this episode and observed it with dismay. James Madison, Notes on the Constitutional Convention (July 17, 1787), in 2 FARRAND'S RECORDS, supra note 80, at 28.

(83) Jack N. Rakove, The Origins of Judicial Review: A Plea for New Contexts, 49 STAN.L. REV. 1031, 1055-56(1997).

(84) See, e.g., James Madison, Vices of the Political System of the United States (Apr. 1787), in 9 THE PAPERS OF JAMES MADISON: CONGRESSIONAL SERIES 345, 353-54 (Robert A. Rutland ET AL., eds., 1962-91) [hereinafter MADISON PAPERS]; Letter from James Madison to Thomas Jefferson (Oct. 24, 1787), in 10 MADISON PAPERS, supra, at 211-12. See generally WOOD, supra note 69, at 403-13; Rakove, supra note 83.

(85) GOEBEL, supra note 61, at 142.

(86) WEBBER ET AL., supra note 8, at 143-48 (Civil Rights Act of 1964; Voting Rights Act of 1965; Civil Rights Acts of 1866, 1870, 1871, and 1875; and the Kansas-Nebraska Act of 1854).

(87) Id. at 9.

(88) Id. at 4.

(89) Id. at 25.

(90) Id. at 11.

(91) Id.

(92) WEBBER ET AL., supra note 8, at 3.

(93) Id. at 86.

(94) RICHARD B. MORRIS, THE FORGING OF THE UNION: 1781-1789, at 128-29, 154-59(1987).

(95) HAMBURGER, supra note 75, at 450-52.

(96) MORRIS, supra note 94, at 128-29, 154-59.

(97) HAMBURGER, supra note 75, at 407-59.

(98) GERBER, supra note 74, at 66-67.

(99) THOMAS J. CURRY, THE FIRST FREEDOMS: CHURCH AND STATE IN AMERICA TO THE PASSAGE OF THE FIRST AMENDMENT 134-92, 218-22 (1986); Michael W. McConnell, Establishment and Disestablishment at the Founding, Part I: Establishment of Religion, 44 WM. & MARY L. REV. 2105, 2134-36, 2145-46, 2156-59, 2175, 2178-79 (2003). The infringement of religious liberties by the new state legislatures was a particular fear of James Madison's. See Letter from James Madison to Thomas Jefferson (Oct. 24, 1787), in 10 MADISON PAPERS, supra note 84, at 213-14.

(100) Alluding to the failure of his own state's legislature to protect fundamental rights, James Madison could remark by 1788, "In Virginia I have seen the bill of rights violated [by the legislature] in every instance where it has been opposed to a popular current." Letter from James Madison to Thomas Jefferson (Oct. 17, 1788), in 11 MADISON PAPERS, supra note 84, at 297-98 (emphasis added). More broadly Madison noted, when proposing a bill of rights to Congress a year later, that "there are [but] few particular States in which some of the most valuable articles [in a bill of rights] have not, at one time or other, been violated. ..." Letter from James Madison to Congress (June 8, 1789), in 1 THE DEBATES AND PROCEEDINGS OF THE CONGRESS OF THE UNITED STATES 456-57 (Joseph Gales ed., 1834) [hereinafter ANNALS OF CONGRESS].

(101) THE FEDERALIST NO. 48, supra note 4, at 309-10 (James Madison).

(102) James Iredell, An Elector, To The Public (Aug. 17, 1786), quoted in Bilder, supra note 62, at 543 n.218 and accompanying text.

(103) James Iredell, Instructions to Chowan County Representatives (Sept. 1783), quoted in Bilder, supra note 62, at 543 n.218.

(104) James Madison, Vices of the Political System of the United States, in 9 MADISON PAPERS, supra note 84, at 353.

(105) Id. at 345, 353-54; Letter from James Madison to Thomas Jefferson (Oct. 24, 1787), in 10 MADISON PAPERS, supra note 84, at 205, 212.

(106) Letter from James Madison to Thomas Jefferson (Oct. 17, 1788), in 11 MADISON PAPERS, supra note 84, at 295, 297-98; THE FEDERALIST No. 48, supra note 4, at 308-09, 313 (James Madison).

(107) James Madison, Notes on the Constitutional Convention (July 17, 1787), in 2 FARRAND'S RECORDS, supra note 80, at 28.

(108) Letter from James Madison to Congress (June 8, 1789), in 1 ANNALS OF CONGRESS, supra note 100, at 457.

(109) See THE FEDERALIST NO. 10, supra note 4, at 81-84 (James Madison); Letter from James Madison to Thomas Jefferson (Oct. 24, 1787), in 10 MADISON PAPERS, supra note 84, at 211-14.

(110) See U.S. CONST, art. I, [section] 9, para. 3.

(111) Prakash & Yoo, supra note 74, at 928.

(112) Id.

(113) THE FEDERALIST No. 78, supra note 4, at 466-71 (Alexander Hamilton).

(114) Paul D. Carrington, The Revolutionary Idea of University Legal Education, 31 WM. & MARY L. REV. 527, 540 (1990).

(115) 1 BLACKSTONE'S COMMENTARIES: WITH NOTES OF REFERENCE, TO THE CONSTITUTION AND LAWS, OF THE FEDERAL GOVERNMENT OF THE UNITED STATES; AND OF THE COMMONWEALTH OF VIRGINIA 356-57 (St. George Tucker ed., Lawbook Exch. 1996) (1803) [hereinafter TUCKER, BLACKSTONE'S COMMENTARIES].

(116) WEBBER ET AL., supra note 8, at vii.

(117) Mat 2.

(118) See, e.g., James Madison, Vices of the Political System of the United States, in 9 MADISON PAPERS, supra note 84, at 354-57; THE FEDERALIST NO. 48, supra note 4, at 309-10 (James Madison); THE FEDERALIST NO. 49, supra note 4, at 314-17 (James Madison); THE FEDERALIST NO. 78, supra note 4, at 466-71 (Alexander Hamilton).

(119) Universal Declaration of Human Rights, art. Ill (Dec. 10, 1948), quoted in WEBBER ET AL., supra note 8, at 16.

(120) Universal Declaration of Human Rights, art. XII (Dec. 10, 1948), quoted in WEBBER ET AL., supra note 8, at 31.

(121) See, e.g., U.S. CONST, amend. I ("Congress shall make no law"); amend. III ("No Soldier shall"); amend. IV ("no Warrants shall issue, but upon probable cause"); amend. VIII ("Excessive bail shall not be required"); amend. XIV, [section] 1 ("No State shall"). In fact, even in areas of constitutional jurisprudence in which the Supreme Court has discovered unwritten "fundamental" rights supposedly protected by the U.S. Constitution--areas such as substantive due process doctrine, and equal protection doctrine in its early development--the Court has discovered only negative rights against the government, and rights of political participation that obligate only the government, rather than positive rights or rights obligating non-governmental actors. See, e.g., Obergefell v. Hodges, 135 S. Ct. 2584, 2604-05 (2015) (fundamental right to marriage cannot be infringed by government); Roe v. Wade, 410 U.S. 113, 153 (1973) (fundamental right to abortion cannot be infringed by government); Harper v. Va. State Bd. of Elections, 383 U.S. 663, 670 (1966) (fundamental right to vote cannot be infringed by government); Griswold v. Connecticut, 381 U.S. 479, 499 (1965) (fundamental right to contraception cannot be infringed by government); Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) (fundamental right to procreate cannot be infringed by government's mandatory sterilization law); Pierce v. Soc'y of Sisters, 268 U.S. 510, 534-35 (1925) (fundamental right to direct education and upbringing of children cannot be infringed by government). Cf., e.g., San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 37-39 (1973) (no fundamental right to education); Lindsey v. Normct, 405 U.S. 56, 74 (1972) (no fundamental right to housing); Dandridgc v. Williams, 397 U.S. 471, 485 (1970) (no fundamental right to financial assistance sufficient to meet basic needs).

(122) WEBBER ET AL., supra note 8, at 6.

(123) See THE FEDERALIST No. 78, supra note 4, at 466-69 (Alexander Hamilton).

(124) See Marbury v. Madison, 5 U.S. (1 Cranch ) 137, 177-80 (1803).

(125) WEBBER ET AL., supra note 8, at 115.

(126) Id. at 181.

(127) Id. at 115. The Authors diagnose the "root cause of the misconception" that legislatures are essentially aggregation machines as being "a failure to take the legislature seriously...." Id. at 92. But it is surely a similar fallacy to see the courts as nothing more than compliance machines that robotically apply only very clear and detailed rules to the actors before them, while dismissing all claims invoking more nuanced or unclear statements of law. Such a fallacy may likewise be rooted in a failure to take the courts seriously.

(128) See Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2768-75 (2014) (interpreting meaning of the word "person," as used in the federal Religious Freedom Restoration Act, to include closely held for-profit corporations).

(129) See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78-82 (1998) (interpreting meaning of the phrase "discriminate against any individual... because of such individual's... sex," as used in Title VII of the federal Civil Rights Act of 1964, to include male employee's harassment of another male employee by accusing him of being homosexual and by threatening coercive homosexual acts).

(130) U.S. CONST, amend. I.

(131) Caleb Strong, Notes on the Constitutional Convention (July 21, 1787), in 2 FARRAND'S RECORDS, supra note 80, at 75.

(132) THE FEDERALIST NO. 78, supra note 4, at 467-69 (Alexander Hamilton).

(133) WEBBER ET AL., supra note 8, at 115.

(134) U.S. CONST, art. II, [section] 4; see also id. art. I, [section] 2, para. 5 (power of the House of Representatives to impeach); id. art. I, [section] 3, paras. 6-7 (power of the Senate to try impeachments and to convict by two-thirds vote). Hamilton highlighted this particular check on federal court overreach, opining that "[t]his [check] is alone a complete security" against that danger. THE FEDERALIST No. 81, supra note 4, at 485 (Alexander Hamilton).

(135) THE FEDERALIST No. 78, supra note 4, at 471 (Alexander Hamilton).

(136) THE FEDERALIST No. 81, supra note 4, at 483-84 (Alexander Hamilton).

(137) Id. at 483 (Alexander Hamilton).

(138) It is true that judges can reduce legislative power by overvaluing the rights claim, but it seems far-fetched to assume from this that judges have a conflict of interest that will cause them to overvalue these rights claims systematically and regularly. Even corrupt and ambitious judges do not always want to reduce legislative power--consider, for example, situations where the judges feel threatened or offended by the executive, and the legislature is trying to limit the executive's encroachments. Moreover, power-hungry judges in some cases may feel they have more to gain from exerting power over certain powerful rights-litigants than over the legislature--we must recall that when the statute is upheld, that too can be understood as an exercise of judicial power over someone. It is no answer to say, as the Authors do, that judges systematically prefer rights-litigants in these cases because rights-litigants appear in person before the court, while those benefitted by challenged statutes appear before the court only in abstracted form. See WEBBER ET AL., supra note 8, at 196-97. One might as well say that those who believe their rights are violated by the statute appear before the legislature only in abstracted form, while interests supporting or aided by the enacted statute will always have been represented in person there (otherwise the statute could not have been passed). In fact, it would seem that affected interests on all sides will always be more likely to be represented in person before a court than before a legislature, where there are no guarantees of an adversarial proceeding, adverse testimony, argument, or any in-person appearance of affected parties at all.

(139) THE FEDERALIST NO. 10, supra note 4, at 79-80 (James Madison) (emphasis added).

(140) WEBBER ET AL., supra note 8, at 6.

(141) THE FEDERALIST NO. 10, supra note 4, at 80 (James Madison).

(142) THE FEDERALIST NO. 81, supra note 4, at 484 (Alexander Hamilton).

(143) WEBBER ET AL., supra note 8, at 115.

(144) See supra note 132 and accompanying text.

(145) See Skinner, 316 U.S. at 541.

(146) See Strauder v. West Virginia, 100 U.S. 303, 304 (1880).

(147) See Pierce, 268 U.S. at 530-31.

(148) See Meyer v. Nebraska, 262 U.S. 390, 397-98 (1923).

(149) See Loving v. Virginia, 388 U.S. 1,4 (1967).

(150) See Ex parte Miliigan, 71 U.S. 2, 4-6 (1866).

(151) See W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 626-28 (1943).

(152) 347 U.S. 483,488, 495 (1954).

(153) Plessy v. Ferguson, 163 U.S. 537, 551-52 (1896).

(154) Korematsu v. United States, 323 U.S. 214, 222-24 (1944).

(155) For allusions to Plessy, see WEBBER ET AL., supra note 8, at 144, 149; for the allusion to Korematsu, see WEBBER ET AL., supra note 8, at 188.

(156) Cases such as the Civil Rights Cases, 109 U.S. 3 (1883), cited by the Authors on pages 147-49, cannot be used to support the Authors' view either, since it is far from clear even from today's vantage point that Congress was given power under the Fourteenth Amendment to enforce racial discrimination prohibitions against non-state actors. The legislation involved in the case may have protected civil rights, but legislatures still should not be allowed to exceed their constitutional authority, even in the passage of rights-protecting statutes.

(157) 60 U.S. (19 How.) 393 (1857), discussed by WEBBER ET AL., supra note 8, at 146-47, 149-50.

(158) Even Lochner v. New York, 198 U.S. 45 (1905), one of the most maligned opinions in Supreme Court history, still has its share of respected supporters who believe the case helped protect fundamental rights rather than infringing them. See, e.g., DAVID E. BF.RNSTEIN, REHABILITATING LOCHNER: DEFENDING INDIVIDUAL RIGHTS AGAINST PROGRESSIVE REFORM 125-28 (2011) [hereinafter BERNSTEIN, REHABILITATING LOCHNER]; Randy E. Barnctt, After All These Years, Lochner Was Not Crazy--It Was Good, 16 GEO. J.L. & PUB. POL'Y 437, 438, 442-43 (2018); Richard A. Epstein, Toward a Revitalization of the Contract Clause, 51 U. CHI. L. REV. 703, 732-34 (1984). Given the continuing scholarly and popular debate over who is helped or harmed by minimum wage and maximum hour laws, even Lochner cannot fairly be counted an example of the Court's voiding of a law (mandating maximum working hours for certain bakers) that is universally recognized today as having actually protected human rights. For an account of the Lochner facts suggesting that the New York statute was in fact a piece of special interest legislation designed largely to benefit established unionized bakery employees at the expense of competing immigrant bakery employees, see BERNSTEIN, REHABILITATING LOCHNER, supra note 158, at 23-33; David E. Bernstein, The Story of Lochner v. New York: Impediment to the Growth of the Regulatory State, in CONSTITUTIONAL LAW STORIES 299, 302-09 (Michael C. Dorf ed., 2d ed. 2009).

(159) THE FEDERALIST No. 78, supra note 4, at 466-68 (Alexander Hamilton).

(160) WEBBER ET AL., supra note 8, at 115.

(161) Id. at 181.

(162) Id. at 194.

(163) 1 35 S. Ct. at 2604-05 (holding that the constitutional right to marry extends to same-sex couples).

(164) 410 U.S. at 154 (holding that the constitutional right to privacy includes the choice to have an abortion).

(165) 60 U.S. at 406 (holding that African-Americans were not citizens and could not sue in federal court).

(166) 5 5 8 U.S. 310, 365 (2010) (holding that both nonprofit and for-profit corporations have constitutional right to freedom of speech).

(167) 137 S. Ct. 2012, 2024 (2017) (holding that the Free Exercise Clause forbids states to exclude recipients from public funding programs on grounds that those recipients are religious organizations).

(168) 514 U.S. 549, 567 (1995) (holding that Gun-Free School Zones Act of 1990 was unconstitutional exercise of legislative power because it went beyond power granted to Congress under Commerce Clause).

(169) 138 S. Ct. 1719, 1724 (2018) (holding that state administrative body violated rights under Free Exercise Clause as it applied state nondiscrimination law to baker who had refused, on religious grounds, to provide specialty cake for homosexual wedding celebration).

(170) 347 U.S. at 495 (1954) (holding that state laws requiring racial segregation in public schools violate the Equal Protection Clause).

(171) 388 U.S. at 12 (holding that the constitutional right to marry extends to mixed-race couples).

(172) See WEBBER ET AL., supra note 8, at 142-46.

(173) THE FEDERALIST NO. 79, supra note 4, at 474 (Alexander Hamilton).

(174) THE FEDERALIST NO. 78, supra note 4, at 465-66 (Alexander Hamilton).

(175) THE FEDERALIST No. 51, supra note 4, at 322 (James Madison).

(176) The Authors seem to take special interest in disputing Dworkin, taking him to task in numerous places. See, e.g., WEBBER ET AL., supra note 8, at 7-8, 87-92, 133-43, 149-52, 182-85, 189-90.

(177) Patrick Henry, Speech Addressing the Virginia Convention (Mar. 28, 1775), in THE WORLD'S GREAT SPEECHES 232, 232 (Lewis Copeland ed., 1942).

(178) See, e.g., David S. Law & Mila Versteeg, The Evolution and Ideology of Global Constitutionalism, 99 CALIF. L. REV. 1163, 1220 (2011).

(179) WEBBER ET AL., supra note 8, at 4.

(180) Id. at 143-44, 147-48.

(181) 60 U.S. at 393.

(182) WEBBER ET AL., supra note 8, at 146-47, 149-50.

(183) 42 U.S.C. [section][section] 2000bb to 2000bb-4 (1993).

(184) See id at[section] 2000bb (b)(1).

(185) 374 U.S. 398 (1963).

(186) 406 U.S. 205 (1972).

(187) See Law & Versteeg, supra note 178, at 1169-70, 1248-49 (identifying the need for more empirical research to understand what factors cause some governments to act in accordance with their constitutional dictates while other governments do not).

(188) See, e.g., Daniel Ryan Koslosky, Toward an Interpretive Model of Judicial Independence: A Case Study of Eastern Europe, 31 U. PA. J. INT'L L. 203, 208-12 (2009).

(189) WEBBER ET AL., supra note 8, at 2.

(190) See TUCKER, BLACKSTONE'S COMMENTARIES, supra note 115 and accompanying text.

(191) See WEBBER ET AL., supra note 8, at vii.

(192) See TUCKER, BLACKSTONE'S COMMENTARIES, supra note 115 and accompanying text.

(193) WEBBER ET AL., supra note 8, at 2-3.

(194) Id. at 3.

(195) For just one example, consider the writings of James Madison, who developed a rather extensive theoretical explanation for the failings of legislatures to protect rights. James Madison, Vices of the Political System of the United States, in 9 MADISON PAPERS, supra note 84, at 354-57.

(196) WEBBER ET AL., supra note 8, at 200.

(197) Id. at 182.

(198) See id. at 19, 122-23.

(199) See id. at 181-200.

(200) U.S. CONST, amend. XIII, [section] 2; amend. XIV, [section] 5; amend. XV, [section] 2.

(201) See, e.g., City of Boerne v. Flores, 521 U.S. 507, 519-20, 523-25, 529 (1997).

(202) H.L. MENCKEN, A MENCKEN CHRESTOMATHY 617 (Vintage Books 1982) (1949).

(203) McCreary County v. ACLU, 545 U.S. 844. 882 (2005) (O'Connor, J., concurring).
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Title Annotation:Symposium on "Legislated Rights: Securing Human Rights Through Legislation"
Author:Olree, Andy G.
Publication:Faulkner Law Review
Date:Sep 22, 2018
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