The Conscience of the Constitution by Timothy Sandefur, is a new Cato book that can be read with profit by anyone interested in classical liberalism, not just Americans. Some regard the US Constitution as a great bastion of democracy, yet the word, says Sandefur, appears nowhere in it. What the Constitution actually enshrines is liberty.
This liberal purpose and foundation is expressed in very plain terms by the Declaration of Independence, which is, in Sandefur's term, 'the conscience of the Constitution'. Where the Constitution says how the power of government should be limited, the Declaration explains why. Not to empower majorities and their representatives, but to restrain them.
Sandefur's thesis is that over a long period of usurpations, the liberty role of the Constitution has been eclipsed by its democracy rule. Its principles go back to Magna Carta, which declared that rulers and officials themselves had were subject to the 'law of the land' – the deep sense of justice and fairness that grows up through the voluntary interactions of free people. Governments cannot pass any rule they like, no matter how arbitrary, irrational, unfair, unclear or contradictory, and properly call it 'law'. It is this that 'due process' is all about – laws and their execution must be substantively fair and just. Americans do not simply enjoy a list of 'rights' but are protected (or should be) by a general rule against exploitation and unfairness.
In any particular case, that general rule might of course outrage the majority. And in recent years, says Sandefur, the courts have come to place the majority decisions in the legislature above the principle of safeguarding liberty, hardly ever striking down official powers. It is called 'judicial activism' but actually it is a baleful inactivity. Justices claim that legislators are nearer to the public and therefore better equipped to know what is in the 'public interest'. But that, says Sandefur, gives legislators carte blanche to pass almost any law, covering it with some or other 'public interest' fig-leaf. Also, majority decisions are actually made through the rent-seeking of interest groups, pressuring politicians, as described so well by the Public Choice economists. And much law today is made by unelected regulators anyway, so the 'nearer to the public' argument is plainly a sham.
Deliberately upholding unjust laws, concludes Sandefur, is no less damaging than accidentally striking down just ones. The courts should be in no doubt that, as the Constitution and Declaration specify, liberty is the primary object of their actions. However much democracy we have, our rulers have no right to go beyond the Constitution and thereby put the liberty of individuals at risk.