Liberty, Prudence, Imperfection, and Law

“What is a Republic? Questions of Definition and Judicial Activism,” By Bruce P. Frohnen

This essay was authored by Bruce P. Frohnen for Nomocracy in Politics

Not every form of government is suitable for every people, and no form of government, not even that fabled utopia, “democracy,” is suitable for all peoples at all times.  Even the American Declaration of Independence, considered by so many to be the source of all (good) things American, proclaims only the necessity of “the consent of the governed,” not majority rule in all things.  That said, ours is a nation committed to republican governance.  The Federalist Papers, the most significant, consistent, and sustained defense of the United States Constitution, insists that our frame of government is appropriate to the genius of the American people precisely because it is republican in nature.  And the Constitution itself declares its commitment to republicanism by guaranteeing to each state a republican form of government.

Thus, while I continue to hold (against my own self-interest as an academic) that not every people is best served by any particular form of government, it nonetheless seems clear to me that our American government has from its beginnings been republican.  Indeed, institutions like the New England town meeting and other forms of local popular rule show that rule by consent of the governed in America predates the Constitution by well over a century.

But what, exactly, is republicanism?  This question came to my mind on reading Richard Epstein’s latest book, The Classical Liberal Constitution.  In a volume dedicated to the proposition that the United States Constitution was written to instantiate “classical liberal” values, Epstein combines commitment to free markets and limited government with tenacious insistence on the necessity of judicial activism.  A major target of criticism, for Epstein, is the so-called “political question doctrine.”  According to this doctrine, which our Supreme Court follows with its usual self-serving “discretion,” federal courts will not decide any case in which the issue presented belongs to either the President or Congress.  As the Court stated the doctrine in the seminal case of Baker vs. Carr,

Prominent on the surface of any case held to involve a political question is found:  (1) a textually demonstrable constitutional commitment of the issue to a coordinate political department;
(2) or a lack of judicially discoverable and manageable standards for resolving it; (3) or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; (4) or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; (5) or an unusual need for unquestioning adherence to a political decision already made; (6) or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

The logic behind this somewhat opaque statement is relatively clear:  judges should not be in the business of making policy decisions, or second-guessing the decisions of the political branches regarding the wisdom of policy decisions.  The courts, after all, are by nature in the business of interpreting laws and, while many today claim that judges “make” law with every decision applying the law to new circumstances, there is a great deal of difference between lawmaking and the legal development that occurs through application.  Where the first is a matter of policy determinations and subsequent draftsmanship, the second is one of the logical application of pre-existing rules to specific facts.

Epstein, however, does not agree that courts should merely decide cases according to the law laid out in statutes, constitutions, and tradition.  He is convinced not only that our Constitution was written with the intention of establishing a “classical liberal” republic, but that the courts should take the lead in enforcing this particular ideology on the nation and the other branches of the government.  Now, the intentions of the framers of a constitution clearly are important to understanding how to interpret it, and even the validity of governmental actions under it.  But law, even constitutional law, is not ideology.  It is a matter of text and tradition, its principles being ones of accurate interpretation, not political philosophy.  When this is forgotten, the result is increased political power in the hands of people who simply do not have the training or the political legitimacy to engage in policymaking.

The source of the problem is the conceit that the Supreme Court is a “co-equal branch” with the Congress and the Presidency.  Nowhere in our Constitution, or our constitutional tradition, is such a notion given credence.  Only after the Civil War, when courts began assuming for themselves powers vastly beyond those delegated to them in our Constitution, did talk of “co-equality” come into vogue.  By design, the courts are distinctly junior partners in our political system.  As Publius put it in The Federalist, the Supreme Court is the “least dangerous branch,” empowered only to interpret laws and, as a part of that function, to refuse to lend the force and legitimacy of its holdings to laws that violate the “manifest tenor” of the Constitution under which they operate.

Even a court acting under the most benign and enlightened conception of the good of the person and the community will undermine both by stepping outside its proper bounds and enforcing even the most benign and enlightened philosophy in place of a good faith interpretation of the law’s text and tradition.  Drafters’ intentions and understandings clearly are part of proper interpretation, but the power to interpret cannot serve as justification for imposing the “best” interpretation of a statute or common law rule when an “inferior” interpretation is called for by the materials at hand.  Should courts get into the habit of imposing such interpretations, the loss will be very real, to both the rule of law and, by substituting the will of unelected judges for the determinations of elected legislators, to republican government.

Epstein is convinced that the form of activism he advocates is good because it is consistent with a liberal theory he also ascribes to the drafters of the Constitution; one which demands, in particular, limited government.  The insoluble dilemmas into which even such a “restrained” ideological activism inevitably leads are shown powerfully at the confluence of the political question doctrine and questions of republicanism.  Two of the most important instances in which the Supreme Court restrained itself under the political question doctrine had to do with the question of whether an existing set of institutional arrangements violated the guarantee of a republican form of government.  In 1849, following an attempt to overthrow the government of Rhode Island, a suit reached the Supreme Court (Luther v. Borden) in which the Court was asked to decide whether the ruling government of that state was “republican,” given that it was elected under a charter that enfranchised only the richest of its citizens.  The Court refused to enter into such questions, declaring that it was up to Congress and the President to enforce the Guarantee Clause.  Much later, in the 1962 case of Baker v. Carr, a citizen of Tennessee sued his state’s Secretary of State on the grounds that failure to equalize the populations of voting districts in effect diluted his vote.  Rejecting the opportunity to decree that unequal districts constituted a non-republican form of government, the Court instead opened the floodgates to court oversight of redistricting plans by holding that unequal districts deny residents equal protection of the laws.

Epstein rejects the Court’s opinions in both cases.  He would not adopt the Court’s expansive reading of the Equal Protection Clause from Baker v. Carr, instead directly addressing the question of whether Tennessee (or Rhode Island) had a republican form of government.  He thinks the answer an obvious “no,” by the way.  Indeed, according to Epstein, it is so obvious as to be beyond rational questioning that large discrepancies in population among electoral districts negate any claim to republicanism.  Likening Tennessee to England in the era of “rotten boroughs” (electoral districts with very few voters, controlled by local lords) Epstein finds the role of courts in ridding the nation of such clearly bad electoral institutions self-justifying.

Epstein’s “republican activism” would, of course, produce at least as much “activism” as the current situation, under which judges micromanage electoral districts for compliance with their reading of the Equal Protection Clause.  And the label “republicanism” would make the judicial activism no less harmful.  What is especially curious and telling is Epstein’s belief that, by situating his activism under the Guarantee Clause, he has somehow chained it to “classical liberalism” and, in general, limited government.  Such a view relies on the non-factual assertion that it is obvious what republican government actually is.  And Epstein’s view that “rotten boroughs” and the like constitute non-republican government neither comports with the history of republicanism, nor allows for anything other than empowerment of courts to micromanage electoral institutions.

Republican governments have been with us since ancient times—perhaps the most famous republic being that of Rome, in which the “plebeian” class gained its distinctly limited voice in governance through constant agitation and no small amount of violence.  Succeeding republics, whether in medieval city states or even “republican” revolutionary France always weighted representation in favor of educated and wealthy classes, even when they allowed poor people to vote, which was not often.  Yet we always have recognized these governments as republican in nature because there was a more numerous class of “the people” able to win a voice in government and keep the highest orders in check.  Have we been wrong all this time?  Was, for example, the United States a non-republican government until African Americans, or women, or eighteen year-olds were given the vote?

The changing definitions of “the people” constitute an old problem, and one well worth debate among the people and their governors.  But the claim that there is a sufficiently clear, obvious, and timeless definition of republic that courts should take it on themselves to apply it against the people’s legislators is part and parcel of the kind of ideological activism Epstein, as a “classical liberal” should abhor.  Whatever the term, if judges are allowed to define it themselves, according to their “objective” view of what is best, rather than rooting their interpretation in the understanding of those who used it in drafting legislation, or the tradition that produced a given legal rule, the result will be judicial overreach and severe damage to both the rule of law and rule by consent of the governed.

Professor Bruce P. Frohnen teaches at The Ohio Northern University Pettit College of Law, and he is a Nomocracy in Politics Contributor.  

7 Responses to ““What is a Republic? Questions of Definition and Judicial Activism,” By Bruce P. Frohnen”

  1. gabe


    Another thoughtful piece! I liked the ‘tenor” of it and yet….
    Perhaps my reaction is representative of the difficulty in determining a proper way of interpreting the constitution that confronts all who attempt to do so.

    Which do we choose? Strict construction, textualism, structuralism, etc. etc. All may conduce to judicial overreach, misinterpretation, etc.

    Ah, Epstein says, “let us find the tenor” of the thing and use that as our guide. (I happen to be somewhat partial to this approach). However, none are so rational as you or I, we all think. Their tenor misses the high notes, or forgets the lines, or better yet decides to present Rigoletto as a 21st Century tragedy.

    Yet so much is lost to the mists of history, ambiguity of motives and the vagueness of both spoken and written word that one is compelled to seek some guiding principle to illumine the text. I suppose this is the tenor – the animating principle.

    Yet this too is subject to various renderings and ultimately to charges of judicial activism. Rights are stripped away or conferred with no apparent textual support; the Court is either silent or vociferous in conferring or denying such rights. It is a political question when they fear an adverse reaction from a coordinate branch of government or it is “surely the duty” of the court to decide what is constitutional when it suits their fancy.

    I know of no answer to this. Recently, (perhaps it was) Hadley Arkes proposed “judicial engagement” as a proper mode of judicial review. Arkes tried to differentiate between policy making” and deliberation based upon some agreed upon fundamental principles. I rather liked it – but it too is susceptible to judicial folly, ignorance, arrogance. Although I wonder if we could ever agree upon what are our basic motivating principles. I used to believe that i knew what they were. Either weariness or wisdom attendant upon time has convinced me that I do not. If only our judges could recognize the same and be more prudent in their pronouncements.

    So I guess, we pick our own “supras” and live with them.

    take care

  2. John E. Jenkins

    Gabe, upon reading Fronan’s essay, I believe that the description of Richard Epstein’s latest book, The Classical Liberal Constitution is just what it appears to be – an exercise in a personal “philosophy”. Epstein speaks “with tenacious insistence on the necessity of judicial activism”. Unfortunately, we witness this activism from the federal court justices, themselves, that he approves of.
    You mentioned that “Rights are stripped away or conferred with no apparent textual support…” You are correct. What I find here is that the court turned the phase of the 14th amendment’s “equal protection of the laws” into equal protection of rights. The protection of the laws, the 14th speaks of – are State laws. There is no enumeration in the Constitution that empowers that branch (the federal courts) to take away, or confer, a State’s “equal protection of the (State’s) laws”. Even the federal Congress is limited in th 14th’s section 5.
    “So I guess, we pick our own “supras” and live with them.” (I know you don’t really mean this.)
    Respectfully, your friend, John

    • gabe

      As you guessed, I was being a bit cynical both with respect to “supras” and the conferring of rights.

      My point was simply to emphasize the points that Prof. Frohnen was making. It seems that whatever approach one takes there are opportunities for , let’s be polite and call it, error.

      Nevertheless, there must be some guide as to what is intended by the Constitution’s text, structure, intent (if you will) such that we are creating things out of wholecloth. I simply no longer know what it is or at least cannot figure it out based upon what has transpired in my lifetime.

      Where you and i would disagree is in the comment that the 14th prrotects only state laws. The Federal government was intended to be both National and Federal – meaning that the federal government could, and was fully expected to “act upon” the individual citizen.
      Where we do agree with respect to the 14th is how the courts have, as you say, converted equal protection of the laws” into not just equal protection of rights – BUT the PROMULGATION of rights that no one at the time of the founding would have remotely considered to be a right.

      Again, good to hear from you, my friend,
      take care

  3. John E. Jenkins

    Gabe, I want you to do me a favor – go back and read the 14th amendment. (I have no problem w/you disagreeing w/me. That’s how we can either correct or agree w/one another.) You say, “… here you and I would disagree is in the comment that the 14th protects only state laws. The Federal government was intended to be both National and Federal – meaning that the federal government could, and was fully expected to “act upon” the individual citizen.”
    I am going to ask you a couple of questions (please). What do you disagree with on the comment “… the 14th protects only State laws” – what FEDERAL LAWS do you see here? Where does the 14th amendment state that (outside of Sect. #5 – the Congress that I have mentioned) – “act upon” THE INDIVIDUAL CITIZEN”?
    Where did I dissect your statements in error?
    Respectfully, your friend, John

  4. gabe


    I’m not certain, actually, of the nature of the disagreement.
    A number of commentators / scholars have indeed argued that the 14th was intended to only “protect” State Laws as you say. However, this is based upon the contemporaneous assumption that the federal Govmnt would never violate citizen rights (rather fanciful thinking, don’t you agree).
    Courts have taken a somewhat broader view of things – and in some sense this is correct. There are Federal statutes that apply to all citizens – thus, there is some need to assure that all citizens are treated equally before the law whether it be a state or Fed statute.

    Clearly, the intent of the 14th at the time of ratification was to protect against state level deprivation of liberty and property. In that sense you are clearly correct. It seems to me inescapable that if you protect against one, you are compelled to protect against the other – especially when the other is far more powerful.

    Take care

  5. John E. Jenkins

    ” What has “… transpired in your lifetime (THE SAME AS MINE) is a federal government who no longer believes in “the States and the peoples ” rights”.
    It’s been going on since President Wilson’s liberalism.
    The “Republic” that the Constitution enumerates for the Nation and the States – is now usurped by the federals – by the replacement of Democracy; NOTHING our founders predicated for this nation, or the States, or the majority of people – to be.
    Respectfully, your friend, John


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