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.