Shall We Be Ruled By Libertarian Philosopher-Judges?

A Review of Timothy Sandefur’s The Conscience of the Constitution

Libertarian legal scholar Timothy Sandefur endeavors in his latest tome to lay out an alternative judicial approach to the Progressive-inspired free rein for Congress and, when it comes to economic rights, for state legislatures under which we have lived since the Revolution of 1937.  His theory, in which a particular conception of natural right should be considered judicially enforceable, would replace the Progressives’ beloved centralized, unlimited democracy with a regime in which judges exercised far more power.  While perhaps appealing in the abstract, this proposal suffers from serious deficiencies.

Chief among those deficiencies is that Sandefur, citing Harry Jaffa, holds the Declaration of Independence to be the touchstone of constitutional correctness.  In his 1791 “Opinion on the Constitutionality of a National Bank,” Secretary of State Thomas Jefferson had a different idea:

I consider the foundation of the Constitution as laid on this ground: That “all powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States or to the people.” [XIIth amendment.] To take a single step beyond the boundaries thus specially drawn around the powers of Congress, is to take possession of a boundless field of power, no longer susceptible of any definition.

What Jefferson here called the “XIIth amendment,” which was before the states for their ratification as he wrote, would become known as the Tenth Amendment when the states ultimately both refused to ratify one of the twelve amendments Congress had proposed and delayed ratifying another. Where Jefferson understood “the foundation of the Constitution as laid on” the Tenth Amendment, Timothy Sandefur mentions the Tenth Amendment almost not at all.

How to account for this?  Is Sandefur right in saying that Jefferson’s Declaration is the Constitution’s “conscience,” or was Jefferson himself right that the chief element of the federal system was the principle that the Federal Government had only the few powers that the Constitution had given it, with the rest of government power being reserved to the states?  In short, did Thomas Jefferson somehow misapprehend his own central role in founding America, mistakenly declining the credit he rightly deserved, or has Sandefur exaggerated the importance of Jefferson’s most famous writing?

Put that way, the answer seems obvious.  Let us examine Sandefur’s text with the goal of verifying our intuition’s accuracy.

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