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

• Author: Olree, Andy G.

1. 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.

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

   1. 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...