The Constitutional Bedrock of Due Process.

• Author: Ides, Allan

Rather than discussing economic liberty as a product of federalism, I will address economic liberty as a product of constitutionalism. This idea is based on three key principles of our constitutional system. The first pertains to the relationship between democracy and republicanism, the second is the practice of judicial review, and the third is the fundamental idea of due process. And I will attempt to show how these seemingly disparate principles are all closely related to one another.

It is well known that the Constitution reflects a profound distrust of popular democracy. (1) One of the motivating forces behind the Constitutional Convention was a perception that democracy at the state level had become excessively abusive. (2) The Convention sought to temper those perceived democratic excesses by filtering the method of democracy through a government structure built on the principles of republicanism with an aim toward promoting civic virtue. (3) Thus, we have the separation of powers among the three branches of the federal government, the separation of governmental authority between the states and the federal government, and a series of important checks on those who temporarily hold the reins of federal power, including bicameralism, (4) presentment, (5) and the state-based composition of the Senate. (6)

The body of the original Constitution also included specific limits on the states' democratic impulses, with the most important being the Contract Clause, which prohibits states from passing laws that impair the obligation of contracts. (7) Although it is now rarely taught in introductory constitutional law courses, the Contract Clause was a key motivator for the Constitutional Convention because states had been forgiving debts incurred during the War of Independence, thus impairing the contractual rights of creditors. (8) The Contract Clause specifically limits the states' democratic authority to do that.

In tension with republicanism is, of course, the principle of democracy, a principle that was reflected more in the Anti-Federalist Papers than in the Federalist Papers. (9) This may be a silly quibble, but I always thought the Federalist Society should have been named the Anti-Federalist Society, because that's really the states' rights society. Regardless, the value of democracy was reflected in the Anti-Federalist Papers, and it is also reflected in certain essential Founding-era and historical documents. President Abraham Lincoln's Gettysburg Address is distinctly democratic, (10) and I take as my definition of democracy President Lincoln's apt description of the ideal government as being "of the people, by the people, and for the people." (11)

According to this view, the Declaration of Independence is much more democratic than the Constitution. (12) The Bill of Rights is also the product of the democratic impulse. It is a reaction to what the Anti-Federalists saw as the Constitution's excessive obeisance to republicanism. (13) The Anti-Federalists wanted a democratic guarantee. (14) Many of the amendments in the Bill of Rights are directed toward rights of the people that would be essential for an effective democracy: the First Amendment's protection of freedom of speech; (15) the Second Amendment's protection of the right to bear arms, (16) if you accept the Supreme Court's interpretation of the Second Amendment in District of Columbia v. Heller; (17) the Fourth Amendment's protection of the right of the people to be free from unreasonable searches and seizures; (18) and the Fifth Amendment's guarantee of due process of law. (19) So while the Constitution emphasizes antidemocratic, very republican perspectives, the Bill of Rights provides a strong democratic response to that.

Some might argue that the Bill of Rights is antidemocratic to the extent that it allows the unelected and undemocratic Supreme Court to limit the power of representative institutions. Judicial review is often perceived as deviating from what is an otherwise democratic system. But such a perception presumes a state of affairs that is more theoretical than real. Certainly, at the federal level, neither Congress nor the Executive are truly representative of the people--that is, if we take "the people" to mean a majority of the electorate nationwide. Rather, the judicial enforcement of rights is a check on power invested through a non-majoritarian republican structure. The enforcement of the Bill of Rights is a--somewhat ironic--republican promise to democracy.

Based on that understanding of the democratic role of the Bill of Rights, I disagree with the standard perception of judicial review drawn from Professor Alexander Bickel's statement that "judicial review is at least potentially a deviant institution in [American] democratic society." (20) Judicial review is a republican part of American democracy. It is meant to ensure that the structure of government is...