As someone who has long profited from and appreciated Roger Pilon’s work, I must admit that I am gratified to see him reckon with my work—however critically—in his recent essay, “On the Importance of First Principles.” I think the root of our disagreement is not that Pilon has first principles and I do not, needless to say, but that we order our principles differently. More precisely, we see principles ordered differently in our Constitution and the system of ordered liberty it instantiates. Pilon is a libertarian, and he thinks our Constitution is, too. Only during its obstreperous New Deal era, Pilon writes, did the Supreme Court “turn[] a constitution written to secure liberty through limited government on its head, crafting instead a document that authorized government to redistribute and regulate liberty as never before, all in the name of majoritarian democracy.”

　　My view is that our constitutional order rests upon the default assumption that at the state level majorities can rule—indeed must rule—limited only by a partly undefined set of rights. This is essentially an echo of Federalist #51. “In framing a government which is to be administered by men over men,” derived from the principles of equal citizens’ equal enjoyment of their rights, “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.” I stand with James Madison, then, which is a pretty good place to stand—especially when it comes to constitutional matters.

　　The Federalist Papers were, of course, advocating for the new Constitution, but Madison’s reflections apply to government in general. In the Constitution’s genius, it left nearly all the “control” to the states. States enjoyed immense plenary powers in the early years of our Constitutional order—even more than they do now, after the ratification of the Fourteenth Amendment’s incorporation of constitutional rights against them. It wasn’t the New Deal Court that gave states vast power to regulate the public health, safety, and morality. That was always part of the deal. And it’s those powers—not the greatly expanded federal powers invented in the mid-twentieth century—that I defend against opportunistic law professors and unbounded assertions of individual rights.

　　It strikes me as illogical to assert expansive individual rights against the states by reference to an order that preserves and even strengthens state powers.

　　Cases involving the collision of individual rights and state plenary powers are the most fun—and the highest-profile, and often the most maddening—because both sides of the equation are under-defined. We know that plenary powers and individual rights are yin and yang; each one begins where the other ends. But we don’t know exactly where that line is, or even which principles can legitimately adumbrate a line. This is equally true for rights whose existence is undisputed (the freedom of speech) but whose metes and bounds are contested, and for rights whose potential existence is confirmed by the Ninth and Tenth Amendments but whose actual existence is impossible to confirm without some complementary theory telling us how we know what deserves to be shielded from state regulation, and to what extent.

　　Where to go from here? We could articulate a Framers’ theory of the limits on legitimate state power, or on individual rights, or both. Pilon prefers to err on the side of individual liberty by making a structural constitutional argument about enumerated powers and the “presumption of liberty.” But this kind of argument seems to me to beg the question. The Constitution enumerates powers, all right—powers of the federal government. It presumes liberty—against the federal government. All along, lurking in the Constitution’s negative space (and in the Tenth Amendment), is state plenary power, the primary mechanism regulating American life. We know this because it was undisputed in its origin and has lasted in continuous operation until the present day; it is a constitutional tradition, albeit not a particularly controversial one. Altogether, it strikes me as illogical to assert expansive individual rights against the states by reference to an order that preserves and even strengthens state powers.

　　There are no perfect solutions to the rights-powers puzzle, but I would articulate my view, in brief, as a republican limitation on plenary powers and a traditionalist limitation on individual rights. States must justify their regulations in the language of the public interest, rather than private interests, class interests, or no interests at all (animus or irrationality). And individuals can assert rights citizens in our republic and its forebears have long enjoyed, without which ordered liberty is incomplete.

　　Pilon is primarily bothered by my endorsement of Glucksberg’s norm-reinforcing traditionalist test for unenumerated rights. “Are we to wait until flag desecration is popular,” he asks, “before we call it a right?” At risk of alienating my remaining libertarian friends, I don’t think this is a rhetorical question. If states had long traditions of prohibiting flag-burning—perhaps among other forms of expression which corrode social trust and the public peace—then even waiting until it is popular is not long enough. In such a circumstance (and I am no historian of radical expression, so I mean this truly hypothetically), it should never be declared a right by a court on the basis of an abstract understanding that it is comprehended by the Constitution’s reference to “the freedom of speech.” When it becomes popular, the state can legislate its legality. On my view of the role of courts wielding judicial review in a republic, courts can identify and articulate rights. They cannot invent them.

　　This is admittedly a democracy-first approach to our great experiment in self-government. But I think it is the more holistically Madisonian one, truer to our constitutional system, in which order and liberty are in genuine, constant, and enduring tension.