In his abstruse “Substantive Due Process Is Still Antidemocratic,” the Manhattan Institute’s Tal Fortgang critiques a California Law Review essay from two Yale Law denizens, Douglas NeJaime and Reva Siegel, who recently mounted, as Fortgang puts it, “an ambitious defense of the modern ‘substantive due process’ cases—Griswold, Roe, Lawrence, Obergefell—against the charge that they are antidemocratic in the manner ofLochner.” The authors’ aim, he writes, is to vindicate the rights of those who were excluded from the democratic process, not per se but “generally excluded by law from full participation in the national discourse.” Invoking thus the imprimatur of democracy, the authors succeed, Fortgang avers, only by defining “democracy” capaciously. Thus do they urge courts to attend to background conditions and social stigma, the better to “remedy inequalities in American society” and “fix power imbalances”—as if judges should be promoting democracy in the first place, however defined, rather than simply applying the law.

　　But Fortgang has a larger agenda that I’d like to examine. It’s implicit from the start when he poses his immediate, skeptical concern: “Can judicial decisions finding new individual rights without a textual basis—and thereby limiting elected state legislatures and officials from exercising police powers—actually promote democracy?” Fortgang burnishes his post-New Deal democratic, yet conservative, inclinations when he adds: “Unelected judges stymie the will of the people when they declare laws invalid, which is why they can only do so in limited circumstances and with utmost justification,” about which more anon.

　　After further outlining the Nejaime/Siegel thesis, commenting critically along the way, Fortgang moves toward the kill by first noting that the authors “frame their argument as a path to saving substantive due process from its most infamous application, in Lochner v. New York.” But the Lochner Court’s alleged misuse of the Fourteenth Amendment’s Due Process Clause to protect economic rights, the authors contend, “should not tarnish substantive due process’s potential to do other good things.” They attribute the persistence of the Lochner accusation and its application to social rights cases to cultural stigma, the exclusion of women and gay scholars from the legal academy, and the condescension of critics like Robert Bork and John Hart Ely. But “this glosses over the main argument underlying Lochner’s disrepute,” Fortgang writes, “which has nothing to do with any class of litigants’ circumstances. Unenumerated rights,” he contends, “must be governed by an intelligible principle that can distinguish between constitutional rights and legitimate exercises of state power.” These authors offer no such principle.

　　Fortgang elaborates: “In other words, the problem is not that substantive due process is undemocratic per se.” Rather, it “has no contours. It turns the Fourteenth Amendment into a shapeless license to overrule legislatures and establish enlightened juristocracy. Precisely because it is based on an irrationality—the notion that a procedural safeguard includes substantive protections—it is unmoored. The concept of ‘liberty,’ equally beloved and contested by all, is empowered to override democratic laws.”

　　It’s good that Fortgang has gone after what he calls the counterintuitive Nejaime/Siegel democracy-promoting approach to protecting unenumerated rights, which is likely going nowhere. But his critique is itself a good example of what happens when a critic jumps into the middle of a complex issue and then tries to work his way out without ever going to the first principles of the matter. True, Fortgang seems to have something of a first principle, at least by implication. It’s that democracy trumps liberty, mostly. Problem is, that’s not the Constitution’s first principle, which is what I meant when I spoke earlier of Fortgang’s burnishing his New Deal democratic, yet conservative, inclinations. For that’s when the Court of that day turned 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.

　　From beginning to end, the Constitution rests on a presumption of liberty.

　　Moderns tend to start with rights, as did the Founders, but not the Framers, for whom powers were paramount. The Founders’ aim was to outline a legitimate moral, political, and legal order, which our Declaration of Independence did—our first legal document, modern conservative protestations notwithstanding. Thus, they argued in the state-of-nature tradition where systematically discerning our natural rights was primary, from which they derived the legitimate means for securing those rights—government and governmental powers grounded in the consent of the governed. Rights first. Powers second.

　　By contrast, the Framers focused on powers, the main purpose of which, as the Declaration said, was to secure our rights. Consistent with the Declaration, therefore, all of the broad purposes listed in the Preamble reduce to liberty or public goods defined as economists do given the free rider problem. So too with the Constitution’s structure. Article I, sentence one implies only limited legislative powers as enumerated in Section 8, as implied by the division and separation of powers, and as expressly provided for by the Tenth Amendment, to say nothing of the Ninth Amendment, which states expressly that we have both enumerated and unenumerated rights. Pace many of today’s conservatives, the Bill of Rights added only specificity. It added no rights we didn’t already have prior to its adoption. As Wilson, Hamilton, Sherman, and others said, our protection was in showing that the government had no power. Thus, a plaintiff had to make out only a prima facie case, after which the burden shifted to the government. In sum, from beginning to end, the Constitution rests on a presumption of liberty, with democracy designed to fill offices with officials constrained by constitutional limits on their power.

　　The Fourteenth Amendment brought those strictures in relevant ways against the states, especially through its Privileges or Immunities Clause. It was the tragic 1873 decision in the Slaughterhouse Cases that undercut that plan, leaving us with only the Due Process ­of Law and Equal Protection Clauses, although commentators have thought the former to offer substantive protections since at least Magna Carta.

　　Having shown that “there is no principle at play” in the Nejaime/Siegel argument, Fortgang cites Washington v. Glucksberg for its “requiring that substantive-due-process rights be ‘deeply rooted in the Nation’s history and tradition’ and defined with careful specificity”—“a limiting principle designed to prevent courts from manufacturing preferred rights under an open-ended liberty clause.” The problem is, if that test “tends to reinforce behaviors that have already gained popular acceptance,” as Fortgang grants, then why is there a case before the court? Popular speech doesn’t need protecting. Are we to wait until flag desecration is popular before we call it a right?

　　We cannot articulate all of our manifold liberties. We can government’s powers, which the Constitution’s structure and its presumption of liberty, in all of its right-respecting permutations, require us to do.That is the vision, Madison’s vision, that the Cato Institute, the Institute for Justice, the Goldwater Institute, the Pacific Legal Foundation, and even the Manhattan Institute, among others, have increasingly been pressing before our courts, and with no little success.