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Wednesday, February 27, 2008

Confounding the Founding: Why Separated Powers?

For an article I'm working on (about which I hope to blog further soon), I came across the following quote, delivered by the current Attorney General in a 2004 speech. Referring to the Founding, then-Judge Mukasey suggested that the Federalists:

resisted pressure from people like Patrick Henry . . . to include the substance of what later became the Bill of Rights in the Constitution itself because they understood that if you give equal weight to a citizen’s rights against the government . . . and to the definition of government itself, it becomes correspondingly harder to command support for that government and correspondingly easier for people to simply go where their rights, and their interests, seem to take them.

Mukasey made a slightly weaker form of the same argument in a Wall Street Journal op-ed published a few months later, suggesting that "the hidden message in the structure of the Constitution . . . is that the government it establishes is entitled, at least in the first instance, to receive from its citizens the benefit of the doubt."

Here's what's troubling me: Isn't this entirely backwards? I had always understood the consensus narrative of the Founding to be that (1) the Constitution's structural features, especially the separation of powers, were crafted largely (although perhaps not entirely) for the purpose of protecting individual rights; and (2) the reason why the Federalists were opposed to a Bill of Rights wasn't because they thought that individual rights were not entitled to "equal weight"; quite to the contrary, they feared that whatever rights remained un-enumerated might not be protected...

So I guess I have two questions:

  1. Was Mukasey re-writing history (or, put another way, am I just wrong)?
  2. If he was (and I'm not), how pervasive is this idea in contemporary understandings of the Founding?

I have my own ideas, but am curious for others' thoughts...

Posted by Steve Vladeck on February 27, 2008 at 06:19 PM in Article Spotlight, Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink


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My second comment was, indeed, off-topic; it just seemed like a bizarre implication of the argument. I likewise did not understand how to get from Mukasey's premises to his conclusion, which made me doubt my understanding of what his conclusion actually was (hence my comment). Mukasey derives ongoing normative significance from the fact that the Constitution originally omitted a bill of rights, notwithstanding the fact that a bill of rights was indeed added shortly thereafter. I just don't see how that original understanding survives amendments which seem to counteract that understanding.

My (limited) understanding of the founding is that you are right about the founders' understanding. A theme throughout the Federalist is that the structural prerogatives of government--enumerated powers, separated powers that check-and-balance each other (including vertical separation through federalism)--are simply means for protecting individual rights, just as all government is merely a means to preserving natural liberties. See, e.g., the Declaration of Independence. But Mukasey seems to acknowledge this. ("[I]t is the rest of the Constitution--the boring part--the part that sets up a bicameral legislature and separation of powers, and so on . . . that guarantees that the rights referred to in those 10 amendments are worth something more than the paper they are written on.").

It seems that his argument is more of a process-based one, that proceeds something like this: The original structure of the Constitution was designed to enact a governing process that would produce policies containing an optimal amount of liberty. Therefore, any policy produced by our government, so structured, should be presumed, in the first instance, to have optimized the liberty granted its citizens. The fact that the policies seem, to the public, to contradict substantive rights enumerated elsewhere should not be deemed conclusive evidence that the policies have not optimized liberty, because they were produced by a liberty-optimizing process, which ought to be granted deference. In this respect, the structure trumps the rights-creating amendments, because the process the structure enables is deemed to have already taken those liberties into account. Who are you going to believe: the process, or your own lying eyes?

That is, at any rate, how I understand his argument to work, and I'd be interested to see if you agree. The fact that this argument is addressed to the "citizens" (rather than, say, the courts) is especially strange. It implies that they have no role to play in the structure of the government, that the "structure" is extrinsic to the populace at large. This is an odd assumption, given that the franchise was seen by Madison, especially, as the ultimate check on oppressive government.

Posted by: Andrew | Feb 28, 2008 12:34:16 PM

This also is bound up with the purpose of limited-and-enumerated powers. The Hamiltonian conception was that rights existed in the absence of powers, but the only powers government possessed were those specifically enumerated. Individual rights existed when the structural prerogatives ended. But those structural prerogatives were tightly constained. On this theory, government could not prohibit the free exercise of religion because it lacked an enumerated power that would allow it to do so. This was another reason that a Bill of Rights was not deemed necessary. We now know this conception is unworkable, but that was the idea at the time.

Mukasey is wrong, as an historical matter, to suggest that the idea was to give the government the benefit of the doubt. Quite the opposite--the structure was such that government was strictly limited in its ability to act, long before we had specific rights-bearing provisions in the Constitution.

Posted by: Howard Wasserman | Feb 28, 2008 11:18:31 AM

I think that Mukasey indicates that individual rights necessarily flow from structure. That is, individual rights are meaningless if we don't have an institutional framework that is capable of protecting those rights. Under this framework, individual rights are dependent on the structural/institutional framework of our government. But does this also mean that our institutions are dependent on the rights enshrined in the Bill of Rights? For example, maybe the fact that we want to protect certain individual rights helps us mold our institutions to be capable of protecting those rights. If this is the case, then structural and rights-based parts of the Constitution are entirely co-dependent.

However, while these parts may be co-dependent today, that still doesn't answer the question of whether they were co-dependent in 1789. Maybe it would have been impossible to achieve a successful Bill of Rights without setting up the predicate institutional framework. But maybe it would have been impossible to set up those institutions without an idea of the rights they would be designed to protect. So, my guess is as good as anyone's as to whether we should give primacy to the structural or rights-based parts of the Constitution.

Posted by: Brian | Feb 28, 2008 9:04:08 AM

Andrew -- To your second comment, that's intriguing, and of course quite a departure from Brennan's argument in Katzenbach v. Morgan for why Section 5 allows Congress to prohibit state actions that don't violate Section 1...

But we're sliding further away from the question I'm really trying to get at here -- I thought that the Federalists and Anti-Federalists agreed that the purpose of separated powers was to protect liberty in general, and individual liberties in particular. They may have disagreed over the need to enumerate rights as part of that project, but isn't Mukasey completing ignoring the reason why separating the powers was important in the first place when he suggests that the Founders never intended for individual rights to have the same importance as structural prerogatives?

Posted by: Steve Vladeck | Feb 27, 2008 11:59:19 PM

Andrew -- I'm not sure I follow. I take Mukasey to be arguing that, read together, the structural features are more important than the individual rights (which suggests that in a conflict between the two, the latter should yield). But I don't see how that conclusion follows simply from the inclusion of the Bill of Rights over the Federalists' objections, especially given the _reasons_ for the Federalists' objections, as I noted in the post.

So, the Federalists didn't want to include a Bill of Rights because they thought individual rights were too important to write down, and the Anti-Federalists wanted a Bill of Rights because they thought individual rights were too important to leave out. How, from that, do we get to Mukasey's conclusion??

Posted by: Steve Vladeck | Feb 27, 2008 11:52:48 PM

Another thought that just occurred to me as I posted: if the structural parts are given greater prominence than the rights-creating parts, does that validate the idea that Congress might be able to use its section 5 powers in the 14th Amendment to create rights against the states that aren't recognized under section 1? Surely that's not what Mukasey wants to say. Maybe he could argue 1) section 5 isn't "structural" enough somehow, or 2) only the original grants of power in the Constitution have priority over rights-granting amendments; enumerated powers added by amendment are equal to subsequent rights granted.

Posted by: Andrew | Feb 27, 2008 11:50:18 PM

I guess I don't see what this argument, regardless of its merits, is supposed to prove...what's normatively relevant now is the Constitution as amended. Right?

To the extent that that was the message of the Constitution, isn't that understanding pretty much repudiated by the Bill of Rights, which the Federalists were ultimately unable to keep out of the Constitution? If the rights to free speech, due process, protection against search and seizure, etc., are incompatible with what Mukasey alleges to be the original, statist structure of the Constitution, well, isn't that the whole point of amendment? Or is that aspect of the Constitution also considered "un-amendable" provisions, like the slave trade ban, or the Senate, that can't even be modified by amendment? This seems to be the import of his argument, earlier in the WSJ article, that the rights-creating provisions are not to be "give[n] equal prominence" to those granting powers to the government.

Posted by: Andrew | Feb 27, 2008 11:37:33 PM

You are taking exactly the position Hamilton took in Federalist 84.

Posted by: Edward Still | Feb 27, 2008 10:37:22 PM

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