Thursday, January 16, 2014

Review of Sandefur's "The Conscience of the Constitution"

Over my winter break, I read Timothy Sandefur's The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty.  Those who read this blog regularly will know that I met Mr. Sandefur when he came to visit Susquehanna University and gave a talk on The Right to Earn a Living.

This book is outstanding.  For a book examining legal issues, it's quite easy to read.  (And easier than his book "The Right to Earn a Living", which is good, but uses more legalese.)  For non-lawyers, The Conscience of the Constitution has a lot of value in thinking about how our government was formed and should work and why.

Even if you don't intend to read this book, download the preview of it onto an e-reader.  Most e-books allow you to read the first 5-10% of a book for free before purchasing.  Reading that alone is valuable as this introduction is outstanding.  It starts to examine the (timely) issue of order vs. freedom.  Is our governments main responsibility to provide order?  Sandefur thinks no.  It should only provide order when needed to ensure as much freedom as possible.

I admittedly haven't spent too much time thinking about this issue.  So, on page 5, when Sandefur put in a quote from Supreme Court Justice Breyer indicating that democracy was the most important part of the constitution, I initially didn't think that was a problem.  Sandefur convinced me otherwise.  As he writes: "the word democracy is nowhere to be found in either the Constitution or the Declaration of Independence".  That makes Breyer's answer more puzzling.  His answer seems downright disturbing when you realize that Breyer thinks its acceptable for 51% of people to take away freedoms of the other 49%.

The whole book is good, so I'll just comment on one other specific item.  Chapter 5 shows that the debate over judicial activism really boils down to issues of "democracy vs. freedom" as well.  Here he brings up public-choice theory (which, speaking loosely, examines how governments fail).  When governments can redistribute wealth, those getting the wealth will do what they can to keep that government in power.  What you end up seeing is rent-seeking behavior by some individuals and corrupt politicians in power.  Sandefur then goes on to say how judicial review, if applied properly, could prevent this.

It's rare to see scholarly books that are accessible to people outside the field.  This book is exactly that, however, which is part of the reason why I recommend it.

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