Maxim Constitutionalism: Liberal Equality for the Common Good Alexander Tsesis* This Article argues that the central purpose of U.S. constitutional governance is the protection of individual rights for the common good. Members of all three branches of government must fulfill that public trust through just policies and actions. The maxim of constitutional governance establishes a stable foundation for the rule of law, requiring government to function in a nonarbitrary manner. It provides the people with consistency and predictability about the scope of governmental powers and responsibilities. The foundational dictate of governance is incorporated into the U.S. constitutional tradition through the Declaration of Independence and the Preamble to the Constitution. Those two documents reflect the national commitment to promulgating laws that are conducive to both the public good and the personal pursuit of happiness. The federal legal system must integrate protections of rights for the common good into statutes, regulations, and judicial opinions that address a plethora of social demands and problems. The project of maxim constitutionalism runs counter to positivist skepticism about the validity of fundamental constitutional principles. This Article seeks to demonstrate that maxim constitutionalism reflects the normative underpinning of legal order that is compatible with pluralistic self-governance. The protection of rights for the common good facilitates the workings of a polity that tolerates debate and deliberation. The administration of laws for the public benefit enjoins tyrannical majoritarianism and abuse of state authority. Like originalism, maxim constitutionalism utilizes historical analysis. But it departs from originalism by denying that the original meaning of the Constitution’s text should be determinative. Maxim constitutionalism is a binding norm that is independent of any individual mind frame, whether past or present. In addition, though the forward progress of constitutionalism is informed by judicial opinions, it is not defined by them alone. Congress must also play a central role in identifying rights and promulgating statutes for their protection. Recognizing this bedrock purpose of governance distinguishes maxim constitutionalism from prominent strands of living constitutionalism by furnishing an objective and enduring standard for evaluating the legitimacy of governmental actions. The assessment of public conduct is not procedurally * Professor of Law, Loyola University Chicago School of Law. Thanks for the advice and comments on drafts from Randy Barnett, Amy Barrett, Insa Blanke, Katie Eyer, James Gathii, Paul Gowder, Jessie Hill, Cynthia Ho, Randy Kozel, Marcia McCormick, Helen Norton, Juan Perea, Neil Siegel, and Lawrence Solum. 1610 Texas Law Review [Vol. 91:1609 neutral but substantively rich in its account of how governmental actors should further the public good through a legal system designed to secure life, liberty, and the pursuit of happiness for an equal citizenry. I. Introduction ....................................................................................... 1610 II. Constitutional Maxim ....................................................................... 1613 A. Maxims ......................................................................................... 1613 B. Textual Source of Constitutional Directive .................................. 1626 1. Declaration of Independence .................................................... 1627 2. Preamble to the Constitution .................................................... 1635 C. Maxim Constitutionalism .............................................................. 1642 III. Theoretical Context ........................................................................... 1655 A. Originalism ................................................................................... 1655 B. Living Constitutionalism .............................................................. 1665 C. Normative Compass ...................................................................... 1672 D. Neutral Principles .......................................................................... 1678 Conclusion ................................................................................................ 1685 I. Introduction Modern dilemmas about national politics, interstate commerce, antidiscrimination laws, and a host of other matters simply cannot be resolved by resort to the constitutional text alone. But where to turn for clarity? Surely the text must be the starting point, else the Constitution ceases to be the highest law of the land. Yet the myriad judicial doctrines, such as the reasonable protection of privacy, that have become part of the constitutional narrative are binding even though they recognize unenumerated interests.1 The Judiciary has been the final arbiter of the Constitution’s obscure passages since Marbury v. Madison.2 Yet the Court has not always been objective in its reading of the Constitution, often issuing political opinions influenced by the leanings of its members.3 Its opinions and doctrines have 1. See, e.g., Griswold v. Connecticut, 381 U.S. 479, 482 (1965). Writing for the Court, Justice Douglas declared: The association of people is not mentioned in the Constitution nor in the Bill of Rights. The right to educate a child in a school of the parents’ choice—whether public or private or parochial—is also not mentioned. Yet the First Amendment has been construed to include certain of those rights. Id. 2. 5 U.S. (1 Cranch) 137, 178 (1803) (“The judicial power of the United States is extended to all cases arising under the constitution.”). 3. See Richard A. Posner, The Supreme Court, 2004 Term—Foreword: A Political Court, 119 HARV. L. REV. 31, 53–54 (2005) (asserting that “landmark Supreme Court decisions of the past one 2013] Maxim Constitutionalism 1611 often been influenced by political and social proclivities and contemporary trends.4 Its ideological and doctrinal fluctuations clearly distinguish the entity from the fundamental U.S. law that is to guide its decision making. Stability of constitutional norms, therefore, cannot be based exclusively on judicial pronouncements. The Legislative Branch has even less claim to constitutional objectivity than the Judiciary because senators and representatives are overtly interested in pursuing popularly supported policies, particularly during election years. While Congress is directly elected by the people to represent their interests, the Constitution’s internal structure—particularly the separation of governmental functions—creates checks on lawmakers and their constituents that are meant to prevent tyrannical majorities from running roughshod over the rights of minorities.5 Indeed, the colonists made their initial protests, which eventually led to independence and, consequently, constitutional ratification, against laws passed by the British Parliament,6 evincing their rejection of legislative supremacism. The notion that the Framers might have placed constitutional definition in the hands of the President is, of course, entirely specious. Of the three branches of government, the Framers believed the Executive Branch to be most prone to corruption.7 The Declaration of Independence is a litany of accusations against the monarch.8 A firm constitutional structure delimiting presidential powers and demarcating rights and principles is necessary to prevent the exploitation of military command to maintain autocracy.9 Checks and balances on the powers of all three branches limit government, setting limits on legitimate exercise of powers. The three hundred years” would have likely come out differently if the Court had “been differently but no less ably manned”). 4. See, e.g., BRIAN Z. TAMANAHA, BEYOND THE FORMALIST-REALIST DIVIDE: THE ROLE OF POLITICS IN JUDGING 6 (2010) (describing the concept of “balanced realism,” which understands judges as being influenced by their own political and moral views and personal biases, but also as constrained by social and institutional factors). 5. See generally THE FEDERALIST NO. 51 (James Madison) (Clinton Rossiter ed., 1961) (articulating the general need for a separation of powers to preserve liberty as well as the specific need to counteract the inevitable predominance of Congress with bicameralism, different methods of election, and different principles of action). 6. Widespread colonial opposition to authoritarian British legislation began with objections to the Revenue Act of 1764, followed by protests against the Stamp Act of 1765 and the Townshend Duties of 1767. DAVID J. BODENHAMER, THE REVOLUTIONARY CONSTITUTION 27–29 (2012); JOHN FERLING, JOHN ADAMS: A LIFE 37–58 (1992); see ALEXANDER TSESIS, WE SHALL OVERCOME: A HISTORY OF CIVIL RIGHTS AND THE LAW 18 (2008). 7. See THE FEDERALIST NO. 48 (James Madison), supra note 5, at 306 (“In a government where numerous and extensive prerogatives are placed in the hands of an hereditary monarch, the executive department is very justly regarded as the source of danger, and watched with all the jealousy which a zeal for liberty ought to inspire.”). 8. THE DECLARATION OF INDEPENDENCE paras. 3–29 (U.S. 1776). 9. See generally THE FEDERALIST NO. 69 (Alexander Hamilton), supra note 5 (responding to critical misrepresentations of the new presidential power by listing the specific powers granted to the Executive under the Constitution). 1612 Texas Law Review [Vol. 91:1609 branches of government are not only bound