Progressives are wrong about the essence of the Constitution

The perennial conflict in American politics, Sandefur says, concerns “which takes precedence: the individual’s right to freedom, or the power of the majority to govern.” The purpose of the post-Civil War’s 14th Amendment protection of Americans’ “privileges or immunities” — protections vitiated by an absurdly narrow Supreme Court reading of that clause in 1873 — was to assert, on behalf of emancipated blacks, national rights of citizens. National citizenship grounded on natural rights would thwart Southern states then asserting their power to acknowledge only such rights as they chose to dispense.

Government, the framers said, is instituted to improve upon the state of nature, in which the individual is at the mercy of the strong. But when democracy, meaning the process of majority rule, is the supreme value — when it is elevated to the status of what the Constitution is “basically about” — the individual is again at the mercy of the strong, the strength of mere numbers.

Sandefur says progressivism “inverts America’s constitutional foundations” by holding that the Constitution is “about” democracy, which rejects the framers’ premise that majority rule is legitimate “only within the boundaries” of the individual’s natural rights. These include — indeed, are mostly — unenumerated rights whose existence and importance are affirmed by the Ninth Amendment.