As Washington gears up for the first Supreme Court confirmation
battle in over a decade, expect to hear the phrase “judicial
activism” batted around a lot. It’s a term of abuse long popular on
the Right that has started gaining currency among liberals.
While Republican senators catalogue the outrages that attend
legislating from the bench, Senate Democrats will attempt to
discern whether John Roberts fits into the category of an
“activist” conservative — one of those jurists who, wrote Jeffrey
Rosen in the New Republic, “want to resurrect what they
call the ‘Constitution in Exile,’ enforcing limits on federal
power, that have been dormant since the New Deal, in part through
narrow interpretation of the interstate commerce clause.”
Herein one finds the source of much confusion. “Judicial
activist” is hurled both at judges who usurp legislative
prerogatives and those who enforce constitutional limits on the
federal government (especially long-ignored ones) alike. Judicial
arrogance thereby becomes indistinguishable from constitutionally
legitimate judicial review.
It gets murkier yet: Some libertarians fear that Republican
attacks on the former threaten the latter. This leads some of them to part
company with conservative proposals to limit the jurisdiction
of the federal courts. Others have sought to rehabilitate the whole
concept of judicial activism.
The July issue of Reason, for instance, carried a
fascinating piece by Damon W. Root making the case that “principled
judicial activism” is consonant with the libertarian understanding
of limited government. Root points to federal court decisions
between Reconstruction and the New Deal that struck down
Progressive economic regulations and vindicated private-property
rights (exactly the sort of jurisprudence critics of the alleged
“Constitution in Exile” project have in mind).
Conservative wags have long joked that if liberal judges could
transform First Amendment free-speech guarantees into protections
for pornographers and naked dancers, right-wingers might as well
get into the act by appointing judges who combine their ideology
with a similarly expansive reading of the Constitution. If naked
dancing can be free speech, why can’t the progressive income tax be
regarded as unconstitutional involuntary servitude?
Appealing as this vision may be, it’s not without problems. The
Framers designed a federal government of limited, enumerated
powers. Those of us who favor adhering to those limits are already
subject to criticism that we are reading our policy preferences
into the Constitution. A libertarian judicial activism — if it’s
truly activism rather than constitutional enforcement — explicitly
confuses constitutionality with desirability.
Empowering judges to strike down laws in accordance with
small-government policy preferences — that is, regardless of their
compatibility with the Constitution and its amendments as ratified
— gives them the power to act according to big-government policy
preferences as well. It’s telling that since the New Deal, the
federal judiciary has generally not been protective of economic
liberties. Instead, it has tended to consolidate federal power in
most areas.
The inherent pitfall in relying primarily on the judiciary to
limit government is that it relies too heavily on the appointment
of judges with the correct sympathies. Otherwise, they will use
oversized judicial powers to grow government rather than curb
it.
If we don’t trust the elected branches to respect individual
rights, why should we place so much faith in their personnel
decisions with regard to the courts? Will centralization really
produce greater gains for liberty over time than the Founders’
federalism? And as a practical matter, are there really more
Richard Epsteins out there to be given judgeships than
Anthony Kennedys?
THOSE RELYING ON THE COURTS as their main line of defense for
individual freedom have received two recent disappointments:
Gonzales v. Raich and Kelo v. New London. In both cases, Court
liberals should have been sympathetic to the plaintiffs’ rights,
creating the possibility that justices would join forces across
blocs to protect liberty. Instead the majority sided with the drug
warriors and the property-takers, respectively.
If libertarians couldn’t prevail in those cases, they must ask
themselves how many champions (or even allies) they really have in
today’s federal judiciary.
Both the rule of law and the long-term project of limiting
government would be better served by a consistent originalism than
a results-oriented activism. This imposes neutral rules that judges
as well as elected officials must abide by and places the written
Constitution above Supreme Court case law. And it confers greater
legitimacy upon the entire judicial process.
The first step is to clarify the debate. Striking down an
unconstitutional law, even one supported by a popular majority, is
not judicial activism. Assuming the powers of other branches or
arriving at decisions with no basis in the Constitution, as
understood by those who ratified it, is activism even when the
ruling accomplishes a noble result.
Such an originalist approach will not always produce agreements
about court decisions or even the judiciary’s role
vis-a-vis the elected branches. Antonin Scalia is going to
have different ideas about judicial restraint than Randy
Barnett.
Originalists, however, aren’t activists. Making this clear won’t
end the “Constitution in Exile” meme, but it might help
constitutionalists emerge from exile.
