Commentary: A Libertarian View Judicial Activism is Necessary

By: Randy Barnett

 

© 1987 Legal Times

              When a citizen claims that a congressio­nal act or state statute violates his or her rights, what is a judge to do? We are now witnessing a tumultuous debate about this issue between judicial "conservatives" and "liberals."

                 Judicial liberals, who have dominated both the courts and academic discussions for decades, view the Constitution as a "living" document whose broad provisions warrant the judicial adoption of enlightened social policy to keep up with changing times. Since the 1930s, this has meant that federal and state courts have legitimated a virtually unfettered legisla­tive power to remake the law governing economic relations, while strictly scruti­nizing legislation that impinges on certain favored non-economic rights.

               Today's judicial conservatives resist the idea of judges substantively scrutinizing congressional and state legislative acts. The view political legitimacy as stem­ming entirely from majority will—a will, they say, that federal judges, especially, have thwarted with impunity. Popularly elected legislatures are "accountable." Lifetime appointed judges are not Judges are authorized only to follow legislative orders—including the orders contained in the popularly ratified Constitution

           Which of these judicial philosophies is most appealing often depends upon what a person fears most Judicial liberalism ap­peals to those who fear that state legisla­tures will prove only too responsive to a majority's wrongheaded desire to tram­ple the non-economic freedoms of the minority.

            Judicial conservatism, on the other hand, appeals to those who are afraid that an unaccountable "activist" judiciary will conspire to impose its own wrongheaded vision of social policy. While the fears of each camp are warranted. I believe both their judicial philosophies are constitution­ally flawed

 

 

Problem With Liberalism

             Judicial liberals' big constitutional mis­take is to try to establish a hierarchy of rights or liberties. They want to have their cake (broad non-economic liberties) and eat it too (no economic rights) There is absolutely no warrant for this distinction in a Constitution that ensures the "equal pro­tection of the laws" and explicitly protects the "obligation of contract." the undifferentiated "privileges or immunities" of cit­izens, and the "life, liberty, or property" of all persons.

             Some modem liberals would have pre­ferred that the American Constitution not have expressly acknowledged property rights and obligations of contract, but the fact is that it did. Indeed, the Supreme Court has never explicitly refused to re­view economic legislation. Instead, it has adopted a hypocritical "rational basis" standard of review that 100 percent of eco­nomic regulations can pass.

           If a written constitution means anything, it means that even constitutional rights that are unfashionable according to current po­litical thinking merit genuine judicial pro­tection until the Constitution is amended Judges who turn a blind eye to constitu­tionally protected economic liberties un­dermine their own authority

         As people come to believe that the Su­preme Court makes up its own constitution as it goes along in order to fulfill a political agenda, the legitimacy of judicial review is eroded and the Constitution is debased

 

 

Conservatism's Folly

        Judicial conservatives embrace the lib­erals' broad post-New Deal reading of congressional powers but dangerously compound this mistake in two ways First, they limit judicial review of legislative acts to an application of the narrowest possible reading of only those rights that are clearly specified in the Constitution Second, they adopt an expansive, antebellum view of state legislative discretion.  

        Consequently, it is these conservatives who fiercely resist judicial protection of both non-economic and economic rights. This vision of expansive legislative pow­ers, constrained only by enumerated nights, turns the actual constitutional text upside down

          At the federal level, the Constitution ex­plicitly establishes a structure of enumerat­ed congressional powers and expansive in­dividual rights When Congress exceeds its enumerated powers by acting in ways not shown to be truly "necessary and proper" to these enumerated powers, such acts are ultra vires and should not be rec­ognized by courts as law

             Congressional acts must therefore be | substantively evaluated by judges to see whether they are in fact within an enumer­ated power. Even if they are, they must be further evaluated and stricken if they vio­late individual rights—for example, by taking property for public use without pay­ing just compensation

           What about federal judicial scrutiny of state statutes? True, the original text left state legislatures free to act in ways that Congress could not. But this structure was found to be grossly deficient. For a start, it permitted state laws enforcing human slav­ery The 13th Amendment outlawed slav­ery, but did not prevent other legislative abuses. The 14th and 15th Amendments fundamentally altered the original consti­tutional structure.

         Thus Congress and the courts are now expressly authorized to protect from state as well as federal infringement the eco­nomic and non-economic rights to "life, liberty, or property ' of all persons, as well as the "privileges and immunities" of all citizens and the political right to vole.

 

 

Do Natural Rights Exist?

         Philosophical skepticism about individ­ual rights is not peculiar to judicial conser­vatives Until recently, liberals also shared the view of Jeremy Bentham that "there are no such things as natural rights—no such things as rights anterior to govern­ment " While such a view of rights has been widely held by intellectuals of every ideological stance for a long time, grave problems rise when those accepting this view use it to interpret the Constitution

          The original Constitution, the Bill of Rights, and the 14th Amendment were not written by Benthamites They were written by persons who accepted the reality of Lockean natural rights In the words of the Ninth Amendment "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

          The Ninth Amendment has long been dismissed as a "mere" rule of construc­tion by liberals and conservatives alike. Even if they are right, however, its importance to today's debate is undiminished One reason the Ninth Amendment was in­cluded in the Constitution was to avoid the cramped construction of individual rights that judicial liberals in the recent past in­sisted—and that conservatives continue to insist—was the framers' "original intent "

             Gary McDowell's dismissal of the Ninth Amendment exemplifies the strained argu­ments required to read inconvenient pas­sages out of the Constitution: "[T|he Ninth Amendment is not a statement of fundamental rights so sweeping as to ren­der all the other rights mentioned superflu­ous " But those who take the Ninth Amendment seriously would not consider the other rights at all superfluous.

            Rather, as James Madison's original draft of what became the Ninth Amend­ment makes clear, the "exceptions here or elsewhere in the Constitution, made in fa­vor of particular rights shall not be construed as to diminish the just impor­tance of other rights retained by the people.” Instead enumerated rights should be construed either as actual limitations of "the powers delegated by the Constitu­tion' or 'as inserted merely for greater caution.”

 

 

Constitutional Alternative

            The correct alternative to judicial con­servatism and liberalism is as old as the Constitution itself. The framers rightly be­lieved that while democracy is a useful constraint on the tyranny of the executive branch, it is insufficient to protect the indi­vidual from the tyranny of the legislature.

              For this reason, they wrote the Constitution that contained not one, but several passages recognizing the existence of economic and non-economic rights that even majoritarian institutions should not violate. While sometimes repetitive, these clauses were no more superfluous than the so-called redundant safety systems on airplanes.

      Any claim by tome—including those calling themselves a legislature—lo con­trol forcibly the actions of often must be justified. Rights "theory" is the systemat­ic study of what constitutes a sound moral justification for the use of force by one against another. If express constitutional warrant for this kind of inquiry is required, the U.S. Constitution provides it

      For this inquiry to be meaningful, how­ever, the legislature cannot be the judge in its own case. We need an impartial third party to adjudicate claims by individuals that persons designated a legislature have exceeded their constitutional authority and violated individual rights. In short, we need substantive "judicial review" of leg­islative action. Accordingly, the federal courts are empowered by Article ID to de­cide "all Cases, in law and Equity, arising under this Constitution," just as common law judges have for centuries determined the content of individual rights.

       What about the "tyranny of the judicia­ry"? It is not as much a problem as it may seem; proper substantive review only au­thorizes judges to say no. They have no authority to exercise executive functions or to spend state or federal tax moneys (ex­cept to order the payment of damage awards) When held strictly to this func­tion, judges are indeed the "least danger­ous branch.''

       Moreover, the Constitution provides three important formal safeguards of judi­cial performance The President and the Senate may scrutinize the “judicial philos­ophy" of all judicial appointments, federal judges may be impeached by the Senate, and where the text itself is wrong, it may and should be amended Any lack of "public will" to take these steps indicates that the real problem with the judiciary today is not that it has thwarted the major­ity's will, but that it has succumbed to it

        The fundamental debate about the Con­stitution is often about political, not judi­cial, philosophies. The authors of the Con­stitution, the Bill of Rights, and the 14th Amendment tried to design a constitutional structure and constraints that would facili­tate their political views. It is no accident, then, that this structure pinches the feel of those who do not accept the framers' polit­ical vision.

         Notwithstanding this elaborate effort, we have witnessed a 200-year erosion of individual rights. One by one, most of these passages have been steadily rendered functionally meaningless by the Supreme Court Once interpreted away, these protective strictures never seem to resurface. Unless the textual erosion is somehow abated and reversed, the American experi­ment with constitutional limits on govern­mental power will have failed. Judges must salvage these long-neglected provi­sions of the text.

       The unenumerated individual rights pro­tected by the Constitution are not mystical They serve as a vital baseline of individual freedom from external interference with voluntary economic and non-economic activities.  

            Still, although political vision is all that can ever justify a constitution, the debate over the appropriate role of the courts is itself important. We remain at peace with one another by confining our political dis­putes to constitutionally permissible chan­nels. Those on the right or left who play fast and loose with the constitutional text to support their political vision invite grave social conflict by undermining the legiti­macy of these channels The bicenten­nial of the Constitution would be an appropriate time to end their most danger­ous game.