In Prof. Roosevelt’s view, the question is not really about “activist” versus “restrained” courts; it’s about “aggressive” versus “deferential” courts. “Courts should enforce substantive principles, but they should do so deferentially when other actors will do a better job of identifying and observing the constitutional limits on their powers.” It’s not clear to me how a court could enforce a constitutional provision deferentially; in practice, courts acting deferentially typically means not enforcing the constitutional provision at issue.
But put that aside for now, because it seems to me that the difference between Prof. Roosevelt and myself turns on this question about “other actors doing a better job of observing the constitutional limits on their powers.” I believe our checks and balances system does not vest any branch of government with the power to determine independently what constitutional limits restrain their own powers. On the contrary, that system is designed so that the branches check other branches—to make sure that neither the Congress, nor the President, nor the courts, act as judges of the extent of their own powers (or the “judge in his own cause.”).
Yes, there are some things that the branches are better suited to do—the President is better suited to conduct foreign negotiations; the Congress better suited to decide general policy—but when it comes to the constitutional extent of their powers, the founders did not put the foxes in charge of their own foxhouses. Instead, they specified limits on authority, and they established a tripartite system in which each branch has the power and the obligation to check the excesses of others.
The Constitution simply does not allow courts, or anyone else, to decide when another branch’s skill at “observing the constitutional limits on their powers” warrants shrugging at the Constitution’s language. When, in the name of “deference,” courts allow the legislature to exceed its constitutional authority—for example, to take private property for private use, when the Constitution only allows eminent domain for public use—the courts undermine the entire framework. There’s a crucial ambiguity in Prof. Roosevelt’s model of restraint—which I hasten to add, is the consensus view in the law today. While legislatures are definitely in a better position to judge questions of policy, they are not in a better position to judge questions of constitutionality. But the Dogma of Deference leads courts to shut their eyes so tightly that these two categories blur.
Kelo v. New London is a perfect example of this. There may be room for debate about what constitutes a “public use” for purposes of the Fifth Amendment, but one thing is crystal clear: it means not a private use. Yet in Kelo, the Court held that in the name of deference to legislative majorities, it would allow the legislature to decide what constitutes a “public use”—that is, to go beyond questions of policy into questions of constitutional authority. One is reminded here of Brutus, the eloquent antifederalist, who complained that the Constitution’s phrase “general welfare” could not really limit Congress’s power:
It is as absurd to say, that the power of Congress is limited by these general expressions, “to provide for the common safety, and general welfare,” as it would be to say, that it would be limited, had the constitution said they should have power to lay taxes, &c. at will and pleasure. Were this authority given, it might be said, that under it the legislature could not do injustice, or pursue any measures, but such as were calculated to promote the public good, and happiness. For every man, rulers as well as others, are bound by the immutable laws of God and reason, always to will what is right. It is certainly right and fit, that the governors of every people should provide for the common defence and general welfare; every government, therefore, in the world, even the greatest despot, is limited in the exercise of his power. But however just this reasoning may be, it would be found, in practice, a most pitiful restriction. The government would always say, their measures were designed and calculated to promote the public good; and there being no judge between them and the people, the rulers themselves must, and would always, judge for themselves.
The Constitution’s supporters rightly insisted that Brutus was wrong, because he was ignoring the checks and balances system. Sadly, the Dogma of Deference has so eroded that system that in many areas of life today, Brutus’s warning has proven correct.
Yet Prof. Roosevelt’s tendency to blur categories goes even deeper than this difference between policy and constitutionality. He rejects my call for meaningful judicial protection for economic liberty on the grounds that “Judges are not significantly better than legislatures at deciding economic questions”—but questions of economic liberty are not economic questions. They’re questions about individual rights.
Consider, for example, a lawsuit that we at Pacific Legal Foundation won just last week. We challenged the constitutionality of Kentucky’s licensing law for moving companies. Under this law, if you wanted to start a moving company, you essentially had to get permission first from the state’s existing moving companies. This absurd law created a statewide cartel in the moving industry, where established firms could, and routinely did, block newcomers, like our client Raleigh Bruner, from entering the market—for reasons totally unrelated to their skills or honesty.
Of course, the state didn’t admit that. Its lawyers claimed that the law existed to prevent “excessive entry” and “dangerous competition.” Now, it takes only rudimentary knowledge of economics too know that these are lame excuses—competition benefits consumers and entrepreneurs, and avoids the inefficiencies caused by private-interest legislation like this licensing law. “Excess entry” is a purely theoretical model that does not apply to industries like moving with low start-up costs and where the goods or services are heterogeneous. The state’s rationales for this law were akin to censoring speech, and then saying that censorship was needed to prevent people from uttering magic words that cause earthquakes and meteor strikes.
This case was not about “economic questions,” but about Raleigh Bruner’s right to put his labor to work in providing for himself and his family. It was about the rationality of restrictions on his constitutionally protected liberty. But in Prof. Roosevelt’s model—where courts must defer to legislatures, trusting them to respect their constitutional limits without oversight—courts shouldn’t consider “economic questions.” They would thus be blinded by pseudo-intellectual econo-speak such as Kentucky bureaucrats used to defend their anti-competition law. And Raleigh Bruner’s rights would have been sacrificed to the “amiable fiction”—just as demanded by the Dogma.
Prof. Roosevelt acknowledges this in passing. “Mistakenly upholding an economic regulation,” he writes, “may crush the dreams of aspiring barmaids or plumbers [or moving company owners], and those people may lack political power as sorely as racial minorities. But it is far easier to exit the oppressed class, making judicial intervention less necessary.” How is it easier? Politely ask the legislature (or an administrative agency) to respect one’s constitutionally guaranteed right to liberty? Give up trying to become a barmaid, plumber, or moving company owner? Neither of these answers are convincing—and neither persuaded the authors of the Constitution.