The Dogma and the Class System

Sandhya Bathija’s argument that meaningful judicial protection for constitutional rights, including economic liberty, would somehow harm the working class, is pretty hard to take seriously, even aside from her cartoonish pseudo-history. Anyone concerned about the depredations of the wealthy and powerful must join me in advocating strong judicial protections against a legislative process in which the working class operate at a systematic disadvantage. The powerful don’t need courts to protect their rights—they have enough political influence. Individuals, not so much.

Consider Lawrence v. Texas. There, the Supreme Court applied meaningful constitutional scrutiny to invalidate legislation enacted by the politically powerful to restrict the rights of a minority group. The right to engage in homosexual sex was, of course, not an “agreed-upon liberty explicitly listed in the Constitution,” least of all in Texas. Yet the Court rightly held that the word liberty means something more than just the permissions the majority deigns to give us. The courts came to the defense of the individual who could not realistically hope to persuade the legislature to respect his freedom. It’s disappointing to see that Ms. Bathija thinks Lawrence was wrongly decided.

Or take Kelo v. New London. In that case, powerful, wealthy, politically connected developers obtained legislation which allowed them to seize property from politically powerless individuals, in violation of the Constitution’s promises that property shall not be taken for private use or without due process of law. The Court looked the other way, allowing cronyism to trump constitutional protections—a tremendous victory for corporate welfare at the expense of the underprivileged. Unsurprisingly, the most common victims of eminent domain for redevelopment are the poor and members of racial minorities. But I guess, as Ms. Bathija puts it, “As the will of the people changes, so do our definitions of liberty, for better or worse.”

One might say the same of other Great Moments in Judicial Restraint, such as Buck v. Bell, Korematsu v. United States, or Plessy v. Ferguson. In all these cases, courts refused to interfere in the “democratic process,” and allowed legislative majorities to enforce their will on powerless minorities whose only hope for protection had been the court system. Ms. Bathija’s coldness toward the rights of these minorities would likely shock many people who otherwise call themselves Progressives.

Of course, Ms. Bathija isn’t thinking about Fred Korematsu or Susette Kelo. Her primary concern is ensuring that dubious federal legislation never has to face any serious constitutional scrutiny. To that end, she is willing to advance legal arguments that would have these deplorable results—and worse, because there actually is a real class issue buried in the discussion of “judicial restraint.”

The Dogma of Deference encourages the growth of a class system which privileges the political class against the citizen class in this country. The confirmation process has become a ritual in which politicians demand that nominees genuflect to the Dogma of Deference until they are convinced that Congress will face no realistic restraint on their powers if they confirm the nominee. The result is a judiciary made up of judges who are either sufficiently deferential, or duplicitous enough to appear so. The only sacred element in the process is the notion that the legislature should get to do whatever it wants. Over time, the judiciary, which the Constitution promises will serve as a check against lawmakers, is pressured to become their servant.

What opportunity can people like John Geddes Lawrence or Homer Plessy or Carrie Buck or Raleigh Bruner have when taking on this entrenched political class? The legislature is easily manipulated by powerful private interests, who seek legislation that benefits them and burdens their rivals—whether it be established moving companies blocking new competitors, or bigots using the law to persecute gays. The founders called this tendency to abuse “the mischiefs of faction,” and they designed a system to prevent these mischiefs as much as possible. Democratic control, in limited, carefully designed ways, was an important part of that—but so was meaningful judicial enforcement of constitutional limits on the legislature. To reduce those protections out of a thoughtless infatuation with “democracy” in the abstract—an infatuation that makes no acknowledgment of rent seeking and factional problems that often block ordinary people from obtaining legislative protection—is to radically undermine constitutional protections. Yet that is what the Dogma encourages.

If the legislation Ms. Bathija is so fond of is such a good idea, it should be able to withstand judicial scrutiny. If it’s unconstitutional, but still a good idea, then amend the Constitution. But demand judicial restraint simply to prop up the regulatory welfare state, notwithstanding the tremendous harms that it inflicts on the very people one claims to speak for? That’s short-sighted.

Also from This Issue

Lead Essay

  • It’s Time to Ditch “Judicial Restraint” by Timothy Sandefur

    Left and right agree that activist judges are bad. But the concept of activism is ultimately quite fuzzy, and it may even interfere with the work that judges should be doing. When courts defer too much, the legislature’s power grows beyond its constitutional bounds. Answering the question of how active our judges should be requires answering what exactly they should be doing; Sandefur’s answer is that judges should strenuously enforce the Constitution against the other branches of government. Failing to do so not only leaves bad law in place, it thwarts the will of the people as expressed in the Constitution.

Response Essays

  • Activism and Restraint by Kermit Roosevelt III

    Kermit Roosevelt III discusses judicial activism and restraint. He finds neither is always appropriate: A theory of when judges properly strike down laws will not necessarily hang on how many laws they strike down. Judges, though, are not necessarily better at deciding economic questions, and they may do harm either by upholding or by striking down a law. Either of these harms may fall on powerless minorities. Identifying legislation that is simply the product of favoritism or rent-seeking is an enduring challenge, not one that can be settled with a theory of activism or restraint.

  • Why Judicial Restraint Best Protects Our Rights by Sandhya Bathija

    Sandhya Bathija argues that restrained courts have done best to protect rights from the interests of the wealthy and powerful. Among the three branches of government, Congress has done the most to rein in the power of big business, and this is overwhelmingly for the good of the people. That result shouldn’t be so surprising, as Congress is the most democratic branch of our government. Sandefur’s vision of the judiciary would paralyze the federal government and would constitute “an assault on people with disabilities, racial minorities, women, LGBT Americans, and the poor.”

  • Let’s Keep (Some) Judicial Restraint by David R. Upham

    David R. Upham argues the Founders intended a significant democratic element to our Constitution; fidelity to it requires some judicial restraint. The branches of the federal government are coequal, and deference to elected legislatures is consistent with the Founders’ principles. It is also reasonable, in that legislatures cannot act before they have cleared significant procedural hurdles, increasing the chance that their work will reflect considered judgment about the Constitution. Examples of improper but democratically enacted legislation oppressing minorities so far advanced have been inapposite.

The Conversation