If there’s one thing left and right agree on, it’s that judges shouldn’t be “activists.” Conservatives condemn activist judges for imposing their personal views on subjects like same-sex marriage in the guise of constitutional interpretation. Liberals, meanwhile, attack the Supreme Court’s conservative majority for its alleged activism in striking down laws relating to private property rights or the environment. Presidents Bush and Obama railed against activist judges in press conferences and debates. Judicial nominees know that if they are to be confirmed they must recite the language of “judicial restraint”—or “humility”—before the Senate Judiciary Committee.

But as this bipartisanship suggests, the concept of activism has never been clearly defined, and some scholars take this as proof that it doesn’t really mean anything at all. Professor Kermit Roosevelt III argues in The Myth of Judicial Activism that the term is only “a rhetorically charged shorthand for decisions the speaker disagrees with.” That may be an overstatement; there certainly are judges who abuse their powers to advance their political views. But that doesn’t prove that the Constitution imposes a general obligation of restraint. To answer that question, we first need a clear understanding of what courts ought to be doing. And as I argue in The Conscience of the Constitution, today’s mainstream constitutional lawyers lack such an understanding. I think it’s time to reconsider the idea of judicial restraint—and the foundations on which that notion rests.

I. The concept of judicial restraint

No doctrine of judicial restraint is to be found in the Constitution. On the contrary, that document creates a system of equal, limited, and separate branches, each poised to check and restrain the other. James Madison made clear in Federalist 51 that that this elaborate structure—today often derided as “gridlock”—was created to protect individual freedom against oppression by the majority or by powerful interest groups who exploit government power for their own purposes.

It was not until the opening years of the twentieth century that Progressive theorists devised a general theory of judicial restraint—what I call the Dogma of Deference. This Dogma—which today holds in thrall both left and right—views courts as “countermajoritarian,” and therefore fundamentally suspect entities, and focuses its attention on reconciling courts with democracy. Perhaps the most famous effort in this regard is John Hart Ely’s classic Democracy and Distrust, which advanced “a participation oriented, representation-reinforcing approach to judicial review,” which would limit courts to “policing the mechanisms of decision” instead of enforcing the Constitution’s principles of liberty and limited government.

This shift of focus to participatory rights instead of personal freedom has led to a tremendous expansion of government, far beyond what the Constitution actually permits. The text gives Congress power to regulate “commerce…among the several states,” but today’s courts defer so much to Congress’s interpretation of that power that Washington, D.C. now controls everything from the thickness of ketchup to the angle at which office chairs can lean back. The Constitution only allows Congress to grant copyrights “for limited times,” but courts defer so much to Congress’s determinations regarding intellectual property that writings are now monopolized indefinitely. The Constitution forbids states from depriving people of liberty or property without due process of law—which prohibits arbitrary or self-interested restrictions on freedom. Yet by applying deferential “rational basis review,” courts have allowed states to impose anticompetitive licensing restrictions on entrepreneurs and to exploit eminent domain to redistribute land to politically influential private developers.

This deferential attitude is based on the notion that courts should leave controversial matters to the legislative process. Rather than imposing substantive limits on lawmakers, courts should intervene only to keep the process working smoothly.

Roosevelt, for example, argues that courts should defer to legislatures because the latter are better suited to weigh the costs and benefits of proposed legislation, and can more effectively gauge the public’s views. Courts should intervene only where a persecuted or underrepresented minority cannot get a fair hearing in the state house. Judicial intervention unjustly removes contentious matters from democratic deliberation.  Moreover, he argues, judges should therefore err on the side of upholding laws, because a court wrongly striking down a valid law is more dangerous than the court wrongly upholding an invalid one. This is because legislatures can repeal their own mistakes more easily than they can overcome adverse judicial decisions.

But while it’s true that legislatures are better suited to make ordinary policy choices—should the speed limit be 55 or 65? Should robbery be punished by 10 years or 15?—those choices can only be made within constitutional boundaries. When courts defer too much, legislatures quickly step beyond those boundaries and get to decide the scope of their own powers without meaningful checks and balances. Consider eminent domain, which the Constitution says can only be used to take private property for “public use.” The legislature is certainly competent to decide where to put a school or a military base, but thanks to Progressive legal doctrines, courts now allow them far more leeway than that. In Kelo v. New London, the justices held that “public use” means “public benefit,” and that courts should defer to legislative judgments about what benefits the public. As a result, government can now take practically anything it wants for practically any reason.

Or consider the right to earn a living—once viewed as a crucial part of individual freedom. Thanks to the advent of “rational basis scrutiny,” courts now allow politicians extremely broad authority to restrict economic opportunity, so long as lawmakers might have believed that doing so would promote some vaguely defined social goal. In one case, a federal court upheld a burdensome training requirement for florists, even though unlicensed florists are obviously not a significant threat to the public, and the law was clearly designed to protect those who have licenses against competition from those who do not. In another case, the D.C. Circuit held that courts can dismiss constitutional challenges to economic regulations when the government merely says that the law protects the public—even before any evidence has been introduced; the government’s mere say-so is enough. But, then again, the Tenth Circuit has held that the legislature can even enact regulations that have no other purpose than to protect an established private interest group against legitimate economic competition. As these cases indicate, excessive judicial deference gives legislatures more than just the power to make policy, it gives them the kind of carte blanche authority that state and federal constitutions were written to forbid.

Property owners and business owners are routinely told that if they don’t like the restrictions on their rights, they should lobby the government to change the law, rather than resorting to “unelected judges.” The problem is that there is no realistic chance that these disfavored individuals and unknown entrepreneurs can persuade the legislature to respect their rights. As Robert McCloskey put it, “the scattered individuals who are denied access to an occupation by State-enforced barriers are about as impotent a minority as can be imagined. The would-be barmaids of Michigan or the would-be plumbers of Illinois have no more chance against the entrenched influence of the established bartenders and master plumbers than the Jehovah’s Witnesses had against the prejudices of the Minersville School District.” Thus “[t]o speak of their power to defend themselves through political action is to sacrifice their civil rights in the name of an amiable fiction.” Moreover, most of the laws under which we live our lives are not even written by elected officials, but by bureaucrats in administrative agencies who are not answerable to voters in the first place. Yet despite their lack of democratic accountability, courts defer to administrative agencies just like they defer to legislatures.

It is not necessarily “undemocratic” for courts to take certain subjects out of the reach of legislative majorities. As Alexander Hamilton explained in Federalist 78, “[i]t is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.” Since the Constitution is the genuine will of the people, and legislation only the will of a particular legislative majority at a particular time, courts are actually enforcing the will of the people when they invalidate laws that exceed the lawmakers’ powers.

Thus, as Clark Neily argues, courts are “activist” when they refuse to enforce the Constitution, because that creates a constitutional system the people never ratified—one in which legislators wield powers the people never gave them, and judges refuse to do the job the people assigned them. The Constitution promises meaningful restrictions on government power, enforced by a vigilant judiciary. This promise is just as much a “democratic” value as the citizen’s right to vote. To betray that promise, and force upon the country a different kind of government—even in the name of expanding “democracy”—is to betray the people’s will, which is expressed in the Constitution. That is why Alexis de Tocqueville warned that “lessening the independence of the judiciary” is an attack “not only [on] the judicial power, but [on] the democratic republic itself.”

Finally, it is not true that a judicial decision wrongly invalidating a law is more dangerous than a decision wrongly upholding one. While an erroneous decision striking down a law can cause damage, a decision that wrongly upholds an unconstitutional law—say, Plessy v. Ferguson, or Korematsu v. United States—can destroy lives and wreak havoc on our legal institutions for generations. A decision that wrongly upholds an unjust law sets a precedent that legislatures can use to go further down the wrong road, and gives a stamp of approval to an injustice that makes it more difficult to repeal. Congress swiftly changed the law to overturn the unpopular Ledbedder decision in 2009, for instance. But we are still living with Korematsu.

II. The roots of the Dogma

But there is a more fundamental problem with the Dogma of Deference: its faulty premise that democracy, rather than liberty, is our central constitutional value. The popularity of this notion cannot be denied. Americans are routinely told that the Constitution’s primary purpose is to enable the majority to enact its preferences into law. But look at the Constitution, and we find that the word “democracy” never appears. On the contrary, the very first line declares that liberty is a “blessing,” and the document goes on to establish a comprehensive network of limits on democracy. Madison explained the reasons for these restraints:

Wherever the real power in a government lies, there is the danger of oppression. In our Governments the real power lies in the majority of the Community, and the invasion of private rights is chiefly to be apprehended, not from acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the Constituents.

The centrality of freedom in our constitutional order is made clear when we recall the Declaration of Independence, the document that articulates the philosophical foundations of the Constitution. According to the Declaration, all people are presumptively free, because they are equal: nobody has a right to rule others, to tell them how they may live, or to dictate how they may use their property. In order to secure their rights, the people use part of their freedom to create a government—and allow it to rule—but the legitimacy of that government must be judged by how well it protects liberty. If government becomes destructive of liberty, the people may alter or abolish it.

Individual freedom is therefore the baseline; government may divert from that baseline and restrict freedom only where there is good reason for doing so. As Madison put it, “In Europe, charters of liberty have been granted by power. America has set the example…of charters of power granted by liberty.”

That example has largely been nullified today. In the early 20^th century, Progressive intellectual leaders began reversing the constitutional order, substituting democracy for liberty as the central constitutional value. The first step in this direction came when intellectuals rejected the idea of inherent human rights, and replaced it with the idea that rights are socially constructed privileges. Among the leaders of this trend was Justice Oliver Wendell Holmes, who held that individual rights are only arbitrary emotional preferences which people are willing to back up with violence. Rights have no more moral force than one’s taste in beer.

Corollary to this was the presumption in favor of the majority. Democracy came to be seen as a basic value, and individual rights as privileges that must be justified in terms of how well they serve majoritarian goals. Freedom of speech, for example: today’s law students are often taught that modern free speech jurisprudence originates in Justice Holmes’ opinion in Abrams v. United States. The naïve reader might be shocked, therefore, to encounter in that opinion Holmes’ declaration that “Persecution for the expression of opinions seems to me perfectly logical.” But, Holmes goes on to explain, we do not persecute people because freedom of speech makes for a healthy democracy. Collective decisionmaking is therefore the end for which free speech is the means.

The First Amendment’s authors saw things differently.  For them, freedom of expression was a basic individual right along the lines of private property. Individuals own themselves and their opinions, and therefore nobody else has any right to bar them from expressing their views, unless they are harming someone. One searches the founders’ writings in vain for the idea that free expression is just a means for fostering democracy. Yet the Progressive notion that individual rights are “socially engineered spaces…manufactured to achieve group ends” is a central tenet in the Dogma of Deference, and it applies not only to speech but property and a host of other freedoms. “[R]espect for private rights, the private sphere, and limited government should themselves be justified by publicly articulable reasons,” writes liberal law professor Cass Sunstein. “In the United States, any particular conception of the private sphere must be defended by substantive argument.” Conservative Chief Justice William Rehnquist agreed: the Constitution’s “safeguards for individual liberty,” he wrote, “do take on a generalized moral rightness or goodness,” but this was “simply because they have been incorporated in a constitution by the people,” and “[not] because of any intrinsic worth.” Equally explicit is Judge J. Harvie Wilkinson, who argues that “unelected judges” should not “declare fundamental values,” because while “[t]he Constitution may take certain value choices off the table, [it does so] only sparingly; it was and is dedicated primarily to ensuring that the political branches scrupulously represent the wishes of those in whose name they govern.”

III. The arbitrariness of majoritarianism

This is actually the reverse of what the Constitution does. It creates a system of limited, enumerated powers which only “sparingly” puts things on the table, leaving all “other” things off. And while it imposes no duty on representatives to do the will of voters, it does impose “scrupulous” limits on their discretion. Why? To protect liberty. Yet Wilkinson, who insists on rejecting any theory of rights based on first principles, clings to one exception: the “first principle of our constitutional order,” he claims, is “our inalienable right of self-governance [sic].” But as Lincoln so astutely argued, the power to govern is not an inalienable right. The Declaration expressly rejects the idea that anyone has a right, let alone an inalienable right, to govern. Instead, we give officials permission to govern, and only in a limited range. The Constitution speaks of “ordaining” and “establishing” government for specified reasons—not of recognizing its purported “right” to govern. The first principle of our constitutional order is equal liberty, not the collective’s right to rule.

Assuming that “democracy” is an axiomatic “first principle” in our constitutional order doesn’t just transform rights into privileges, and distort the checks and balances system into a set of pointless, haphazardly respected rituals, but it views politics in a fundamentally arbitrary way. It insists that rights and other values derive their legitimacy from majority will, but what makes the majority’s will legitimate? If, as Chief Justice Rehnquist claimed, protections for rights “take on a generalized moral rightness…simply because they have been incorporated in a constitution by the people,” then democracy can claim no justification for itself except that the people have arbitrarily incorporated it—yet that commits a fallacy, since majority preferences are then made to justify themselves. Ironically, by embracing democracy as an arbitrary starting point—as an irreducible, unjustifiable “first principle” of politics—the Progressives, who began with hard-nosed skepticism about classical liberal rights theory, established a theory that rests on nothing but ipse dixit.

The Founders succumbed to no such question-begging.  They viewed democracy as part of a political system intended to promote flourishing—i.e., the pursuit of happiness—which in turn rested on a holistic picture of human nature. In our constitutional order, democracy is not a skyhook or “first principle,” but part of a comprehensive framework of values. Again to quote Madison, the majority’s power to rule is only a means by which to accomplish the political goal of “safeguard[ing]” the “rights, the safety, and the interest” of all citizens. Thus the majority “may do anything that could rightfully be done by the unanimous concurrence of the members; the reserved rights of individuals (conscience, for example) in becoming parties to the original compact, being beyond the legitimate reach of [the majority].”

For too long, the Dogma of Deference has perverted our understanding of the Constitution, and the practical results are all around us. In his NFIB decision two years ago, Chief Justice Roberts claimed that “[i]t is not our job to protect the people from the consequences of their political choices.” That is exactly wrong. The purpose of our Constitution is to limit what politics can do—to ensure that we are protected against the dangerous, often unprincipled actions of democratic majorities. What protects us is law—the supreme law of the land. That is why Marbury v. Madison referred to ours as “a government of laws, and not of men.” Yet thanks to the Dogma of Deference, courts today have inverted our constitutional system, and placed freedom—the very “blessings of liberty” the Constitution was written to preserve—at the mercy of politicians. It’s time for that to end.

I appreciate the opportunity to comment on Timothy Sandefur’s essay. I always learn something from his writings. And I particularly appreciate, of course, the engagement with my own scholarship. With that politeness out of the way, let me get straight to the point and say up front that I agree with most of what Sandefur says here.

Yes, I agree. That might be surprising, given that the essay casts me as an antagonist. But the role doesn’t entirely fit, because I don’t quite subscribe to the views that Sandefur opposes. To put the point more precisely, with elaboration to follow, I agree that courts should enforce substantive constitutional provisions against the will of the majority. I just have a slightly different view of how best to go about this. That might be a good thing as far as this exchange goes (it’s nice to have agreement on fundamental principles) or it might be a bad thing (the devil in the details can be harder to exorcise). But let me try to explain.

Sandefur opens with a brief discussion of the concept of judicial activism, which he seems to understand as deciding cases so as to advance the judge’s political views. The definition is useful in a minor way, in that everyone can agree that it is bad, but useless in a more significant way, in that no one endorses it and people seldom agree on when it applies to particular decisions. He therefore moves on to the idea of judicial restraint.

It turns out, however, that restraint is just as opaque a concept. (For this reason, I would prefer to define activism vs. restraint in objective terms such as invalidating vs. upholding some government act.) Sandefur seems to use it to mean refusing to enforce a substantive constitutional provision on the grounds that courts should only supervise the mechanisms of the political process. In this guise, of course, it’s a bad thing. But it’s in many ways the mirror image of the unhelpful term “activism,” because no judges of whom I’m aware conceptualize their decisions this way, and no scholar of whom I’m aware advocates it.

What advocates of restraint generally tend to say is something more along the following lines. Many constitutional provisions are vague or unclear in their application. It can be hard to determine whether a particular law violates such provisions. Sometimes, this determination will turn on a question that political actors are better at answering than judges. (It might require, for instance, an assessment of military necessity, or the resolution of a complicated economic question, or the balancing of important societal interests.) In such cases, unless there is reason to doubt that the political actors have done their best to answer the question accurately, judges do best to defer, to strike down the law only if it is a clear and unmistakable violation of the constitution.

This is not quite the Dogma of Deference as Sandefur describes it. It is not based on the idea that democracy, rather than liberty, is our central value. As I have set it out (different and more complicated formulations are possible), it is just a means of maximizing the accuracy of judicial decisions. Nor, importantly, is it a Progressive invention. The basic idea of deference to other governmental actors on the grounds of institutional competence features prominently in the controversy over the Bank of the United States. Thomas Jefferson, advising President Washington, stated that he believed the Bank was unconstitutional. It did not follow that Washington should veto the bill: Jefferson noted that the veto should be used only in cases of clear unconstitutionality, or where the legislature had been led astray by “ambition or interest.” Otherwise, a “just respect for the wisdom of the legislature” should lead the President to sign the bill.

When the question (now about the Second Bank) reached the Court, in McCulloch v. Maryland, John Marshall’s opinion addressed two issues: whether Congress had the power to create the Bank, and whether Maryland had the power to tax it. With respect to the first question, he said, deference was appropriate: the issue was not one of “the great principles of liberty” but rather the boundaries between state and federal authority (“the respective powers of those who are equally the representatives of the people”). Whether Maryland could tax the Bank, however, was a different kind of question. Because the benefits of such a tax would go to Maryland residents while the burdens would fall primarily on out-of-staters, Marshall reasoned, there was no place for deference (“confidence that [the legislature] will not abuse [the power]”).

McCulloch, in my view, is an early paradigm of sound judicial decisionmaking. For each issue it confronts, it makes a choice about whether to defer or not, and it gives a reasonable explanation as to why it made the choice it did. (This makes it a much better opener for a constitutional law course than Marbury, which is judicial activism along many dimensions.)

What I think, then, is not that courts must police mechanisms of decision rather than enforcing constitutional principles. It is that they must have a good reason for the choice of aggressive or deferential judicial review. 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.  (Correlatively, they should do so aggressively when other actors will do a worse job.)

My real differences with Sandefur are probably about how aggressive baseline judicial review should be and about when departures from that baseline are warranted. Here again, there are areas of agreement. I too believe that judicial review is a crucial component of our separation of powers. Judicial review is more crucial than in the founders’ day, I would say, because the party system has eroded horizontal separation of powers (at least, when one party controls Congress and the presidency), and the 17^th Amendment has weakened vertical separation of powers.

Still, I doubt that my baseline is as high as Sandefur’s, and I find myself unmoved by some of his arguments. The point that the Constitution creates a system of limited powers goes only so far, because that is true only of the federal government. State governments have the police power, and it is worth remembering that the founders’ Constitution put very few limits on what states could do to their own citizens. The Reconstruction Constitution did, of course, but pointing to Reconstruction gives with one hand and takes with the other, since the Reconstruction Amendments also expanded federal power and suggest greater deference to Congress. A high baseline of judicial review just shifts decisionmaking power to judges, and an attempt to justify that via a generalized distrust of politics rests on the questionable assumption that judges are somehow immune from that influence.

Another justification might be that excessive judicial review can only invalidate laws, so that it serves the ends of liberty anyway. That is true if fewer laws necessarily mean more liberty, but I doubt that. Some people might believe so because they believe that only the government can restrict liberty, but that premise, which is really a particular definition of liberty, strikes me as wrong. Surely the government enhances my liberty if it forbids other people from using their superior physical power to kidnap me and lock me in a room.

What about departures from the baseline, whatever it is? I think Sandefur would be happy with my account, or at least happier, if I expanded my view of the vulnerable groups needing protection so as to produce something like heightened scrutiny of rent-seeking economic legislation. I have some sympathy for this desire. I largely agree with Sandefur as to the meaning of the Due Process Clause, and I also agree that the current rational basis approach allows some unconstitutional laws to survive. But the question is not whether mistakes ever occur; it is whether higher scrutiny would be preferable, all things considered.

I doubt it. Judges are not significantly better than legislatures at deciding economic questions, so they will erroneously strike down some laws that should be upheld. That carries costs. Judicial decisions based on the Constitution are harder to undo than mistaken laws. (Congress corrected Ledbetter, as Sandefur notes, but that was an issue of statutory interpretation.) Mistakenly striking down laws may reduce liberty: I believe the government enhances my liberty, in much the same way as it does when it bans kidnapping, by forbidding other people from using their superior economic power to force me to consent to conditions of employment that include being locked inside a factory for 15 hours a day. Mistakenly upholding an economic regulation, on the other hand, may crush the dreams of aspiring barmaids or plumbers, 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. Last, I believe there are problems with identifying an appropriate baseline from which to measure rent-seeking or impermissible government favoritism.

In sum, if we understand the activism/restraint dilemma in terms of assertive versus deferential judicial review, it should be plain that neither is always appropriate. The question is when each should be used, and here people will differ. But this, perhaps, is a debate that can make progress.

Timothy Sandefur’s judicial philosophy will lead to one outcome: expansion of opportunity for some (namely big business) and suppression of opportunity for the rest (namely the working class).[1]

Most Americans don’t agree with a vision of the Constitution that protects big business above all else. Sandefur seems to recognize this, noting that there is “no realistic chance” that business and property owners’ interests could be achieved through the legislative process. For this reason he argues for an activist court, requiring the federal courts to violate the Constitution’s system of checks and balances as well as discount the democratic process.

The proper role of the Court is to allow for both the political process to work and for Congress to have the ability to enact legislation that protects our rights. The Supreme Court under Chief Justice Earl Warren, spanning the years 1953 to 1969, understood this. While the Warren court is often thought of as the quintessential activist court because of its rulings in cases like Brown v. Board of Education, it’s actually the Warren court’s judicial restraint in both deferring to the people and allowing Congress wide latitude to pass legislation that best protected our rights.[2]

The Dangers of Sandefur’s Judicial Philosophy

The only time the Warren Court took an “activist” role was if a government action infringed on a fundamental right, restricted the political process, or harmed “discrete and insular minorities.”[3] Sandefur believes that economic regulations passed by Congress or state legislatures should receive the same heightened level of judicial review. The result would be that federal courts would have to strike down most laws passed by Congress, even if the laws are designed to protect the general welfare and civil and human rights.

This Lochner era of jurisprudence has already come and gone.[4] The Supreme Court’s activism during this era significantly hindered the ability of the government to meet the ever-changing needs of society. Any laws Congress passed addressing sweatshop conditions, ending child labor, setting maximum numbers of working hours, or securing a minimum, fair, and livable wage were struck down under the fabricated “right to contract” legal theory.

Lochner is no longer law, but if it were restored, it would mean the federal government would not have the ability to respond to our nation’s needs. There would be no social safety nets such as Social Security, Medicare, and disaster assistance. Companies could exploit their workers, and no anti-discrimination laws would be upheld.  This result may be desirable to some who believe in that school of thought, but it truly is an assault on people with disabilities, racial minorities, women, LGBT Americans, and the poor.  

For example, one in three Americans lives at or below the poverty line, and almost 70 percent are women and children. Women represent nearly two-thirds of minimum wage workers, mostly working jobs that are labor-intensive. These women go without paid sick days or access to affordable child care. They tend to earn less than men – no matter their education level, profession, or position. In addition, 40 percent of America’s homes with children have a woman as the sole income earner. One way to help would be for Congress to pass nationwide paid family leave and sick day policies so a woman won’t have to choose between being able to feed her family and providing necessary family care. But under Sandefur’s Lochnerean jurisprudence, this type of Congressional action would never stand.

Judicial Restraint Allows Congress the Ability to Protect Our Rights

The federal government’s powers are divided among Congress, the president, and the judiciary. None is superior to any other. Whenever the U.S. Supreme Court rules a legislative act is beyond Congress’s inherent powers, it second-guesses a constitutional determination made by Congress and expands the Court’s power at Congress’s expense. Not only does this assert judicial supremacy, it also discounts the fact that Congress is better-suited than the courts for protecting (and expanding) our rights.[5]

Consider that throughout history most victories protecting our liberties have been secured through the political process. During Reconstruction, Congress passed the Thirteenth, Fourteenth, and Fifteenth Amendments to abolish slavery and provide ongoing equal rights protections. In the 1930s, Congress passed New Deal legislation such as the Wagner Act, which created a right by statute for workers to organize into a union and engage in collective bargaining. It also passed the Fair Labor Standards Act, which included the right to earn a minimum wage. In the 1960s, Congress passed the Civil Rights Act of 1964 and the Voting Rights Act of 1965. Also in the 1960s, Congress passed anti-poverty laws such as Medicaid and Medicare. And most recently, Congress passed the Affordable Care Act and the Lilly Ledbetter Equal Pay Act.

The Court’s proper role in a system of checks and balances isn’t to strip Congress of its ability to pass laws that protect our rights and the public welfare. Rather, the role of the Court is to allow Congress the autonomy to do so.  Otherwise, Congress, which has traditionally upheld our rights and expanded opportunity for all, will cease to be able to do so. 

Democracy Informs Our Liberty Rights

Sandefur defends his judicial philosophy by arguing that liberty, not democracy, is the “central constitutional value.” To argue that democracy and liberty are in tension discredits the fact that advocacy by the people, not through the courts, has led to the expansion of equal rights and liberty protections. The truth is, the will of the people impacts our definition of liberty, which is then interpreted and applied by the courts. Therefore, liberty and democracy are not at odds; they are congruent.

For example, scholars often argue that the Warren Court’s “activist” decisions in protecting civil rights and civil liberties weren’t activist at all, but rather followed the politics of the era.[6] The courts, just like the other two branches of government, are “influencing and influenced by American politics and its cultural and intellectual currents.”[7] As the will of the people changes, so do our definitions of liberty, for better or worse.

Of course, there are certain agreed-upon liberties explicitly listed in the Constitution, such as an individual’s right to free speech and religious freedom, the right to a trial by jury, the right be free from unreasonable searches, and the right to be treated equally under the law and be free from discrimination. We can all agree on these liberties, and the courts should step in when these rights are violated.

But the “right to contract” and the “right to earn a living,” or what constitutes “due process” when it comes to deprivation of property rights, are not agreed-upon liberties nor are they expressly made clear in the Constitution. For liberties that are vague, it is not up to the federal courts to define on their own, but rather, as the Warren Court did, to reflect on the politics of the time, or put another way, the will of the people.
 

In his essay, Timothy Sandefur rejects the alleged virtue of “judicial restraint” as opposed to the alleged vice of “judicial activism.” He defines judicial restraint as judicial deference to majoritarian policies. This deference, he claims, was invented by Progressives. It is hostile to the Founders’ principles, foreign to the Constitution, and exalts the alleged rights of majorities at the expense of the bona fide rights of individuals.

I think Sandefur is partly mistaken. Properly defined, judicial deference to the elected legislatures is consistent with the Founders’ principles, incorporated into the Constitution, and favorable to the rights of both the community and individuals.

As a preliminary matter, Sandefur notes that the term “judicial activism” lacks a clear definition. Sandefur, citing Clark Neily, contends that the term properly applies to any instance whenever judges “refuse to enforce the Constitution,” for such refusal “creates a constitutional system the people never ratified.”

I agree. The Constitution is the supreme law, and judges must treat it as such in exercising their power to resolve cases or controversies. Judges disobey the Constitution not only when they invent constitutional rights in usurpation of the reserved powers of the states, or the vested powers of the political branches, but also when judges engage in judicial abdication—or more properly, judicial dispensation or suspension of constitutional limits.[1]

In both cases, a willful judicial disobedience to the Constitution can properly be called “activist.” In disregarding the rights and powers of the Constitution, the judge is not faithful to the Constitution. This infidelity, when knowing or reckless, has an aggressive, entrepreneurial character, and therefore merits the pejorative term “activist.”

In this regard, I dissent from the term lately coined by some scholars to describe judges’ failure to invalidate unconstitutional laws: “judicial passivism.” Such judges are not passive. Judges are passive in neglecting their dockets. But when they issue orders to resolve cases or controversies, they are most certainly active. And any time a judge issues an order in reckless or knowing disregard of the Constitution, the judge is more than active: he is an activist. Activist judges consciously embrace flexibility and creativity, disdaining “strict rules and precedents” and any “inflexible and uniform adherence to the rights of the Constitution, and of individuals.”[2]

In this sense of obedience to law, judicial restraint is a virtue, and judicial activism a vice. At least the Founders thought so. I think Sandefur would agree.

But there is anther sense of “judicial restraint” that Sandefur challenges: the notion that judges should defer to majoritarian legislatures, and thus hesitate to strike down laws as unconstitutional. Sandefur claims that this judicial restraint proceeds from an erroneous assumption, namely that the Founders viewed not individual liberty but popular, majoritarian sovereignty as a “basic value,” and drafted a Constitution primarily to facilitate this sovereignty.

It is true, as he writes, that our nation’s Founders deemed individual rights to be logically and temporally prior to the political rights of the majority. As the Declaration of Independence explains, God creates human rights, but human beings, in turn, create governments. The end of all just government is the security of human rights, while the people have the authority only to choose the means. They have the right and duty to establish the “principles” and “form” of government that they believe will best secure these rights. In this way, the people are sovereign, but that sovereignty is limited by “the laws of nature and nature’s God.”

It is also true that the Founders viewed popular government, in part, as a good instrumental and secondary to individual rights. Virtually all the Founders deemed republican government to be best, in part because accountability to the people was the most important and primary safeguard against governmental abuse. As Madisonpointed out, the “dependence on the people is, no doubt, the primary control on the government.”[3]

In other respects, however, the Founders ranked popular government as a fundamental good.  Madison provided this defense of republican government: “It is evident that no other form would be reconcilable with the genius of the people of America; with the fundamental principles of the Revolution; or with that honorable determination which animates every votary of freedom, to rest all our political experiments on the capacity of mankind for self-government.”[4] Free popular self-government is an honorable goal, good for its own sake. To adapt Lincoln’s formula, the American political experiment aimed to secure not only government for the people (i.e., their natural rights), but also by the people (through republican government). As Madison wrote, the main purpose of the federal Constitution was to ensure both these fundamental goods: “To secure the public good and private rights against [majority] faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our inquiries are directed.”[5]

So in adopting the federal Constitution, the Founders intended to safeguard not only individual rights, but also the people’s right to self-government. Indeed, the Constitution begins not with individual rights but with popular self-government: “We, the People,” (not “we, the autonomous individuals”) “ordain and establish” a constitution, designed not only to ensure interpersonal “justice,” but also to secure the “blessings of liberty” to all current and future members of our self-governing community.

Unlike Sandefur, I do not think the word “liberty” here meant individual freedom. Rather in context, the liberty seems to identify the political freedom of the community—the same liberty that the American people exercised in establishing this new constitution, and the same liberty that this “one people” had exercised a decade earlier in dissolving their political bonds with the British Empire.  It was in this sense, I believe, that our new nation was “conceived in liberty,” as Lincoln said.

Popular sovereignty figures prominently elsewhere in the Constitution. The first matter is not individual rights, but the most popular branch, the House of Representatives. This body was the only federal entity to be chosen directly and expressly by the sovereign people—the “people of the several States.”[6] This House’s very name indicated its special quality—it alone was called “representative.”

Popular sovereignty is further protected by Article IV’s Republican Guarantee Clause. This provision imposed on the United States the duty to guarantee to each state a popular form of government.[7] On the face of the Constitution, this duty seemingly applies to the wholeUnited States, including every department and officer thereof.

If so, the judicial officers of theUnited Stateshave an express constitutional duty to protect the states’ republican liberty.  Therefore, judicial activism in disregard of the states’ reserved authority represents not only a violation of the Tenth Amendment, but also an abdication of the federal judge’s duty to safeguard the republican liberty of each state’s citizenry.

In sum, the Founders viewed popular sovereignty as both a primary and an instrumental good. Securing popular self-government—popular liberty—was one of the chief, express purposes of the Constitution.

Consistent with the Founders’ devotion to popular sovereignty, the Founders recognized the propriety of (limited) judicial deference to the legislatures, especially Congress.  In McCulloch v. Maryland, Chief Justice Marshall, writing for a unanimous court, explained that where a constitutional question admits different plausible answers, the “exposition of the Constitution, deliberately established by legislative acts, ought not to be lightly disregarded.”[8] Given that “the people,” not the states, ordained and established the Constitution, it is proper that in expounding the Constitution, the judges should give some deference to the interpretation offered by the people’s representatives. The deference is especially appropriate where these representatives have acted after long and able debate, and repeatedly readopted the legislation.[9] A similar deference seems due those laws repeatedly reaffirmed by popular governments of many states.

In this way, the acts of the legislatures are precedents, falling somewhere between what we today call “binding” and “persuasive.” They are not binding, for the federal judiciary is not “inferior” to Congress or the states in the way that the lower federal courts are “inferior” to the Supreme Court. But at the same time, the precedents established by the people’s more direct representatives should, in doubtful matters, be given great respect by the judges charged with expounding the people’s Constitution.

There are other reasons why the Founders would endorse this limited deference to legislative (especially congressional) precedents. The national legislative process is marked by several important procedural safeguards designed to make majoritarian government safe for natural rights. For the Founders, these critical mechanisms included several that directly regulated and limited congressional lawmaking: “legislative checks and balances” (i.e., bicameralism, veto power), representative legislatures, and a large republic.[10]  Before any bill becomes a law, it must get the approval of three separate institutions: House, Senate, and President, each of which represents a large republic containing a multiplicity of interests. Further, each of these branches are bound, no less than the judiciary, to obey the Constitution. Most of these safeguards also regulate the lawmaking process in nearly all the states. Given these arduous procedural hurdles, then, legislative precedents are especially persuasive.

In sharp contrast, our courts, and especially our Supreme Court, enjoy none of these safeguards. The Supreme Court is a small unicameral chamber, composed of members that are only remotely chosen by the people and virtually unaccountable to them. Its members, at least in recent years, are all drawn from a tiny coastal elite; whether “conservative” or “liberal,” the members have almost no geographical or educational diversity. Only five judges in this chamber can create a national judicial precedent. For this reason alone, the judges should be more deferential to legislative precedents than judicial ones.

Note, however, that this limited form of judicial restraint—deference to legislative precedents—is thoroughly subordinate to the most important kind of judicial restraint: obedience to the Constitution. The courts are bound first to obey the Constitution, and to defer to popular and legislative precedents only where there is bona fide doubt as to a law’s constitutionality.

As Sandefur suggests, progressive jurisprudence brought about a new, more radical notion of judicial deference. Progressives rejected natural law in favor of history; they embraced the notion that rights must be redefined in the interest of progress. Franklin Roosevelt explained it starkly: “The task of statesmanship has always been the re-definition of… rights in terms of a changing and growing social order. New conditions impose new requirements upon Government and those who conduct Government.”[11]

Under this approach, deference to democratic majorities became a substitute for, and not a supplement to, constitutional fidelity. The masses gave voice to the authoritative zeitgeist. But the old Constitution threatened to quench this spirit. In response to this problem, progressive jurists provided the creative, contra-textual interpretations that would sweep any constitutional obstacles to progress, whether federalism, separation of powers, or individual rights.

Judicial restraint in the progressives’ sense, then, is indeed hostile to the Founders’ principles, and foreign to our Constitution. But judicial restraint, in the sense of a limited, conditional deference to legislative precedents, is thoroughly consistent with our constitutional tradition.

Finally, Sandefur’s fears about the dangers of such limited deference strike me as ill-founded. The chief examples he gives of such horrific cases are inapposite. Neither Plessy v. Ferguson nor Korematsu v. United States involved challenges to laws passed by bicameral, representative legislatures. In Plessy, the challenged law had been passed by a rump legislature in a state where the majority—African-Americans—had been excluded from the suffrage by lawless violence.[12] In Korematsu, the “law” in question was a congressional act that delegated legislative power to military officers.[13] These governmental acts, then, reflected not popular self-government, but the violent usurpation (Plessy) or reckless abdication (Korematsu) of popular legislative authority. In neither case was judicial deference appropriate.

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.

It’s nice to see that Timothy Sandefur and I do disagree on some things. Again, though, I see the disagreements a bit differently than he does. Let me start with the distinction between aggressive and deferential judicial review, because this is a theoretical point that really does matter. Our legal system imposes different burdens on particular actors in particular contexts. To win a civil trial, for instance, you need to prove your case by a preponderance of the evidence. To put someone in jail, by contrast, the government needs to prove guilt beyond a reasonable doubt. To sustain agency decisionmaking, for another example, the government often need only demonstrate that some evidence supports the agency’s action.

The difference between aggressive and deferential judicial review is similar. In some cases, courts will start with a presumption that a given law is constitutional and strike it down only if the individual challenging it can show that it is not rationally related to any legitimate government purpose. In others, they will start with a presumption that the law is unconstitutional, and uphold it only if the government can show that it is necessary to serve a compelling interest. These different tests are not a result of different constitutional provisions—both the tests just mentioned are used to implement the Equal Protection Clause, for instance—but rather a result of how willing the court is to trust the judgment of the legislature or other government actor.

And here is where Sandefur seems to think our difference lies. He believes that “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.” But of course I believe that too. So what is the difference? If there is one, it is that I believe our Constitution imposes on every government actor a duty not to knowingly violate it. A legislator violates that duty, I believe, by voting for a bill she believes is unconstitutional. If Sandefur shares this belief—and I would be astonished if he does not—then we agree that conscientious legislatures must make a determination as to the constitutionality of bills they pass. And then the question is what weight that determination should have when the question of constitutionality reaches the courts. Sandefur’s answer seems to be, consistently, that it should have no weight at all. But unless we think that legislatures never honestly try to decide whether their bills are constitutional, or that they are never any better at it than judges, there are surely cases in which giving some weight to a legislative determination will enhance the accuracy of judicial decisionmaking. (And if we do think that our legislatures are so corrupt, why should we have so much faith in judges?) 

A court that chooses rational basis review is expressing its trust of the government actor whose conduct it is reviewing. It is not “shrugging at the Constitution’s language”; it is enforcing that language as best it knows how. Rational basis review generally upholds government acts, but not always. It has struck down discrimination on the basis of mental disability and sexual orientation, and also, before the Supreme Court adopted a higher standard of scrutiny, sex discrimination. It tends to uphold economic discrimination, but again, not always—unless Sandefur thinks that his victory in Bruner was based on a mistaken application of the law. Indeed, Bruner seems to be rather strong evidence that Sandefur’s complaints about deference are overstated—courts applying deferential review do still strike down laws supported by nothing more than “lame excuses” and “pseudo-intellectual econo-speak.” The Sixth Circuit has held, in fact, that “protecting a discrete interest group from economic competition is not a legitimate governmental purpose,” which I would think Sandefur finds a relatively congenial principle.

Is Kelo perhaps a better example of the tyranny of deference? I don’t think so, but then again, I see Kelo somewhat differently than Sandefur does. He seems to think that the word “public” in “public use” means something like “the general public”—i.e., a large number of private individuals as distinct from a particular single private individual. I don’t read it that way, and, importantly, neither did the Supreme Court. (Indeed, the majority noted that this reading had been rejected for about a century.) They thought, and I agree, that it meant the government, rather than a private individual. In Kelo, the government took private property via its power of eminent domain and then used it by including it in a development plan that was supposed to create local jobs, increase tax revenue, and revitalize an economically distressed city. Yes, the plan was going to be executed by a private developer, but making the plan happen is use by the government, i.e., public use. We can argue about which reading (general public vs. government) is correct, but that’s a question of interpreting a particular constitutional phrase—it has nothing to do with deference. The Kelo Court did not say it would allow the legislature to decide what constitutes a public use.

But if public use just means use by the government, where does the “public purpose” limit that Kelo enforced come from? The Due Process Clause, which has long been interpreted to require that government action pursue a public purpose or serve the public interest. And here is where the issue of deference enters Kelo: who is better at deciding what serves the public interest, judges or legislatures? I think there are good reasons to pick legislatures on this issue, and consequently good reasons to defer. That is what the Court did. 

This deference is not a rubber stamp, as Bruner shows, and Justice Kennedy’s concurrence identified some factors that would lead to closer review—suggestions that the taking was based on “impermissible favoritism to private parties.” That accusation, he noted, had been raised and seriously considered in a “careful and extensive inquiry” by the trial court—which, again, is hardly allowing the legislature to decide what counts as a public use.

Sandefur’s very success in Bruner suggests to me that the picture is not as dire as he suggests—that, in fact, his description of the Dogma of Deference misstates what scholars actually advocate and courts actually do. 

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.

I’ve always admired David Upham’s scholarship, and his essay “Let’s Keep (Some) Judicial Restraint” is an example of why: he roots his argument in a careful attention to the language and the philosophical context of the Constitution. And he appears to agree with my position that while there are obviously some things courts have no business doing, the Progressive ideological construct we now know as “judicial restraint”—or what I’ve called the Dogma of Deference—is really a different fish altogether from what earlier generations of judges meant when they acted out of respect for coordinate branches of government.

As Prof. Upham writes, the Progressives believed that rights should be redefined in the interest of progress—or, rather, that individual freedom was a privilege given to individuals by society, and not among the rights with which human beings are naturally endowed. (As I argue in The Conscience of The Constitution, that was actually a very reactionary position, and hardly represented “progress.”)

The Dogma of Deference builds on that presumption by regarding judicial intervention as inherently suspect, because it’s “undemocratic”—and by recharacterizing individual rights in terms of their service to the “democratic process.” This is what was really going on in Footnote Four of Carolene Products—when the Court announced that a certain category of individual rights would receive meaningful judicial protection. It was not merely subdividing rights without constitutional instruction to do so. It was picking out those rights that were seen as particularly instrumental to the idealized “democratic process.” Thus speech and voting are given elevated status, not because they are important rights for the individual, but because they are seen as useful to the success of collective decisionmaking. The courts are then seen as umpires in the democratic game, but more or less unconcerned about that game’s outcome. As G. Edward White puts it, “[b]y the close of the Second World War the core dilemmas for American judges in constitutional cases centered not on boundary policing but on surmounting the countermajoritarian difficulty.” That difficulty was itself an artifact of the Progressive rewriting of the Constitution. None of this would have made sense to the Constitution’s authors. To them, countermajoritarian wasn’t the difficulty—majoritarian was the difficulty!

But to pause a bit in my Progressivism-bashing, it’s worthwhile to recall that the history isn’t all in one direction. With the coming of World War II, a wing of the Progressive legal elite began to rethink some of their views about politics and social engineering. In the world of politics, this change is best seen in the Civil Rights Movement, when leaders like Martin Luther King Jr. succeeded in reinjecting principles of justice into political deliberations. (Segregation, of course, had itself been a Progressive program.) But in the realm of jurisprudence, it’s witnessed in the slow revival of concern for individual freedoms that don’t necessarily contribute to the democratic process.

I see it as beginning in 1943, when in West Va. Bd. of Ed. v. Barnette, the Supreme Court overruled the Gobitis decision of only three years earlier. Gobitis had upheld the constitutionality of forcing school children to pledge allegiance to the flag. Written by Justice Felix Frankfurter, the opinion reads like the doxology of Deference. When the Court overruled it in Barnette, Justice Robert Jackson—who would later serve as prosecutor at Nuremburg—ruled that the legislature had no constitutional authority to instruct children in loyalty to the state. “The very purpose of a Bill of Rights,” he wrote, “was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.” One can hardly imagine a clearer rejection of the Dogma than this. Frankfurter, in a fuming dissent, prayed his Deference beads: courts aren’t experts on education, protecting individual rights is just subjective value-judgments, the democratic process should work unimpeded, and so forth.

This clash was echoed when Justices William Douglas and Hugo Black squared off in Griswold v. Connecticut. Whatever one thinks of Douglas’s phraseology about penumbras and emanations, the bottom line was that there are realms of personal autonomy into which no state may justly trespass. These privacy rights are not Footnote Four rights—they are not protected in order to promote democratic goals. And Black—correctly—accused Douglas of reviving the spirit of Lochner in protecting them. Holding to the old Progressive line, Black insisted that “I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision.” It was because Douglas did not want to acknowledge his abandonment of the Dogma that he devised the clumsy notion of penumbras.

Today’s courts have never managed to smooth out these wrinkles. The law today pushes in two different directions, leading to confusion and inconsistency. New Deal era precedents protect rights that serve the democratic process, while some more recent decisions protect a miserly degree of freedom that is, rightly, seen as central to individual flourishing—yet the list of such rights leaves off equally valid freedoms for no good reason. And so we see decisions like Williams v. Morgan, in which the court upheld Alabama’s prohibition on the sale of dildos against a privacy-rights challenge, on the grounds that any and all commercial transactions are “inherently public activity.” Which just isn’t true. Or we get the situation Justice Thomas noted in his Kelo dissent: while the government must meet a high standard to search or intrude into a person’s home, it can take the home away entirely with hardly any judicial review at all.

I submit that this incoherence is a consequence of bad political philosophy—specifically the infatuation of our intellectual elites for “democracy,” unconnected to the conception of individual rights with which any proper understanding of democracy ought to begin. Yes, within that conception, there’s a time and a place for courts to remain silent. But today’s consensus view approaches the problem wrongly from step one. It’s steeped in the ideas of the Progressives, to which are added only a few confusing qualifications. Because they assume that democracy is our central constitutional value, and deduce jurisprudence from there, today’s lawyers, judges, and law professors—both conservative and liberal—are incapable of advocating a sensible theory of judicial review. Instead, they’re left with the Dogma of Deference.

I’d like to thank Professor David Bernstein for fact checking my essay at The Volokh Conspiracy. He is correct in that I did conflate freedom of contract arguments with federalism arguments. However, this legal distinction makes little difference to my overall point.

An active Court, which seeks to unconstitutionally limit the powers of Congress and refuses to show any deference to democracy, does in fact harm minority rights. That’s why it’s ironic that Timothy Sandefur purports to be some kind of staunch preserver and protector of minority rights, while claiming that I am “cold” to the rights of minorities. 

Consider the Civil Rights Act of 1964, which was achieved by minorities through the democratic process after years of struggle. The law was based on the power of Congress to enforce the 14^th Amendment and to regulate commerce. One of the ways the law sought to achieve equality was to outlaw discrimination in places of public accommodation. This meant that hotels and restaurants and other private businesses had to comply with the law. But some businesses at the time did not want to. For example, the owner of Heart of Atlanta Motel, a 216-room motel in Atlanta, Georgia, did not want to rent rooms to black patrons. He argued that Congress was abusing its power under the Commerce Clause, and that it was deprivation of his property rights without due process of law. Thankfully, the Court in Heart of Atlanta v. United States did not agree and deferred to Congress to protect our rights.

The Court extended this protection against a restaurant in Birmingham, Alabama in Katzenbach v. McClung, even though Congress’s connection to interstate commerce was more attenuated than in Heart of Atlanta. It upheld Congress’s power to protect our rights through a sweeping power to regulate commerce.   In doing so, the Warren court stated, “where [Congress] keeps within its sphere and violates no express constitutional limitation it has been the rule of this Court, going back almost to the founding days of the Republic, not to interfere.”

In the decades to follow, Congress continued to pass legislation that protected civil rights. If the Court had enforced limits on legislative power, based on the principles of limited government and private property rights, then these civil rights laws would have been struck down.

Elevating the Court beyond its proper role in limiting the democratic process is a slap in the face to minorities who have worked tirelessly to secure their rights through legislation.

“When minorities win in the political process, those victories are entitled to the maximum amount of deference by the countermajoritarian courts,” writes law professor and author Rebecca Zietlow. “By definition repeat losers in the majoritarian political process, discrete and insular minorities only achieve victories in that process with intense effort and years of activism. Their successful struggle to obtain legislation that protects their rights deserves respect from the courts in the form of deference to that legislation.”

Sandefur complains that it’s too difficult for business owners to win through the legislative process. Meanwhile those who face and continue to face discrimination, say through unconstitutional voter suppression laws, never stop trying to achieve equal rights through democracy.[1]

I very much appreciate Mr. Sandefur’s kind words, and I likewise respect his extensive work on behalf of economic liberty.

Despite our agreement, I think we diverge on four of topics: (1) the identity of the individual rights secured by the Constitution, (2) the degree to which the Founders trusted the people as the guardians of these individual rights, (3) the confirmation of this faith by our history, and (4) the degree to which Progressives jurists have, in fact, been quite consistent in adopting a different account of both human rights and the role of the people. I’d like to address the first three disagreements in this post, but discuss the Progressives’ remarkable consistency in a subsequent post.

The Scope of Individual Rights

In his initial essay and responses, Sandefur gives a number of broad definitions of constitutional liberty. He seems to incorporate a variety of rights of individual autonomy, whether economic, sexual, or otherwise. Sandefur finds these rights protected by the Due Process Clause(s) and perhaps elsewhere.

I largely disagree with him. I think his view of the Due Process Clause is as implausible as the progressives’ interpretation of the Commerce Clause. Both interpretations do violence to the text of the respective clauses, render other clauses unintelligible redundancies, and are thoroughly inconsistent with the original understanding.

The matter, however, is somewhat extraneous to our conversation here, and was quite ably discussed two years ago at Cato Unbound.

The Founders’ Faith in the People

We also disagree as to how far we should entrust these rights to political majorities. Sandefur writes that to the authors of our Constitution, “countermajoritarian wasn’t the difficulty—majoritarian was the difficulty!”

But for the Founders, popular government was the primary solution to the fundamental difficulty: how to ensure governmental respect for individual rights. The Declaration of Independence plainly implies that popular government is the first line of defense. As Michael Zuckert has observed, the Declaration is in the form of a syllogism. The major premise is that whenever any government becomes destructive of individual natural rights, the people have a right to alter or abolish the government; the minor premise is the indictment against the King, showing that his government has become thus destructive; and the conclusion, therefore, is that the people rightfully abolish that government.

In reviewing the grievances, one sees that the King’s government had become destructive of individual rights primarily because his government has disregarded the political rights of the colonists and their elected representatives. In other words, the menace to the people’s right to representative government was a threat to their individual rights.

The Founders, however, understood that popular government, per se, was insufficient. Popular majoritarian government was the solution, but only partly so. As Publius explained in Federalist No. 51, “[a] dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.” As he further noted in Federalist No. 9, generations of experience had confirmed the efficacy of certain “auxiliary precautions,” for example (1) committing the legislative power to representative assemblies, (2) legislative checks and balances, (3) separation of powers (including federalism), (4) judges’ virtual life tenure, and (5) a large republic.

Still, this system is based, primarily, on a limited faith in the people: “As there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust, so there are other qualities in human nature which justify a certain portion of esteem and confidence. Republican government presupposes the existence of these qualities in a higher degree than any other form” (Federalist No. 55). The goal of the Constitution’s design was to foster the influence of popular reason—a reason respecting natural rights—but to frustrate popular passions: “But it is the reason, alone, of the public, that ought to control and regulate the government. The passions ought to be controlled and regulated by the government” (Federalist No. 49).

Faith in the People Justified by Our History

In many respects, the Founders’ faith in popular government has been vindicated by our history. Consider, for instance, the many grave injustices of Jim Crow. How many of these evils would have been avoided had the states obeyed the Fifteenth Amendment and, if necessary, Congress had enforced it? Southern states nullified the Amendment, Congress acquiesced, and republican government collapsed in many states. The lack of equal political rights left African-Americans—a majority or near majority in six states and a large minority in others—without the best safeguard for their natural rights.

Consider also two cases that Sandefur cites: Buck v. Bell and Kelo v. City of New London. Like Sandefur, I believe both cases involved a clear violation of due process of law. In Buck v. Bell, Virginia disregarded the traditional procedural rule that the state could not destroy part of a person’s body without a finding of serious criminal liability. In Kelo, the City of New London disregarded the traditional procedural rule that property could not be forcibly transferred from one person to a second private party without a finding of the first person’s liability to the second.

But both cases also involved a violation of republicanism. The legislatures transferred executive and judicial powers to unelected, unaccountable, unicameral organizations. In Kelo, the legislature gave these powers to a private non-profit association. In Buck, original jurisdiction over the case was assigned the “State Colony for Epileptics and Feeble-Minded,” an administrative agency, holding both executive and judicial authority. In both cases, faith was placed not in the people but in unaccountable experts. 

The popular response to Kelo (though not to Buck) further recommends faith in the people. In forty-four states, the people or their representatives swiftly adopted measures to restrict the taking of private property for private use.

As to Buck v. Bell, the history of eugenics legislation also provides some reason for faith in the people. Coercive sterilization was entirely an elite project, a multi-decade effort to persuade the people to accept the alleged fact that modern progress required the forced application of science to the bodies of citizens.

But the people were squeamish. Initially the laws met with resistance, not only by some fuddy-duddy judges, but also by the public at large. In Oregon, for instance, a popular backlash, via a referendum, rejected the legislation that progressives had marshaled through the legislature. But by the mid 1920s, progressives had succeeded in persuading nearly all the elites—hence the 8-1 decision in Buck. Public resistance largely dissipated, with opposition confined to a few unfashionable religious groups.

Two other cases he mentions—Griswold v. Connecticut and Lawrence v. Texas—also partly corroborate the Founders’ faith. Assuming, arguendo, that the laws in question violated bona fide individual rights, the fact of virtual non-enforcement must be credited in part to the people. Through our history, our people have largely opposed the intrusive measures necessary to enforce laws regulating private sexual activity. Consequently, the people’s representatives in the executive branch have almost always refrained from such enforcement.

Yet if the people had transferred this executive authority to unaccountable experts, the result would have been quite different. If, for instance, Connecticut had established a “Board of Fertility,” armed with the powers of the modern regulatory state, and staffed by self-confident credentialed experts, such intrusions would surely have been frequent. Consider, for instance, the Eugenics Board of North Carolina. In the fifty years after Buck v. Bell, that agency carried out the forced sterilization of thousands of our fellow citizens.

Of course, many counterexamples of the people’s failure, by action or omission, could be cited. Indeed, the people of Virginia (in Buck) and Connecticut (in Kelo) should be faulted for acquiescing in the alienation of their duty and right of self-government, via the administrative state.

But if the people are to get the blame for bad laws, so too they must get the credit for good laws.  In this regard, I take issue with Sandhya Bathija’s characterization of the 1964 Civil Rights Act as a minority victory—a law “achieved by minorities through the democratic process.”

To the contrary, the Act was a victory by the people and for the people. It was passed after extensive public debate by large, bipartisan majorities in Congress and signed by a president who was subsequently reelected by a large majority, in part because of his support for this legislation. The law served the general, not the particular welfare. It served the common good, rather than special interests of a minority. Our fellow citizens should be blamed for the delay, but praised for the achievement.

There’s an episode of The Simpsons in which Homer insists that Springfield’s Bear Patrol is effective in keeping away bears. Lisa tries to explain his fallacy. “By your logic I could claim that this rock keeps tigers away,” she says.

“Oh? How does it work?” Homer asks.

“It doesn’t work,” she replies. “It’s just a stupid rock…. But you don’t see any tigers around, do you?”

“Lisa,” says Homer, resolutely. “I want to buy your rock.”

I thought of this when reading Prof. Roosevelt’s argument that the decision in Bruner v. Zawacki proves that the minimal scrutiny courts apply to cases involving economic liberty is working just fine. In fact, the rational basis test works just about as well as Lisa’s rock.

Yes, Raleigh Bruner was one of the fortunate ones to win a rational basis case—which, as the court acknowledged, is “a daunting task.” But, as the court also acknowledged, the decision in Bruner’s case conflicts with the Tenth Circuit’s decision in Powers v. Harris, which says legislators may block entrepreneurs from entering a trade solely to grant an economic favor to established businesses, without any regard whatsoever for public health and safety concerns. And there are plenty of examples of courts upholding arbitrary and irrational restrictions on economic liberty, on the theory that such questions are best left to the legislature. The Bruner case is a nice step forward, but it’s only one decision. And the rational basis test—a legal theory with no foundation whatsoever in the Constitution of the United States—stands as the biggest obstacle. It’s not just a stupid rock—it’s a giant, teetering boulder.

First, that test requires a plaintiff to disprove the rationale for the law. This is problematic to begin with, since forcing someone to prove a negative is, literally, impossible. Logically speaking, the burden of proof should rest on the government, which asserts that it is justified in restricting a person’s liberty—not on the person who wishes merely to be left alone. Shifting the burden as the rational basis test does is illogical, and it loads the dice against plaintiffs who are usually not in a position to obtain legal assistance and take on the government.

But it gets worse: courts don’t just require plaintiffs to disprove the actual basis for the government’s restrictions on individual liberty. Sometimes, though not always (inconsistency is just part of the charm here in Rational Basis Land!) the plaintiff is required to disprove purely hypothetical, even absurd rationalizations for the law—even rationalizations the legislature did not have in mind when it passed the restriction on freedom. This is why Clark Neily refers to the test as the “rationalize-a-basis” test—if the court can imagine a legislator thinking that the law could be a good idea for some reason, it’s constitutional.

Imagine for a moment that this test were applied in criminal law. A person’s charged with murder. First, he’s forced to prove his innocence. That would be bad enough, but suppose he accomplishes it. Turns out he still loses, because the judge announces “You disproved the prosecution’s case, but I can think of a way you might have done it! Guilty!” Would we tolerate this for an instant? Yet that is the test applied in the realm of economic freedom, a right with deep roots in this nation’s history and tradition, and which Justice William Douglas once called “the most precious liberty that man possesses.”

But the rational basis rock also sways back and forth unpredictably. In some cases, the Supreme Court has said that the plaintiff in such a case must invalidate every conceivable justification for a challenged law—which as I’ve said is literally impossible—but in others it’s refused to speculate about possible justifications. On some days, it has said that it is enough if lawmakers might have thought the law was a good idea. On others, it has said that a law must still have some genuine connection to the purposes it’s meant to serve. Sometimes, the Court has said that legislative decisions are “well-nigh conclusive” when it comes to the rational basis test. In others, it’s said that the test is “not toothless.”

One especially disturbing development is the recent tendency of courts to dismiss rational basis lawsuits under Federal Rule of Civil Procedure 12(b)(6) if the government just says, without any evidence, that the challenged law is rational. Close sesame! This is not an exaggeration. Consider another of my cases, that of Hein Hettinga, whose Arizona-based dairy operations were exempt from certain (economically insane) federal restrictions on the dairy industry. When his competitors learned about it, they managed to get legislation passed to restrict Hettinga’s freedom—not because he was a threat to the public—nobody even alleged that—but because they didn’t want the competition. Hettinga sued, arguing, among other things, that the law violated his right to equal treatment under the Fifth Amendment.

The district court threw out the case on a 12(b)(6) motion because the federal government argued that, in general, dairy regulation was a good idea. Now, a 12(b)(6) motion is brought before a plaintiff is allowed to introduce evidence; a judge considering such a motion is supposed to assume that everything the plaintiff says is true, and only throw out those cases in which the plaintiff couldn’t possibly win even if he proves everything he alleges in his complaint. But in Hettinga’s case, the judge decided that it was unnecessary to wait for evidence, because as long as the government merely says a law is rational, that’s enough for it to win.

Amazingly, the D.C. Circuit agreed. Although Judges Brown and Sentelle expressed strong disapproval of the rational basis test itself—rightly seeing it as excessively deferential—they nevertheless held that trial judges can dismiss such lawsuits without even being given the opportunity to do what the rational basis test requires them to do: introduce evidence proving the law is irrational. (Sadly, the Supreme Court declined to review Hettinga’s case.)

Now, that can’t be right—and it’s inconsistent with decisions of other circuits and the Supreme Court itself—but there are conflicting precedents on this question, even from the Supreme Court. And the Fourth Circuit also recently allowed a trial court to dismiss a rational basis challenge prior to receiving evidence, even though that same Circuit has already ruled that such dismissals are improper.

Finally, there’s the question of why Lisa’s rock is only used in some cases and not in others. There’s nothing in the Constitution directing courts to apply heightened scrutiny to, say, flag-burning or nude dancing or the right to travel, while applying only this cursory rationality standard to rights like private property and the right to earn a living. If, as Prof. Roosevelt claims, the legislature “is better at deciding what serves the public interest” when it comes to taking away people’s homes and handing them to private developers, then why is it not also better suited to decide how we may pray, or what we may publish, or whom we may sleep with, or whether we may travel, or whether we may obtain abortions? The answer is clear: such an outcome flows from the political preferences of the legal elite, not from the text or principles of the Constitution. As Justice Scalia has observed, “ [t]he picking and choosing among various rights to be accorded [judicial] protection is alone enough to arouse suspicion; but the categorical and inexplicable exclusion of so-called ‘economic rights’ (even though the Due Process Clause explicitly applies to ‘property’) unquestionably involves policymaking rather than neutral legal analysis.” Yet the political philosophy of the Constitution, not of Progressivism, should guide our jurisprudence.

Given the confused, arbitrary, logically impossible, imagination-driven standards that govern the rational basis test, it’s no wonder that Justice John Paul Stevens—hardly a spokesman for laissez-faire—called it “tantamount to no review at all.” In fact, today’s courts often treat rational basis as a Get Out Of The Constitution Free Card, or employ it strategically to ignore clear constitutional language, like the Public Use Clause of the Fifth Amendment, while simultaneously enforcing constitutional protections that they do care about.

I for one will not buy that rock.

Timothy Sandefur states that a Progressive jurisprudence lists certain fundamental rights but leaves “off equally valid freedoms for no good reason.” He argues that using heightened scrutiny for some freedoms, and not all, “flows from the political preferences of the legal elite, not from the text or principles of the Constitution.”

I respectfully disagree. Democracy, not the beliefs of the “legal elite,” informs our freedom. Not only should the Court respect the legislative process that protects minority rights, the Court must also rely on an ongoing process of interpretation that considers the Constitution’s text, our history and traditions, and the will of the people. A Court that completely discounts democracy will lose all legitimacy and fail to be effective.

As I touched on in my original Cato Unbound post, there are agreed-upon liberties explicitly listed in the Constitution that the Court must step in and protect when democracy fails. For liberties that are vague, it is not up to judges to define on their own. Judges must not only consider the text of the Constitution, history and precedent, but also the “evolving public understandings of the Constitution’s values,” which are “pressed by political leaders and ordinary citizens throughout history.”

The very topic of this debate proves this. Judicial review is not explicitly provided for in the Constitution but thanks to Marbury v. Madison, it is now accepted “as a permanent and indispensable feature of our constitutional system.” But the public had to accept this role for the Court. The Court draws its authority on constitutional questions from the public’s acceptance. As Archibald Cox wrote in The Role of the Supreme Court in American Government, “the power of the great constitutional decisions rests upon the accuracy of the Court’s perception of this kind of common will and upon the Court’s ability, by expressing its perception, ultimately to command a consensus.”

Liberty Evolves Through Democracy

It’s true that throughout history, there have been unfair and unjust decisions. But the Constitution has always remained the same; what’s different is the interpretation of the Constitution based on the will of the people. That’s why we must have faith in the people to correct the errors of the past, as David Upham asserts.

Harvard Law Professor Michael Klarman wrote,

To risk putting the point somewhat cynically, the Court identifies and protects minority rights only when a majority or near majority of the community has come to deem those rights worthy of protection. Judicial review operates only within the parameters established by the social, political, and ideological context within which judges function. Thus it was possible for the Court to invalidate racial segregation in public schools in 1954, not 1944; sex discrimination in 1971, not 1961; abortion restrictions in 1973, not 1963; and restrictions on radical political affiliation and speech in 1965, not 1955.

The area of substantive due process actually corroborates, not contradicts, this point. Consider the 1942 case Skinner v. Oklahoma. Oklahoma had a statute that required “habitual” criminals to be sterilized. The Court struck down the state law as a violation of basic liberty. It was a departure from the court’s ruling in the 1927 case Buck v. Bell, in which the Court upheld state sterilization of individuals it deemed “unfit.” What had changed in the 15 years that altered the Court’s interpretation? It had become well-known that Nazi Germany was using sterilization techniques, and it influenced society’s view and the Court’s view.

Building on these cases came the right to privacy formulated through Griswold v. Connecticut, Planned Parenthood v. Casey, and Roe v. Wade. When Griswold first articulated the right to privacy for married couples to use contraceptives, only two states in the country had laws banning contraceptives. Similarly, when Roe was decided in 1973, public opinion had already shifted on the abortion issue. Seventeen states had passed laws easing abortion regulations at the time, and opinion polls immediately after the ruling showed that a majority of the public supported the Court’s decision.

Marriage Equality 

This brings me to the movement for marriage equality. To address Mr. Sandefur’s concerns, I do agree with the decision in Lawrence v. Texas, although personally, I wish it had been more sweeping and granted full protection for LGBT individuals. Justice Anthony Kennedy wrote the majority opinion, in which he said that the Texas anti-sodomy law “demeans the lives of homosexual persons” and violates the right to liberty under the 14^th Amendment. But he also said that the ruling “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” In other words, he wanted to be clear that the decision did not mean marriage equality.

Lawrence v. Texas was decided as it was because that was the only way the Court’s decision could maintain legitimacy in 2003. Let’s remember in the 2004 presidential election, 11 for 11 state referendums banning marriage equality passed. Of course, Lawrence v. Texas left in place a foundation to build upon, for when the time came that the public was ready to grant full equality and liberty to LGBT individuals. That was Justice Antonin Scalia’s fear in his Lawrence dissent, in which he wrote about Justice Kennedy’s words, “Do not believe it.”

During the last 10 years, the gay rights movement has changed the hearts and minds of the majority. The time has come for the Court to extend full equal protection and liberty rights to the LGBT community. Fifty-two percent of Americans now support the legalization of marriage equality. We can see this reflected in last year’s Supreme Court decision in United States v. Windsor, and now in five recent federal court decisions in favor of marriage equality. In the most recent ruling, striking down Virginia’s ban, U.S. District Judge Arenda L. Wright Allen not only found the ban unconstitutional under the substantive due process right of a freedom to marry, but also as a violation of equal protection rights.

The people have made it clear that denying marriage equality is a denial of liberty and equal protection. That’s a far cry from 50 years ago, when every state criminalized homosexual sex. Back then, even my former employer, the American Civil Liberties Union, did not object. But now, when the Supreme Court grants cert in one of these cases, a marriage equality ruling will not only be legitimized, it will be expected.

Timothy Sandefur’s discussion of rational basis review raises at least two important questions. The first is whether there’s something inherently wrong with the test. Should rational basis review ever be used?

Rational basis review is certainly very deferential. If it’s a rule that, in practice, amounts to “uphold everything,” then I thinkit  probably should not be used—it would be simpler just to say that the individual has no right, or no judicially enforceable one. It doesn’t amount to that, though, because as Sandefur notes there are somewhat unpredictable occasions on which it turns out to have teeth.

As to the precise features of the test, I agree that it’s strange for courts to hypothesize justifications for a law, and likewise for them to require challengers to disprove all possible justifications. But I wonder how often these things actually happen. (As Sandefur points out, it’s not really possible to disprove all possible justifications, since there’s an infinite range.) When I actually look at the cases Sandefur cites, I tend not to be as alarmed as he is. Take Hettinga as an example. The D.C. Circuit affirmed a 12(b)(6) dismissal not because the government “merely sa[id] the law was rational” but because it offered a specific rationale: Hettinga had been benefitting from a regulatory exemption that gave him a competitive advantage over rivals, and that exemption and consequent advantage were now interfering with the regulatory scheme. (Parenthetically, it’s unclear to me why protecting an individual’s relative liberty—the advantage he has by virtue of government regulation of competitors—is a libertarian position. Surely the better choice is to challenge the regulation of the competitors. And if market freedom for all is unattainable, why not a level playing field?) Hettinga’s pleadings, accepted as true, did not negate that justification, so there was no need to allow the introduction of evidence. At least, that’s what the court said.

In sum, rational basis review can be described in ways that make it seem absurd. I’m not so sure it really functions that way much in practice. But in any case, I’m not committed to the precise current formulation of rational basis review. I am, however, committed to the idea that there are proper occasions for deference. So now let’s turn to that.

Sandefur asks, why use rational basis review in some cases and not others? This is the key question, which I tried to address in my opening post. When should judicial review be deferential, and when should it be aggressive? I try to provide an account of (some of) the factors that go into this decision in The Myth of Judicial Activism. But rather than recapitulate that discussion, let me turn to footnote four of the Carolene Products decision, since it’s the topic of one of Sandefur’s replies here.

Footnote four, Sandefur argues, subdivides rights into enforceable and nonenforceable without constitutional instruction and picks out for special favor the rights that are seen as “instrumental to the idealized ‘democratic process.’” I don’t think so. I think that footnote four is actually a comprehensive theory of judicial review, albeit one that emerges from a particular historical context. So here is a short version of my account of it (longer version here):

The Carolene Products Court had come to see the Lochner-era jurisprudence as indefensible because it overrode legislative assessment of the public interest without any clear explanation as to why courts were better able to make the decision. Those cases looked retrospectively like courts just second-guessing policy choices, which they aren’t supposed to do. (Lochner notably disavows this power.) Footnote four attempts to answer the question of when aggressive judicial review is legitimate—when courts can strike down democratic enactments without being accused of simply substituting their own policy preferences.

Its answer, importantly, is not just something about the democratic process or non-economic rights. It has several elements. First, the footnote says, courts can enforce the text of the constitution. Enumerated rights, whether economic or not, whether contributing to the political process or not, can be enforced. That is why nude dancing and flag burning are aggressively protected—because they are considered to constitute speech protected by the First Amendment. The right to earn a living, on the other hand, is not in the Constitution, and property is protected only conditionally under the Due Process Clause. (Sandefur seems to believe that some enumerated economic rights are not being enforced, but I am less confident than he is in his reading of the text that purportedly confers those rights.) Second, even without textual warrant, courts can be aggressive in striking down laws that restrict the political process. This makes sense—the whole argument for deference to the legislature is that it represents the will of the people, but laws that restrict the political process subvert that justification. Third, the footnote identifies one situation in which the legislative assessment of the public interest is likely to be suspect: burdens fall on a politically weak group and benefits go to a stronger one. Here again, judicial second-guessing is appropriate without more explicit textual authorization.

That third part of the footnote, I think, was meant to be implemented in due process cases—maybe cases like Bruner—as a way of enforcing the public interest requirement that both Sandefur and I find in the due process clause. So when Sandefur argues for more meaningful judicial scrutiny of economic regulation in order to protect political outsiders, I am on board. (And I think he likewise should approve of footnote four.) But the flip side of this concern for politically weak minorities—the flip side of the argument that more aggressive judicial review is appropriate in such cases—is that less aggressive judicial review must be appropriate in other cases. That, perhaps, is where Sandefur and I part company, because I don’t think that the libertarian project is aimed merely at reducing regulation that burdens the politically weak.

In his reply, Timothy Sandefur claims that progressive jurists have acted inconsistently: at times respecting individual rights but often disregarding them in favor of democratic deference. Sandefur attributes this pattern to “incoherence.”

The allegation of incoherence seems strange given certain predictable patterns. Sandefur celebrates the Court’s 5-4 opinion in Lawrence, but decries the 5-4 opinion in Kelo, rendered just two years later. But it was precisely the same five judges who formed the majorities in both cases.[1] Were all these judges simply incoherent?

Progressives, in my view, have been quite coherent, not only in recent years but for the past century. A review of some of the major cases mentioned in our discussion reveals a fairly consistent pattern, reflecting a well-developed understanding of the relationship between history, the people, the elites, and individual rights.

American democratic progressivism was born of the Hegelian notion that History, not Nature is or should be the first principle of politics. “Progress,” as the name implies, assumes that forward motion brings improvement. Nature, then, does not provide universal, fixed norms—the Founders’ so-called “laws of nature and nature’s God.” Rather, nature is to be overcome via historical progress.

How does History happen in politics? First, a supra-rational Spirit moves; this spirit unfolds, expresses itself, through both the people and the elites, but in very different ways. The people act subrationally in giving voice to the spirit via demands, feelings, and wants, evidenced by “demonstrations” and other forms of “expression.” The people engage not in rational “causes” but in sub-rational “movements.”

The credentialed elites, in contrast, provide the rational implementation of these movements and expressions. As a twist on Madison, the passions of the people, sublated into the reason of the few, should govern.

What about “rights”? Progressives certainly believed in “liberty” and other rights. But rights were not fixed or determinate, but always subject to redefinition. As Franklin Roosevelt said in his first presidential campaign, “[t]he task of statesmanship has always been the re-definition of these rights in terms of a changing and growing social order. New conditions impose new requirements upon Government and those who conduct Government.”

Progressive jurists have consistently understood their task to be either to facilitate or, when necessary, to initiate, these redefinitions.  During the past 100 years, the redefinition proceeded in two main steps.

In the first half of the twentieth century, the Court served mainly as facilitator. The political branches were trusted to initiate the new rights. Then (as now), the rights on the agenda encompassed certain economic security and stability, such as the guaranties enumerated in Franklin Roosevelt’s “Second Bill of Rights.”

But the Constitution’s stubborn words were a problem. That text protected things like the reserved rights of the states, property rights, and the right to bear arms—all obstacles to reform. Moreover, those words prohibited the concentration of legislative, executive, and judicial powers in the hands of credentialed, professional elites; such separation of powers threatened to hamstring the dynamic, flexible, and (thus) effective implementation of progress by administrative experts. Those rights had to go.

In case after case after case after case, progressive jurists labored to clear the old rights of individuals and the states out of the way, so that the government—and especially the national government—could implement the new rights.

At the same time, in the interest of progress, progressive jurists redefined First Amendment freedoms. Brandeis and Holmes introduced a virtual neologism “freedom of expression” into our legal lexicon, and set about declaring that our Constitution protected not mere deliberative speech, but also threats, lies, and obscenities.

Now to a self-governing community, whether a legislature, a tribunal, or the people at large, such sub-rational expressions pose threats to good deliberation and may therefore be restrained. But for the progressives, the masses were not supposed to be deliberative or rational; they were supposed to be teeming and loud—precisely to give voice to the Zeitgeist. Restrictions on vulgar or even violent speech tended to quench this Spirit, rather than hasten the day of its arrival.

Felix Frankfurter explained the apparent contradiction in the progressives’ approach to expressive and economic liberties in these terms:

[Justice Cardozo, like Justice Holmes] deferred so abundantly to legislative judgments on economic policy because he was profoundly aware of the extent to which social arrangements are conditioned by time and circumstances, and of how fragile, in scientific proof, is the ultimate validity of a particular economic adjustment…  But history had also taught him that, since social development is a process of trial and error, the fullest possible opportunity for the free play of the human mind was an indispensable prerequisite.

Progress required, then, both the exclusion of property rights and the inclusion of broader expressive liberty.

Footnote 4 of Carolene Products was designed to serve this dual purpose. The textualist rule served the progressive agenda by deflating “liberty of contract” while inflating the liberties of expression.

But pace Kermit Roosevelt, this textualism was counterfeit. The progressives never showed any vigilance for the other, non-expressive textual rights, such as the property rights of contract or firearms, let alone the political rights of the states; those rights were inconsistent with the Zeitgeist.

In the second half of the century, progressive jurists grew tired of playing second fiddle to politicians and grew frustrated with the lethargy of the legislatures. In at least two ways, the people were just stuck on stupid. The Court had to push things along.

First, although the Spirit had spoken clearly, Congress had failed to implement fully the Second Bill of Rights; the Court, then, had to resolve the problem by establishing the fuller welfare state by decree. Second, History had put a whole new set of rights on the agenda, for the Spirit had spoken loud and clear through the Sexual Revolution. But the people were dragging their feet, sometimes even backsliding. The Court, then, had to implement the new rights, whether the right to engage in non-marital sex itself, or the necessary concomitant rights of contraception and abortion. In both cases, the time had come.

As Cass Sunstein has pointed out, the election of Nixon instead of Humphrey frustrated the first project. Nixon appointed four moderate judges. Unlike Humphrey’s likely appointees, these four were insufficiently progressive to impose welfare rights, and progressives have not (yet) renewed these efforts.[2] But as to the second project, Nixon’s judges largely cooperated with History—and in Justice Blackmun’s case, with great enthusiasm.

In our day, as Sandhya Bathija remarks, the current item on the agenda is the redefinition of marriage—and the concomitant redefinition of parenthood to the detriment of the child’s right to her natural mother and father. For progressives, the sprit had moved, the people have spoken, and now the Court and other elites must enforce the new right.

The conclusion that the people have endorsed this new right may seem strange to many of our readers: those that still think, as somebody once said, that “the citizens of America are equal as fellow citizens, and as joint tenants in the sovereignty.”  After all within the last decade, the majority of the voters in a super-majority of the states emphatically rejected this new right. Even in the past few years, despite significant movement in popular opinion, only a handful of states have endorsed the right via the legislative or electoral process.[3]

In the last election, traditional marriage only lost narrowly in solidly blue states. Had Mitt Romney performed as well, he would have won nationally by a large majority. Haven’t “the people” spoken against not for “marriage equality”?

But for progressives, both novelty and elite ratification are indispensable prerequisites for authority. Once the people move in the right direction (as determined by elites)—in favor of novelties, whether designated “universal healthcare,” “living wage,” or “marriage equality,” only then have the people truly expressed themselves. Any contrary votes are merely provisional, not authoritative.

The “movement” per se is sufficient, and the movement happens without the need for any bicameral or bipartisan votes. And with respect to “marriage equality,” the elites have ratified the movement with breathtaking uniformity.  

Some non-progressives may welcome these developments. In the peroration to his opinion in Lawrence, Justice Kennedy declaimed as follows:

[T[hose who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment…knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.

So History allows us to discover new rights because old necessities are now oppressions.

But keep in mind that History can banish old rights just as easily as it can welcome new ones. History works both ways. Individual rights can be included as old necessities are deemed oppressive, but old rights can be discarded as old ideas of “oppression” give way to new notions of necessity.

Accordingly 75 years earlier, nearly to a day, Justice Brandeis, in his famous progressive dissent in Olmstead, wrote a perfect complement to Justice Kennedy’s maxim: 

We have likewise held that general limitations on the powers of Government, like those embodied in the due process clauses of the Fifth and Fourteenth Amendments, do not forbid the United States or the States from meeting modern conditions by regulations which a century ago, or even half a century ago, probably would have been rejected as arbitrary and oppressive.

In support of this proposition Justice Brandeis cited another great progressive opinion: Justice Holmes’s majority opinion in Buck v. Bell (a case that would likewise have a supporting role in another famous progressive opinion: Roe v. Wade).

In the decades after Roe, progressives discarded the eugenics project as unfashionable and otherwise inappropriate. Still, the principle of Buck, Roe, Lawrence, and Kelo is the same. Times change. Rights change—whether by addition, subtraction, or otherwise. The job of the progressive jurist is to facilitate and, if necessary, initiate this redefinition.

Where will History take us next?  What will the next century of progressive jurisprudence provide? For the fuddy-duddies—i.e., those, like me, who believe in such old-fashioned notions as popular self-government, the rule of law, and fixed individual rights—it’s gonna be a bumpy ride.

Few political movements can boast a history of uninterrupted consistency, and this is no less true of Progressivism than of conservatism or any other –ism. While Prof. Upham’s discussion of the Progressive belief in History and the Volkgeist works for the original, authentic Progressives, I think it underestimates the degree to which Progressivism changed in the past half-century.

Woodrow Wilson could think unashamedly in terms of the Spirit of the People manifesting itself in collective action, but today’s Progressives do not think that way. They are, rightly, haunted by the experiences of World War II and the Civil Rights Era. Those episodes led Progressives to reintroduce certain elements of Good Old Fashioned Classical Liberalism into their creed—haltingly, and inconsistently, but still to everyone’s benefit. Today’s Progressives are rightly ashamed of much of their history—trying, for instance, to pretend that segregation was imposed by capitalist business tycoons instead of by Democratic Party reformers—and have, in an inconsistent and ultimately incoherent fashion, returned to some of the principles of liberty and equality that previous generations of Progressive leaders rejected.

That’s why it’s unconvincing for Prof. Upham to try to label the movement for marriage equality as the natural outcome of Progressivism. Look at a case like Goodridge v. Massachusetts Department of Health—an excellent, entirely convincing piece of reasoning which was ludicrously derided as an exercise in “judicial activism” when it was decided. Goodridge never speaks of any Hegelian process of Historical ramification. Instead, the court says—consistently with centuries of Anglo-American common law and the classical liberalism of the Declaration—that government restrictions on individual liberty must be justified by some realistic public purpose, as opposed to the arbitrary distaste of political elites. The court then goes through the various justifications advanced in support of prohibiting same-sex couples from marrying, and correctly finds them wanting. For instance, opponents of marriage equality argued that marriage was an institution designed to foster child-rearing. Yet child-rearing plays no necessary part in marriages, since infertile couples can marry or stay married, and same-sex couples are allowed to adopt. After examining in turn each justification offered for limiting the rights of same-sex couples, and finding each one unpersuasive, the court concluded that the restriction was arbitrary and therefore did not qualify as the due process of law to which all persons are entitled. This is Good Old Fashioned Classical Liberalism, not Progressivism.

One complicating factor in all of this is that Progressive doctrine is so malleable that it can easily be bent to serve a politically palatable outcome, and as a result, classical liberal theory is sometimes articulated in Progressive jargon. Lawrence v. Texas and Griswold v. Connecticut are good examples. These cases simply, and rightly, held that the state may not deprive people of liberty arbitrarily, and that the government’s mere distaste for a person’s actions—sex in the privacy of one’s home which politicians have decreed off limits—is arbitrary. In those cases, as in Goodridge, the state had prohibited private conduct that harmed nobody simply as an act of power—as an ipse dixit—though hidden under a pretext of protecting the public from some kind of harms. The Court saw through those pretexts and invalidated the laws—again, an exercise in ordinary classical liberalism. Sadly, because the Court is so Lochner-phobic that it saw fit to couch its reasoning in the jargon of Progressivism, or in silly terms like penumbras and emanations. But underneath that disguise, these decisions fit comfortably within the centuries-old Due Process of Law tradition.

It’s actually much harder to classify such decisions with the tradition of original Progressivism, not only given the fact that they run so strongly counter to majority will, but also because the original Progressives were actually quite Puritanical about sex. They even tried to make divorce illegal. As I’ve said, modern conservatives are much more Progressive than they often realize. The law struck down in Lawrence, for instance, was entirely in the Progressive vein. Whatever one thinks of the privacy rights revolution of the 1950s, the sexual revolution of the 1960s, and the decision in Lawrence v. Texas, they are not authentically Progressive. They are libertarian. To the degree Progressives have made room for any amount of libertarianism on their platform, they deserve praise.

Yes, the older variety of Progressivism is certainly alive and well. The notion that health care, for example is a “right”—provided by the state with funds forcibly seized from people’s earnings, and shoved down their throats in the form of government mandates—depends on the Progressives’ redefinition of “rights” as privileges given by the government. That’s certainly something Wilson, Brandeis, and their generation would have recognized. But as I noted earlier, Progressivism went through some healthy changes in the years following World War II. Liberals realized that there are such things as inalienable human rights that no state may justly abridge. The only regret is that they persist in blindness to the importance of other rights, such as private property and economic liberty.