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 20th 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.