Judicial Activism and Civil Rights

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 14th 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]



[1] In fact, Libertarian judicial philosophy opposes the very legislation that protects the rights of those who are pushed out of the electorate because of longtime discriminatory voting practices – all because libertarians don’t like “unusual federal oversight.”


Also from this issue

Lead Essay

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

Response Essays

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

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

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