Speaking to the Heritage Foundation in 1996 on the topic of "judicial activism," the conservative commentator Pat Buchanan denounced the Supreme Court as a "judicial dictatorship"; the Court's beneficiaries, he said, were "criminals, atheists, homosexuals, flag burners, illegal immigrants (including terrorists), convicts, and pornographers." In his influential 1996 book Slouching Towards Gomorrah: Modern Liberalism and American Decline, former federal appeals court judge Robert H. Bork declared that "the Supreme Court has usurped the powers of the people and their elected representatives." Dissenting from the majority in Lawrence v. Texas (2003), which nullified that state's anti-sodomy law, Supreme Court Justice Antonin Scalia argued that the Texas legislature's "hand should not be stayed through the invention of a brand-new 'constitutional right' by a Court that is impatient of democratic change."
Such views are widely shared on the right, where few subjects produce greater outrage than judicial activism, which conservatives blame for the forced imposition of liberal values on American society. But libertarians, who have frequently allied with conservatives in the effort to rein in the federal government, should not join their battle against the judiciary. There is no inconsistency between principled judicial activism and limited government.
Lincoln's Property-Rights Activist
For the better part of six decades, in fact, judicial activism was associated almost exclusively with the protection of economic rights, while its counterpart, judicial restraint, was the rallying cry of liberal reformers. Between Reconstruction and the New Deal, as the states began legislating a variety of new "progressive" regulations, it was judges acting in the name of private property and "liberty of contract" that "usurped" the power of the people, "invented" new rights, and gave birth to judicial activism as we know it today.
This history suggests that a principled form of libertarian judicial activism--that is, one that consistently upholds individual rights while strictly limiting state power--is essential to the fight for a free society. In fact, a genuinely libertarian jurisprudence would, in the words of the legal scholar Randy Barnett, "requir[e] the state to justify its statute, whatever the status of the right at issue." The real legal challenge facing libertarians isn't judicial activism; it is defending individual rights from the liberals and conservatives who seek to take our liberties away.
For a historical model, look to Supreme Court Justice Stephen J. Field. Appointed by Abraham Lincoln in 1863, Field sat on the Court for more than three decades, retiring in 1897 at age 81. In the words of biographer Paul Kens, Field was "the prototype for the modern judicial activist." He was among the first judges to create a body of legal authority by penning extensive dissenting and concurring opinions; he eagerly wielded the power of judicial review; he recognized few "political thickets" into which the courts should not tread. Nor did Field bind himself exclusively to legal precedent or to the text of the Constitution. Anticipating those 20th-century judges whose decisions draw on the political and social sciences, Field's opinions resound with such extra-constitutional sources as Adam Smith's Wealth of Nations and the precepts of natural law--the doctrine that man's rights derive from nature, not from human institutions.
Most important, Field advocated a groundbreaking jurisprudence of unenumerated natural rights. Through a number of creative and forceful opinions, particularly his dissents in the Slaughterhouse Cases (1873) and Munn v. Illinois (1877), and his concurrence in Butchers' Union Co. v. Crescent City Co. (1884), Field worked to enhance judicial power, nullify popular legislation, and expand individual liberty under the 14th Amendment.
Ratified in 1868, the 14th Amendment is the most controversial of the three amendments added to the federal Constitution after the Civil War. The 13th abolished slavery, and the 15th secured the vote for African-American men--not exactly open issues today. But the 14th still inspires debate. The relevant portion reads: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
The first test of this broad new language came in 1873 with a group of lawsuits known collectively as the Slaughterhouse Cases. At issue was a Louisiana law granting a 25-year monopoly to the Crescent City Live-Stock Landing and Slaughter-House Company to build and operate a new central slaughterhouse to "promote the health of the City of New Orleans." Critics, particularly established local butchers, charged (correctly) that the whole deal stank of an exclusive privilege granted to well-connected insiders and, in a surprising move, claimed the law violated their rights under the 14th Amendment.
Attorney John A. Campbell, representing the Butchers' Benevolent Association, argued that the amendment's Privileges or Immunities Clause secured the right of butchers to pursue their calling without unreasonable interference from the state. Writing for the 7-2 majority, Justice Samuel F. Miller disagreed, holding that "the one pervading purpose" of the clause was to protect the rights of former slaves, not to expand the rights of white butchers.
Expanding the 14th
In dissent, Justice Field took a far wider view. The phrase "privileges or immunities," he argued, describes those "natural and inalienable rights" that "belong to the citizens of all free governments." Furthermore, "Clearly among these must be placed the right to pursue lawful employment in a lawful manner, without other restraints than such as equally affects all persons." Miller, foreshadowing one of the chief charges leveled against judicial activism, wrote that Field's sweeping assertion of the right to pursue a calling, if accepted, would transform the Court into a "perpetual censor upon all legislation of the states." (Theodore Roosevelt echoed this view some three decades later when he denounced the Court as a "super-legislature." Newt Gingrich recently did the same when he decried the Court as "a permanent constitutional convention.")
Field, however, was undeterred. In 1877 the Court heard arguments in Munn v. Illinois, one of the so-called Granger cases, which dealt with various state laws regulating railroad shipping rates. In Munn, the law in question set the storage rates for 14 massive grain elevators situated at the port of Chicago.
Writing for the 7-2 majority, Chief Justice Morrison Waite upheld the fixed rates, writing that when private property is "affected with a public interest" it becomes open to greater regulation. The grain elevators, he maintained, "stand...in the very 'gateway of commerce' and take toll from all who pass"; they "exercise a sort of public office," a de facto monopoly. Furthermore, "for protection against abuses by the legislature, people must resort to the polls, not the courts."
Dissenting, Field ridiculed the decision, arguing that under the Court's elastic definition, any useful business or enterprise could be defined as serving a public interest. "If this be sound law," he argued, "all property and all business in the State are held at the mercy of a majority of its legislature."