Unleash the Judges

The libertarian case for judicial activism.

Damon W. Root from the July 2005 issue

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Then, turning to the language of the 14th Amendment, Field spelled out a sweeping new interpretation of due process, one whose reverberations are still felt in the legal battles over privacy and abortion. The due process protection of life, Field began, means more than "mere animal existence." It extends to one's body and one's faculties, and it prohibits mutilation just as certainly as it prohibits murder. Liberty, by the same standard, requires more "than mere freedom from physical restraint or the bounds of a prison." Each individual must be free to travel, to pursue happiness as he sees fit. This freedom obviously includes the right to pursue "such callings and avocations as may be most suitable to develop his capacities."

Finally, "the same liberal construction" must be applied to the protection of property. This right must refer to more than just "title and possession" if it is to have any real meaning. It necessarily includes the right to use and dispose of one's property, to set rates of compensation, and to profit.

Substantiating Due Process

Today, Field's approach is known as "substantive due process," referring to the idea that the Due Process Clause guarantees more than just "procedural" rights and in fact secures all "substantive" or fundamental rights from violation as well. In other words, there is simply no official procedure, including the deliberative judgment of a legislative majority, that can legitimate the violation of inalienable rights.

Field's dread phrase "liberal construction" will no doubt send a few conservatives into apoplexy, since it so clearly foreshadows two of the Court's most controversial modern rulings. First, in Griswold v. Connecticut (1965), the Court held Connecticut's ban on the use of contraceptives to be a violation of the "zones of privacy" carved out by the specific guarantees of the Bill of Rights. Then, in Roe v. Wade (1973), the Court expanded the individual right to privacy to include the right to an abortion.

These decisions clearly fall within Field's interpretation. Individual rights, by nature and by necessity, he argued, require a broad or "liberal" scope if they are to have any real meaning. State power, by contrast, must be narrowly construed and strictly limited. Modern conservatives, by exalting the will of the majority over the liberties of unpopular minorities, have abandoned Field's natural rights�based approach for a constitutional vision that errs in favor of contested legislation. As we'll see, this doctrine of judicial restraint proved disastrous for individual rights in the 20th century.

In 1884 the butchers of New Orleans again provided Field with the opportunity to expound his sweeping vision of life, liberty, and property. Louisiana's new state constitution, passed in 1879, transferred the regulation of slaughterhouses from the statehouse to city hall. New Orleans responded by opening the business to limited competition, thus voiding the Crescent City Company's exclusive 25-year monopoly.

The issue before the Court in Butchers' Union Co. v. Crescent City Co., therefore, was whether the state could impair its contractual obligations and rescind the privilege it had bestowed. The Court unanimously held that it could, since no legislature had the authority to limit the future exercise of its own police powers. Although he concurred with the ruling, Field devoted the bulk of his opinion to restating his objection to the original monopoly and expanding his conception of liberty.

"Certain inherent rights lie at the foundation of all action," Field wrote. Among these "is the right of men to pursue happiness, by which is meant the right to pursue any lawful business or vocation, in any manner not inconsistent with the rights of others." This boldly libertarian position, which if followed would sweep away much state and federal legislation, aptly demonstrates how judicial activism in defense of individual rights would limit the size and scope of government.

Although Field would die before his ideas fully entered the law, the tide had turned. In 1897, in the case of Allgeyer v. Louisiana, which overturned Louisiana's ban on mail-order insurance contracts sold by out-of-state companies, a unanimous Court explicitly recognized the right to pursue a calling, enshrining the broad 14th Amendment right to "liberty of contract." During the next three decades, the Court would selectively employ liberty of contract in several controversial cases to nullify popular state laws.

By far the most famous of these was Lochner v. New York (1905). In a decision still denounced for its judicial activism, the Court struck down New York's law setting maximum working hours for bakery employees on the grounds that it violated the liberty of contract protected by the 14th Amendment's Due Process Clause.

"The act is not," Justice Rufus Peckham held for the majority, "within any fair meaning of the term, a health law." The legislature was plainly inspired by "other motives" than health or safety. Were the Court to uphold such an arbitrary state action, he continued, "there would seem to be no length to which legislation of this nature might not go."

Notably, Lochner was decided just nine years after Plessy v. Ferguson (1896), in which the Court upheld a Louisiana statute banning the sale of first-class railroad tickets to African Americans, permitting state-mandated segregation in public accommodations as long as the facilities for each race were "separate but equal." Although Field joined with the majority in this vile opinion (and remained uncharacteristically silent while doing so), Plessy clearly violates liberty of contract. As legal scholar Richard Epstein has written, "the statute sustained in Plessy was flatly inconsistent with laissez-faire principles....Plessy represented
the expansionist view of the police power that Lochner repudiated."

Individual Liberty vs. Good Government

It was precisely this repudiation of state power that motivated the attacks of Lochner's many opponents. In his famous Lochner dissent, Justice Oliver Wendell Holmes lambasted his colleagues for enshrining "an economic theory which a large part of the country does not entertain." For Holmes, the deciding factor was the will of the majority, not individual rights. "I think that the word 'liberty' in the 14th Amendment," he explained, "is perverted when it is held to prevent the natural outcome of a dominant opinion, unless...the statute proposed would violate fundamental principles as they have been understood by the traditions of our people and our law."