Unleash the Judges

The libertarian case for judicial activism.

Damon W. Root from the July 2005 issue

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This view, which became a central tenet of Progressive and New Deal�era liberalism, is precisely the approach now championed by Robert Bork, perhaps the leading conservative critic of the judiciary. The common denominator is that both liberals and conservatives will gladly sacrifice individual liberty to further their particular notions of "good government."

If Stephen Field is the first great champion of judicial activism, then Oliver Wendell Holmes is his nemesis, the first great advocate of judicial restraint. Appointed by Theodore Roosevelt in 1902, Holmes also sat for three decades, retiring in 1932 after exerting a vast and lasting influence, particularly on several key figures in Franklin Roosevelt's New Deal.

"I always say, as you know," Holmes once remarked, "that if my fellow citizens want to go to Hell I will help them. It's my job." That statement, perhaps more than Holmes or his supporters realize, perfectly captures the significant dangers inherent in judicial restraint. Consider, for instance, Holmes' dissent in Meyer v. Nebraska (1923), where the majority held that a state law banning foreign language instruction for young children, passed in the heat of the anti-German hysteria stirred up by World War I, violated the 14th Amendment's substantive guarantee of liberty. "I think I appreciate the objection to the law," Holmes explained, but "I am unable to say the Constitution of the U.S. prevents the experiment being tried."

Then there is Holmes' opinion for the majority in Schenk v. United States (1919), which upheld Woodrow Wilson's monstrous Espionage Act, permitting Congress to restrict and punish speech that obstructed the draft. This ruling sent Socialist leader Eugene V. Debs, among others, to federal prison, where he rotted for three years on the charge of exercising his First Amendment right to criticize the government. In both cases, Holmes' deference to the popular will placed him squarely against the fundamental rights of unpopular minorities.

Selective Rights

The obvious parallel here is to the Court's judicial restraint in Korematsu v. United States (1944), which upheld the Roosevelt administration's wartime internment of Japanese Americans. For those conservatives terrified at the thought of "judicial dictatorship," it's worth remembering that it was judicial restraint, not activism, that allowed these egregious violations of both fundamental rights and basic justice to occur.

Like Stephen Field before him, Oliver Wendell Holmes would not live to see his ideas become law. In 1937, five years after Holmes' death, the Supreme Court overturned Lochner v. New York, relying on the principle of judicial restraint to uphold a Washington state minimum wage law for women. Writing for the majority in West Coast Hotel Co. v. Parish, Chief Justice Charles Evans Hughes rejected substantive due process and the notion of unenumerated rights. "The Constitution does not speak of freedom of contract," he declared. So long as an economic regulation is "reasonable in relation to its subject and is adopted in the interests of the community," the requirements of due process are met. To put it plainly, "the legislature is entitled to its judgment."

Conservative critics of judicial activism ought to celebrate this decision and the countless economic "reforms" that followed. Instead, many such critics, including Justice Scalia, still favor an active judicial role in defending property rights. Similarly, modern-day liberals remain firmly committed to the demise of liberty of contract while at the same time championing Lochnerian substantive due process for privacy and abortion rights.

Predictably, neither right nor left is eager to subject its selectively cherished rights to the will of the majority. And why would they? Majority rule, as James Madison pointed out in Federalist No. 10, is not always such a pretty thing. Fortunately, we possess inalienable rights that no majority may touch. Furthermore, as the Ninth Amendment says, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Stephen Field got that right in Munn v. Illinois: Individuals possess far more liberties than any constitution could possibly list.

A principled form of libertarian judicial activism, therefore, is clearly consistent with the basic requirement of a free society: the protection of individual rights against the tyranny of the majority.