The Paleo Case for Judicial Activism

Damon W. Root | May 7, 2008

Following up on Nick Gillespie's Supreme Court post earlier this morning, I see that our friends over at LewRockwell.com have run a very interesting piece arguing that "judicial activism is only lamentable when the judges actively ignore the Constitution." From historian Kevin R.C. Gutzman's article:

"Judicial restraint," in and of itself, is not a virtue. The idea of judicial restraint first gained currency in legal academia in the first third of the twentieth century. Then, it was the slogan of such as Felix Frankfurter, an Ivy League law professor and high ACLU mucky-muck who wanted conservative activists to cease imposing their laissez-faire vision on America.

The laissez-faire Supreme Court, in particular, was partly in the right and partly in the wrong. In a series of cases, the Court of the late nineteenth and early twentieth century disallowed wage and labor legislation passed by both state and federal legislatures. The Court was right to do this in regard to the congressional statutes, because, as the justices said, the Tenth Amendment represented the constitutional principle of federalism—that control of those matters had been reserved to the states.

Whole thing here.

I'd argue that it's Gutzman who is partly right and partly wrong. As I describe in my libertarian case for judicial activism, Supreme Court justices such as Stephen J. Field correctly read the Fourteenth Amendment as applying the Bill of Rights (including the Ninth Amendment's guarantee of unenumerated rights) to the states. So the laissez-faire Court was right in Lochner v. New York (1905), for example, when it struck down the state's maximum working hours law for bakeshop employees as a violation of liberty of contract, just as it was right to strike down federal New Deal laws three decades later. In other words, we'd all be better off with an activist Supreme Court that consistently upheld individual rights while strictly limiting state and federal power.

Comments

x,y|5.7.08 @ 11:12AM|#

Judicial activism = deciding a case differently than I would have

Episiarch|5.7.08 @ 11:18AM|#

Let's see. We put 9 asshole lawyers in a position where they can decide, with no further oversight, anything they damn well please no matter whether it is a clear violation of the Constitution or not (McCain-Feingold, anyone? Kelo?).

How can you not be an anarcho-libertarian?

|5.7.08 @ 11:23AM|#

Judicial restraint was not invented by the evil Felix. Ultra-high mucky-muck* Oliver Wendell Holmes put it thusly: "The Fourteenth Amendment did not enact Mr. Herbert Spencer's "Social Statics."

Holmes also held that a legal system ought to be consonant with the society within which it is embedded. Which, to some, might suggest that since the American people have voted in favor of New Deal-style liberalism for the past 70-odd years, maybe the theories of libertarian navel-gazers aren't too relevant.

*Shouldn't it be "muckedy-muck"? I believe that's how Jack Anderson spelt it.

Episiarch|5.7.08 @ 11:28AM|#

It's "muckety-muck", film-review boy.

|5.7.08 @ 11:32AM|#

"since the American people have voted in favor of New Deal-style liberalism for the past 70-odd years, maybe the theories of libertarian navel-gazers aren't too relevant."

I was under the impression that the Constitution was supposed to protect me from people that vote in favor of things like New Deal style liberalism. I fear the majority.....

fyodor|5.7.08 @ 11:33AM|#

Let's see. We put 9 asshole lawyers in a position where they can decide, with no further oversight, anything they damn well please

Correction: they can strike down (or place restrictions on) anything they damn well please. They can't come up with anything of their own, though. That's how their power is restricted.

Mr. Root, you're no fun! By applying the 14th to the 9th and interpreting the 9th liberally, no legislature at any level of American government can do just about anything fucked up!! Jeez....

|5.7.08 @ 11:42AM|#

Correction: they can strike down (or place restrictions on) anything they damn well please. They can't come up with anything of their own, though. That's how their power is restricted.

Maybe the SCOTUS has avoided this, but state supreme courts have no hesitation in dictating (as an example), sometimes in incredibly (for a judiciary) detailed form, exactly how the state government should provide funding for schools.

|5.7.08 @ 11:42AM|#

Holmes also held that a legal system ought to be consonant with the society within which it is embedded.

And the mechanism for ensuring that is by adopting amendments to the Constition, not by having judges "amend" the Constitution sua sponte.

Which, to some, might suggest that since the American people have voted in favor of New Deal-style liberalism for the past 70-odd years, maybe the theories of libertarian navel-gazers aren't too relevant.

And voters in the South voted in favor of Jim Crow laws for decades as well. The Constitution exists in large part to prevent the voters from getting (some of) what they want.

kinnath|5.7.08 @ 11:43AM|#

"since the American people have voted in favor of New Deal-style liberalism for the past 70-odd years, maybe the theories of libertarian navel-gazers aren't too relevant."

Deja vu . . The purpose of the constitution is to impede "progress" when the majority becomes the mob.

|5.7.08 @ 11:48AM|#

Correction: they can strike down (or place restrictions on) anything they damn well please. They can't come up with anything of their own, though. That's how their power is restricted.

Odd fyodor, I'm pretty sure that I've seen courts, including the SCOTUS, issue rulings that certainly would be characterized as "coming up with anything of their own." Particularly if you allow the courts to interpret the 9th Amendment liberally, I think that it would happen even more. Try, "the 9th Amendment protects the right to clean air, a fair wage approximating the value of one's labor, the right to have one's political speech equally heard in according to one's numbers and not drowned out by the rich, etc." for a few ideas. All a court would have to do is accept the idea that rights are meaningless without the positive means to enjoy them and you can drive a truck of government through.

I don't particularly understand the confidence that an empowered Court would move in a libertarian direction rather than in a direction of coming up with new positive rights that must be enforced by government action.

In other words, we'd all be better off with an activist Supreme Court that consistently upheld individual rights while strictly limiting state and federal power.

Again, care to explain how we would get that, with Justices approved by the elected Senate? The reason the Lochner era ended is in part because the rulings were unpopular.

I was under the impression that the Constitution was supposed to protect me from people that vote in favor of things like New Deal style liberalism. I fear the majority.....

And when justices are activist and approved by the Senate, you'll get judges that rule for the same sorts of things as the people vote for, like New Deal style liberalism.

|5.7.08 @ 11:51AM|#

Finding new rights in the 9th is very attractive when the rights seem obvious to you, but surely that game can be played in any direction. The "they can only strike it down" theory advanced by fyodor et al. is unconvincing; if a court can order busing, it can order lots of affirmative government action to protect rights, positive or negative, rights you agree with or don't. So long as justices are appointed by the President and approved by the Senate, I would strongly expect that the sort of rights they'll find in the 9th will not be friendly to libertarians.

Anthony Gregory|5.7.08 @ 11:57AM|#

If the 14th Amendment incorporated the 9th Amendment, what does this exactly mean? Does every local law forbidding the use of heroin in public parks violate the Constitution? Surely, the federal government, a government with enumerated powers, could not pass such a law. But a city ordinance? It's somewhat incoherent to talk about the federal courts implementing the 9th Amendment on all the states. Does this mean my unenumerated right not to pay taxes to local government should be enforced by the federal court? Does this mean that we have to decide which rights we all have at the federal level, and impose near-anarchy on every square inch of America? Where do we draw the line? If local eminent domain for public purposes with "just compensation" is okay on the state level, what about laws against drunk driving? What about laws against extreme pornography? Late-term abortion? Blackmail? Libel? The federal government has no right to pass such laws -- but do you think this means the states shouldn't be allowed to, either?

It seems to me that in order to interpret the 14th Amendment as incorporating all our libertarian 9th Amendment rights into each state structure, we'd have to define what those rights are. My view of the 9th Amendment is it allows for a very small federal government. But the states have no explicit Constitutional authority, under the federal Constitution, to raise armies or do many of the other things that the feds are specifically authorized to do. So the Constitution becomes even more incoherent, with the states being forced to have far less power than the federal government has to do just about anything. Is it your belief that the 14th pretty much abolished the 10th?

D.A. Ridgely|5.7.08 @ 12:15PM|#

In other words, we'd all be better off with an activist Supreme Court that consistently upheld individual rights while strictly limiting state and federal power.

Agreed, However, since when did "we'd all be better off" become the formula by which the Constitution was to be understood and applied?

fyodor|5.7.08 @ 12:48PM|#

Odd fyodor, I'm pretty sure that I've seen courts, including the SCOTUS, issue rulings that certainly would be characterized as "coming up with anything of their own." Particularly if you allow the courts to interpret the 9th Amendment liberally, I think that it would happen even more. Try, "the 9th Amendment protects the right to clean air, a fair wage approximating the value of one's labor, etc etc.

Obviously such "positive rights" are at odds with the entire concept of rights as understood at the time of the writing of the Constitution.

Look, we have a SCOTUS and unless you're in favor of abolishing it or in electing officials who'll ignore it, then it only makes sense to talk about what the proper logic for its decision making process is, both in terms of the ways that restrict it and the ways that empower it. Someone's gotta have the last say, and there's no absolute way to make sure they won't abuse that power no matter who that someone is. I'd say better for it to be the branch that's the furthest from our pocketbooks and from the guns. If courts do create laws, well they shouldn't, and a liberal, if proper, interpretation of the 9th Amendment would not enable them to do so. Only the abuse of their position would, and anyone in any branch of government is capable of that. At least an abusive court is less scary than an abusive legislature or executive.

fyodor|5.7.08 @ 12:54PM|#

BTW, I believe the Constitution give Congress the ability to remove jurisdiction from the courts. Not being a Constitutional scholar I only know I've heard that (though from Senator Sam Ervin, so I figure he'd know), so Congress does have the last say in that sense. I don't know if they've ever invoked that power and why it's not used more often than it is (which is either zero or very little).

TrappedEastOfTheBigMuddy|5.7.08 @ 1:12PM|#

@fyodor | May 7, 2008, 12:54pm | #

BTW, I believe the Constitution give Congress the ability to remove jurisdiction from the courts. Not being a Constitutional scholar I only know I've heard that (though from Senator Sam Ervin, so I figure he'd know), so Congress does have the last say in that sense. I don't know if they've ever invoked that power and why it's not used more often than it is (which is either zero or very little).

::whips out A Documentary History of the United States. Reads Article III of the Constitution::

Looks to me like congress has broad authority to set the jurisdiction of all the courts excepting the SCOTUS, which has power "extend[ing] to all cases in law and equity, arising under this Constitution, the laws of the United States, and all treaties...".

D.A. Ridgely|5.7.08 @ 1:32PM|#

Ah, well, Article III goes on to state:

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

It is a matter of largely settled opinion among constitutional scholars -- which is by no means the same thing as saying that it is a matter once and for all times of settled constitutional law -- that Congress has power to affect the jurisdiction of federal courts including possibly the power to remove some sorts of jurisdiction even from SCOTUS but not to increase SCOTUS jurisdiction by, say, giving it the power to issue writs of mandamus.

However, none of this is strictly relevant to how SCOTUS goes about doing whatever it is it is supposed to be doing.

TrappedEastOfTheBigMuddy|5.7.08 @ 1:39PM|#

::blushes::

fyodor|5.7.08 @ 1:46PM|#

However, none of this is strictly relevant to how SCOTUS goes about doing whatever it is it is supposed to be doing.

It's relevant to the earlier expressed notion that the SCOTUS "can decide, with no further oversight, anything they damn well please...."

BTW, Episiarch, SCOTUS may have decided wrongly in McCain-Feingold and Kelo, but since they initiated neither, they hardly deserve the lion's share of the blame for those bad laws. Their error was in not being restrictive, aka active, enough, as Mr. Gutzman, Damon Root and I are arguing SCOTUS should be within specific principles. Some seem to think than any sort of judicial activism necessarily carries with it the baggage of incorrect activism and abuse, but logically the latter does not follow from the former (perhaps psychologically it might, but if you wanna go there, anything might lead to just about anything!).

|5.7.08 @ 2:00PM|#

Obviously such "positive rights" are at odds with the entire concept of rights as understood at the time of the writing of the Constitution.

And the writers of the 9th Amendment did not envision the incorporation doctrine or the 14th Amendment (see Barron v. Baltimore), and nor did the writers of the 14th Amendment envision a empowered 9th Amendment.

Look, we have a SCOTUS and unless you're in favor of abolishing it or in electing officials who'll ignore it, then it only makes sense to talk about what the proper logic for its decision making process is, both in terms of the ways that restrict it and the ways that empower it.

Fair enough. And my point is that the Supreme Court should respect the Constitution but also try to restrict itself to things that are in the Constitution. An expansive view of the 9th Amendment sounds nice if you imagine that the Court will use it to protect rights that you think are within the proper purview of the Amendment, but I don't think it really helps in reality. And, like protecting rights like Freedom of Speech, it's easier to get a majority of people to agree to protect a right in abstract, and then to defend that abstract right, then it is to get them to defend that right in every particular issue.

Most people believe in "Rights but.." Rights for me but not for you. Right to free speech in general but maybe not so much something I really disagree with that has all sorts of nasty externalities. Etc. The vast majority of people agree with Free Speech in general, but the vast majority (and a different vast majority each time) agrees with restricting it in all the "hard" cases.

I simply think that it's much easier to get a majority to agree that the Constitution should be read as written, and to accept the occasional loss for "social justice" based on those principles. That's likely to work out better for libertarians IMO than a situation where the idea of finding new universal rights in the 9th Amendment is widely accepted. Obviously, you disagree.

Regarding stare decisis, a Constitution that does not change absent amendment has positive value, as do laws that do not change. It enables people to plan their business and organize their lives without fear of things being totally upset. I'm not saying stare decisis above all, but there is some value in it, enough that one can occasionally accept a small wrong continuing if that agreement helps prevent other new wrongs from occurring. (Of course, that sort of agreement can break down.) Knowing that certain rights will not change depending on an election and an individual's interpretation has some sort of value.

|5.7.08 @ 2:08PM|#

Their error was in not being restrictive, aka active, enough, as Mr. Gutzman, Damon Root and I are arguing SCOTUS should be within specific principles.

Except I think that neither McCain-Feingold nor Kelo needed the 9th Amendment in order to be struck down. Both contradict the plain text of the Constitution. It is only in inventing new rights, such as the right of people to participate in the political process without having their voices overshadowed by the wealthy-- something that Arthur Goldberg and others (including, apparently, Sen. Obama) would find in the demands of "social justice" and the 9th Amendment, that McCain-Feingold could be upheld.

The 9th Amendment is simply not needed in that case; nor in general would it be needed to enforce the idea of a government of enumerated powers.

Their error was in not being restrictive, aka active, enough, as Mr. Gutzman, Damon Root and I are arguing SCOTUS should be within specific principles. Some seem to think than any sort of judicial activism necessarily carries with it the baggage of incorrect activism and abuse, but logically the latter does not follow from the former.

I personally would never use the phrase "judicial activism" to mean just any case of the SCOTUS striking down a law. I would only use it for the Court operating outside of the plain text and original meaning of the Constitution; for me, inventing new rights under the fig leaf of the 9th Amendment counts. I certainly agree that people use the phrase to mean nearly anything, and for that reason it is near useless-- and I don't use it myself.

Damon Root argues that the Court should find new libertarian rights under the 9th Amendment and apply them to the states under the 14th Amendment. I cannot agree with his claims (like that of Randy Barnett) that this is originalism, nor do I believe in a practical sense that the adoption of this judicial philosophy would actually lead to libertarian outcomes. Instead, it would lead to justices who used the 9th Amendment like Justice Arthur Goldberg, to promote "social and economic justice" as Sen. Obama's statement said.

|5.7.08 @ 2:10PM|#

I agree with you, fyodor, that the SCOTUS should be very willing to strike down unConstitutional laws and action, and should go further than it has in many cases, including Kelo and McCain-Feingold. I disagree that an expanded view of the 9th Amendment is necessary or even useful.

fyodor|5.7.08 @ 2:16PM|#

An expansive view of the 9th Amendment sounds nice if you imagine that the Court will use it to protect rights that you think are within the proper purview of the Amendment, but I don't think it really helps in reality.

One cannot stress enough that those here that are pushing this expansive view are specifically pushing said expansion onto the protection of rights that are consistent with the original purpose of the Amendment (which I really don't think is affected by future Amendments the Framers could not have foreseen). A court that followed this philosophy would not step outside of this purview as long as said purview was part of the philosphy that enbabled the expansion. Now, if you're arguing that espousing this philosophy somehow encourages judicial behavior that is not consistent with the philosophy, perhaps either (as I stated above) because of some sort of psychological effect or that the philosophy is prone to misunderstanding, what can I say but that anything's possible, but I just call reality as I see it and hope that my literal words have more effect than whatever weird side effects they may inadvertently cause.

fyodor|5.7.08 @ 2:22PM|#

John Thacker,

I was addressing myself to Episiarch who cited those two cases as examples of how SCOTUS decisions inconsistent with the Constitution make it bad for them to "decide, with no further oversight, anything they damn well please...." I didn't think these were good examples of why SCOTUS's power should be less than it is.

You may be making one or more posts as I type this, which I may or may not address, as I'm happy (relatively!) to agree to disagree with you on the expansiveness of the 9th Amendment at this point! I think I've said all I can say on the matter without repeating myself, which I already have, though, we'll see.... :-)

|5.7.08 @ 3:24PM|#

The problem is simply a lack of vocabulary. There just is no word for someone who rigorously enforces the constitution but avoids invention. The problem is that this position is so politically inconvenient that very few except the extraordinarily intellectually consistent will follow it.

To follow it would mean:

1) No Drug War

2) No Social Security

3) Congressional control of the military and warmaking.

4) Gold & silver as the only legal tender in state courts.

Nowadays, however, we could find someway of naming it after Ron Paul.

economist|5.7.08 @ 3:28PM|#

I think judges should have full authority to strike down federal laws, and we should have constitutional safeguars against Congressional/presidential meddling with the courts, such as FDR's court-packing plan. That said, I think giving the federal courts, appointed for life by the president and the senate, the ability to rewrite state and local laws is a bridge too far. While one can leave a state or locality to avoid oppressive laws, one can't so easily escape a federal court decision. And given the tendency of many federal court officials to enable oppressors rather than restrict them, I think this is a reasonable concern.

economist|5.7.08 @ 3:30PM|#

For example, federal courts have made decisions that expand the reach of the welfare state, allow certain states or localities (such as New York City) to extend the reach of their laws into other states (such as with the travails of state Atty. General Eliot Spitzer and Micheal Bloomberg as mayor of NYC).

|5.7.08 @ 5:49PM|#

To follow it would mean:

1) No Drug War

I'm cool with that.

2) No Social Security

That, too.

3) Congressional control of the military and warmaking.

Well, no. The Constitution appoints the President as the Commander in Chief (Article 1, Section 2), which gives him day-to-day control. Congress gets the purse strings and the power to declare war (both in Article 1, Section 8), which is definitely not control of the military and the conduct of wars, once declared.

4) Gold & silver as the only legal tender in state courts.

Couldn't say. Not sure where the "state courts" comes from, or the limitation to gold and silver. Congress has the power "To coin Money, regulate the Value thereof, and of foreign Coin, . . ." (Article 1, Section 8, again). I don't see any limitation to gold and silver, even if you limit "coining money" to actual, you know, coins, rather than paper money.

|5.7.08 @ 5:50PM|#

Should be The Constitution appoints the President as the Commander in Chief (Article 2, Section 2)

fyodor|5.7.08 @ 6:16PM|#

While one can leave a state or locality to avoid oppressive laws

Not if they arrest you first!!

I think giving the federal courts, appointed for life by the president and the senate, the ability to rewrite state and local laws is a bridge too far.... And given the tendency of many federal court officials to enable oppressors rather than restrict them, I think this is a reasonable concern.

How does restricting federal judiciary jurisdiction from state and local law differ from enabling state and local oppressors? (Unless by this you mean cases in which the judiciary creates its own oppressive law, which, once again, I think is distinct from applying Constitutional protections of rights to the state and local level, and certainly goes a lot further than "enabling"!)

|5.7.08 @ 6:52PM|#

Unless by this you mean cases in which the judiciary creates its own oppressive law, which, once again, I think is distinct from applying Constitutional protections of rights to the state and local level, and certainly goes a lot further than "enabling"!

Well, sometimes the courts "enable" rather than create by saying "I'm not convinced that you've met this (positive) right with enough government actions to remedy it; I can't legislate from the bench, so I can't tell you exactly how to fix it, but do your best to fix it and come back to me later and I'll rule on whether you've done enough." That I suppose might be considered enabling rather than creating law. (Though it is creating (positive) rights.) An example in this area are the various (state) judges that have decided that state Consitutions, without explicitly saying so, require equalized spending in all school districts.

So you're arguing for massive judicial power to create and enforce new negative rights. While I agree that limiting things to negative rights alone would be helpful, it doesn't solve everything.

There are cases where the case for federalism is pretty apparent to me. Consider cases like "I have the right to not have noise disturb me/ I have the right to listen to music" or "I have the right to build on my property/I have the right to not have the view that came with my property when I bought it disturbed," or "I have the right to smoke/ I have the right not to have the air befouled." Even considering the Coase Theorem, there often are transaction costs depending on where one puts the initial endowment of rights, particularly because these sorts of emissions travel easily between property boundaries and can involve many parties. With many of these issues there are multiple ways to express property rights and negative rights ideas in ways that conflict. I'd much rather have differing laws by state, locales, or neighborhoods (the smaller the better) than a Supreme Court ruling that everyone in the nation has the right to silence in their home and no sound through the walls-- or vice versa.

Even aside from all that, I suspect that any great concentration of power would eventually be used to create positive rights and laws and enforce government action. Just because you think that there's a strong philosophical difference doesn't mean that people or the justices always will.

|5.7.08 @ 7:08PM|#

fyodor,

I guess the shortest way to make my argument about the Ninth Amendment is that an enumerated powers argument has almost no chance of being misused to actually expand government, whereas Ninth Amendment jurisprudence has an enormous ability to do so. See Justice Arthur Goldberg or Charles L. Black or others more generally for cases of extremely non-libertarian approaches towards using the Ninth Amendment to impose "social justice."

|5.7.08 @ 7:37PM|#

If privileges or immunities is so broad to include a wide array of rights, and the rights in the (first 8 amendments of) the Bill of Rights--even though it, ahem, never uses the word "rights"--then why was due process listed in the Fourteenth Amendment? After all, it's in the Fifth, so could be incorporated into the P-I clause. And why would a separate, later Amendment be needed to give blacks--and another, much later, women--the right to vote? Why wasn't such discrimination prohibited by the equal protection clause at least, presumably also to be broadly construed?

|5.8.08 @ 12:53PM|#

Justice Field was a mighty man, but his account of the 14th Amendment bears no relationship to reality. For a scholarly demolition of the Incorporation Doctrine -- the idea that the justices' favorite Bill of Rights provisions were made enforceable in some sense against state governments by the Due Process Clause of the 14th Amendment -- see Raoul Berger's classic _Government by Judiciary: The Transformation of the Fourteenth Amendment_.

That many libertarians subscribe to the Incorporation Doctrine despite its bogosity (bogusness?) demonstrates the strength of the tendency toward judicial legislation.