Antonin Scalia

Unleash the Judges

The libertarian case for judicial activism.

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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."

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."

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.