The Paleo Case for Judicial Activism


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.