The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In a thoughtful recent post, conservative political theorist Peter Lawler comments on my review of Damon Root's new book on the conservative-libertarian debate over judicial review. Lawler argues that libertarians overemphasize the role of judicial review protecting individual rights against state infringement, that the Founders assigned a much lesser role to judicial review, and that many of the rights libertarians (and liberals) seek to protect through judicial review cannot be squared with originalism. There are some problems with his analysis on all three issues.
I. The role of Judicial Review in Protecting Individual Rights
On the question of the effectiveness of judicial review, few serious libertarian commentators imagine that the judicial intervention alone is enough to protect the individual rights. Rather, they recognize that the road to victory for constitutional reform movements usually involves a combination of litigation and conventional political action. That has been a successful winning formula for the civil rights movement, women's rights advocates, gun rights supporters, and—most recently—same-sex marriage advocates. It has also underpinned the recent progress made by property rights advocates. The Institute for Justice's efforts to revive public use constraints on eminent domain has involved just such a combination. While it has not so far achieved anything like complete victory, it has managed to secure important gains.
As evidence against the utility of judicial intervention, Lawler claims that "the Court's record on race has generally been terrible" and cites this as proof that "it is ridiculous to rely all that much on the Court to protect our rights." The Court's record on racial discrimination has indeed often been poor relative to the ideal outcome. But the more relevant question is how good its record has been relative to the political branches of government. The case for strong judicial review is not that the courts are particularly good, but that, in protecting some types of important rights, they routinely do better than the available alternatives. By that standard, the Court's record on racial issues since the enactment of the Reconstruction Amendments is actually far better than many imagine. During the Jim Crow era, for example, the Court issued a number of important decisions striking down forms of racial discrimination that had prevailed in the political process. Among other important rulings, it invalidated peonage laws and laws mandating residential segregation.
Although its record during that period was far from perfect, it was, overall, much better than that of Congress, the presidency, and many state legislatures. More recently, courts have been more willing than legislators to curtail racial preferences in government contracting and college admissions. Supporters of affirmative action understandably view these decisions as a negative, but conservative opponents—including Lawler—surely do not.
II. Originalism, the Founders, and the Role of the Judiciary.
Lawler doubts that "judicial review was ever meant to be much more than an 'auxiliary precaution' that would be rarely used," citing the Federalist Papers in support. While the Founders probably did not intend judicial review to be the primary method for protecting individual rights, they did emphasize its importance as a tool for enforcing constitutional limitations on government power. As Alexander Hamilton put it in Federalist 78:
The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority… Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.
In addition judicial review may have a greater role to play in protecting rights today, than might have been supposed in the 1780s. In a world where the size and scope of government is vastly greater than it was 225 years ago, it is far more difficult for voters with limited knowledge and attention spans to police all the many different possible ways in which government threatens liberty.
On the issue of originalism, Lawler laments that decisions such as Lawrence v. Texas, Roe v. Wade, and United States v. Windsor cannot be squared with originalism because "[n]one of the Framers would have recognized a constitutional right to an abortion or to same-sex marriage." But most modern originalists—including conservatives such as Steve Calabresi and the late Robert Bork—do not base originalism on "original intent"—the specific intentions and expectations of the framers. The dominant version of originalism is now "original public meaning": the idea that the words of the Constitution should be interpreted in accordance with the public understanding of the words at the time of enactment. Often, the original meaning of a constitutional provision is a broad general principle that courts and others must apply to changing social conditions and increasing knowledge of relevant facts. For example, most originalists agree that the Fourth Amendment restricts wiretapping and that the First Amendment protects speech on the internet, even though the Founding Fathers probably could not have imagined either situation. The combination of fixed principles, changing social conditions, and new scientific knowledge yields decisions protecting old rights in new ways that are nonetheless consistent with originalism.
Similarly, the combination of Fourteenth Amendment principles and increasing factual knowledge about the nature of homosexuality and the capabilities of women leads to a powerful originalist argument against laws banning same-sex marriage.
In this post, I won't even try to provide a complete originalist defense of the decisions Lawler objects to; when it comes to Roe v. Wade and its progeny, I have serious doubts about their correctness myself. But I do want to make the narrower point that these rulings may be justifiable on originalist grounds even if they conflict with the specific expectations of the Founders.
In parts of his post, Lawler misunderstands some aspects of libertarianism generally, and my views in particular. He is mistaken in thinking that libertarians have an "uncritical faith in progress" towards greater individual liberty, thanks to changes in technology and social morality. Some libertarians are more optimistic than others. But most are all too aware that the political winds often incline against liberty rather than for it. That is in fact one of the reasons why we favor strong judicial review as at least a partial check on such trends.
Lawler is also wrong to assume that libertarians "typically conclude that most of our social pathologies are caused by welfare-state dependency and would disappear with much lower taxes and many fewer regulations." Libertarians oppose conservative social policy interventions not because the problems they seek to cure are caused solely by welfare dependency, but because those interventions are actively harmful, often exacerbating social pathologies rather than reducing them. For example, the War on Drugs undermines family values. More generally, we argue that conservative efforts to regulate the culture have many of the same shortcomings that conservatives themselves rightly criticize when it comes to economic regulation.
In the case of my own views, Lawler is mistaken in assuming that I believe that libertarianism is necessarily on the road to triumph, while conservatism is "about to be defeated." I think libertarians have made important progress in recent years, while social conservatism has lost ground on several fronts to both libertarians and liberals. But there is still a long way to go, and the final outcome (if there ever is one) is far from a done deal.
Ending on a positive note, I am happy that Lawler recognizes, as I have previously argued, that "it makes no sense to say that conservatism (meaning the Republican coalition) can be described as united against the judicial activism of the liberals or Progressives." As he notes, many conservatives have long favored stronger judicial review in areas such as federalism and property rights. For the most part, the debate over judicial review is not a debate between supporters and opponents of "judicial activism," but a debate over what kinds of individual rights and structural limits on government power the judiciary should enforce, and what methodology judges should use to answer that question.
Neither the longstanding debate over judicial review nor the longstanding disagreements between libertarians and conservatives can be settled in a few blog posts. But I hope Lawler and I have made some progress in clarifying the issues.
UPDATE: It is worth noting that most of the Court's bad decisions on race during the Jim Crow era—most famously Plessy v. Ferguson and Korematsu v. United States—were failures to strike down policies adopted through the political process rather than the Court itself requiring greater racial discrimination than would have occurred without its intervention. Cases like Plessy and Korematsu are blots on the Court's record. But they are not arguments for the proposition that the political branches of government protect rights better than the Court or for greater judicial deference to the political process.