Supreme Court

The 'Moral, Libertarian Premises' of the U.S. Constitution

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In my recent book Overruled, I examine one of the central questions in American law. How much deference does the Supreme Court, an unelected body, owe to legislation that has been duly enacted by democratically accountable lawmakers? For example, when the people, acting through their elected representatives, decide to outlaw a certain form of activity (such as forbidding the sale or possession of birth control devices), what gives the Supreme Court the authority to override their wishes? Why should nine unelected judges get to trump the legislative will of the majority?

Credit: Library of Congress

The answer, according to Progressive era Justice Oliver Wendell Holmes Jr., perhaps the famous advocate of judicial deference in American history, is that the Supreme Court should not trump the wishes of such a majority. Instead, the Court should basically let the majority rule as it sees fit. "A law should be called good if it reflects the will of the dominant forces of the community," Holmes maintained, "even if it will take us to hell."

In recent months, I've debated this question with an assortment of liberal and conservative legal pundits, all of whom favored some version of Holmes-style judicial deference. For my part, I've argued that the Constitution is a liberty document which protects a broad range of individual rights (and also places strict limits on government power), and it is both necessary and proper for the judiciary to protect those rights (and enforce those limits) against government overreach—even when that means that the Supreme Court ends up acting in an anti-majoritarian, or indeed anti-democratic manner.

The debate, however, is far from settled. A welcome new entry in it comes from Amherst College professor Hadley Arkes, the author of a splendid 1994 biography of Supreme Court Justice George Sutherland, a famous judicial foe of the New Deal. Writing today at the Library of Law & Liberty, Arkes weighs in with a long, thoughtful take on the proper role of the courts. It is well worth reading in its entirety. Here is a taste.

"Quite recently," Arkes observes,

some conservative writers, deeply concerned about 'judicial supremacy' or a judicial 'activism' run amok, have sought to find the remedy in a state of affairs that would invert [the Constitution's] moral, libertarian premises. These conservatives would set the presumption in favor of the validity of those laws enacted by people who were elected as legislators, and who remain responsible to the voters who elected them. That 'remedy' would remove, in a stroke, the presumption of liberty and the burden of moral reasoning that should be borne by legislators as they seek to override that personal freedom on any matter.

Arkes advocates a different approach. "A government committed to the protection of natural rights is a government that bears the burden of justification for its acts," he maintains. What does he mean by that?

In the classic understanding, we do a portentous thing when we impose laws on other people, and that move will always call for a justification, an explanation of what makes it just or rightful for others as well as ourselves. Those creatures we call "moral agents" have a presumptive claim to all dimensions of their freedom, and the burden lies with the law in supplying a moral justification for overriding that freedom.

When liberty is connected in this way to its moral ground, we find that the law would begin on terms that are quite at odds with what we've been hearing of late even from conservative commentators in the law. For the law would begin with this premise: that ordinary human beings have a presumptive claim to all dimensions of their freedom, and not merely to the liberties that were set down in the first eight amendments to the Constitution.

Today's libertarian legal movement favors something very much like this approach. As I noted back in January:

the libertarian legal movement views the Constitution as a liberty document which protects a broad range of individual rights against arbitrary and unnecessary government infringement. What counts as arbitrary and unnecessary government infringement? In the context of economic regulation by state and local governments, the answer depends on whether the law in question serves a legitimate and verifiable public health or safety purpose. If the regulation fails to serve such a purpose, then the courts should strike it down for violating the economic liberty protected by the 14th Amendment. If the law serves such a purpose, it gets to remain on the books.

In short, the courts are there to police the other branches of government, to insure, as Arkes puts it, that the government "bears the burden of justification for its acts." 

For more on the longstanding debate over judicial deference, check out my book.

NEXT: Rand Paul on Blocking the Patriot Act, GOP Hawks, and Edward Snowden

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  1. “A law should be called good if it reflects the will of the dominant forces of the community”

    The lunatic fringe of jurisprudence.

    1. Tony agrees.

      1. Only when it goes his way.

        1. Well that’s just too bad for Tony. I mean, it can’t be just ok to pass legislation to send libertarians/closet-conservatives to the gulag, you have to be able to send progtard morons like him as well. Fair is fair, right?

        2. We have heard fascists crying that ‘democracy is broken!’ countless times when the majority doesn’t agree with them. I don’t remember Tony himself saying it, but his ilk does all the time.

      2. Tony agrees.

        So does Ron Paul. Ron is actually worse, claiming that state governments can do whatever they want, and preaching to this bigots about “rogue judges.”

        If the Constitution says government cannot do something, who protects us when the legislative and executive branches (at any level) violate that Constitution?

    2. “the libertarian legal movement views the Constitution as a liberty document which protects a broad range of individual rights…”

      Those crazy ass libertarians and their extreme ideas. Nevermind that this is also the view of the Constitution to which Team Red and Team Blue continue to pay lip-service… except when it gets in the way of some particular liberties that they want to erase.

    3. “A law should be called good if it reflects the will of the dominant forces of the community”

      Which way to the showers?

      1. That’ll depend on the law that’s passed. I mean, they could pass a law that switches left and right, right? So we’ll just have to weight.

  2. I’m not a fan of judicial deference, but Bork and other conservatives didn’t come up with this idea in a vacuum. They were reacting to prog judges who replaced existing, sometimes defective laws with laws which were even more defective. So we get welfare rights, busing, custody rights for unmarried fathers, public-employee “rights,” and other abuses. (Conservatives also dislike pro-defendant decisions in criminal cases, some of which protect genuine constitutional rights and others of which don’t).

    So it’s not as if Bork and the others arose one fine morning and decided “let’s dilute civil rights!” Instead they said, “what shall we do about those bad decisions?”

    Now, I disagree with their response. The courts shouldn’t stop enforcing *real* rights for fear of creating fake ones. But you see where these guys are coming from.

    1. custody rights for unmarried fathers

      Well you’d think they’d get something for their money.

      1. Custody rights for unmarried fathers are hardly a newfangled “progressive” innovation. My understanding is that it was standard operating procedure back in the days of the founders, at least if the father wanted to acknowledge the kid.

  3. In recent months, I’ve debated this question with an assortment of liberal and conservative legal pundits, all of whom favored some version of Holmes-style judicial deference.

    Let me guess, each version related to a particular hobby horse of the political stripe you were engaging?

  4. The problem is that these conservatives hitched their wagons to a positivist, Nietzschean atheist (Holmes) whose opinions openly mocked the Sermon on the Mount and “s brooding omnipresence in the sky,” who saw life as a struggle where the victory went to the strong.

    Mencken pointed to Holmes’ idealism-crushing experience in the Civil War as the root of much of this nihilism.

    So conservatives ought to stay away from old Oliver, the second-worst Oliver in history.

    1. The first being ….

      Oliver Queen?

      1. Oliver Cromwell?

        1. Yes.

          1. (Actually, I meant Oliver Twist, the greedy scrounger.)

      2. Oliver Stone?

      3. Oliver’s Army?

    2. So, you’re an Abbot and Costello fan?

    3. Oliver Garden?

    4. Not to nitpick, but “Nietzschean positivist” is a bit like a Christian Satanist.

      1. Technically, yes, but then so is “Nietzschean socialist,” yet we have George Bernard Shaw.

    5. Holmes’s problem has nothing to do with atheism or Christianity; many Christians have been progressives and strong supporters of Nazism.

      Holmes’s problem was that he was a progressive and majoritarian, when the intent of the Constitution and the job of SCOTUS is to protect individual liberties.

  5. Also, Holmes was wrong. Spectacularly wrong. If the courts were to merely rubber-stamp the ‘will of the people’, then the Constitution is just some piece of paper sitting in a desk drawer and needs no interpretation or protection.

    The whole point of asking the question of constitutionality is to give deference to meaning of the document itself.

    By Holmes’s own assertion, Holmes was himself unnecessary. The election returns themselves would be the arbiter of what was settled law.

    1. The election returns themselves would be the arbiter of what was settled law.

      “We won!”

    2. This is all the respect Holmes deserves.

      1. Beautiful.

    3. Exactly. That’s why we use the word “constitutional”. It is strange to me, but most people in this country seem to equate “constitutional” with “good” or “just”.

      I don’t understand how there is a controversy. We have a founding document that very clearly sets out a limited area of authority for the federal government. It unambiguously says that the government has no powers other than those granted in the constitution.

      It seems pretty straightforward at that point. Either a law passed by congress is acting within those boundaries, or it isn’t. Unfortunately, the powers granted the government were so limited that it was barely even ratified before the first laws that needed additional authority were passed. And rather than going to the states for more power, they just had the Supreme Court make up a justification.

      Read as it was written – a fairly plain-english document – very few of our laws today are constitutional. Most of the fundamental cases of constitutional law would be overturned. The second amendment brooks no exceptions. So even laws that everyone agrees on (like bans on owning heavy artillery) are clearly unconstitutional. The same goes with the first amendment. There is no “obscenity” exception in the constitution – the courts made that up.

      If we had an honest judiciary we would be forced to amend the constitution with the regularity of the state of California, which seems to think that the constitution is a wiki-driven fanfic.

      1. I think the main problem stems from the fact that the Framers of the Constitution clearly never anticipated something like the 14th Amendment coming along and Federalizing everything.

        In their minds there was no need to carve out exceptions to the First Amendment for obscenity because state laws and municipal ordinances surely already existed to regulate such things. Thus they wrote a Bill of Rights on the assumption that the Federal government could not be allowed to regulate firearms, speech or religion.

        1. When they crafted the Constitution, the United States was plural. By the time the 14th came along it was singular.

          1. I’ve heard that a lot, that the Civil War made “United States” plural.

            But consider the 13th Amendment, in many ways the legal culmination of the Civil War – adopted in 1865:

            “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to *their* jurisdiction.” [emphasis added]

            So the neo-Confederate framers of the 13th Amendment referred to the United States in the plural. That’s good enough for me.

            1. Just to be pedantic, I’m not sure that “neo-Confederate” is the right word here. To me, that seems to imply a future generation espousing the ideas of the Confederacy. But I can’t think of a better term. “Postbellum”?

      2. The Constitution, as written, is a document of enumerated powers and unlimited rights.

        The Constitution, as interpreted by the courts, is a document of enumerated rights and unlimited powers.

      3. Pieces of paper don’t mean shit. We have one right here in this country that proves that quite conclusively.

        1. Pieces of paper don’t mean shit.

          Just ask Ned Stark.

          1. Ned Stark was a man of honor!

        2. Pieces of shit don’t mean paper. Just ask Venezuela.

          1. Pieces of Venezuela don’t mean shit. Just ask the paper manufacturers.

        3. “But whether the Constitution really be one thing, or another, this much is certain – that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case it is unfit to exist.”
          – my boy Lysander Spooner

      4. If we had an honest judiciary we would be forced to amend the constitution with the regularity of the state of California, which seems to think that the constitution is a wiki-driven fanfic.

        Only if you assume that all those unconstitutional laws have wide, deep, and longlasting supermajority support.

        Otherwise, we’d just have to get along somehow with a much smaller and more limited federal government, and perhaps a somewhat more constrained state and local government. Somehow, I think we’d survive.

      5. You are Canadian it is not of your business.

      6. “So even laws that everyone agrees on (like bans on owning heavy artillery) are clearly unconstitutional. ”

        Everyone doesn’t agree on this. Also, it is not illegal.

        https://www.youtube.com/watch?v=QYLi05p_R8s

      7. We have a founding document that very clearly sets out a limited area of authority for the federal government.

        And state and local government. 9th Amendment (to hell with Ron Paul).

    4. Paulperiod nails it.

      Put another way:

      The Court should defer to Congress when it is acting within the scope of its Constitutional authority (which includes not violating the Bill of Rights).

      The issue with the lefty/proggy judicial activists that Bork and his ilk are reacting to is that they weren’t acting as judges, but as legislators, enacting via judicial fiat new laws that they wished Congress had passed.

      1. Yup.

        Holmes is right in the limited sense, that the Court’s purpose is not to block bad policies (or rather the ones the Justices don’t like, since they have no direct line to Pure, Ineffable Moral Judgment); it’s to block ones that are contrary to the Constitution.

        So long as the Majority’s stupid, bad policies do not conflict with the constituting document of the State, they’re valid, as far as the Court is concerned. Or should be, at any rate.

        And policies that would otherwise be absolutely beneficial and positive must not be upheld by the Court, if repugnant to the Constitution.

  6. If the courts play no role in protecting the liberties of the common man or woman, then armed revolution is all that is left.

    1. And then what? Seriously. Then what? Government, by its very nature of being a gang of men with the last word in violence, will always disregard the liberties of the common man. Who’s going to stop them? They have the last word in violence.

      1. And then things settle down for a couple hundred years until the next revolution becomes necessary.

      2. And then we get magical Rothbardian pax anarchia?

        Okay, no, didn’t think so either.

        We get a government whose members are fresh in the memory that the men who make up the State are very much mortal and serve at the will and by the sufferance of the governed.

        Which explains why the Republic did not degenerate into Exactly Like British Oppression Or Even Worse in 1790.

    2. then armed revolution is all that is left.

      Pretty much.

  7. The Alt Text is missing a comma. “Justice, Holmes!” would read better than “Justice Holmes,” imho.

  8. I don’t understand how this is even a question.

  9. Why should nine unelected judges get to trump the legislative will of the majority?

    The answer to this is trivial: Somebody took a case to court, the judges are asked to rule on the law, and the law has a structure such that constitution beats statute, which in turn beats admin. ruling, in case of contradictions. It’s all legislative will, no matter how you look at it. If you don’t like it that way, don’t build a gov’t with that kind of structure, and/or don’t take it to court.

  10. In recent months, I’ve debated this question with an assortment of liberal and conservative legal pundits, all of whom favored some version of Holmes-style judicial deference.

    2 sides of the same jackboot.

    1. Orwell was wrong: It’s not “a boot stomping on a human face, forever”. There’s two of them, and they take turns.

  11. “Why should nine unelected judges get to trump the legislative will of the majority?”

    Because we are a constitutional republic, not a democracy like our fuckwitted idiot-in-chief claims.

    1. Properly functioning republics don’t require a non-elected guild-dominated oligarchy to function properly. The Senate and divided powers between the legislature and executive would have been quite sufficient. Instead we get to be ruled by 9 rationalizing oligarchs.

      1. Properly functioning republics don’t require a non-elected guild-dominated oligarchy to function properly.

        No they don’t, since they’re properly functioning by definition.

        Hell, you don’t need the senate, or division of powers, either. It’ll still be properly functionning.

      2. Also, I’m pretty sure % lawyers in the other branches, (and the legal privileges they benefit from) also easily qualifies them as “guild-dominated oligarchies”.

      3. What is a “properly functioning republic”?

        1. Sam Haysom as (Benevolent) Dictator for Life.

          If you disagree, you’re just a rationalizing oligarch.

    2. Get over this bit of sophistry: “republic” & “democracy” have all the same meanings. “Constitutional” is a significant modifier, but it can be applied to either.

      “Res publica” is the people’s thing. “Democracy” is gov’t by the district, i.e. by the people of the district that is governed. They each get across the same concept of collective self-gov’t, i.e. gov’t of the collective self by the collective self.

  12. It seems easy enough to expose the results-orientiation of the “judicial deference” crowd.

    If you believe that Roberts had it right when he said “It is not our job to protect the people from the consequences of their political choices,” do you believe that the Court should overturn a new federal statute outlawing abortion. Would such a statute not be the “consequence of their political choices”?

    Or, for “conservatives” try it with a new federal statute banning the ownership or possession of firearms.

    1. I think one would be hard pressed to find someone who agrees with Roberts on this and can argue their point honestly. He is widely derided and mocked for his decision on Obumblecare and his penaltax. He will be remembered as a laughingstock.

      It is amazing to me how someone given a rare opportunity to be a great man could take such a giant shit on their own legacy. What an idiot.

      1. Legacy is in the eye of the beholder.

        1. No. That is a stye.

      2. Randy Barnett didn’t think so.

    2. What’s crazy is that people feel that the Roberts court is an example of activism, not deference. If people merely defended that level of deference as appropriate, it would be one thing, but instead they attack them as radical activists.

  13. Why should nine unelected judges get to trump the legislative will of the majority?

    Because majorities support idiotic and destructive ideas like “kill all the Jews” and “take all the money of the richest 1% and redistribute it to the rest”. In order to have a stable and prosperous country, one of SCOTUS’ primary jobs is to protect individuals against the legislative will of the majority.

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