The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
At the Federalist Society Student Symposium this weekend, Arizona State Supreme Court Justice Clint Bolick recalled the 1984 debate between then-judge Antonin Scalia and Professor Richard Epstein over whether the federal judiciary should take a more active role in protecting economic liberty. Professor Epstein, as one might expect, argued in the affirmative. Then-judge Scalia (who would be elevated to the Supreme Court soon thereafter) urged greater restraint, suggesting it would be dangerous to unleash federal judges in this way.
The debate occurred at a Cato Institute conference on economic liberty and their respective remarks were published in a little pamphlet, currently available for download on the Cato website.
Re-reading the debate today reveals how much the debate has changed—many more now support Epstein's position than did at the time and the focus has turned from "substantive due process" to the scope of the 14th Amendment's Privileges or Immunities clause—and how much it has stayed the same—there continues to be disagreement on the political Right over whether to urge judicial engagement or judicial restraint.
Here is a taste of Scalia's argument:
we, the judiciary, do a lot of protecting of economic rights and liberties. The problem that some see is that this protection in the federal courts runs only by and large against the executive branch and not against the Congress. We will ensure that the executive does not impose any constraints upon economic activity which Congress has not authorized; and that where constraints are authorized the executive follows statutorily prescribed procedures and that the executive (and, much more rarely, Congress in its prescriptions) follows constitutionally required procedures. But we will never (well, hardly ever) decree that the substance of the congressionally authorized constraint is unlawful. That is to say, we do not provide a constitutionalized protection except insofar as matters of process, as opposed to substantive economic rights, are concerned.
There are those who urge reversal of this practice. The main vehicle available—and the only one I address specifically here—is the due process clause of the Fifth and Fourteenth Amendments, which provides that no person shall be deprived of "life, liberty, or property, without due process of law." Although one might suppose that a reference to "process" places limitations only upon the manner in which a thing may be done, and not upon the doing of it, since at least the late 1800s the federal courts have in fact interpreted these clauses to prohibit the substance of certain governmental action, no matter what fair and legitimate procedures attend that substance. Thus, there has come to develop a judicial vocabulary which refers (seemingly redundantly) to "procedural due process" on the one hand, and (seemingly paradoxically) to "substantive due process" on the other hand. Until the mid-1930s, substantive due process rights were extended not merely to what we would now term "civil rights"— for example, the freedom to teach one's child a foreign language if one wishes—but also to a broad range of economic rights—for example, the right to work twelve hours a day if one wishes. Since that time, application of the concept has been consistently expanded in the civil rights field (Roe v. Wade is the most controversial recent extension) but entirely eliminated in the field of economic rights. Some urge that it should be resuscitated. . . .
As should be apparent from what I said above, my position is not based on the proposition that economic rights are unimportant. Nor do I necessarily quarrel with the specific nature of the particular economic rights that the most sagacious of the proponents of substantive due process would bring within the protection of the Constitution; were I a legislator, I might well vote for them. Rather, my skepticism arises from misgivings about, first, the effect of such expansion on the behavior of courts in other areas quite separate from economic liberty, and second, the ability of the courts to limit their constitutionalizing to those elements of economic liberty that are sensible. I will say a few words about each. . . .
And here is a bit of Epstein's response:
When one compares the original Constitution with the present state of judicial interpretation, the real issue becomes not how to protect the status quo, but what kinds of incremental adjustments should be made in order to shift the balance back toward the original design. On this question, we can say two things. First, at the very least, we do not want to remove what feeble protection still remains for economic liberties. Any further judicial abdication in this area will only invite further legislative intrigue and more irresponsible legislation. Yet recent Supreme Court decisions have tended to invite just that. Second, since courts are bound to some extent by a larger social reality, we cannot pretend that the New Deal never happened. Rather, we must strive to regain sight of the proper objectives of constitutional government and the proper distribution of powers between the legislatures and the courts, so as to come up with the kinds of incremental adjustments that might help us to restore the proper constitutional balance.
Judicial restraint is fine when it keeps courts from intervening in areas where they have no business intervening. But the world always has two kinds of errors: the error of commission (type I) and the error of omission (type II). In the context of our discussion, type I error refers to the probability of judicial intervention to protect economic rights when such intervention is not justified by constitutional provisions. And type II error refers to the probability of forgoing judicial intervention to protect economic liberties when such intervention is justified. This second type of error—the failure to intervene when there is strong textual authority and constitutional theory—cannot be ignored.
What Scalia has, in effect, argued for is to minimize type I error. We run our system by being most afraid of intervention where it is not appropriate. My view is that we should minimize both types of error. One only has to read the opinions of the Supreme Court on economic liberties and property rights to realize that these opinions are intellectually incoherent and that some movement in the direction of judicial activism is clearly indicated. The only sensible disagreement is over the nature, the intensity, and the duration of the shift.
At this point, the division of power within the legal system is not in an advantageous equilibrium. If the judiciary continues on the path of self-restraint with respect to economic liberties, we will continue to suffer social and institutional losses that could have been reduced by the prudent judicial control that would result from taking the constitutional protections of economic liberties at their face value.
The whole thing is a quick read, and it is highly recommended.