The Volokh Conspiracy
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Does the US Constitution Offer Stronger Protection Against Right-Wing Populism than Left-Wing Populism?
Legal scholar John McGinnis argues the answer is "yes." But the issue is a far closer one than he suggests.
Recent years have seen the rise of both left-wing and right-wing populist movements in the US. To those who value civil liberties and economic freedom, both potentially pose significant threats. But, as my friend and prominent legal scholar John McGinnis points out in a thoughtful post, the danger is partly mitigated by constitutional constraints on government power. John also argues that the US Constitution (at least as currently interpreted by the courts) does more to protect against the dangers of right-wing populism than the left-wing variety:
Right-wing and left-wing populists share some bad tendencies. Both, for instance, tend to ignore deficits and government debt…
But right and left populists also have flaws that are peculiar to their respective brands. The right's xenophobia often makes it suspicious of even legal immigration of the talented, and ethnic prejudices lead to demonization of immigrants on the grounds of ethnicity rather than illegality. Historically, right populists have sometimes lashed out at ethnic groups within their nations. Left populists, in contrast, more often stir up resentment against the rich and large businesses, playing on passions of envy.
Whether right or left populists are worse for the nation depends to some extend on its constitution. If provisions against racial and ethnic discrimination are strong, the worst aspects of right-wing populism will be restrained. Similarly, if provisions protecting property and economic rights are strong, left-wing populism will be contained….
It is thus the content of current constitutional law that makes right-wing populist movements somewhat less dangerous than left-wing movements in the United States. Our constitution rightly has provisions against religious, racial, and ethnic discrimination by the government. And the enforcement of these provisions are of such long standing that they have helped to give rise to more general norms against discrimination throughout much of society.
In contrast, whatever was the Constitution's original meaning, we no longer have strong protections for economic freedom or obstacles to centralized government economic control. Thus, left-wing populists can enact their growth and freedom destroying plans without much fear of constitutional reversal. The one possible exception is a wealth tax, which is probably unconstitutional, even if ironically it is pushed by the one former law professor running for President. But that is the exception that proves the rule.
Most of John's points about left-wing populism are true. In recent years, the Supreme Court has modestly strengthened judicial protection for property rights, and judicial enforcement of structural limits on federal government power. But both remain relatively weak compared to enforcement of other types of constitutional rights and limits on power. Judicial protection for economic liberties outside the property rights context is far weaker still.
It is also worth noting that many left-wing populists endanger free speech with their proposals to curb political expression through campaign finance regulation. The ACLU's critique of the latest Democratic Party proposals along these lines makes for sobering reading. Current Supreme Court precedent provides substantial constraints on this threat. But the precedent rests on close 5-4 decisions that many on the left will try to overturn at the first available opportunity.
But John is overly optimistic about the extent to which current judicial precedent provides strong protection against right-wing populism. As he notes, one of the main areas where right-wing populists abuse government power is the field of immigration policy. Yet, as last year's travel ban decision demonstrates, current Supreme Court precedent mandates far greater deference to the government on immigration issues than almost anywhere else. Thus, the Court upheld blatant discrimination on the basis of religion that would have been struck down in virtually any other context (and indeed has been in recent cases addressing situations where the evidence of discriminatory motivation was less extensive). Even before the Trump administration, immigration enforcement also involved large-scale racial profiling that courts have done little to curb.
Right-wing populists also, of course, target trade, as well as immigration, promoting protectionist policies rejected as harmful by economists across the political spectrum. Yet the Constitution give Congress virtually unlimited power to adopt trade restrictions. This is one of the most serious flaws in the document. Modern Supreme Court precedent has exacerbated the problem by allowing Congress to delegate broad power over tariffs to the executive. This has enabled the Trump administration to start a series of trade wars on the basis of specious "national security" justifications. And, so far at least, the courts have upheld the administration's actions.
Another characteristic of right-wing populism is the tendency to repress civil liberties in the face of real and imagined national security threats. Here, modern Supreme Court precedent is a mixed bag. Things have improved since the historic low point of the Japanese internment cases during World War II. But there is still often excessive deference in these situations. That problem might get worse before it gets better, as newly appointed Justice Brett Kavanaugh has a worse record in this area than his predecessor (and key swing voter) Anthony Kennedy.
As in the case of immigration, the problem here is not that Kavanaugh and other conservative judges are big fans of right-wing populism. Most tend to be closer to the "establishment" wing of conservatism. Rather, it is that the dangers of right-wing populism tend to overlap with some key flaws of mainstream conservative jurisprudence that long predate the current political moment.
Right-wing populists also can exploit some of the same doctrinal weaknesses as left-wing ones can. For example, the two are similar in their disdain for property rights that might stand in the way of their preferred policies. Trump's proposed border wall, for example, requires the use of eminent domain against thousands of property owners.
What can be done to address these problems? Various legal scholars, myself included, have argued for stronger judicial protection for property rights and economic liberties, more vigorous enforcement of constitutional limits on federal power, and an end to special judicial deference on immigration and national security issues. But each of these improvements in legal doctrine is likely to happen only gradually, if at all. Moreover, in the long run, effective judicial review depends in part on at least a modicum of outside political support, and appointment of judges likely to move the relevant doctrines in the right direction.
In the meantime, economic and civil liberties remain vulnerable on multiple fronts, both right and left. There is no easy solution to the problem, in part because of its multifaceted nature. Those who fear populism will need to mount stronger political opposition to it, which should include greater willingness to cooperate outside conventional left-right political lines.