Friday, July 27, 2012
Saturday, May 26, 2012
Friday, August 12, 2011
“‘Judicial activism’ in defence of liberty is no vice,” wrote political columnist David Harsanyi last February on the Web pages of the libertarian magazine Reason. In this, he is joined by legions of his sympathizers, who maintain that the judiciary should take the lead in downsizing the post-New Deal regulatory state and curtailing its purported violations of individual freedom. This libertarian case for judicial activism has been iterated with increasing frequency since the recent invalidation of the Patient Protection and Affordable Care Act on constitutional grounds this year, first by two federal district judges and most recently by the US Court of Appeals for the 11th Circuit. As the argument has it, the judges who ruled “Obamacare” unconstitutional either in whole or in part did not violate Americans’ democratic will as expressed by their elected representatives. Rather, they appropriately exercised judicial review to check an out-of-control government that had violated one constitutional right too many.
As a libertarian who would like to minimize government intrusion, coercion and confiscation as much as any other, I beg to differ.
For as long as I have known what the term means, I have deplored judicial activism in all its ideological stripes. I first became familiar with the term when I took a course in Constitutional Interpretation in college. I soon learned that no single political camp has monopolized the practice of fighting its battles, and imposing its agenda on the country, via the unelected branch of government. The Supreme Court of a century ago spent a generation obstructing the establishment of the welfare state, based on a “liberty of contract” that is nowhere to be found in the Constitution. The liberal mid-twentieth-century Court brought us other unenumerated rights like privacy in general and abortion in particular while temporarily striking down the death penalty. Through it all, each of the major political factions predictably cheered when its weltanschauung was gratified and bleated in protest when it was thwarted. I have always looked with disgust at this most salient of hypocrisies in American politics. Everyone is a judicial activist—when it suits him.
So I read my fellow libertarians’ defenses of this abuse of judicial review with great dismay, for several reasons. The first is the aforementioned disingenuousness. For instance, it seems to have become an article of faith among my co-ideologues that the Constitution protects the “liberty of contract” recognized by the Supreme Court in Lochner v. New York in 1905. This liberty, of course, is conspicuous by its absence from the text of the supreme law of the land; but no matter. According to the Ninth Amendment, “the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” Liberty of contract is one of those other rights “retained by the people,” so the Constitution protects it as well, even without mentioning it.
Were I still the confirmed leftist I was in my adolescence, I would look aghast at the havoc this would wreak on minimum-wage laws and sundry other regulations deemed necessary for society’s general welfare. My retort would not be long in coming. I would see the libertarians’ constitutional right to liberty of contract and raise them a constitutional entitlement to universal health care.” Neither of these “privileges or immunities” is explicitly mentioned in the Constitution; why read one into this venerable eighteenth-century parchment and not the other? Indeed, some liberal legal scholars have already advocated judicial recognition of such “constitutional welfare rights”—particularly Berkeley Law School professor Goodwin Liu. Would libertarian boosters of judicial activism graciously acquiesce if the courts were to read such a government-expanding right into the Constitution? Quaestio respondet sibi.
At any rate, I have yet to make my peace with the idea of unenumerated constitutional rights. If rights left unmentioned by the document are as valid and enforceable as their textually entrenched cousins, why enumerate any of them at all? What is the larger purpose of putting those freedoms in writing in the first place? In my view, the point of doing so is to create an empirically verifiable, objective record of which rights are in fact protected by the Constitution—and which ones are not. Pace the Ninth Amendment, conjuring up brand-new rights and privileges and inserting them into an unamended text vitiates that purpose. For one thing, it is a veritable recipe for judicial overreach, since the courts have the last word on constitutional interpretation. It leaves judges free to run off half-cocked, reading into the Constitution whatever provisions they deem necessary. Why should any American politicos—liberals, conservatives, moderates or libertarians—trust unelected jurists to do the right thing at all times, when the latter need not fear being turfed out of office if they overstep?
For another thing, leaving the process of constitutional interpretation completely unmoored from the text would shield a literally infinite list of privileges against democratic majorities’ ability to abridge them. Those who believe that public policy should be broadly guided by the will of the people should think twice before endorsing this methodology. Is there no form of proactive governance that Americans should be free to implement? Are we to believe that most forms of government intervention are so odious that the Constitution should forbid them—no matter how much the American people might desire them? Yes, it is crucial that a democratic constitution protect certain rights and freedoms from the “tyranny of the majority” of which Tocqueville warned. It is equally crucial, however, that those fundamental freedoms be finite, lest the will of the people be not merely circumscribed, but completely emasculated.
This brings me to perhaps the most fundamental reason why libertarian judicial activism rubs me the wrong way. First of all, it insinuates that the Constitution is basically a libertarian document, just as liberal judicial activism treats the Constitution as though it were intrinsically liberal, and conservative judicial activism similarly mangles the document from the Right. These philosophical conceits offend the democratic spirit. For any constitution to play ideological favorites, tilting the public policy playing field in favor of one political camp at the others’ expense, would be almost self-evidently unjust. In a true democracy, opposing political visions ought to compete—vociferously, to be sure, but peacefully and equitably nonetheless—for the hearts and minds of the people. In this never-ending struggle, an authentically democratic constitution and the judges who interpret and enforce it are supposed to remain as neutral as possible, not take sides.
At any rate, I think it self-denigrating to suggest that our libertarian philosophy needs such constitutional coddling. Are our powers of persuasion really so feeble that we cannot win our countrymen over to our side? Many argue that “the people” are too easily misled and deceived to see the libertarian light, or perhaps simply too apathetic to follow it. This strikes me as a lame excuse for us to fold our kiosk in the marketplace of ideas. Moreover, it is disingenuous in the extreme for us to look with such contempt on the very people whom we mean to liberate.
I am a libertarian. I, too, wish to keep the government out of the people’s faces to the greatest extent possible—in all areas of human endeavor. Nonetheless, such matters are not, and should not be, the province of the Constitution or of the courts; that job should be left to the people’s elected representatives. I recognize that not everyone shares my convictions, and that other worldviews deserve to go a few rounds in the ring with mine. Rather than run after unelected judges’ apron-strings, I prefer to tackle my ideological opponents head-on and beat them fair and square. When government violates a right that the Constitution does explicitly protect, that is the time to take our fight to the courts. When the Constitution is silent about the freedoms we defend, our battle belongs in the court of public opinion. I believe in libertarianism—but I believe in democracy more.
 Goodwin Liu, “Rethinking Constitutional Welfare Rights,” 61 Stan. L. Rev. 203 (2008).
Sunday, December 20, 2009
As an ongoing travesty of justice in Toronto in shows, Canada’s criminal justice system would beg to differ.
It was last May that surveillance cameras at the Lucky Moose market in Toronto’s Chinatown captured a man stealing $60 worth of plants riding away with them on a bicycle. 51-year-old Anthony Bennett, a man with a petty crime rap sheet 33 years long, returned to the same store an hour later, presumably to help himself to some more merchandise. This time, however, he was confronted by the store’s owner, David Chen, and fled on foot. Mr. Chen and several store employees gave chase and caught Bennett, reportedly hog-tying him with twine and trapping him in a delivery truck until police arrived several minutes later.
What happened next boggles the mind and makes a mockery of the very concept of justice. For apprehending the thief and restraining him until the authorities showed up, Mr. Chen was charged by police with unlawful confinement, assault, concealing a weapon (he happened to be carrying a box-cutter at the time), and kidnapping. Worse still, the perpetrator, who was originally supposed to serve a 90-day jail sentence at the prosecution’s request, was able to finagle a mere 30-day bid out of negotiations with the court—in exchange for testifying against Mr. Chen.
I would love to be able to say that the Crown did the “decent” thing by dropping the kidnapping and concealed weapon charges several months later. Unfortunately, decency had little to do with it. For the most serious charge, that of kidnapping, Mr. Chen would have had to be tried before a jury, where he almost certainly would have been acquitted. At any rate, the Crown initially offered to drop the more severe charges if Mr. Chen would plead guilty to assault and unlawful confinement—an offer he promptly refused. This plea bargain suggests that Crown prosecutor Colleen Hepburn’s eventual decision to drop the aforementioned charges anyway was not made as a matter of conscience.
The legal case against Mr. Chen is that in Canada, such “citizen arrests” are lawful only when the perpetrator is in caught in the act of breaking the law. Since Chen ran Bennett down before the latter was able to filch any more goods upon his return to the market, the argument goes, what he did was illegal. Yet it appears that this is less clear than the Crown and its sympathizers would have it. According to University of Alberta criminal-law professor Sanjeev Anand, Canadian legal precedent permits such citizen arrests if there is reason to believe that the perpetrator has committed an indictable offence. The surveillance camera footage of Bennett’s initial theft gave Chen that reason.
Yet even if the Crown is right, Chen’s case raises an important normative question. Should Canada’s laws be amended, as Immigration Minister Jason Kenney recently mused, to protect this sort of citizen’s arrest from prosecution? I, for one, believe so, for I see nothing in Chen’s action that should be considered worthy of punishment under the law.
Did Chen and his employees truly “assault” Mr. Bennett in any meaningful sense of the word? I think not. They applied perfectly reasonable force in stopping him; they did not beat the stuffing out of him, as others would have done. Did they “take the law into their own hands”, as some have alleged? Hardly. They did not try to punish Bennett themselves, as real vigilantes do. They trussed him up—strictly to stop him from escaping—and turned him over to Toronto’s Finest at the first opportunity.
Some argue, as the Globe and Mail columnist Marcus Gee did last month, that Mr. Chen endangered himself in pursuing the larcenous Mr. Bennett. What if the perp had pulled a knife or a gun on him? This flimsy argument, however, is annoyingly paternalistic in its implications. If an individual is willing to risk life and limb to catch a fleeing thief, that is his business. The government should not punish him for doing so in order to shield him from the potential consequences of his own actions. Eyewitnesses who report violent crimes or rescue their victims, or who testify against criminals in court, potentially make themselves targets for the perpetrators’ reprisal as well. Are they to be prosecuted for that?
“In such an encounter, anything can happen,” wrote Mr. Gee. “That’s why we reserve the right of arrest mainly to police…Passions run high when people think they have right on their side, and things can easily get out of hand.” This, of course, overlooks the countless incidents in which things have spun far further out of control than they did in David Chen’s case, despite—and sometimes because of—police involvement. It also ignores the judiciousness Chen exercised by merely restraining Bennett until the police’s arrival. What’s more, since Bennett might have escaped had he not been caught, Mr. Chen, if anything, did the police a favor. Had he handled this situation by the book, calling 911 when he caught the thief without giving chase, Bennett could have made a clean getaway before the police arrived.
Can law-abiding citizens afford to depend so heavily on law enforcement for their safety? In a perfect world, in which cops are irreproachable angels who always arrive in time to collar the crooks, this would be the perfect approach. In the world we actually inhabit, however, that is too often not the case. To require citizens to wait for police to rescue them, even when the latter are unable to do so until it is too late, is nothing short of unjust. In some situations, that could cost a victim his or her life. This is one major reason why the law permits, for example, the use of violence in self-defense: because police are not always well positioned to take care of business. Case in point: as Chen and countless fellow shopkeepers—who have rallied to his defence—have pointed out, Toronto police generally give shoplifting cases short shrift. Store owners’ tax dollars, it would seem, are not so hard at work.
This case relates to the larger issue of whether restricting individuals’ ability to help stop crime discourages them from acting in cases where such courageous intervention could save lives. In the 1989 École Polytechnique massacre in Montreal, the men in a room commandeered by gunman Marc Lépine meekly obeyed his order to leave, allowing him to slaughter fourteen women left behind. Two summers ago, travelers in Western Canada fled a bus after one psychotic passenger savagely butchered another. (The RCMP, for their part, left the murderer alone on the bus for hours before boarding and arresting him, allowing him to decapitate and cannibalize his victim’s body.)
A little retaliation on bystanders’ part might have at least mitigated these tragedies. Consider, for instance, the shooting at Virginia’s Appalachian School of Law in 2002, when a disgruntled student shot six people, killing three, including a school dean. Two other students ran to their cars to retrieve handguns from their glove compartments and confronted and disarmed the shooter. Such bravery need not be expected of all citizens—most of us are not cut out for such impromptu combat—but it is not to be punished either. It is easy to imagine how laws that discourage that kind of intervention could infantilize and enfeeble the citizenry, enabling or exacerbating such crimes in the future.
The case of David Chen revives the age-old question of the proper relationship between the citizen and the state. Free men and women should not have to entrust any aspect of their destinies—their health, safety, prosperity etc.—to the agents of government so slavishly. In most cases, yes, the boys (and girls) in blue should be the ones to bring the bad guys to justice. Yet there are times when John Q. Citizen must do his part—beyond cooperating with investigations, serving on juries or testifying in court—to take a bite out of crime. This includes cases in which John Q.’s livelihood is violated by someone whom he can apprehend with minimal violence and without usurping the legitimate role of the police. Citizen Chen does not deserve to be put on trial. If anything, the rest of us should consider taking a page from his book.