“‘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.[1] 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.
[1] Goodwin Liu, “Rethinking Constitutional Welfare Rights,” 61 Stan. L. Rev. 203 (2008).
