The positivist critique of substantive due process is misguided in another way. It is not clear that judges use substantive due process to rationalize their own policy preferences and read them into the Constitution. On the contrary, a person’s policy preferences and constitutional interpretations typically have a much more complex relationship—best described as “potential congruence.”73 A good-faith reader of the Constitution will likely be attracted to those constitutional interpretations that will allow for his preferred policy outcomes, but he also is drawn to policies that he considers constitutional. A person will typically jostle these two perspectives—policy and constitutionalism—against each other in his mind until they reach a basic equilibrium, generally discarding policies he cannot reconcile with his constitutional views, and vice versa. But there are also plenty of examples of judges acknowledging that their preferred policy outcomes are unconstitutional.74 And whenever a person calls for amending the Constitution, he is admitting that his preferred policy is not constitutional. Aside from cynical prejudice, there is no reason to think that people generally read the Constitution to endorse their preferred policy outcomes.
Moreover, people are typically drawn to study the Constitution in the first place because they approve, at least in general, of the Constitution as they understand it. That initial opinion might be biased by their instructors, and people will refine their understandings as they learn more, or might even reject the Constitution if they conclude that it does not actually live up to their initial approval. People go through such phases of intellectual exploration and ideological refinement all the time. But nothing about this process of learning, debate, and elaboration means that there is no fact of the matter to be apprehended, or that all interpretive methods are equally valid. Nor does it render constitutional interpretation or the doctrine of substantive due process suspect. Government is a human enterprise, liable to human failings. That is one reason the Founders provided powerful checks that Congress and the president can use against the courts if they go too far. But the Framers did expect judges to apply normative criteria to their interpretive tasks.
Does this mean a judge should shamelessly impose his personal views as law? Of course not. As a constitutional officer, sworn to uphold the Constitution, a judge is bound to impose the normative views, both express and implied, that are part of the Constitution.75 The Constitution is not a neutral document “made for people of fundamentally differing views,”76 and it is not equally compatible with whatever political or economic perspectives voters or legislatures choose to adopt. It incorporates a classical liberal political philosophy rooted in individual rights and the promise of lawful, non-arbitrary rule. Courts are bound to enforce these principles even against the majority. Deviating from these standards—either by adding new constitutional rules that do not exist, or by refusing to enforce existing constitutional strictures—is wrong.
This should not be controversial. Nobody would deny, for example, that the Constitution incorporates the English common-law system. Yet the Constitution does not explicitly adopt the common-law system—it incorporates the common law implicitly. We infer as much from its textual references to “suits at common law,” “cases in law and equity,” and the writ of habeas corpus. Courts interpreting these terms are right to employ outside sources to understand how habeas corpus and other devices operate.77 In the same way, the Constitution’s text implicitly incorporates the classical liberal political philosophy of the Founders, and of the anti-slavery leaders who recommitted the Constitution to those ideas in the Fourteenth Amendment. We can see this by the document’s references to “liberty,” “property,” and “other” rights. The Preamble declares that “liberty” is a “blessing.” And in the Due Process Clauses of the Fifth and Fourteenth Amendments, the Constitution incorporates a promise that government will treat individuals in a lawful, non-arbitrary manner.
In short, the Constitution has a specific normative direction, and it incorporates substantive political values. A judge interpreting the Constitution may not be able to avoid ideological biases in every case, but as a deputy chosen by the people to interpret and apply its text, he is faithful to his task when he orients his judgments by principles found both explicitly and implicitly in the instrument itself.
Implicit principles are commonplace in constitutional law. The phrase “separation of powers,” for example, is nowhere to be found in the Constitution, and it is sometimes difficult to apply in particular cases because the Constitution does not precisely define the boundaries between the three branches. Yet the principle of separation of powers is part of our law because it is inherent in the structure described by the Constitution’s words and is echoed throughout other founding-era documents. It would be perverse to abandon this principle just because it is not explicitly stated in the text, or to ridicule the logic on which it stands as being a set of subjective value judgments. The same holds true for substantive due process.
The Due Process of Law Clause’s prohibition on arbitrary action may be complicated to apply; it may respond to difficult and overlapping demands of law and political philosophy. But it is part of our law. In a way, it just is law. Breezy rejections of substantive due process as an “oxymoron,” or as a simple trick for judges to do whatever they wish, are superficial and unserious, and should not be indulged by mature lawyers. Substantive due process might be a nuanced area of constitutional law; it is certainly among the most hotly contested. But by promising the people that government will obey law rather than enforce arbitrary dictates, the Constitution incorporates basic principles of generality, regularity, fairness, rationality, and public orientation. We should not hastily disregard, attack, or ridicule such principles—and we should cherish the clause’s protections.
5. Judicial “Activism” and Judicial Abdication
If the left and right agree on nothing else, they share a conviction that judges—particularly unelected federal judges—frequently exceed the scope of their office and impose their own political views from the bench, an evil called “judicial activism.” Condemnation of “activist courts” has become a regular feature of presidential elections, and the press has been swamped with books about supposedly extremist judges—with such foreboding titles as Men in Black: How the Supreme Court Is Destroying America, by Mark Levin; Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America, by Cass Sunstein; Coercing Virtue: The Worldwide Rule of Judges, by Robert Bork; and The Rehnquist Court: Judicial Activism on the Right, by Herman Schwartz. But for all their anxious language, few such books seriously address the role of the judiciary in our constitutional system or ask whether activism is really as dangerous as political leaders claim.
Among the crowd, three figures stand out: liberal Supreme Court Justice Stephen Breyer has authored two books about courts and democracy; conservative judge Robert Bork also wrote at length on the subject, focusing on what he saw as the threat “judicial activism” poses to the moral stability of society; and University of Pennsylvania law professor Kermit Roosevelt, author of the 2006 book, The Myth of Judicial Activism, stands in the center, as a specimen of the mainstream of legal scholars today. For all their differences, these three together demonstrate that the controversy over judicial activism is really a debate over the relationship between liberty and democracy in the American Constitution.
The authors of our fundamental law meant for it to protect individual liberty—the right to act freely without interference by, or violence against, others. But Breyer, Bork, and Roosevelt see the Constitution as concerned primarily with fostering democracy and enabling the majority to create its preferred society through legislation. In their eyes, even cherished individual rights are worthy of protection not for the individual’s sake, but only because they aid the majority in making decisions and implementing its will. This again gets the constitutional priorities backward. Focusing on democracy instead of liberty as the basic constitutional value not only reflects a surprising naïveté about
how legislatures actually operate, but it takes for granted the wolfish perspective that lawmakers or the majority of voters have the right to “do as they please with other men, and the product of other men’s labor.”1
The Constitutional Role of the Judiciary
Before discussing “judicial activism,” we must first understand the role that judicial review plays in the American Constitution, since it is impossible to know whether “activism” is an abuse without first knowing what judges ought to do.
Judicial review existed long before 1803, when Chief Justice John Marshall wrote the famous opinion in Marbury v. Madison.2 Alexander Hamilton had explained the idea more than 15 years earlier in The Federalist.3 The Constitution, he wrote, embodies the genuine will of the people, whereas a statute only embodies the will of a particular legislative majority at a particular time. When a statute conflicts with the Constitution, therefore, the judge, far from subverting the will of the people, is actually enforcing it by declaring that statute unconstitutional and void. This is why Justice Stephen Field called the judiciary “the most Democratic of all” the federal government’s branches: it enforces the true popular will against incursions by temporary legislative majorities.4 The Constitution is a high wall, or “bulwark,” broadly encircling the majority’s authorized discretion, and one job of the judiciary is to ensure that the parties in democracy’s often hectic debates do not breach that wall. The people may, of course, amend the Constitution—but they must not subvert it.
From America’s founding, the courts were seen as a limitation on democratic decisionmaking, created out of a distrust of majority rule and aimed at preserving the Constitution,5 rather than facilitating the majority’s power to impose its wishes. What motivated this distrust? James Madison answers this question in Federalist 10 and 51: the problem with any popularly elected government is that it can be captured by private-interest groups seeking to use government power for their own private benefit. These “factions”—a term Madison defined as “a number of citizens, whether amounting to a majority or minority of the whole [populace], who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community”6—can breach the limits that the Constitution places on their power and enact laws that deprive people of their private property, abridge religious freedom, or implement other “improper or wicked project[s].”7 When this happens—when either a small faction uses government to harm the majority, or where the majority uses government to harm the minority—the rights of individuals are placed at risk, just as they were before the establishment of government. Such a society is governed not by law, but by the unaccountable will of the majority.8 Madison rejected the notion that “the interest of the majority is the political standard of right and wrong,” because unless it was “qualified by every moral ingredient,” that notion would be “only reestablishing under another name and a more specious form, force as a measure of right.” After all, “it would be in the interest of the majority in the community to despoil and enslave the minority.”9
Contemporary economists specializing in public-choice theory have renamed the problem of faction “rent seeking.”10 As these writers explain, rent seeking occurs when interest groups devote their energies and resources to persuading government to pass laws that will profit them. Because government’s power to redistribute wealth and opportunity is worth a lot of money, and because that power will increase in value as the scope and frequency of redistributions increase, the result is a spiral effect: the more valuable the redistributive power becomes, the more time and money lobbyists will invest in trying to exploit that power for their own benefit.11 The exploitation of government by “the private interests” is not simply a symptom of society’s moral failings; it is a product of the economic incentives that political institutions put in place.
The Federalist offers at least three cures for the “mischiefs of faction.”12 The most famous is the system of checks and balances, which pits groups against one another, ensuring that none can gain a permanent and menacing ascendancy.13 Another is to limit the power of the state in an absolute sense: where the government is unable to censor the press, or to take one person’s property away and give it to another,14 or to force people to buy a product or service,15 there will be little danger that factions will try to use government power to plunder others, or to threaten the public safety.16 Finally, a separate and independent judicial branch can “introduc[e] into the government a will not dependent on” the will of the majority, which is therefore able to resist the majority’s inappropriate ambitions without being swayed by popular passion.17
These two judicial roles—enforcing constitutional limits on legislative power and preventing the “mischiefs of faction”—share an important attribute: both aim at protecting individual liberty. Enforcing the constitutional will of the people, including its safeguards for freedom, is important not because the majority wants it—indeed, doing so in particular cases is often quite unpopular18—but because, as Hamilton wrote, constitutional limits secure “the rights of individuals from the effects of . . . ill humors which . . . designing men . . . sometimes disseminate among the people.”19 It is important to emphasize that the “mischiefs of faction” can only be recognized as mischiefs if one is committed to values other than democracy itself. If one is concerned simply with ensuring that majorities can enforce their will, there is little reason to fear factions; self-interested intrusions on individual rights would then just be the outcome of the majoritarian free-for-all, and there would be nothing mischievous about them. But if one regards democracy as an instrumental good, serving the goal of protecting individual liberty, then one must take precautions to protect people against the abuses of majority rule.
Not only the Declaration’s language, but also the very logic of a written constitution supports this view. Majorities, after all, have little need for constitutions. A pure democracy like ancient Athens needs no written constitution because the majority’s will is the supreme power, trumping individual rights or traditional protections.20 The purpose of a written constitution is to channel and restrict the majority’s power so as to reap the benefits of democratic rule while preventing it from endangering the rights that government is instituted to protect. As Jefferson put it, “An elective despotism was not the government we fought for; but one which should not only be founded on free principles, but in which . . . no [branch] could transcend their legal limits, without being effectually checked and restrained by the others.”21
Breyer and the Progressive Critique of Judicial Review
This original conception of the judicial role contrasts sharply with the modern views of Justice Breyer and Judge Bork. In his books Active Liberty and Making Our Democracy Work, Breyer lays out an approach to the Constitution that is centered not on liberty but on democracy22—or what Breyer calls “the people’s right to ‘an active and constant participation in collective power.’”23 One should always keep in mind that the power to which he refers is power over individuals—the power to force people to do things or refrain from doing things against their will. Justice Breyer’s “active liberty,” in short, is the liberty of the majority to do to people what it likes.
According to Breyer, the “need to make room for democratic decision-making” requires judges to exercise “modesty,”24 meaning that they must defer to legislative decisions in virtually every case, striking down laws only in order to further promote “participatory self-government.”25 Thus he regards the courts’ power to review the constitutionality of statutes as an “anomaly,” which can be explained only in terms of “[t]he Constitution’s efforts to ensure a workable democracy,”26 and not by any overriding commitment to liberty. Indeed, for Breyer, liberty is valuable principally, if not solely, when it aids the majority in making decisions: freedom of speech, for example, is valuable not because each person has the right to utter his opinions as he likes but because
free speech “helps the voters exercise an informed democratic choice.”27 This means Breyer has a hard time justifying legal protection of “rights that have little to do with the preservation of democracy,”28 and he ultimately even rejects the word “rights” in favor of “values,” because the latter word “better describes the deep, enduring, and value-laden nature of the Constitution’s protections.”29 Although he never explains how courts discern these values, it is clear from the context that by transforming rights into values, Breyer means to blur the distinction between the individual’s inherent right to autonomy and the privileges that the government gives to people. This allows courts to manipulate and reshape the amount of each person’s freedom in order to “further some other comparably important interest.”30
Of course, the Framers believed that even important interests were not sufficient to justify violating individual rights (with, of course, such embarrassing exceptions as slavery). But for Breyer, judges should decide constitutional cases by “ask[ing] whether the restriction” on a constitutionally protected right “is proportionate to, or properly balances the need” of society against the “constitutionally protected interest.”31 By describing human rights as “constitutionally protected interests,” Breyer’s wording emphasizes his view that rights are privileges granted by the majority—a collective choice to hold back the collective’s powers—not a basic aspect of each person’s individual value. Thus, the balancing he prescribes does not mean comparing society’s needs with the value of individual freedom; it means balancing one majority preference against another: is society’s interest in this particular case more or less than society’s interest in giving citizens the privilege at issue? Genuine individual rights, as opposed to Progressive rights/privileges, play no significant role.
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