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Bolick on Judicial Activism (more on libertarian centralism and "the government")

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I've noted before, in Objectivism and Federalism and other entries linked there, "how many libertarians and Objectivists simply seem unable to appreciate the virtues of our federalist system; and that this is rejected implicitly when libertarians use 'the government' to refer to both state and federal government".

We see this yet again in Clint Bolick's Wall Street Journal editorial, A Cheer for Judicial Activism. (Thanks to Bruce Korol for the link.)

Does a libertarian-federalist have a problem with courts "enforcing liberty"? Well, it depends on what you mean. Given that our federal system is a tripartite one and each branch has an obligation to abide by the Constitution, and given that the Constitution only empowers the federal government to do certain enumerated things, I have no problem with "judicial activism" insofar as it amounts to the federal judges refusing to enforce unconstitutional laws—that is, laws for which no power is granted to Congress. Each branch should be able to nullify actions of the other two, in effect, having vetoes on each other. This implies a type of judicial activism, I suppose.

But it does not imply that the federal government's limited and enumerated powers include the power of the federal judiciary to strike down unlibertarian laws enacted by the States, any more than the Constitution authorizes the Supreme Court to "strike down" illiberal Chinese laws. If anything, the states have the power to strike down unconstitutional federal law, due to the vertical separation of powers and checks and balances inherent in our federal system.

Now libertarian centralists routinely cover this up by using "the government" in a general way that does not distinguish between state and federal. So they'll say, there's nothing wrong with the federal judiciary limiting excesses of "the government." The problem is that this may be true, to an extent, if "government" means federal government—since, as noted, the federal judiciary is an equal and independent branch of the federal government and is independently bound not to help enforce unconstitutional federal actions. But when "government" means state government, this now implies a power held by the feds, and the federal judiciary, over the states—a power that was not granted to them. Note that the feds "striking down" an unconstitutional federal law does not really require a special power; it follows from the judiciary's equal and independent status and obligation not to participate in unconstitutional acts. But to strike down a state's law requires a specific grant of power. Even if this power can be found in the 14th Amendment, treating the federal judiciary's ability to refuse to go along with unconstitutional federal legislation as the same as nullifying the actions of a separate government, as the same, is simply confusing and disingenuous. So let's see how Bolick does this: in his article he never distinguishes between state and federal levels of government. He implies that those who object to the federal judiciary's ultra vires assertion of power over states "would reduce the judiciary's constitutional scrutiny of the actions of other branches of government". Notice that "branches of government" really is a term that applies to the three branches of the federal government. The states are not a 'branch" of the federal government. They were independent states (countries) that formed, by compact (treaty), a new state (the federal government) having only certain specified powers. It is akin to two people forming a corporation and then someone claiming that the people are "branches" of the corporation.

Then Bolick says: "judicial activism — defined as courts holding the president, Congress, and state and local governments to their constitutional boundaries — is essential to protecting individual liberty and the rule of law."

Notice he does not say federal courts, but this is implied. Why isn't it "essential to protecting" liberty that, say, state courts—or Canadian courts—"holding the president [and] Congress ... to their constitutional boundaries"? Why not say that to protect liberty, Alabama judges must "of course" be able to review the actions of the Alaska legislature; and that Brazil's legislator's must have the power to strike down bad Zimbabwean laws? Why, in our intertwined federalist system, does Bolick not want state courts and state governments to be able to "hold" the federal government to its "constitutional boundaries"?—including preventing the federal judiciary from engaging in the "lawlessness" Bolick also complains of?? Such "nullification" was good enough for Jefferson—why not Bolick? Why such a libertarian-centralist fetish for and faith in the very federal judiciary that he has just accused of lawlessness?

And more: "Judicial review, the power to invalidate unconstitutional laws, was essential to the scheme of republican government established by our Constitution."

The constitutional scheme implies the power of the judiciary to effectively "invalidate" actions of the executive or legislature that the courts believe to be in violation of the federal constitution, because of each of the three branch's independent obligation to abide by the charter (treaty) that defines the federal government's powers and limits. But this does not imply a power to strike down laws of the states—in fact, at best, this is a new power granted by the (illegally adopted) 14th Amendment, but was clearly not implied in the original Constitution, as Bolick here implies. He goes on:

The courts, declared James Madison, would provide "an impenetrable bulwark against every assumption of power in the executive and legislative" branches, and "will naturally be led to resist every encroachment of rights expressly stipulated for in the constitution by the declaration of rights."

Note that the Madison quote refers to the judiciary (of one government) serving as a check on the other two branches of that government.

Bolick continues: "Courts that merely rubber-stamp legislation or executive branch decisions out of bland, or blind, "deference" evade their essential constitutional role."

Yes, this is true, just because federal judges swear an oath to abide by the Constitution. They cannot participate in helping to enforce what is an unconstitutional action by the other two branches of the federal government.

The most explosive growth in local governments in recent decades has occurred in special districts and regional authorities that typically are accountable (if at all) to politicians, not voters. Ironically, courts typically defer to the "expertise" of regulatory bodies, rather than carefully scrutinizing their actions for compliance, not only with constitutional commands, but even to the vast legislative and executive powers that have been delegated to them.

It may be true that there is an explosion of illiberal legislation at the state level. How this implies that the federal judiciary has the power to "invalidate" state laws is beyond me. There may also an explosion of socialist regulations in Venezuela. That does not imply that other states' judiciaries are authorized to intervene.

At bottom, liberal and conservative attacks on judicial activism are hopelessly subjective and inconsistent. Take two cases from the 1990s. In one, the U.S. Supreme Court struck down a Colorado law that forbade local governments from enacting antidiscrimination laws that protected homosexuals. In another, the Court struck down a New Jersey law that forbade the Boy Scouts from excluding homosexuals. In both cases, the Court protected freedom of association, finding an exercise of democratic power at the state level unconstitutional. Similar cases, similar principles, identical results.
Most liberals supported the result in the first case, condemning the second as judicial activism; most conservatives did precisely the opposite. What critics on both left and right really object to is the neutral application of constitutional principles when it hampers their own desired policy outcomes.

This may be so. But the proper, libertarian-decentralist approach to this is that the Supremes have no authority to strike down either law. And on the local level: the Colorado law is compatible with libertarianism (the state preventing its localities from enacting unlibertarian anti-discrimination laws: note that the states are not organized like the federal government is; the state governments have plenary legislative and police power, unlike the federal government); the NJ law is unlibertarian. Regardless, the Supremes have no authority to invalidate either; it's simply out of their jurisdiction.

While judicial activism is the subject of spirited attack, the far greater problem is judicial abdication of its core constitutional duty to protect individual rights. Courts routinely apply a presumption of constitutionality to most governmental enactments that skews the playing field against individuals whose rights are violated. Far worse, courts have read out of the Constitution vitally important protections of individual rights, such as the constraints against government interference with the sanctity of contract and the privileges or immunities of citizenship.

Note here the use of "governmental enactments" and "government interference" to skip over the difference between actions of state, and federal, governments, for purposes of the legitimacy of federal judicial review.

Bolick writes that "'deference' to legislators and other government entities results in a free-for-all, with private property taken from citizen A and transferred to citizen B — precisely the danger against which the framers tried to protect us." But the federal government is one created by the states, and has only certain powers granted to it; it is not "deference" to the legislatures of states to refuse to invalidate their laws: it is a willingness to exercise only the powers given to that branch in the Constitution that establishes the federal government in the first place.

Bolick writes, "Unfortunately, the "privileges or immunities" clause of the Constitution's 14th Amendment — designed precisely to protect freedom of enterprise from government interference — had been eviscerated more than a century ago in the Slaughterhouse Cases of 1873." In other words, the P-I clause really was meant to give a broad grant of individual rights protection to citizens of states at the federal level—such as those listed in the first 8 amendments of the Bill of Rights. But if this is so, why did "due process" need to be mentioned separately in the 14th amendment—after all, isn't it part of the batch of "individual rights" we have (it's listed in the Vth amendment)? And why did it require subsequent amendments to give blacks, and then women, the right to vote—after all, if the provisions of the 14th are so broad, the equal protection clause should have prohibited discrimination against blacks and women in the right to vote; or the P-I clause should have included the civil right to vote as part of the huge batch of rights that "privileges or immunites" really refers to (though inexplicably without using the simple word "rights"!).

"Properly wielded, a court gavel can be David's hammer against the Goliath of big government."

Again, "government" used to indiscriminately refer to both state and federal.

"The Rehnquist Court began to restrain unconstitutional exercise of government power..." Again.

"It remains to be seen whether the Roberts Court will proceed to boldly protect liberty, as the Constitution intended." The Constitution intended the constituent parts of the federal government to abide by limits set on them in that foundational document.

"We all have a stake in seeing that it does, for as government inexorably expands, our freedom depends on the willingness of courts to rein in its excesses." Again. And note, by "courts" he means federal courts, not state courts. Why not write it like this: "We all have a stake in seeing that it does, for as state governments inexorably expand, our freedom depends on the willingness of federal courts to rein in its excesses." Because this might make some people wonder—hey, why is is necessary for federal courts to rein in state governments—why not state courts? And what about state courts reining in excesses of the federal government? Why isn't that mentioned as a possibility?

"For better or worse, the courts are the last line of defense against government running roughshod over individual liberty." Again. What courts, Mr. Bolick?

"When judges swear fealty to the Constitution, they must be mindful of the danger of exceeding the proper confines of judicial power, but as well the even greater danger of abdicating it." Wow. What impressive sleight of hand.


Stephan Kinsella

Stephan Kinsella is an attorney in Houston, director of the Center for the Study of Innovative Freedom, and editor of Libertarian Papers.