In a long and thoughtful post over at the Conspiracy, Randy Barnett takes issue with a couple of recent posts at which I took some passing swipes at what I perceive to be his defense of a libertarian version of judicial activism. As Barnett observes, "no meaning of any constitutional provision can be established in a blog," and he has the advantage of having written a very fine book (which I highly recommend) Restoring the Lost Constitution: The Presumption of Liberty.
Confining myself to the blogosphere, however, I would note that Barnett's arguments have not gone uncontested. Barnett asks, for example: "Is discovering and enforcing the original meaning of the Ninth Amendment activism?" Calblog, for one, thinks so: "We ought to respect it, but we can't come to the court to enforce the 9th amendment. Rightfully so, its interpretation belongs in the Congress and statehouses."
As I understand Barnett's argument, moreover, he claims that the 9th Amendment and the Privileges & Immunities clause incorporate the "harm principle" so beloved of libertarians. (For a good critique of judicial activism based on the harm principle, see this post.) Hence, laws expressing the settled moral traditions of the community can be overturned by a 5-4 vote of the Supreme Court. Owen at Southern Appeal did a good job on this argument:
Barnett's [argument] is remarkably unsatisfying, because it simply argues in favor of one tyranny over another. Under his standards, American society would effectively be ruled by the courts, who would be vested with the authority to judge which moral standards are legitimate and illegitimate, presumably using the old libertarian standard of the "harm principle."
However, judges would not be required to use such a standard. They could instead all claim to be Nietzschean ubermensches, unrestricted by humanity's 'slave' morality, and rule based upon their own ideas of what would best allow for human flourishing. Or they could appeal to Peter Singer, and begin demanding that the liberties of animals be protected under due process because, after all, animals can feel pain as much as any human being. There's no real restrictions because what Barnett argues for is an unprecedented use of judicial power to enforce a single ideology -- namely libertarian ideology. But there's no reason to believe it has to be that particular ideology.
We do indeed run the risk legislative tyranny. That's the price of being a democracy. However, this problem is not solved, and is instead made far worse, by replacing the tyranny of democracy with the tyranny of oligarchy. A few anointed Supreme Court justices ought not be society's moral compass, whether they are invoking the philosophy of Mill or Mussolini. It's a pity that Barnett doesn't feel the same way, and that he twists originalism into something incoherent for the ignoble purpose of establishing libertarianism as constitutional doctrine.
As Owen's concluding comments suggest, one might plausibly argue that any claim of judicial supremacy - whether made on behalf of a libertarian or left-liberal social agenda - is activism, notwithstanding what Barnett claims to be the original meaning of "the Judicial Power" in Article I of the Constitution.
Contrary to what Barnett seems to believe, I doubt very much that the founders anticipated the sort of expansive claims of judicial supremacy that underlie recent decisions like Lawrence. Certainly, in the generations immediately after the founders the executive branch resisted expansive judicial supremacy. Andrew Jackson, for example, wrote in his message vetoing the Second Bank of the United States:
If the opinion of the Supreme Court covered the whole ground of this act, it ought not to control the coordinate authorities of this Government, The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision. The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve.
Likewise, here is what Lincoln said about Dred Scott:
If the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.
The founders were very big on checks and balances, but in our time we have ceded a wide range of issues to nine unelected old men and women who decide issues of national import with confidence that they are immune from being held accountable for their decisions. As I understand his work, Randy Barnett would allow this unchecked power to remain intact provided the judges limited themselves to enforcing the harm principle. Even if I believed the harm principle to be the be all and end all of sound public policy, which I emphatically do not (believing with Burke that the moral traditions of society provide a solution to the problem of value disagreement), I would reject judicial supremacy for the reasons I've been blogging about in this archive category.
Uodate: Clayton Cramer springs to my defense with a
wonderful post, with a well-reasoned argument, the highlight of which for me was his observation that: "If the privileges or immunities clause was indeed understood by the Congress that passed, and the states that ratified the Fourteenth Amendment to protect the right of people to have sex with whomever and however they wish, then why did every state have laws that specifically violated this right?" Update: More
here.
Update: In his latest Conspiracy post, Randy Barnett claims that blogosphere conservative critics of his approach to judicial review are "
confused" (including yours truly). The arguments Prof. Barnett makes are subtle and nuanced. In particular, he carefully distinguishes judicial nullification from judicial supremacy, claiming that we critics are confused because we don't make that distinction. Perhaps so, but I don't see the Supreme Court (or, even more so, the 9th Circuit) making that distinction.
Prof. Barnett doubtless is correct that his writings do not intentionally advocate judicial tyrrany. At the very least, however, I believe they give cover from the right to those who advocate expansive interpretations of judicial power. Consider how offended some members of the Court seemed to be by the notion that any aspect of American life might lie outside their reach. Breyer, for example, complained: "
It seems rather contrary to an idea of a Constitution with three branches that the executive would be free to do whatever they want, whatever they want without a check."
Apparently only the Supreme Court is "free to do whatever they want ... without a check." If five of the nine unelected old men and women on that court agree, they can strike down any law or executive action. And our elected representatives have essentially no power to constrain them other than the impractical route of amending the Constitution. We have allowed the Supreme Court to tell our elected representatives that they cannot pass morals legislation (something Barnett appears to support), for example, while a Supreme Court majority is free to impose its moral judgments on all of us (something I assume Barnett would condemn).
What we have allowed the modern court to do is nothing short of judicial tyrrany. Careful readers of Prof. Barnett's reply will note that although he parses the Jackson quotation in my post (I would disagree with his interpretation thereof, by the way), he ignores my quotation of Lincoln's comments on the Dred Scott:
If the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.
Is that not precisely what we have done in the modern era of judicial activism?
The aptness of the judicial tyrrany label is apparent when one compares the difference in accountability. If you don't like the 108th Congress, you can vote for legislators you like better. You can contribute to candidates all over the country who share your views (of course, your ability to do so is limited because our judicial tyrants have decided that political campaign contributions deserve less First Amendment protection than, say, child porn). You can give to 527 organizations that will promote your agenda. And so on. If you don't like the Rehnquist Court, you're screwed because you've got 9 unelected old men and women with life tenure and zero accountability. All you can hope is that you can elect Presidents and Senators who will eventually replace one of the old farts with somebody more to your liking (assuming the trend towards Senate obstructionism abates sufficiently to allow the next vacancy to be filled).
By very visibly endorsing some of the worst recent examples of judicial legislating (e.g, Lawrence) and endorsing "judicial nullification" that invokes the vague and contested language of provisions like the 9th Amendment and the P&I clause, I believe Prof. Barnett provides cover from the right for courts and lawyers who see no limits on their power to legislate and regulate through litigation rather than democratic processes.
