Challenging the Dogma of Deference
Our Constitution includes several ingenious mechanisms for protecting individual rights—checks and balances, the separation of powers, federalism, enumerated powers, the Bill of Rights. Central to these was the idea of an active and independent judiciary, which would contribute its part by balancing the other branches and ensuring the legality of the political process. Sadly, courts today often refuse to do that job. Under slogans like “judicial restraint” or “deference” or “humility,” judges frequently just shrug at the unconstitutional actions of the executive or legislative branches, or of administrative agencies.
In his new book, Terms of Engagement, my friend Clark Neily makes a powerful argument for restoring our courts to the role that the Founding Fathers intended them to play: as vigilant enforcers of the Constitution, and a branch equally powerful with Congress and the President. I have a review of the book in the next Texas Review of Law & Politics, and you can read (the latest draft of) it here. Here’s an excerpt:
[T]he American constitutional order is not premised on any basic “right of a majority to embody their opinions in law.” On the contrary, the Constitution is premised on the fundamental right to individual freedom. It is only because all people have a right to liberty that they are entitled to create a government to protect that liberty—and to change their government when it becomes destructive to their rights. The Constitution declares that among the reasons for its ordination and establishment is to “preserve the blessings of liberty,” not to empower the majority to exercise its will. Government exercises only limited, delegated authority—not a primary right to rule. It follows, then, that “Whether it is putting people in jail, bulldozing their homes, or making them pass a test to sell flower arrangements, the government owes people an honest explanation and a measure of care in restricting their freedom.”
Relying on the legislature instead of the courts to secure individual rights is foolhardy at best, and at worst, is a cynical way of abandoning citizens to the mercy of the very branch most likely to act unjustly. The founding fathers were well aware that the legislature is the greatest threat to individual liberty—it is constantly “extending the sphere of its activity, and drawing all power into its impetuous vortex.” This is because legislatures have many inherent structural biases against minorities which can prevent the political process from redressing their valid grievances. Their very unpopularity makes them unlikely to assemble a legislative coalition to protect them, or to persuade their opponents to leave them be. Predatory interest groups are likely to invest resources in manipulating the political process to benefit themselves, and to entrench that power against potential future threats—for example, through gerrymandering to protect incumbents. Legislatures are also in a position to break down the ability of other branches to check and balance them. The framers called these problems the “mischiefs of faction”; modern scholars call it “public choice.” And the framers sought to prevent these problems by establishing an independent judiciary with the power and the obligation to resist legislative encroachments. Courts have at times recognized that they have a “special role in safeguarding…those groups that are ‘relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.’” But the Dogma of Deference encourages them to betray that responsibility and to withhold that protection from various groups—including property owners or entrepreneurs —who need it, on the assumption that these groups are sufficiently protected by the majoritarian process. There is no political justification for this assumption and no constitutional warrant for this double standard. As Neily writes, “the assumption that bad laws will eventually be repealed…represents the triumph of hope over experience. Judges should know better.”
As to unenumerated rights, it is clear from the text of the Constitution, and from the contemporaneous debates, that the framers expected courts to enforce such rights. They well knew that during the five preceding centuries, Anglo-American courts only enforced unenumerated rights. The U.S. Constitution enumerated no rights between 1789 and 1791, when the Bill of Rights was ratified; it is absurd to imagine that the framers assumed Americans had no rights in the interim. Most importantly, the Ninth Amendment specifies that unenumerated rights are as much a part of the Constitution as those that are specified, and that lawyers and judges who would “deny or disparage” such rights by interpretation are doing violence to the law. The Dogma of Deference simply cannot accommodate any sensible reading of the Ninth Amendment—and so its advocates typically dismiss it as a meaningless “inkblot.” Neily even recounts one incident when he asked such an advocate what he would do if he were serving on the Court when voters passed a constitutional amendment “that said something like: ‘We the people of the United States, having carefully considered the pros and cons of empowering judges to enforce unenumerated natural rights of American citizens, hereby instruct them to do so.’ He said he would refuse to enforce such an amendment.” Adherents to the Dogma of Deference thus show their true hand: their commitment to judicial restraint takes precedence even over the explicit text of the Constitution, in cases where the text guarantees freedom in the abstract. Such text does exist: the Ninth Amendment and the Privileges or Immunities Clause, as well as the Due Process Clause—which enumerates the abstract concept of “liberty” as a protected right—provide explicit textual grounds for courts to enforce rights that are left unspecified. When proponents of judicial restraint profess ignorance as to the meaning of these provisions—or admit that they would refuse to enforce them in any event—they are essentially admitting that the Dogma cannot consist with the Constitution as written….
Further, just as courts employing the rational basis test typically ignore the facts, the Dogma of Deference generally encourages courts to ignore the text of the Constitution itself. Nowhere is this more obvious than in Kelo v. New London. There, the Supreme Court employed its strongest deference language in the service of a decision that essentially erased the phrase “for public use” from the Fifth Amendment. Although paying lip service to the fact that the Constitution allows the government to take private property only “for public use,” the Court construed that phrase to mean “public purpose,” a phrase it “defined…broadly” so as to “afford legislatures broad latitude in determining what public needs justify the use of the takings power.” Of course, the legislature or an administrative agency can always be expected to declare that its actions serve the public good in some manner. Deference therefore essentially yields the judge’s chair to the very government that is a party to the lawsuit—makes the legislature, as Madison warned, “a judge in [its] own cause”—and thus robs the “public use” requirement of any effective power.
Similar things can be said of various other constitutional provisions, including ones that protect against searches and seizures, preserve the autonomy of states, protect the security of contracts and secure the privileges and immunities of citizens, separate the legislative, executive, and judicial powers, and limit federal regulatory authority to matters involving interstate commerce. These and other constitutional provisions have been drastically undermined by the dogma of deference, which, by giving the government far more than the benefit of the doubt, has essentially allowed lawmakers and administrators to write their own tickets. Judicial restraint is thus not really restrained. On the contrary, it accomplishes just what its advocates protest against: it radically alters the constitutional structure. The Constitution denies certain powers to Congress or the states in order to maintain a carefully designed mechanism of checks and balances. Allowing officials to exercise powers the Constitution denies to them perverts that system and deprives citizens of the benefits of the social compact to which they (theoretically) assented. Worse, by selectively deferring on some subjects but not others, the courts can essentially create a system of government that was never imagined, never deliberated, and never ratified. As Justice Scalia has put it, “[t]he picking and choosing among various rights to be accorded [judicial] protection is alone enough to arouse suspicion; but the categorical and inexplicable exclusion of so-called ‘economic rights’ (even though the Due Process Clause explicitly applies to ‘property’) unquestionably involves policymaking rather than neutral legal analysis.”
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