Rosen: pay no attention to the Constitution behind the curtain!

May 13, 2012 | By TIMOTHY SANDEFUR

In an article for The New Republic, Jeffrey Rosen writes that the recent decision in the Hettinga case has “unmasked” the continuing machinations of Rosen’s “Constitution in Exile” conspiracy. I say his conspiracy because in Rosen’s eyes, the widening circle of lawyers, judges, and law professors who are drawing attention to the many shortcomings of the dominant Progressivist school of constitutional law can’t just be a group of people who think the courts have got certain things wrong—no, they’re a cabal of “conservative judges,” secretly plotting to take over the world and undermine Social Security…or something like that. After all, nowhere in Rosen’s article does he even try to address what people like Judge Brown or Professor Barnett believe, or why. Instead, it’s all portrayed as a camouflaged political power play, without any intrinsic merit at all. “Pro-business conservatives,” Rosen writes, are “interested in embracing constitutional doctrines that could ‘discipline a wayward politics’—even if that means rule by judges…. [W]e can expect future constitutional challenges to financial regulations, such as the Dodd-Frank law, and to the rest of the post–New Deal regulatory state.”

Of course, the whole point of a written constitution is to discipline wayward politics. The founding fathers did not choose to relegate all matters to resolution through politics; they chose to write a constitution that would place significant limits on politics—that would, as FDR appointee Robert Jackson put it, remove certain things entirely from the vicissitudes of political controversy. Not only did the founders understand this quite well, but subsequent generations did, also; the courts, for all their faults, upheld meaningful protections for individual rights against political interference. And where the courts went wrong, it was typically because they refused to apply those protections—as in Plessy v. Ferguson, for example, where a “restrained” judiciary decided to allow democratic politics to control instead of applying the legal discipline, or in Korematsu v. United States, where they chose not to be an “activist” Court, and allowed democratic lawmakers to have their way. It is, in fact, only in recent decades that federal judges have turned their backs entirely on just one class of individual rights—those rights involving private property and the individual’s freedom of economic choice. In that realm, they refuse to use the discipline of the Constitution to protect minority rights.

That choice, to apply constitutional discipline to some rights but not to others, is an eminently political decision, one with no foundation whatsoever in the Constitution. Yet it is one from which both conservatives and liberals profit at times, and therefore both conservative and liberal judges are guilty of this abandonment of judicial responsibility—and both conservative and liberal intellectuals have condemned them for it. Even Laurence Tribe, Robert McCloskey, and Congresswoman Maxine Waters have criticized the courts for refusing to protect economic liberty and private property rights.

Nor does enforcing constitutional limits on politics mean “rule by judges.” When the Court strikes down a restriction on freedom of speech—say, when it upholds the right of protestors at funerals, even though that’s politically unpopular—it is enforcing the rule of law. It is not forcing people to do anything; it’s requiring lawmakers to obey the Constitution. That is the discipline on politics that the founders intended. As Jefferson said, “An elective despotism was not the government we fought for; but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others.”

But none of this factors into Rosen’s piece, because to acknowledge that judges on both left and right have done this, and that scholars on both the left and right have criticized them for it, would deflate his caricature of a one-sided partisan cabal. Rosen finds it easier to draw this conflict as a merely partisan one—and to emphasize not the broader legal debates, not whether or not Judge Brown’s criticism of modern constitutional law has merit, but instead simply to emphasize the vulgar personal benefits that the current, distorted constitutional doctrine brings to a specific class of people, and the risk to their personal income, should these disputes gain an audience at the Supreme Court.

Now, there’s a word for people who prioritize their own financial well-being over the truth of a constitutional issue—who care more about whether their friends will continue to get their government subsidies than about what the supreme law of the land actually means, or whether something has gone awry (as Justice Thomas put it in his Kelo dissent) with the Court’s interpretation of the Constitution. That word is not “scholarly,” it is not “journalism,” it is not “responsible,” and it is not “lawyerly.”