June 7, 2018

The defense of liberty requires an engaged judiciary

By Larry G. Salzman Senior Attorney

The following is an excerpt from PLF’s quarterly publication, Sword&Scales. To receive the digital magazine, subscribe here.

Prior to the Fourteenth Amendment, the Bill of Rights checked only the abuses of individual rights by the federal government, and even after the Civil War there were few federal restraints on state powers. Individuals could look only to state courts and their constitutions to check abuses by state legislatures.

The Fourteenth Amendment changed the basic relationship between citizens of the United States and their state governments, empowering Congress and federal courts to protect all Americans’ individual rights against state laws that might violate them.

It is perhaps second in importance only to the Declaration of Independence in advancing America’s commitment to freedom.

But the Fourteenth Amendment’s power depends on the judiciary accepting responsibility as a co-equal branch of government, fully engaged in its duty to enforce constitutional limits on the other branches. Courts have at times abandoned that ideal, establishing bad precedent with tragic results.

For instance, the very first U.S. Supreme Court case to interpret the meaning of the Fourteenth Amendment involved economic liberty, and it did not go well. The question in The Slaughter-House Cases (1873) was whether Louisiana could give a private company a monopoly on slaughtering animals in New Orleans, or whether the Privileges or Immunities Clause of the recently enacted amendment protected the right of all butchers to earn a living free of anti-competitive regulation.

In a 5-4 decision, the majority upheld the law. Despite its plain language and a purpose palpable to the post-war nation, the Court shockingly denied that the amendment changed “the whole theory of the relations of the State and Federal governments.” As a result, the federal judiciary retreated from the protection of most civil rights.

The federal courts would later decide to protect some economic liberties and property rights, such as the right to make contracts, under the other clauses of the amendment. But those efforts lacked consistent principles, with devastating results. The consequence was a long, disastrous period in which judges stepped aside to allow state-sponsored discrimination, including “Jim Crow” racial segregation.

Many decades later, the Supreme Court—responding to the moral urgency of the civil rights movement—began to remedy the evils of segregation and other forms of racial discrimination by enforcing the Fourteenth Amendment. However, other vital civil rights, especially economic and property rights, were disregarded. Legislatures relentlessly pushed for more power over the economy throughout the 20th century, and judges let it happen.

In Lochner v. New York (1905), for instance, the Supreme Court correctly struck down a law regulating the working hours of bakers as a violation of the rights of the employees and employers to contract. But Justice Oliver Wendell Holmes dissented, claiming that it was not the place of a judge to upset “the right of a majority to embody their opinions in law”—that “the word ‘liberty’ in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion.”

It would be hard to imagine a statement more wrong or hostile to the purposes of the Fourteenth Amendment. The Constitution did not establish majority rule; it created a system of protections for liberty against the will of the majority. The Fourteenth Amendment extended that protection, guarding a vast range of individual rights against infringement by state laws. Yet the Supreme Court adopted Holmes’ view during the New Deal and it persists as the dominant view today, at least with respect to property rights, economic liberties, and the rise of the regulatory state.

It is long past time for judges to reassert their constitutional role and we are optimistic that process is underway.

Since PLF began its work more than 45 years ago, there has been a growing awareness among lawyers, academics, and even judges that abandoning judicial protection for property rights and economic liberties was a grievous mistake. We see this acknowledged most dramatically in our courtroom victories, which inspire us to press on. PLF is committed to bringing about a future in which courts enforce every part of the Fourteenth Amendment and provide meaningful judicial review in all cases.

Subscribe to the Sword&Scales digital magazine here.

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