Who will watch the watchers?


Author: Timothy Sandefur

Professor Steven Schwinn, blogging at the American Constitution Society’s blog, had some enlightening comments about yesterday’s decision in the Virginia health care case:

The ruling isn’t just a repudiation of the individual mandate; it’s a proclamation on federal authority and federalism that would take us back to the early twentieth century, the days of an activist and obstructionist judiciary that frustrated the political branches at every turn. This kind of judicial activism will take policy decisions out of the hands of democratically elected representatives and put them in the hands of judges. More importantly, it will put decisions about congressional authority into the courts. (Aggressive judicial restriction on authority, not aggressive protection of individual rights, is the kind of judicial activism that poses the real threat to democracy.) And it will just as easily frustrate the federal policy objectives of opponents of health-care reform when the politics change. In other words: this kind of judicial activism hurts us all.

What we see here is similar to what we saw in the nearly hysterical overreaction to the Supreme Court’s decision in Citizens United: an attempt by liberal activists to paint a perfectly sensible, indeed, remarkably limited, decision in the most extreme colors, and to convince citizens that federal courts are somehow a bastion of anti-democratic reactionary extremism. Virtually every sentence of Prof. Schwinn’s statement is false, misleading, or outright demagoguery.

For one thing, it’s just not true that the early 20th century courts were “activist and obstructionist” or “frustrated the political branches at every turn.” In fact, during that period, courts upheld the vast majority of both federal and state laws regulating economic and personal affairs. Prof. Schwinn’s description of that era is just cartoonish. What’s more, when they did strike down such laws, courts of that period rarely announced new doctrines the way “activists” would.  Instead, they relied on long-established precedents—and were roundly criticized not for innovation, but the opposite: for not devising new legal doctrines that would allow for new kinds of government intervention.

Of course, it was also during that period that courts began enforcing the doctrine of “incorporation”; for example, it was in 1925 that the U.S. Supreme Court for the first time declared explicitly that states could not censor the press. Many of today’s “Progressives” recognize that decision as a boon for civil liberties—but it unquestionably “frustrated the political branches” that wanted at that time to censor the press!

But here’s the really interesting thing: Prof. Schwinn complains that decisions like yesterday’s would “put decisions about congressional authority into the courts.” Now, here’s the question: where does Prof. Schwinn want those decisions to be made? Does he think that the legislature should decide the limits of its own authority?  If the legislature decides the limits of its own authority, then the legislature has absolute power, without any limit.  It can simply wipe out our individual rights whenever it wants to.  As Alexander Hamilton explained in Federalist 78,

If it be said that the legislative body are themselves the constitutional judges of their own powers…it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution.  It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents…. [T]he courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.

The reason we have a separation of powers is precisely so that courts can stop the legislature from being the judge of its own powers!

What really “hurts us all” is activist legislators who exceed their constitutional authority—or persuade courts to expand that authority more and more each year—leaving future generations vulnerable to abuse at the hands of government.  It was not that long ago that liberal activists were loudly accusing President Bush of dangerously expanding his powers, spying on us, violating civil liberties, and so forth.  Yet today, Democrats are defending an interpretation of the Constitution that is so extremely broad as to allow the feds to control literally every decision we might make.  If they succeed now, what will they do when Republicans win the White House and use that same new authority the way they want to?  The Constitution is supposed to protect us from the dangers of politics; if we break down its protections, we will have nowhere else to turn to.