Bench Memos

NRO’s home for judicial news and analysis.

“Nowhere Else to Go”


Roger Pilon is worth reading today:

An excerpt I’d like to address: “In the grand constitutional design, federal courts exist mainly to secure liberty, because that’s what the Constitution does, especially since ratification of the Civil War Amendments crafted by the heavily Republican 39th Congress. Courts are supposed to keep Congress within its enumerated ends and to ensure that both federal and state governments respect our rights, whether enumerated in the Constitution or not. They’ve never done that consistently, of course, but as the independent, non-political branch, courts are charged with enforcing the Constitution’s restraints on power.”

While I consider myself somewhat of an economic libertarian, I don’t buy Roger’s assertion that the framers, or subsequent Congresses and state legislatures through the Civil War amendments, set up the courts “… mainly to secure liberty.” Their job is to interpret the Constitution. Judicial activists on the Left make essentially the same argument as Roger, usually dressing it up in phrases like “the living Constitution,” “pneumbras and emanations,” “doing justice,” and “protecting rights.” But it gets us to the same place, i.e., judicial supremacy. While Roger wants the courts to advance liberty, the Left wants the courts to advance social justice, which they confuse with liberty.

The Constitution is a governing document in which the framers sought to distribute power to ensure that no single branch, or the federal government as whole, would become too powerful. Hence, separation of powers and the 9th and 10th amendments. (The 9th and 10th amendments do not expand the authority of the federal courts. Both speak of rights and power belonging to the people. Likewise, the 14th amendment explicitly empowers Congress to enforce its provisions, not the courts.)

More to the point, there’s nothing in Article III endorsing the proposition that the courts’ main job is to secure liberty. The structure of the Constitution, including the notion of co-equal branches with authority to check each other, is intended to secure liberty in the context of a federal system. Indeed, Article III, rather than conferring ultimate jurisdictional authority on the judiciary, leaves it to Congress to determine much of the courts’ authority. This is a constitutional check granted to Congress over the judiciary. In any event, nowhere in the Constitution is their explicit authority for Roger’s proposition.

From a policy and ideological point of view, I reject Roger’s proposition as well. The judiciary has been no more or less effective at safeguarding liberty than the other branches. Roger himself is disappointed in much of the judiciary’s post-1937 jurisprudence. He writes, in part:

“With the floodgates opened, it soon became a majoritarian (or, just as often, special interest) free-for-all, with winners claiming the democratic “high ground”–as if that’s what the Constitution were about. Liberty and limited government gave way to majoritarian democracy.”

But the courts’ anti-liberty record didn’t begin with the New Deal. The most egregious decision was Dred Scott in 1857 which, among other things, overturned the Missouri Compromise banning slavery in the new territories. The elected branches led the war that ended slavery.

Moreover, as opposed to the elected branches–federal and state–when the courts make dire errors in judgment, that Roger concedes has occurred throughout the last 70 years, it is dramatically more difficult to redress them. Indeed, since Dwight Eisenhower’s presidency, conservatives have lamented judicial activism and have attempted to appoint, in most cases, judges who respect the limits of their power. But this effort has failed.

For all practical purposes, the judiciary is supreme today and there are no effective limits to its power. And yet Roger rightly complains about the dimunition of our liberty.


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