I very much appreciated Ed Whelan’s thoughtful, constructive essay, prompted by Senator Rand Paul’s remarks on judicial activism and judicial restraint. Since Ed criticizes a recent essay I wrote in praise of those remarks, I would like to offer a response. I believe that Ed has mischaracterized the nature of the problem that Senator Paul and I have identified, and failed to come to terms with how reflexive judicial deference has not only perpetuated a growing disconnect between the written Constitution and the government we have but also destroyed countless American dreams.
Ed defines “judicial restraint” as “not striking down democratic enactments that have not been shown to violate the Constitution.” Thus defined, judicial restraint is simply respect for coordinate branches of government. But that is not the reflexive judicial deference that Senator Paul and I have criticized — the deference that is required in the vast majority of constitutional cases today, thanks to the so-called “rational-basis test.” Today, in all but a handful of cases involving rights arbitrarily designated as “fundamental,” restrictions imposed upon people’s constitutionally protected liberties are upheld “if there is any conceivable state of facts that could provide a rational basis for [them].” The rational-basis test specifically invites courts to disregard credible evidence that the government is pursuing improper ends and to base their rulings on hypothetical explanations, however implausible.
Ed chides me for failing to explicitly embrace originalism. (For the record, I’m an originalist.) But even a universal commitment to originalism would not cure what ails our judiciary. It is impossible for judges to hold the government to the terms of a written Constitution if they do not judge. Under the rational-basis test, judges must uphold a law unless the plaintiff can perform a logically impossible feat: refuting an infinite set of negatives. This standard of review has no basis in constitutional text or the political philosophy that informs it — no surprise, given that it is the product of a Court, the Holmes Court, that largely signed on to the so-called Progressive agenda (as Ed rightly notes, this agenda was predicated upon the “abandonment of originalist principles”). As James Madison noted in Federalist 10, “No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.” When judges do not judge (or, rather, when they merely go through the motions of judicial review while depriving it of any substance, as they routinely do in rational-basis cases), the political branches are left to be judges in their own cause, and unconstitutionality follows.
The ugly consequences of reflexive deference can be seen in the infamous case of Buck v. Bell (1927). Carrie Buck, a teenager from Virginia, was committed to a state institution after becoming pregnant. The medical authorities sought to sterilize her on the grounds that she, together with her mother and her daughter, were “feebleminded.” Justice Holmes, writing for the Court, took the government’s factual assertions at face value and found that it was reasonable for the state, in the name of public welfare, to prevent the “manifestly unfit from continuing their kind.” He thus reasoned that, so long as “every step . . . was taken in scrupulous compliance with the statute,” the Constitution had nothing to say about the compulsory-sterilization law. He concluded: “Three generations of imbeciles are enough.” Of the approximately 36,000 Americans who had been forcibly sterilized by 1940, 30,000 of them were victims of the Court’s abdication in Buck v. Bell.
The same principle that allowed the government to sterilize Carrie Buck for no good reason is at work in every case in which judges abdicate their responsibility to ensure that Americans can peacefully pursue their happiness free of arbitrary government interference. It is at work in every case in which judges rubber-stamp patently protectionist regulations, sign off on the bulldozing of neighborhoods for economic development, or rationalize their way into deciding that something referred to as a “penalty” some 18 times in the text of a statute is, in fact, a tax. It is routine under the current practice of knee-jerk judicial deference epitomized by the nearly ubiquitous rational-basis test. It is nothing less than an abdication of the judiciary’s responsibility to act as a check on the political branches. And it is incapable of securing “the blessings of liberty.”
— Evan Bernick is the assistant director of the Center for Judicial Engagement at the Institute for Justice, the national law firm for liberty.