In January, Senator Rand Paul (R., Ky.) caused a minor stir on the right by speaking in favor of “judicial activism.” When legislatures do “bad things,” he suggested, an “activist court” should overturn them. “Maybe,” he mused, courts should begin not from a presumption of constitutionality but from a “presumption of liberty” when considering constitutional challenges to democratically enacted laws.
These remarks challenged the commonplace view that liberals are the proponents of judicial activism, egging courts on to invalidate the will of the majority in order to defend the rights of individuals, while conservatives are defenders of judicial restraint or judicial deference, upholding the authority of the majority to rule where it does not violate any clear constitutional provision. Key to the conservative position is the presumption of constitutionality, the idea that, out of deference to the majority’s right of self-government in our democracy, the courts should place the burden of proof on those who challenge laws enacted by popularly elected legislatures.
Senator Paul’s comments illustrate a third alternative now pressing for recognition; call it “libertarian constitutionalism.” Unlike judicial conservatism, this approach does not emphasize the presumption of constitutionality and admonish courts to show deference to the will of the majority. It calls instead for judicial activism in defense of individual rights, but it distinguishes itself from judicial liberalism by emphasizing not only personal rights — such as sexual liberty — but also economic rights.
Reason magazine senior editor Damon Root’s new book, Overruled, provides an informative and readable description, history, and defense of this libertarian constitutionalism. Root links this approach to the 19th-century champion of liberty of contract, Supreme Court justice Stephen Field. He also introduces the important figures in the modern libertarian legal movement and recounts their role in recent high-profile cases. In Root’s telling, libertarian constitutionalism is here to stay and, he hopes, is on the rise.
The core of Root’s argument is his critique of conservative judicial deference and his advocacy of rights-based judicial activism. According to Root, contemporary judicial conservatism is, embarrassingly enough, grounded in the progressivism of a century ago. The godfather of judicial restraint is Oliver Wendell Holmes Jr., who defended progressive-style interventions in the economy on the grounds that judges generally have an obligation to give effect to the will of the majority. On this account, the modern heroes of judicial conservatism — men such as Robert Bork and Antonin Scalia — are, paradoxically, following in the footsteps of the arch-progressive Holmes.
Faced with this critique and the proffered alternative, conservatives must decide whether to buy what the libertarian legal movement is selling. They should decline, for at least two reasons.
In the first place, judicial restraint is far older and more venerable than Root suggests. In tracing it to Holmes, Root ignores more than a century of American constitutional development. Holmes possessed a storied gift for the striking expression, but even he could not conjure the idea of judicial restraint out of thin air and impose it on his enchanted colleagues. He could appeal to this principle only because it was already deeply rooted in the traditional American understanding of the judicial power.
If Root had looked seriously at this earlier tradition, he would have found that John Marshall — the most consequential chief justice in the nation’s history — was a proponent of judicial restraint. In Fletcher v. Peck (1810), Marshall held that judges should “seldom if ever” declare a law unconstitutional “in a doubtful case.” In other words, when there are plausible arguments on both sides, courts should defer to the determinations of the lawmakers and uphold the law. Marshall’s formulation certainly does not lend support to judicial activism of any kind, or to the idea that the constitutional judgments of courts should be informed by a “presumption of liberty” instead of the traditional presumption of constitutionality. Marshall, moreover, was speaking not only for himself but also for the Court’s majority. This fact — and the fact that no one took issue with his admonition — suggests that his remark gives expression to the legal common sense of the founding generation.
In the second place, libertarian constitutionalism distorts not only the traditional understanding of the proper exercise of the judicial power, but also the Constitution itself. This problem appears in Root’s summary of the clash on the right over Lawrence v. Texas (2003), in which the Supreme Court invalidated a Texas law forbidding homosexual conduct. Says Root: “It was the libertarian-conservative debate in a nutshell. Does the majority have the right to rule in wide areas of life simply because it is the majority? Or does individual liberty come first, a fact that requires the government to provide the courts with a legitimate health or safety rationale in support of every contested regulation?”
According to Root’s libertarian alternative, the Constitution forbids morals legislation. This view, as Justice Scalia pointed out in his Lawrence dissent, would void state laws that are as old as, or rather older than, the country itself. It would treat prostitution and polygamy as constitutionally protected activities, since the laws prohibiting them rest not primarily on health or safety concerns but on the moral judgment of the majority.
Libertarian constitutionalism, then, does not really keep faith with the Constitution as the Founders understood it. No one can pretend with a straight face that those who framed and ratified the original Constitution and the Fourteenth Amendment — the generations of 1787 and 1868 — intended to strip the majority of its authority to legislate with a view to moral ends, or to require all laws to meet a utilitarian test of their contribution to public health and safety.
Conservatism in general is an effort to preserve an inheritance. In the American context this must mean an effort to preserve intact the basic principles of the American founding. Libertarian constitutionalism, however, departs radically from those principles both in how it understands the role of judges and in how it understands the Constitution. The libertarian Constitution is not the American Constitution, and the allegiance of American conservatives must be to the latter and not the former.
– Mr. Holloway is a visiting fellow in American political thought at the B. Kenneth Simon Center for Principles and Politics at the Heritage Foundation.