In a recent article at Reason Magazine, Damon W. Root chronicles the debate between "majoritarian conservatives" and "libertarians" over the proper nature and role of the judiciary in a civil society.While I would tend to side with the libertarians in the debate as it's framed, I think some important clarifications to Root's article are necessary in order to better understand the judiciary's role.
Perhaps the framework in this article is not Root's, but simply his description of the debate as it has been framed over the decades. I'll admit that I am not a scholar of jurisprudence, so I wouldn't know. In any case, it seems to me that the framework is flawed, or at best, unclear.
The flaw lies in the definition of judicial activism. On the one side, Root has the conservatives opposing what they consider "judicial activism" which they define as a court which is very active in overturning previous rulings and laws passed by our country's elected representatives, a view that Root argues is inherently "pro-government."
One of the conservatives' exemplars is Robert Bork:
'As Bork sees it, the “first principle” of the American system isn’t the protection of individual rights. “In wide areas of life,” he writes in The Tempting of America, “majorities are entitled to rule, if they wish, simply because they are majorities.” That means that in the vast majority of cases, the courts should give lawmakers the benefit of the doubt and presume the constitutionality of the disputed law, including economic regulations. In other words, courts should adopt a pro-government posture of judicial deference.'
Naturally, the conservatives' antagonists are libertarians who believe that a court should be quite active in overturning precedents and laws that violate liberty. But I'm concerned about applying the label "judicial activism" to this view of the courts. Judicial activism smacks of a willingness to "legislate from the bench," -that is, to make law in our courts. If the libertarians believe this is okay, they're wrong. If they don't, then they need to be more clear in their use of the term "judicial activism."
The question is not and should not be one of "how active" our courts are, defined as the number of precedents and laws they overturn. What is wrong with an "activist" court that overturns several bad precedents, or right about a "non-activist" court that stands on the poor decisions of previous courts?
The question also cannot be one of how active courts are in defending liberty unqualified by the constraints of our Constitution and constitutional laws. "Bad precedents" must mean "unconstitutional," not "unlibertarian" precedents. The courts are not and should not simply be champions of liberty. It is not their place to hand down the law from on high, but to interpret it, regardless of how the courts may enlarge liberty by their usurpation of the law.
It is my hope that the libertarians in this debate do not seriously propose that courts are bound to make decisions that they believe protect liberty, outside the constraints of the Constitution. If libertarians believe they will achieve their goals by handing the judiciary the unchecked power to make law instead of interpret it, the only necessary remedy is a cursory look at the jurisprudence of the last century.
Any power that can be used for you, can be used against you. Perhaps the executive should be "activist" in this sense, and consider liberty- not law- its highest imperative? Put any branch above the law, and you will do immeasurable injury to liberty. What if a judge ignores the law in order to advance what the judge sees as someone's "right" to health care?
I can't be sure from Root's article, whether this is actually the position of the libertarians, but if it is, then they are mistaken, and if it is not, then they or Root should be more clear. I contend that the most clear explication of the most correct understanding of the proper nature and role of the judiciary is: that the role of the judiciary is to interpret written laws, not to make them.
If they interpret the law and find that previous rulings contradict it, then they should overturn them. If they find that a less fundamental law (e.g. one passed by Congress) contradicts a more fundamental one (e.g. a provision of the Constitution), then they should overturn it.
But courts should not philosophize and decide which laws, precedents, and Constitutional provisions injure or enlarge liberty, and make their decisions accordingly- hence the qualification "written" in the explication above.
It is not for the judiciary to appeal to some "higher" law than those duly-enacted, written laws of our republic, but for the people and their representatives, by the process of Constitutional amendment (or occasionally, by secession or revolution).
Again, if I have mischaracterized the libertarians' position or Root's understanding of it, then I am relieved. But I should not have felt compelled as I did to write this article and clarify the point. It should have been clearer in the libertarians' arguments over the decades, or else in the Reason article to begin with.
W. E. Messamore, Editor in Chief
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