From Flickr User "Clearly Ambiguous"
For anyone interested in limiting the size and scope of government, we’ve seen firsthand that legislatures and members of the executive branch cannot be trusted to restrain their own power. That is why the role of the judiciary to act as a check on the other two branches of government is so important. But in the name of “deference” and “humility,” conservatives have severely undermined this vital constraint on government power with predictable results: Government grows at every level.
Some of the most spirited debates on “judicial engagement” have taken place recently online between my colleagues at the Institute for Justice and NRO’s Ed Whelan, a vigorous and thoughtful proponent of judicial restraint. And despite our stark disagreement about the proper role of courts in limiting government power, some key points of agreement have nevertheless emerged along the way.
First and foremost is our shared recognition that the text of the Constitution is paramount. Thus, while a libertarian or fiscally conservative judge might think it unwise to give Congress the power to collect income taxes, that is no warrant to repudiate the Sixteenth Amendment or subvert it through creative interpretation. Whelan has likewise criticized the Kelo decision for substituting the term “public purpose” for “public use” in the Fifth Amendment in order to facilitate the use of eminent domain for economic redevelopment.
Second, commitment to text means rejecting selective enforcement of constitutional provisions, whether they grant or limit government power. Among the most glaring counterexamples is the Supreme Court’s evisceration of the Fourteenth Amendment’s Privileges or Immunities Clause in the Slaughterhouse Cases. To his credit, Whelan does not reduce that provision to a mere “ink blot” but instead finds it “quite plausible . . . that the Privileges or Immunities Clause, properly construed, does protect some substantive economic rights.” The significance of that observation cannot be overstated, particularly in a world where “Lochner” has become a one-word indictment of any judge who supports meaningful review of economic regulations.
Third, Whelan appears to reject the idea that the inherent difficulty of articulating constitutional limits on Congress’s enumerated powers means courts should not even bother to try. If so, that would be another point on which Whelan and IJ favor a more engaged judiciary than do other leading conservative proponents of restraint like Professor Lino Graglia and Judge J. Harvie Wilkinson III.
Finally, despite his general opposition to judicial enforcement of rights not explicitly set forth in the text of the Constitution, Whelan appears to accept the legitimacy of at least some decisions recognizing unenumerated personal rights, including perhaps the right to marry outside one’s own race (Loving v. Virginia), the right to guide the upbringing of one’s children (Pierce v. Society of Sisters, Meyer v. Nebraska), and the right not to be forcibly sterilized for eugenic or punitive purposes (Skinner v. Oklahoma).
In a recent post, Whelan accuses my colleague Paul Sherman of being “eager to leap from the proposition that ‘unenumerated rights’ exist to the conclusion that judges have unconstrained authority to invent whatever rights advance his policy agenda.” Uncharacteristically, however, he offers no support for that assertion. The Constitution specifically refers to unenumerated rights in the Ninth Amendment, and in the Fourteenth Amendment forbids states from abridging the “privileges or immunities”—another textual reference to unenumerated rights—of citizens of the United States. While those provisions certainly do not confer “unconstrained authority” on judges to “invent whatever rights” they wish, neither is it faithful to the text of the Constitution to simply ignore them.
As noted above, Whelan believes it is “quite plausible” that the Fourteenth Amendment protects some substantive economic rights; so do we. Whelan appears to believe it is appropriate for courts to enforce limits on Congress’s authority under the Tenth Amendment and the doctrine of enumerated powers; so do we. And it appears—although I’m less certain about this—that Whelan supports judicial enforcement of at least some unenumerated personal rights, such as raising one’s own children free from illegitimate government interference; again, so do we.
Determining what limits the Constitution imposes on government power is an extraordinarily important and challenging question, which is why our exchanges with Whelan have been so stimulating and enjoyable. And while we may ultimately disagree about the precise contours of those limits and whether the greater threat to America’s future is a government unduly constrained by “activist” judges or improperly empowered by “passivist” ones, it’s important to pause sometimes and recognize our shared commitment to constitutional government.
Clark Neily is an Institute for Justice senior attorney and director of IJ’s Center for Judicial Engagement. For more information, visit www.ij.org/CJE.
