The Volokh Conspiracy

Last fall I wrote a series of posts explaining the Institute for Justice’s call for “judicial engagement” and the rejection of reflexive deference toward other branches of government. Eugene kindly invited me back for a follow-up in light of recent events that underscore the importance of judicial engagement.

The first, of course, is last week’s arguments over the healthcare law and the avalanche of commentary it spawned, culminating in the Fifth Circuit’s demand that DOJ provide a written statement of its position on judicial review in light of the president’s suggestion that it would be an “unprecedented” act of judicial will for the Supreme Court to strike down the Affordable Care Act.

Rather than focusing on the merits of the case, much of the commentary has suggested that courts have no legitimate role in reviewing the healthcare law at all. Thus, without so much as a nod to any of the substantive legal arguments, Maureen Dowd claimed the Supreme Court “has squandered even the semi-illusion that it is the unbiased, honest guardian of the Constitution. It is run by hacks dressed up in black robes.” Similarly, anticipating a defeat for the ACA, E.J. Dionne predicted “a court that gave us Bush v. Gore and Citizens United will prove conclusively that it sees no limits on its power, no need to defer to those elected to make our laws.”

Given the substantial doubts raised about the constitutionality of the healthcare law during last week’s arguments, the subtext of those scathing criticisms — which are by no means exceptional — must be that courts have no legitimate role subjecting congressional enactments to meaningful judicial review. Rubberstamp review of the kind applied in Wickard, Raich, Kelo, and post-New-Deal economic liberty cases, yes — but not meaningful review. That certainly appears to be the tenor Eric Holder’s letter to the Fifth Circuit, in which he repeatedly invokes the mantra of “deference” and suggests, without apparent irony, that the ACA was the product of a “deliberate judgment” by Congress concerning the scope of its constitutionally enumerated powers.

Of course, there’s nothing new about rhetorical attempts to discourage meaningful judicial review. Despite its current deployment by liberals in the context of the healthcare litigation, antipathy toward robust judicial review has been a centerpiece of conservative judicial philosophy for decades. Perhaps its most eloquent modern expositor is highly respected Fourth Circuit Judge J. Harvie Wilkinson III, whose recently published book, Cosmic Constitutional Theory, is a veritable paean to judicial deference bordering on abdication.

In his book, Judge Wilkinson critiques four leading constitutional theories, which he characterizes as Living Constitutionalism, Originalism, Political Process Theory, and Pragmatism. Concluding that none of those theories delivers on what he esteems the preeminent judicial value — restraint — Judge Wilkinson rejects each of them and disclaims any constitutional theory of his own. This is extraordinary: how could a judge with no theory of the Constitution possibly decide close cases like the ACA challenges? Simple: He doesn’t.

Instead of exercising judgment in close cases where the text of the Constitution does not clearly compel a specific result, Judge Wilkinson counsels restraint in the form of reflexive deference to other branches of government with no serious attempt to determine (or “theorize”) what limits the Constitution might impose unless it speaks with ineluctable clarity, which it rarely does.

That is not adjudication, it is abdication. It casts aside one of our most important institutional safeguards against tyranny — meaningful judicial review — and replaces it with a one-way ratchet towards ever-expanding government power: precisely what the Constitution was designed to prevent. Refusing to go down that road is not activism, it’s engagement.

Both Judge Wilkinson and President Obama overlook a simple insight at the very core of the Constitution: Power is dangerous, and it must be checked. The Framers of the Constitution understood that, and we must as well if America is to remain a free country in anything but name.

The key question posed by the Institute for Justice’s call for judicial engagement is not whether everyone can agree on a single theory of the Constitution, but whether we should insist that judges make a sincere effort to interpret and apply the Constitution in all cases.

It appears most people believe there are at least some unenumerated constitutional rights that courts should protect, including the right to travel, to marry outside one’s own race, to conceive and raise one’s own children, and perhaps to support oneself through work. In any given case, the government may be seeking to advance legitimate ends or illegitimate ends. A properly engaged judge makes a sincere effort to tell the difference in all constitutional cases.

For example, if you believe someone has an unenumerated constitutional right not to be forcibly sterilized at the whim of democratic majorities — as Carrie Buck was along with thousands of other women following the Supreme Court’s infamous decision in Buck v. Bell, 274 U.S. 200 (1927) — then it matters a great deal whether courts apply a sincere or an insincere standard of review. If the government claims, without evidence, that the sterilization is necessary to protect the life of the woman because she is non compos mentis and physically unable to endure a pregnancy, should a court accept that assertion at face value even in the face of evidence that the government’s true (and illegitimate) objective is eugenic, as it was in Buck v. Bell? That’s precisely what the rational basis test tells judges to do, and hopefully we can agree that the right not to be forcibly sterilized for improper purposes would be a cruel hoax if it were subject only to rational basis review.

The same is true of other constitutional rights, whether enumerated or unenumerated. The simple fact is that sometimes the government’s purposes are legitimate (protecting public health and safety) and sometimes they are not (eugenics, animus, economic protectionism, naked corruption). And though there will inevitably be close cases, judges are equipped to tell the difference; we know because they do so all the time in cases involving constitutional values the Supreme Court has deemed “fundamental.”

Those who wish to eliminate any basis for judges to protect unenumerated rights like the ones listed above have the alternative of amending the Constitution. Among other things, they would need to eliminate the Ninth and Fourteenth Amendments, and clarify that the Tenth Amendment and the doctrine of enumerated powers are not intended to limit the power of the federal government in any significant way, contrary to the plainly and repeatedly expressed understanding of the Framers. I doubt many people would support such an effort once they understood the effect it would have on liberty.

As discussed in my first two posts, the Institute for Justice coined the term “judicial engagement” out of our conviction that judges are not properly enforcing constitutional limits on government power. This is not merely a disagreement with particular interpretations or results, but rather a belief on our part that in many settings — including, for example, rational basis review — judges are not actually judging, but are instead going through the motions of judging in order to reach an essentially preordained outcome favoring the exercise of government power.

There are three main alternatives to judicial engagement, and I find all of them unworkable.

The first and most popular approach is to simply embrace the status quo, with courts providing conscientious, fact-based review of government action in some cases, and an ends-oriented, rubber-stamp simulacra of “review” in others. As noted in yesterday’s post, the Supreme Court has effectively deleted an array of power-limiting provisions from the Constitution — including the Privileges or Immunities Clause, the Contracts Clause, the public use provision of the Fifth Amendment, and any real semblance of enumerated federal powers. I do not believe those results represent defensible interpretations of the Constitution, and a jurisprudence that embraces them seems to me self-evidently defective.

The second proposal is to amend the Constitution, an idea that generated much enthusiasm among participants on the “Enumerated Powers, Tenth Amendment, and Limited Government” panel at last year’s National Lawyers Convention of the Federalist Society. The basic problem with this approach is that there appears to be no way to phrase a government-limiting constitutional amendment of general applicability with sufficient clarity to prevent proponents of judicial restraint from eventually substituting their own preference for majoritarianism, as I believe they have done in the areas listed in the preceding paragraph.

For example, after a spirited exchange with a retired state supreme court justice at an event earlier this year, I asked the justice whether he would enforce an amendment that specifically noted the concerns surrounding judicial enforcement of unenumerated rights and explicitly instructed the courts to enforce them anyway. He said he would not enforce such an amendment. It appears to me he is not alone in that conviction, and I see little reason to believe that judges who perceive no significant, judicially enforceable structural limits in our existing Constitution could be persuaded otherwise by any amendment.

The third and final proposal is the least practical, and that is to encourage members of the legislative and executive branches to pay greater heed to constitutional limits on their own power. There may have been a time when this was merely naïve, but developments in public-choice theory have pretty well destroyed any plausible case for political self-restraint. And you honestly can’t blame politicians for constantly pushing the boundaries of their power; indeed, that’s precisely what the Framers expected them to do. As commentators have repeatedly explained (including my colleague Steve Simpson), it is simply not realistic to expect political bodies to voluntarily obey constitutional limits on their own authority. The countervailing pressures and incentives are too pervasive and too strong. A persuasive argument can be made — indeed, has been made by Professor Todd Zywicki and others — that there are systemic failures in the political marketplace that cause it to produce more government than people want, regardless of their efforts to stop it through the political process.

America has more government today than the Constitution authorizes, and many of us consider that to be a matter of real concern. But the problem is not with any fundamental defect in the Constitution itself or with some deficiency in the Framers’ insights about government. The problem is that judicial abdication has transformed the Constitution from a charter of liberty into a nearly limitless font of government power. The only effective remedy for that is an engaged judiciary that recognizes its duty is to enforce constitutional limits on government power, not delete them.

NOTE: I will be debating judicial engagement versus judicial activism with Ed Whalen at the Georgetown Law Center today at noon. The event is open to the public, so please stop by if you’re in town and are interested in the topic.

As I noted yesterday, the Institute for Justice created the Center for Judicial Engagement in response to our belief that America has more government today than the Constitution authorizes and that courts are systematically failing to enforce constitutional limits on government power. A significant factor in that underenforcement may well be the drumbeat accusations of “judicial activism” emanating from the right and the left, often unconnected with any specific court ruling.

Broadly speaking, judges can make two types of errors in exercising judicial review: incorrectly forbidding that which the Constitution permits, and incorrectly approving that which the Constitution forbids. The debate over judicial engagement versus judicial restraint is largely about which direction courts should err in.

Those who favor restraint often accuse the courts of “judicial activism,” a nebulous epithet that packs a powerful rhetorical punch with very little content. For example, Arlen Specter famously claimed the Supreme Court “has been eating Congress’s lunch by invalidating legislation with judicial activism.” But he identified no specific cases and appears instead to have been making an essentially quantitative assertion: namely, that the Supreme Court inappropriately strikes down legislation with such frequency as to impair the legitimate policymaking efforts of Congress.

The Institute for Justice’s Center for Judicial Engagement sought to evaluate that claim by comparing the total number of laws and regulations enacted over the past several decades with the total number struck down by the Supreme Court. As documented in the “Government Unchecked” study about which Jonathan Adler posted here two weeks ago, the data do not support Senator Specter’s claim. To the contrary, the Supreme Court very rarely invalidates legislation or agency regulations: about 0.6 percent of all federal laws are struck down; 0.5 percent of federal regulations; and 0.05 percent of all state laws — altogether the Court invalidates about three out of every 5,000 laws passed by Congress and state legislatures every year.

As Professor Adler and others pointed out, it is difficult to objectively measure the Supreme Court’s activity in this fashion. But the point of the Government Unchecked report was not to establish an affirmative position regarding so-called “judicial activism”; rather, the point was to evaluate the assertion, advanced by Senator Specter and others, that the Supreme Court is systematically thwarting Congress’s legitimate policymaking efforts. The report found that in comparison to the vast quantity of laws passed, the Court is not “eating Congress’s lunch.” It is barely sweeping up the crumbs.

Being human and therefore imperfect, legislatures and administrative agencies are going to enact a certain amount of unconstitutional regulation. A properly functioning judiciary should therefore have a strike-down rate greater than zero. It seems reasonable to ask those who make generalized accusations of “judicial activism” to explain why they are so sure that, on balance, courts are striking down more enactments than are actually unconstitutional — or, if that is not their claim, then to say so explicitly and confine their accusations of “judicial activism” to specific cases, which very few of them do.

Consistent with these empirically unsubstantiated claims of widespread activism, there appears to be a growing consensus among constitutional elites on both the left and the right that the proper mindset for judges is one of default restraint, meaning strong reluctance to strike down government action absent a crystal-clear textual basis for doing so. Because constitutions do not — indeed, cannot — speak with perfect clarity on every important subject, that approach will inevitably create what amounts to a one-way ratchet in favor of more government power. I believe this constitutes judicial abdication.

Specific instances of judicial abdication abound, and I would include as particularly clear examples the Supreme Court’s interpretations of Congress’s Commerce-Clause power in Wickard and Raich; Home Building & Loan Ass’n v. Blaisdell, which reduced the Contracts Clause to a practical nullity; Kelo v. City of New London (argued by my colleague Scott Bullock), which did the same for the public use provision of the Fifth Amendment; and of course the Slaughter-House Cases, which essentially deleted the Privileges or Immunities Clause from the Fourteenth Amendment and held that the Amendment itself effected no meaningful change in the balance of power between the states and the federal government with respect to the enforcement of civil rights — a holding that, as several of my colleagues and I explain in this new Center for Judicial Engagement video, was self-evidently wrong at the time and continues to warp the Court’s Fourteenth Amendment jurisprudence to this day.

Thomas Jefferson warned that “the natural progress of things is for liberty to yield, and government to gain ground.” It was not a casual observation. But somewhere along the way, our courts seem to have stopped heeding it.

UPDATE: I meant to include this link to a podcast recorded by my colleague Steve Simpson and I in which we discuss the Government Unchecked study and respond to various criticisms.

First, I’d like to thank Eugene for the opportunity to guest-blog about judicial engagement this week.

The Institute for Justice coined the term “judicial engagement” (and created the Center for Judicial Engagement) out of our conviction that America has more government than the Constitution authorizes and that this is largely due to the failure of our courts to properly enforce constitutional limits on government power. In calling for judicial engagement, we are simply asking judges to actually judge the constitutionality of government action in all constitutional cases. What does that entail?

In cases involving favored constitutional values like free speech and avoiding suspect classifications, judges determine the government’s actual objectives and then evaluate the “fit” between those objectives and the means chosen to advance them. And, as Judge Sykes recently explained in analogizing the Second Amendment right to keep and bear arms to the First Amendment right of free expression in Ezell v. City of Chicago, “the government must supply actual, reliable evidence to justify” its restrictions. 2011 U.S. App. LEXIS 14108, *62 (7th Cir. July 6, 2011).

While reasonable minds may differ about whether it is possible to identify the government’s “true” ends or determine whether there is an appropriate “fit” between ends and means, the fact remains that courts routinely assume both inquiries are not only possible but essential in protecting key constitutional values. Judicial engagement simply proposes that there should not be a category of cases in which courts totally abandon those inquiries — and the underlying jurisprudential convictions they reflect — as they often do.

The most obvious example is rational basis review, where courts apply a strong presumption of constitutionality that may only be overcome by “negativing” every conceivable justification for the challenged law. The government’s true objectives are irrelevant in rational basis cases, and “legislative choice is not subject to courtroom fact-finding and may be based on rational speculation unsupported by evidence or empirical data.” FCC v. Beach Communications, Inc., 508 U.S. 307, 315 (1993).

Consider IJ’s ongoing challenge to Florida’s interior design licensing law. The state stipulated it has no evidence that the law benefits the public or that the unlicensed practice of interior design presents any bona fide public welfare concerns. The record makes clear that the only end plausibly advanced by the law is the suppression of competition at the behest of a rent-seeking interest group called the American Society of Interior Designers. If occupational freedom were considered a “fundamental” right, then the reviewing court would evaluate the government’s true objectives based on “actual, reliable evidence.” In rational basis cases, however, courts abandon that inquiry altogether and simply ask whether some conceivable justification may be hypothesized, no matter how clear the government’s actual — and in this case wholly illegitimate — objectives might be.

And it’s not just the rational basis test. Even when supposedly applying more robust standards of review, judges frequently accept implausible justifications and unsupported factual assertions from the government. Examples abound in post-Heller gun litigation. Federalism is another problem area. As suggested by the Eleventh Circuit’s admonition in striking down the Affordable Care Act’s individual mandate, when Congress approaches the outer limits of its power, “the Constitution requires judicial engagement, not judicial abdication.”

Judicial engagement is not a call for judges to strike down laws willy-nilly. Rather, it is a call for judges to recognize the importance of constitutionally limited government and to maintain a basic level of analytical consistency. Judges should refuse to ignore evidence, invent facts, or accept implausible justifications in some constitutional settings that they would flatly — and correctly — reject in others.