I’d like to highlight a case that you’ve almost certainly never heard of, even if you’re interested in the Constitution, judicial engagement, economic liberty, and other things we talk about at the Center for Judicial Engagement. In spite of you not having heard of it, it ranks up there as one of the worse economic liberty cases of all time. And that’s because it’s so in favor of judicial abdication (the opposite of judicial engagement) that it essentially states that the Constitution doesn’t matter.
Often I hear a version of the following argument:
The Constitution should be enforced. But only when the language of the Constitution explicitly contains a barrier to what the government can do. Such as “Congress shall make no law . . . abridging the freedom of speech.” The courts should enforce that. But not when it comes to “unenumerated rights.” I don’t think provisions like the Due Process Clause are specific enough to allow judges to enforce any rights.
You’ve probably heard a version of this. Enumerated rights good, unenumerated rights bad. Today I won’t address whether the U.S. Constitution or state constitutions actually do protect unenumerated rights (they do! a lot!), and you can read what I’ve written on that elsewhere. But I wanted to talk about a case where the court really didn’t care about rights however you enumerate, or don’t enumerate, them.
In the mid-1950s in Las Vegas, New Mexico (so, no, not the one with casinos) a number of trash haulers serviced garbage pickup for the city’s residents. But the city council decided it wanted to centralize all the hauling in the hands of one monopoly company. The monopoly’s competitors were understandably irate, and sued, asking that the new policy and its underlying ordinance be found unconstitutional under a slew of provisions in the New Mexico and United States constitutions. In Gomez v. City of Las Vegas, 293 P.2d 984 (N.M. 1956), the case came before the state supreme court.
Without inquiring at all into the motivation of the city or whether garbage was actually being hauled any more efficiently, whether the customers’ rates went up, or if any other problem was being addressed, the court simply cited to similar cases in other states and concluded that the policy was a “reasonable exercise of the police power.” Now, that’s judicial abdication. But that’s the kind that’s unfortunately pretty normal, such as in the famous U.S. Supreme Court case decided the year before, Williamson v. Lee Optical. What sets this case apart is what the court did after that.
The court addressed the challengers’ claims under New Mexico’s Privileges or Immunities Clause, which, as the court recognized, guarantees “against the granting of exclusive privileges to any person or corporation.” But then it said with a straight face “but this does not deny to the state or municipal subdivisions the power to grant to an individual the exclusive privilege to collect and dispose of garbage as a sanitary measure.” Thus, it’s not that the Constitution is kind of hazy so the court is going to allow a “reasonable” law to be enforced. It’s that the exact words of the Constitution don’t mean what they obviously say.
And from there the opinion gets worse. In rejecting an equal protection argument the court really lets the mask drop, so to speak, and tells us it doesn’t matter what the Constitution says anyway:
Salus populi est suprema lex represents the highest power possessed by the State. When properly invoked all other guaranties, public or private, must yield. It is the voice of the sovereign speaking for the safety and welfare of the whole people.
That Latin phrase from Cicero essentially translates to “the good/welfare of the people should be the supreme law.” So if the Constitution says one thing, but the good of the people requires something else, the Constitution must yield.
Wow! That’s not just judicial abdication, but constitutional obliteration. It doesn’t matter what the Constitution says—enumerated rights or unenumerated rights, what’s in the Constitution isn’t the supreme law, it’s whatever the government thinks is best for “the good of the people.”
Thankfully this view hasn’t taken hold in New Mexico or elsewhere. Gomez has only been cited in a handful of cases, and the New Mexico courts have even found laws to violate the state’s economic liberty protections at times in years since. Yet, it’s a warning of what could happen if courts didn’t just start deferring to the government over the meaning of the Constitution, but saying it doesn’t matter at all. Perhaps one might even call this “common-good constitutionalism?”
Anthony Sanders is the Director of the Center for Judicial Engagement at the Institute for Justice.