The Constitution Is a Charter of Limited Government
Professor Brad Snyder of Georgetown University has a piece up at CNN exhorting the virtues of judicial restraint. While by no means unique in its message, his op-ed merits a response from us at the Center for Judicial Engagement because he makes many of the usual arguments in favor of judges not enforcing the Constitution but also touches on a central question: Why do we have a Constitution in the first place?
His answer to that question is to allow the government to legislate. While partially accurate, on the whole it’s wrong. We have our Constitution, the U.S. Constitution, to establish a federal government, but more importantly to limit both that government and the governments in the states. The U.S. Constitution is a charter of limited government, and judges abdicate their responsibility under the Constitution when they don’t treat it so.
Deference for “democracy”
Snyder contends that “liberals” (which I will here call “progressives,” as “liberals” can includes “classical liberals” like me) would do better championing the virtues of judicial restraint which were advocated by scholars and jurists like James Bradley Thayer, Oliver Wendell Holmes, and Felix Frankfurter. These men contended that a court should find a law unconstitutional only in the exceptional case where the Constitution was blindingly obvious. In all other cases the political branches should be allowed to do what they want.
Now, Snyder characterizes allowing the political branches to do what they want as “democracy.” This isn’t my main point here but it should be addressed too. As I explained in a recent article, “democracy” is a highly inaccurate way to describe most products of the legislature and the executive. “Democracy” is how we hire and fire our leaders. It is vitally important to a stable society and a bulwark against tyranny. But the laws that are actually made—and the actions executive branch officials take—are made by elected officials, not by “the people” themselves. There is very little of a “through line” between what the voters think and the specifics of legislation—say the number of hours a plumber needs to obtain a license or whether a zoning district allows for retail businesses or just service businesses. Often the vast majority of voters don’t think anything at all about these issues, remaining rationally ignorant of the legislative meat grinder. Thus, most of the time when a court declares a law or executive action unconstitutional it’s not thwarting “democracy.” It’s thwarting what elected representatives themselves, not at all necessarily their constituents, wanted to do.
But let’s leave that point aside for today. Invoking Chief Justice John Marshall, Snyder argues that the Constitution is a broad document with very general language that gives the federal government and the states wide powers to legislate. Essentially, he implies that the reason we have a Constitution is to set up a government that then leaves the ins-and-outs of what it can do to the political process. Because there are a lot of good things the political process can do (from a progressive’s point of view), overall if judges defer to the political branches on what is constitutional, in the long run progressives will get more of what they want.
A limited government constitution
Given all the terrible laws out there that progressives don’t like, I tend to think that’s a fool’s bargain. From where I’m standing as a limited-government libertarian, though, that’s not my job to calculate. However, what I will weigh in on is how Snyder characterizes the Constitution. It could be that a Constitution simply sets a government up—two houses of Congress, how a bill becomes a law, and a few other procedural details—and lets that government do pretty much whatever it wants. But that’s not our Constitution. The fact is the U.S. Constitution makes a lot of things unconstitutional. Congress can only legislate in certain areas, for example. And laws that are “necessary and proper” for those areas. Bankruptcy is one of them. Having an army and navy is another. Further, there’s the Contracts Clause (a favorite of John Marshall’s), which limits how the states can regulate commercial transactions. And then there’s the Bill of Rights and broad protections on all kinds of liberties. And don’t get me started on the Reconstruction Amendments. The Fourteenth Amendment at one point says “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” That doesn’t sound like just setting up a government which can then do what it likes.
Tying ourselves to the mast
A judge that, in effect, looks the other way when the political branches act contrary to the Constitution is not taking this language seriously. She may be allowing “democracy” to work, if that means letting elected representatives do what they want. But that’s not what the Constitution is supposed to allow. The Constitution—the actual U.S. Constitution, not a theoretical “let the government do what it wants” constitution—is an act of tying us all to the mast because we know in the future we’ll be tempted to legislate on all kinds of things but we want to prevent our future selves from doing so. Thus, we have phrases like “Congress shall pass no law” and “No state shall make or enforce any law” preventing that from happening. Are they a guarantee? No. We hope elected representatives will take them seriously. But being conflicted, they usually don’t. That’s where judges come in. But if judges just defer to these conflicted politicians they whole point of the Constitution is lost.
Further, the Constitution Snyder envisions—broadly allowing elected representatives to do what they think is best—doesn’t really even need a “Constitution,” at least a written one. The United Kingdom’s “constitution” is an assemblage of unwritten tradition and statutes that can be changed with a majority vote in Parliament. Other countries have muddled along without basic written documents. Yet we don’t have that. And not only do we have a written, supreme, law of the land, but it has all these broad prohibitions on what the government can do.
That’s because our Constitution is a charter of limited government. And judicial deference to the political branches where all but the most extreme legislation is allowed—while tempting to those angry at what a few judges have done recently—is not in keeping with that charter. In fact, that kind of judicial deference is an abdication of it.
Anthony Sanders is the Director of the Center for Judicial Engagement at the Institute for Justice.