There is a “Crisis” in the Courts, Just Not the One Advertised

Anthony Sanders · October 6, 2020

The Constitution has never been a friend to big government. Read through its pages and you’ll find all kinds of rules designed to prevent all kinds of laws. The federal government is limited to certain enumerated powers, both houses of Congress must agree before a bill becomes a law, officers must receive Senate confirmation, no retroactive laws, and on and on. And that’s not even getting to the amendments. You know the list: freedom of speech, freedom of religion, no unreasonable searches, jury trials, etc. Plus, the Constitution places some pretty broad restrictions on states and local governments too. They can’t impair contracts, must respect due process, have to guarantee equal protection, with another etcetera.

In short, although the Constitution did create a government—the federal government—it spends most of its time restricting what that government can do. And it even restricts what the states can do too.

Yet, that understanding seems completely forgotten when people complain about the Supreme Court. From both the left and the right we hear more every day that the Court has too much power and something must be done. Democracy is in a crisis and we need to limit judges before they become our masters.

Please. The “crisis” isn’t the power of judges. The crisis is the power of government. At all levels.

The limited government the Constitution is supposed to guarantee has been busted beyond belief. Judges do only the smallest amount of work trying to limit politicians to their constitutional powers. Every year Congress, state legislatures, and local governments pass thousands upon thousands of new laws. In addition, federal and state regulatory agencies adopt countless new regulations. And, every year the Supreme Court finds a tiny handful of these unconstitutional. Even if you include lower federal and state courts, they declare a minuscule fraction of new laws to violate the U.S. or state constitutions.

You would expect merely through the inarticulate drafting that often happens in legislative bodies—or the crafty and ubiquitous behind-the-scenes work of greedy special-interests—that a fair amount of laws would be unconstitutional. Call it an error rate, or a graft rate, if you will. What the courts actually do is even less than that. And, what actually happens in legislatures is much more than any innocent “error,” but instead a deliberate flouting of constitutional mandates.

What the courts are engaged in is judicial abdication, abdicating their duty to enforce the Constitution and its guarantees of limited government. Those who defend this abdication—by instead calling it “judicial restraint”—often argue that when Congress or a state legislature passes a law it’s an example of “republican self-government,” where “the people” are interpreting the Constitution themselves, and courts must respect that act. What they ignore, however is how that flies in the face of actual experience.

First, when a legislative body passes a law it hardly represents the “will of the people.” Those in the body are the people’s representatives, to be sure. But the process of logrolling, lobbying, and largess that constitutes law making has little, and often nothing, to do with any collective “will” of their constituents. And this gets truer the more granular you look at a law. For example, is the exact number of hours you need to train to become a makeup artist (750 hours in some states, much less in others) “the will of the people”? Or simply a compromise hammered out by special interests that most people have absolutely no idea about?

Second, even if we assume that a law does represent the “will of the people,” the primary reason we have a constitution is to protect individuals from “the people.” That, of course, is what the Bill of Rights is all about: protecting individual rights even when the majority wants to take those rights away. Why should courts defer to the wishes of legislatures when those legislatures are trying to do something the Constitution is designed to protect?

This isn’t true in many other countries. For example, in Britain the legislature—Parliament—is supreme. Anything it passes is the law of the land. In the United States, of course, we very deliberately decided to go a different way, with a written Constitution that no transient parliamentary majority could overcome, a guarantee of a limited government, and a judicial branch that could serve as a firewall to enforce those limits.

Remember that firewall as you hear the anguish over the “crisis” of the courts. We would be in much less of a real crisis if the courts spent more time engaging with the Constitution and enforcing its promise of limited government.

Anthony Sanders is the Director of IJ’s Center for Judicial Engagement.