The growing dispute between conservatives and liberals over the Supreme Court nomination of Sonia Sotomayor obscures a more troubling point of agreement: The government should almost always win.
Many conservatives who think of themselves as proponents of limited government would be surprised to discover that conservative judges begin their constitutional analyses in almost every context by placing a thumb firmly on the government side of the scale. It’s called “judicial deference.” Many liberals, who take pride in being “empathetic,” would be surprised to learn that liberal judges also subscribe to judicial deference.
The practical result is that judges of both persuasions almost never enforce any constitutional limit on the power of government to regulate property and the economy. Given that the vast majority of law concerns these two areas, the real crisis in constitutional law is not judicial “activism” but judicial passivism.
It all began in the late 1930s, when the Supreme Court opened the floodgates for New Deal economic regulation. In essence, conservatives have adopted the big-government agenda of that era. The liberal-conservative consensus explains why nomination fights focus on a few “culture war” issues such as gay marriage or guns. Liberals and conservatives squabble over these esoteric questions because there is such harmonious accord on everything else.
The time-honored justification for judicial deference is that when courts refuse to enforce property rights and allow economic liberties to be trampled by legislatures they are showing respect for the democratic process. But this notion is not faithful to the duty of the judiciary. The Constitution’s framers understood that legislatures are as much nests of vice as of virtue. That is why they went to such lengths to define the limits of government, set forth our rights broadly, and create an independent, co-equal branch of government to protect those rights.
The absence of meaningful constitutional limits on the power of government over property and the economy has had consequences that should cause both liberals and conservatives to rethink the wisdom of sweeping judicial deference. For example, last fall Congress enacted the Troubled Asset Relief Program, putting hundreds of billions of dollars at the personal discretion of the secretary of the Treasury. This grant of authority—which violates the basic constitutional duty of Congress to control the purse laid out in Article I, Section 8—transformed the secretary into the most powerful unelected official in American history. Such power, once acquired, is rarely relinquished.
None of this would have been thinkable, much less possible, without the longstanding refusal of the Supreme Court to enforce clear constitutional boundaries on the elected branches.
In another example, America has become a patchwork quilt of laws serving special interests because courts refuse to protect economic liberty. In 1950, only one in 20 trades required a license. Now it is more than one in four (according to recent research of Morris Kleiner published by the National Bureau of Economic Research), and the clamor by industry groups for more licensing grows unabated.
Special interests love licensing because it restricts competition and thus drives up the prices they can charge. None of this would be possible if judges simply struck down licensing laws as an insult to the constitutional right to earn an honest living secured by the due process clause of the Fifth Amendment and the “privileges or immunities” clause of the 14th Amendment.
Bad government is usually the result of runaway government. And runaway government is usually the result of government exceeding its constitutional prerogatives. Because they have a far stronger stake in the integrity of checks and balances on government power than in the culture war, conservatives and liberals should declare a truce over “activism” and reflect on the need to take the whole Constitution seriously.
Judges should be neither active nor passive, neither aggressive nor deferential. In a word, they should be engaged—engaged in protecting constitutional rights to property and economic liberty, because these areas of the law have the most impact on our daily lives.
Mr. Rowes is an attorney at the Institute for Justice in Arlington, Va.