Judges Must Enforce Limits on Special Interest Lawmaking

October 2002

Judges Must Enforce Limits on Special Interest Lawmaking

By Clark Neily

Depending on whose ox is being gored, both liberals and conservatives have been known to decry judicial activism, claiming that a court has overstepped its bounds and invaded the province of the legislature or the executive branch. Presumably the opposite of judicial activism—and thus a virtue to be cultivated—is judicial restraint. But should it really be the goal of judges to interfere as little as possible with the other branches of government? Certainly not when the exercise of power by those branches is illegitimate, such as when they seek to use power they do not have or when they violate constitutionally protected rights.

Unfortunately, courts have abandoned several constitutional provisions that were specifically designed to prevent such abuses, and the resulting void has been stuffed chockablock with liberty-suffocating laws and regulations. Thus, a strong case can be made that, properly understood, there has been too much judicial restraint in the past, not too little.

For instance, many conservatives believe the U.S. Constitution only protects specifically enumerated rights. But it is difficult to reconcile that position with the text of the Ninth Amendment, which provides that “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” Together, the Ninth and 10th Amendments were specifically designed to counter the pernicious notion that any powers not explicitly forbidden to the government were permitted. In effect, the Ninth Amendment tells future generations: “The Constitution does not contain a comprehensive list of rights—there are others, but we didn’t try to identify all of them.”

Granted, figuring out what rights we have besides those that are spelled out in the Constitution is a difficult undertaking—but so is, for example, understanding the tax code. And just as a largely inscrutable morass of rules and regulations doesn’t let taxpayers off the hook, neither may judges refuse to enforce the Ninth Amendment simply because they find it difficult to interpret.

“Unfortunately, courts have abandoned several constitutional provisions that were specifically designed to prevent such abuses, and the resulting void has been stuffed chockablock with liberty-suffocating laws and regulations.”

For those who are skeptical about an increased role for the courts, consider something close to home—like your job. Did you know the Supreme Court has so completely turned its back on economic liberty that Congress could, by legislative fiat, simply outlaw your profession if it chose to? Suppose a giant pharmaceutical company decided it could make more money if there were no surgeons to correct conditions that might otherwise be treatable only with medications. The company’s lobbying campaign bears fruit, and Congress imposes a $10 million annual “occupation tax,” effectively putting surgeons out of business.

Applying its “rational basis” standard, the Supreme Court could well uphold such a law because it arguably advances “legitimate government purposes” (eliminating surgical malpractice, encouraging doctors to focus on primary care, etc.) and it does not discriminate against any “discrete and insular minorities.” Of course, the law would have disastrous effects on the health of many Americans, but according to the Supreme Court, the “wisdom” of a particular law is none of its concern—likewise, the fact that it was clearly the result of a naked political payoff.

The Supreme Court has shown a similar lack of regard for private property rights. Thus, state and local governments routinely take property belonging to one private party (your home, for example) and transfer it to another private party (a commercial developer, let’s say), often in the name of economic redevelopment. The fact that such private-to-private transfers clearly violate the “public use” requirement of the Fifth Amendment has not troubled the Court, which considers property, like earning a living, to be a “nonfundamental” right.

By contrast, other constitutional rights—including both enumerated rights and unenumerated rights—are considered “fundamental rights,” and any law that interferes with them must be narrowly tailored to advance a compelling government interest.

It is both disturbing and ironic that the Supreme Court would choose to abandon economic and property rights when it is precisely our forefathers’ commitment to those principles that made this country the most prosperous in the world. And the Court’s apparent belief that economic liberties require the least protection from the political process has it exactly backwards: In reality, economic rights are often the most vulnerable to illegitimate government interference because there are such strong incentives for private parties to manipulate the political process in order to produce outcomes they would be unable to achieve in the open market—or that they can achieve at less expense by manipulating politicians.

“Judicial restraint” should never mean turning a blind eye to flagrant abuses of power. Nor should it mean reading out of the Constitution provisions that were deliberately put there by the Framers in order to limit the power of government. To the extent the courts have encouraged misuses of power by shying away from their responsibility to zealously protect all constitutional rights—not just those that have been arbitrarily deemed “fundamental”—judges should worry less about restraining themselves and more about restraining overzealous politicians for whom the idea of constitutionally limited power has become nothing more than the quaint relic of a bygone era.

Clark Neily in an IJ senior attorney.