Taking the Constitution away from the courts—and giving it back to the people—has become a rallying cry. But those who criticize the courts on this ground misunderstand the proper role of the judiciary. The courts should stand in the way of democratic majorities, in order to keep majority rule from degenerating into majority tyranny. In doing so, the courts are bound to err on one side or the other from time to time. It is much better for the health of our constitutional democracy if they err on the side of activism, striking down too many laws rather than too few.
In this forthcoming essay defending judicial activism, I begin by defining two slippery and often misused concepts, judicial review and judicial activism, and briefly survey the recent attacks on judicial activism. I then turn to supporting my claim that we need more judicial activism, resting my argument on three grounds.
First, constitutional theory suggests a need for judicial oversight of the popular branches. Second, our own constitutional history confirms that the founding generation—the drafters of our Constitution—saw a need for a strong bulwark against majority tyranny. Finally, an examination of constitutional practice shows that too little activism produces worse consequences than does too much.
If we cannot assure that the judges tread the perfect middle ground and we cannot , it is better to have an overly aggressive judiciary than an overly restrained one. Judicial review is not judicial supremacy. Judicial review allows courts an equal say with the other branches, not the supreme word. Courts are the final arbiter of the Constitution only to the extent that they hold a law unconstitutional, and even then only because they act last in time, not because their will is supreme.
To avoid becoming mired in political squabbles, we need a definition of judicial activism with no political valence. Judicial activism occurs any time the judiciary strikes down an action of the popular branches, whether state or federal, legislative or executive.
Judicial review, in other words, produces one of two possible results: If the court invalidates the government action it is reviewing, then it is being activist; if it upholds the action, it is not. Under that definition, and because the Court is not perfect, the question becomes whether we prefer a Supreme Court that strikes down too many laws or one that strikes down too few.
Many contemporary constitutional scholars favor a deferential Court that invalidates too few. I suggest that we are better off with an activist Court that strikes down too many. As many scholars have previously argued, judicial review is a safeguard against the tyranny of the majority, ensuring that our Constitution protects liberty as well as democracy. And, indeed, the founding generation expected judicial review to operate as just such a protection against democratic majorities.
A Court that is too deferential cannot fulfill that role. More significant, however, is the historical record of judicial review. Although it is difficult to find consensus about much of what the Supreme Court does, there are some cases that are universally condemned.
It turns out that virtually all of them are cases in which an overly deferential Court failed to invalidate a governmental action. When the Court fails to act—instead deferring to the elected branches—it abdicates its role as guardian of enduring principles against the temporary passions and prejudices of popular majorities. It is thus no surprise that with historical hindsight we sometimes come to regret those passions and prejudices and fault the Court for its passivity.
Ideally, of course, the Court should be like Baby Bear: It should get everything just right, engaging in activism when, and only when, We the People act in ways that we will later consider shameful or regrettable.
But that perfection is impossible, and so we must choose between a Court that views its role narrowly and a Court that views its role broadly, between a more deferential Court and a more activist Court. Both kinds of Court will sometimes be controversial, and both will make mistakes. But history teaches us that the cases in which a deferential Court fails to invalidate governmental acts are worse.
Only a Court inclined toward activism will vigilantly avoid such cases, and hence we need more judicial activism. In effect, where does the outer boundary of government authority lie? A classic example is Kelo v. The Court must decide whether the government can take property from one owner in order to give it to another private party solely because that new owner may be able to pay higher taxes.
In upholding the taking of 15 properties owned by seven families to make way for private office space and other unspecified projects begging the question of how a taking can be declared for a public use when no specific use has been declared , the Connecticut Supreme Court deferred to the New London City Council.
The state of economic liberty jurisprudence is even more dire, as demonstrated by a recent 10th U. Oklahoma law requires anyone selling a casket to become a government-licensed funeral director—no small task considering, in addition to years of study, it requires an applicant to embalm 25 bodies; all this despite the fact that casket retailers never handle dead bodies nor perform funerals—they merely sell what amounts to a box.
As long as the Court shows such extraordinary deference to legislatures and maintains a two-tier approach to constitutional rights, the ratchet operates in one direction—to increase government power. When government growth is proceeding exponentially, setting reasonable outer boundaries might be a good place to start. The problem, however, is that for economic liberty and property rights, the boundaries are set at such an outer extreme that, for all practical purposes, courts cede virtually unchecked authority to government.
Bureaucrats become adroit at maximizing their power just short of the boundary. The result is a flourishing regulatory regime that too often leaves abused property owners and entrepreneurs without recourse. If economic liberty and property rights are to be restored to their rightful place in the constitutional constellation, the courts must go beyond merely setting these outer limits; they must truly revive constitutional protections.
Judicial activism and abdication have read these rights out of the Constitution; it is essential that consistent and principled judicial engagement rehabilitate them. With constitutional constraints in place, deference to legislatures makes sense. Liberals, conservatives and others can compete to establish policies through the deliberations of elected representatives. Wishes of the majority can prevail while the rights of the minority are respected. And entrepreneurs and small property owners, secure in their rights, can once again focus their energies on productive activities instead of trying to fend off arbitrary laws and regulations.
This article appeared in American Lawyer magazine. Privacy Policy Last modified: January 1, Share Facebook Twitter I read this on the Institute for Justice's website and thought you might be interested.
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