Mr. Watkins is a member of the staff of the Foundation for Economic Education.

Since the framing of the Constitution there has been a great debate surrounding the role of the federal judiciary. Jeffersonians from the agrarian South saw the federal courts as mechanisms for consolidation and thus dangerous to liberty, whereas the Northern commercial and manufacturing interests saw the courts as their partners in national economic integration.

Though Hamilton described the federal judiciary as the weakest of the national government’s three branches “with no influence over either the sword or purse, no direction of either the strength or the wealth of society . . . ,” history has told a different story. What was to be the protector of constitutional government has played the critical role in its demise.

Nevertheless many respected scholars have called for an expanded role for the federal judiciary in securing individual liberty.[1] Such proponents of “principled judicial activism” often use the Ninth Amendment (which declares that the people retain other rights than those enumerated in the Constitution), or the privileges and immunities and due process clauses of the 14th Amendment to support their positions. Rather than interpreting the text of the Constitution strictly, they rely on natural rights or similar doctrines for a broad interpretation. For example, Stephen Macedo writes, “The Constitution is better read in terms of the aspirations set out in the preamble. . . .” than in terms of original intentions.[2]

The design of such an approach is the protection of individual liberty against the tyranny of local majorities that regulate “almost every aspect of personal behavior.”[3] But rather than furthering the cause of liberty, an expansion of the judiciary’s role inevitably leads to greater governmental consolidation, which has been liberty’s greatest enemy.

An example of the consolidationist leanings of those who profess to be friends of liberty can be found by examining their critique of a landmark Supreme Court decision. In Lochner v. New York the Court struck down New York’s regulation of the number of hours bakery employees were permitted to work. The Court declared: “The general right to make a contract in relation to his business is part of the liberty of the individual protected by the 14th Amendment.”[4]

Rather than simply examining the classes of governmental power in question, the Court examined the consequences of the use of the police power (the power of the state to provide for the public’s health, safety, and morals) and found the regulation to have “no reasonable foundation.” Though the Constitution does not speak to liberty of contract, by using the 14th Amendment the Court was able to strike down what once would have been considered a normal exercise of a state’s police power.

In his dissent, Justice Oliver Wendell Holmes censured the majority for deciding the case “upon an economic theory which a large part of the country does not entertain.” Where there is no specific prohibition in the Constitution, Holmes asserted that the majority has the right to “embody their opinions in law.”[5]

The proponents of judicial activism in defense of individual liberty accuse Holmes of ignoring “a number of . . . substantive clauses . . . from the takings, to the contracts, to the privileges and immunities, to the due process of law clauses . . . which would have given additional weight to this substantive understanding”[6] that led the majority to strike down New York’s maximum hour regulation. “Substantive understanding,” of course, refers to substantive due process. Substantive due process is defined as “an irreducible sum of rights . . . vested in the individual with which government could not arbitrarily interfere.”[7]

At first blush, most friends of the private property order would agree that Lochner was correctly decided, applaud the Court’s substantive understanding of the Constitution, and chide Holmes for his dissent. However, rather than protect or expand individual liberty, Lochner and the reasoning behind it actually diminish liberty.

It must be remembered that the Framers created a limited national government that was only to defend the states against foreign invaders and internal convulsions, and regulate interstate and foreign commerce. If one thing was learned from British rule it was the dangers of centralized power. In the Declaration of Independence one of the central complaints of the colonists was that the King had abolished “our most valuable Laws” and had suspended “our own Legislatures.” The colonials placed such a high value on local self-government that they were willing to war against the mighty British Empire.

Though the 14th Amendment, which was ratified in 1868, did alter the federal system to a degree, it did not make the Constitution and the history behind the document a blank letter, as many of our modern judicial activists would allege. No doubt many radical Republicans did see the amendment as an embodiment of the vague intricacies of natural rights,[8] but many of their contemporaries saw things otherwise. For instance in the Slaughterhouse Cases (1873) the Supreme Court declared that the purpose of the Amendment was not “to destroy the main features of our general system. . . . [O]ur statesmen have still believed that the existence of the States with powers for domestic and local government . . . was essential to the perfect working of our complex form of government. . . .”[9]

In light of the historical context of the Union and the dangers of centralized power, Holmes, in upholding New York’s regulation, was actually acting as more of a friend to liberty than the other justices who struck down New York’s regulation. Holmes’ understanding of liberty was in line with a traditional American understanding—the right of a corporate body to make its own laws.

Certainly Holmes would agree that there are subjects on which a majority ought not be permitted to legislate. But those subjects are and should be made explicit in state and national constitutions. Were natural rights or mere constitutional aspirations to be the guides, then the meaning of the Constitution would rest on the fancy of the federal courts’ interpretations of the vague “penumbras and emanations” of the document.

In reality, what the proponents of judicial activism and substantive understanding support is a return to the days when the King exercised a negative over all of the legislation emanating from the colonial legislatures. They would replace George III with but another unelected official—a judge.

One of the greatest critics of such a role for the courts was the great jurist Learned Hand. Of such an activist judiciary Hand wrote: “For myself it would be most irksome to be ruled by a bevy of Platonic Guardians, even if I knew how to choose them, which I assuredly do not. If they were in charge I should miss the stimulus of living in a society where I have, at least theoretically, some part in the direction of public affairs.”[10]

A branch of the national government that acts as a Council of Revision for all state legislation goes against the grain of American tradition. Moreover, it is dangerous insofar as it consolidates power in Washington. “When all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the center of all power,” warned Jefferson, “it will . . . become as venal and oppressive as the government from which we are separated.” Liberty at the price of consolidation is not liberty at all, but rather centralized tyranny.

By calling for heightened activity of the federal judiciary in protecting individual rights, proponents of judicial activism promote the eradication of local self-government and thus the diminution of liberty. Under a substantive understanding of the Constitution rather than strict construction, no line can be drawn to stop the courts from acting as unrestrained national legislatures at the expense of the states and localities.

Though decisions such as Lochner are appealing, one must be cognizant of the fact that no matter what those who have good intentions say, any decision that consolidates power in the national government is an attack on the foundation of self-government and liberty. []

1.   See, for example, Stephen Macedo, The New Right v. The Constitution (Washington, D.C.: The Cato Institute, 1986), chapters V, VI, VII; Bernard H. Siegan, The Supreme Court’s Constitution (New Brunswick N.J.: Transaction, Inc., 1987); Clint Bolick, Grassroots Tyranny (Washington, D.C.: The Cato Institute, 1993).

2.   Macedo, op. cit., p. 58.

3.   Bolick, op. cit., p. 8.

4.   Lochner v. New York, 198 U.S. 45 (1905).

5.   Ibid. at 75.

6.   Roger Pilon, “On the Foundations of Economic Liberty,” The Freeman, September 1988, p. 344.

7.   Kermit L. Hall, The Magic Mirror: Law in American History (New York: Oxford University Press, 1989), p. 232.

8.   For a history of the 14th Amendment’s natural rights linkage, see Bernard H. Siegan, op. cit., chapter 3.

9.   Slaughterhouse Cases, 16 Wallace 36 (1873).

10.   Learned Hand, The Bill of Rights: The Oliver Wendell Holmes Lectures (Cambridge: Harvard University Press, 1958), p. 73.