The Attack on Grassroots Liberty; W. Watkins, Jr.

Nevertheless many respected scholars have called for an expanded role for the federal judiciary in securing individual lib erty.l Such proponents of "principled judi cial activism" often use the Ninth Amend ment (which declares that the people retain other rights than those enumerated in the Constitution), or the privileges and immu nities 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 Mr. Watkins is a member of the staff of the Foundation for Economic Education. rights or similar doctrines for a broad inter pretation. For example, Stephen Macedo writes, "The Constitution is better read in terms of the aspirations set out in the pre amble .... " than in terms of original inten tions. 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 behav ior.,,3 But rather than furthering the cause of liberty, an expansion of the judiciary's role inevitably leads to greater governmen tal consolidation, which has been liberty's greatest enemy.

An example of the consolidationist lean ings of those who profess to be friends of liberty can be found by examining their critique of a landmark Supreme Court de cision. 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 552 Oliver Wendell Holmes (1841-1935) 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 ex ercise 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 enter tain. " Where there is no specificprohibition 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 con tracts, 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 maxi mum hour regulation. "Substantive under standing," of course, refers to substantive due process. Substantive due process is 553 defined as "an irreducible sum of rights ... vested in the individual with which govern ment 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 Constitu tion, and chide Holmes for his dissent.

However, rather than protect or expand individual liberty, Lochner and the reason ing 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 reg ulate 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 Leg islatures. " The·colonials placed such a high value on local self-government that they were willing to war against the mighty Brit ish 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 modem judicial ac tivists would allege. No doubt many radical Republicans did see the amendment as an embodiment of the vague intricacies of nat ural rights,8 but many of their contemporar ies 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 exis tence of the States with powers for domestic and local government . . . was essential to the perfect working of our complex form of t ,,9govemmen....

In light of the historical context of the Union and the dangers of centralized power, Holmes, in upholding New York's regula tion, was actually acting as more of a friend to liberty than the other justices who struck down New York's regulation. Holmes' un554 THE FREEMAN • SEPTEMBER 1995 Learned Hand (1872-1961) derstanding 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 ofjudicial activism and substantive understanding support is a return to the days when the King exercised a negative over all of the legisla tion emanating from the colonial legisla tures. 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 theoret ically, 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 Ameri can tradition. Moreover, it is dangerous insofar as it consolidates power in Wash ington. "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 pro mote the eradication of local self-govern ment 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 consoli dates power in the national government is an attack on the foundation of self-government and liberty. D 1. See, for example, Stephen Macedo, The New Right v. The Constitution (Washington, D.C.: The CatoInstitute, 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 Lib erty," 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.