A Plan to Renew the Promise of American Life, Plank 3
Plank 3. End judicial usurpation.
3.1. Appoint to the bench only principled originalists with an ample paper trail. No stealth candidates.
3.2. As necessary, alter, by legislation or attrition, the number of seats on each federal court, including the Supreme Court, to give principled originalists a majority.
3.3. Diminish the reach of rogue appellate courts by increasing the number of federal circuits.
3.4. Judiciously alter the jurisdiction and powers of the federal judiciary to rein in rogue judges, for example, by stripping lower courts of jurisdiction in sensitive areas and eliminating ‘national’ injunctions.
3.5. Limit the damage caused by erroneous judicial rulings, and give courts more opportunities to reverse them, by minimizing the use of stare decisis and aggressively employing the tools of equitable interpretation (such as narrow construction, avoiding, distinguishing, overruling, and reversing).
3.6. In judging, eschew a blind deference to legislative majorities. In legislating, eschew a blind deference to unelected judges (and bureaucrats).
3.7. If the foregoing reforms prove insufficient to end judicial usurpation, restructure the Supreme Court to permanently improve the justices’ incentives. Specifically, amend the U.S. Constitution to provide that henceforth justices of the Supreme Court will be appointed by the states, with each state filling one seat and no justice serving more than, say, twelve years. Have the governor nominate and the state senate confirm or reject, as happens at the federal level now.
Jefferson once warned that the Supreme Court could, if not carefully watched and controlled, impose on the republic ‘the despotism of an oligarchy.’ Today we live under that despotism.
Judicial usurpation—the assumption by judges of powers beyond their authority—is now a deeply entrenched and, alas, widely accepted feature of our system. The judiciary, our servant, has become our master.
Our only peaceful recourse at this point, I believe, is to address the problem at the root. To save the country, we must reform the judiciary.
This plank—in some ways the most important—is intended to help us carry out this essential reform in a peaceful and prudent way.
The job of a judge in the United States is not just to apply the law in individual cases and controversies but also to guard the constitutional limits on government power and thus to protect the life, liberty, and property of every citizen from unjust invasions by the government. The judge’s job is to defend the text of the Constitution in light of the natural-right principles of the American founding.
To be able to carry out this essential job, the judge must be independent. He must have the freedom to check the other actors in our system—Congress, the President, and the States—without fear of reprisal. That is why the Founders decided that federal judges should serve ‘during good behavior,’ that is, for life. Because federal judges must be both independent and free to wield truly awesome power, extra care must be taken in their selection.
And because in our time the federal judiciary has exceeded its powers, to the detriment of our natural rights and civil liberties, we have reached a moment when a serious program of reforming the judiciary is, alas, no longer avoidable.
My proposed reform strategy has a number of facets, but it can be summarized primarily as populating every court with principled originalists and curbing those courts’ powers where experience has shown those powers to be too great or too prone to abuse. Pick principled judges at every level, and legislatively restrain the courts where clearly necessary.
What’s a Principled Originalist?
By the term ‘principled originalist,’ I mean a jurist who steadfastly honors, explains, defends, and vindicates the original public meaning of the constitutional text as it was understood by those who ratified it, in light of the natural-justice principles of the American republic, without regard to his own personal preferences.
A principled originalist treats the Constitution as a legal document, a document to be construed and enforced according to the canons of legal textual interpretation, and not as a magic carpet to be ridden to new heavens of the heart’s desiring.
The principled originalist is therefore a textualist, but also more than that. Yes, he interprets the Constitution in light of its actual text, according to what a reasonable, competent speaker of English living at the time of its adoption would have declared its ordinary public meaning to be. And yes, he strives to find the original meaning of every word in the text the light of every other word. But he will not put on blinders. He will not limit himself merely to the text, to the detriment of its purpose. He will take care to consult the relevant legislative history and contemporaneous dictionaries and other evidence to get an understanding of the intentions and understanding of the drafters and especially the ratifiers of that text. In short, he will reject the notion of a ‘living’ constitution whose meaning changes with changing opinion and fashion. The whole point of having a written constitution is that its meaning does not change. We want our constitutions good and dead. If the Constitution is found wanting in some particular, the people can always formally amend it.
But, as I’ve said, the originalist must be ‘principled,’ not just in a moral but in a philosophical sense. He must defend the principles that the constitutional text exists to protect. And by these I of course mean the natural justice principles of the Declaration of Independence. For an introduction to these principles, I recommend two of our finest living natural-law thinkers, Professor Hadley Arkes and Judge Diarmuid O’Scannlain. While the principled originalist will never usurp legislative powers, he will not hesitate to nullify the enactments of democratic majorities when they attempt to violate the first principles of the republic or invade the natural rights of citizens. He will, as far as the Constitution allows, protect the natural and civil rights of individuals against oppression by local majorities, and he will also protect the natural and constitutional rights of local majorities to govern themselves against oppression by the general government. When a statute and the Constitution conflict, he will err on the side of the Constitution. When an erroneous or too-literal reading of the Constitution conflicts with natural justice, he will not hesitate to favor justice and overturn precedent.
Correct legal reasoning in our system weighs not just whether a law was passed in the proper form by the competent authority—whether all the procedural boxes have been checked—but also whether that law is justified in light of the republic’s founding principles. A legislative majority might, for example, pass a latter-day Nuremberg law persecuting Jews, and pass it according to all the proper forms, but it would still violate the Constitution because such a law by its very nature violates the principles that the Constitution was established to protect. The Constitution is silent on Nuremberg laws. It is most assuredly not neutral on them.
The best living example of a principled originalist, in my view, is Justice Clarence Thomas. Let us have more like him. /1
The Tempting of the American Judiciary
Why has the American judiciary become despotic? I would say the temptation has been there from the beginning. The U.S. Constitution is unusual in making the federal judiciary a coequal branch of government alongside the executive and legislative, and in giving federal judges the awesome power to strike down any law in the land on constitutional grounds.
The U.S. Supreme Court is the most powerful branch, potentially, because its power is more extensive than is the power of Congress or of the president. While the president cannot issue an order to a governor, and Congress cannot issue an order to a state legislature, the Supreme Court can, in effect, issue an order to all the state judiciaries. And because as a chronological matter the Supreme Court has the last word in ‘saying what the law is,’ it is, as a practical matter, ‘infallible because it is final.’
This arrangement can be a good one, so long as judges, in addition to being principled originalists, are upright men and women of impeccable moral character and do their job conscientiously and well.
Judicial independence is a necessary tool for protecting our natural rights and civil liberties. Federal judges serve for life, and are hard to fire, precisely so they can serve, not transient popular majorities, but the permanent majority as expressed in the constitutional text. They must, as we’ve said, enforce not only the written law but also the natural rights the written law is meant to protect.
Judicial independence, properly wielded, is a bulwark of freedom. But with that awesome responsibility comes the need for greater-than-ordinary virtue.
The American federal judge is subject to greater-than-ordinary political temptation. The more independent the judiciary, the greater its ability to usurp the non-judicial powers of government and to engage in judicial despotism.
In a more traditional, Old World system, judges pose less of a danger, because the powers of government are intermingled. The judiciary is subordinate to the king and parliament. The judges are servants and cannot effectively check the combined legislative-executive power, which is supreme. If the courts go wrong, it is because their masters, the king and parliament, have gone wrong. A judge in an Old World system cannot wield despotic power. In our system, by contrast, since the judiciary is on the same plane with the legislative and executive branches, it cannot be pressured easily. When the Supreme Court errs on an important constitutional question, it is well positioned to defend itself against pushback from any of the three other principal power centers (Congress, the President, and the States). A constitutional error made by any one of these can usually be corrected by the exercise of some ordinary power, legislative, executive, or judicial. But a constitutional error made by the U.S. Supreme Court can, as a general matter, only be corrected by formally amending the U.S. Constitution—a far more difficult task.
Thankfully, there are remedies short of having to pass a formal amendment every time the Court misreads the Constitution.
The first line of defense against a judicial error is to simply ignore it—to pass a law in defiance of the Court. Sometimes the Court will voluntarily back down in the face of resistance. Defiance has been successful a number of times, most famously in 1862, when, in defiance of Dred Scott, President Lincoln signed a law outlawing slavery in the territories and authorized the issuance of U.S. passports to black citizens.
But when the Court is stubborn, we must also try roundabout strategies. For starters, we can change who sits on the Supreme Court as they retire or die, or alter their number by statute or attrition. Those remedies will, I hope, be sufficient. Congress has changed the number of justices five times since 1789. Some may call that ‘court packing,’ but there is nothing impermissible about changing the number of justices, and there is nothing unconstitutional about trying to set the Court straight. The Constitution is not a suicide pact. Congress has the power to create and destroy courts inferior to the Supreme Court, and to alter their jurisdiction by ordinary legislation, subject only to the restrictions set forth in Article III. If Congress can wield these powers, which obviously affect the judiciary, why can it not also wield its well-established power to change the number of justices or alter the Court’s ideological makeup? Those who claim that ours is a ‘living’ constitution can have no principled objection to ‘court packing’ or ‘court stacking.’
If the foregoing strategies fail, then, yes, we must formally amend the Constitution. But how? Should we prefer narrowly targeted amendments focused on policy issues, or structural amendments that reform the judiciary itself? The superiority of the latter becomes apparent when one reflects on several facts. First, amending the Constitution is hard, and rightly so. This remedy cannot be resorted to, too often. Second, even when successful, an amendment can be thwarted by a really stubborn and crafty Court majority. Third, an amendment, unless thoughtfully framed and carefully worded, can produce unintended consequences. And finally, we cannot possibly fix every judicial error with a separate amendment. There are just too many.
A structural approach is more likely to work. Only a prudent, thoughtful structural reform can induce the Supreme Court to voluntarily reverse itself on a host of fronts, and prevent it from relapsing, without unduly diminishing its independence. Permanent reform means permanently improving the justices’ behavior, which in the long run will only happen if we change their incentives. And as far as I can see, the best way to do that is to change who appoints the justices and how long they serve.
To be clear, I concede that this last option is a radical one, in the good sense of ‘radical,’ and a last resort. If we can right the ship without formally amending the Constitution, that is preferable. But if nothing else works, we should not hesitate to be a bit ‘radical’ in our remedy, lest we remain subject to ‘the despotism of an oligarchy.’
What Is the Problem?
What is the problem we’re trying to solve, exactly? There are basically five problems, in my view.
- Enumeration of Powers and Federalism. The Court has ceased to enforce the Constitution’s limits on federal power, thanks to a latitudinarian reading of numerous provisions, especially the Taxing and Spending Powers Clause, the General Welfare Clause, the Commerce Clause, the Coinage Clause, and the Necessary and Proper Clause, to the benefit of the central government at the expense of the states and private individuals, and a misreading of the Ninth and Tenth Amendments, which were added to the Constitution precisely to prevent latitudinarian readings of federal powers.
- Separation of Powers. The Court has ceased to enforce the separation of powers, a key safeguard for liberty. It has done this through an excessive deference to federal administrative agencies wielding legislative powers. Those powers have either been usurped by the agencies or unconstitutionally delegated to them by Congress.
- Judicial Legislation. The Court has itself usurped legislative powers, by creating new ‘fundamental’ rights out of whole cloth, rights no one may prohibit or even reasonably regulate, without the Court’s permission. It has done this primarily by way of an unhistorical reading of the term ‘due process of law’ in the Fifth and Fourteenth Amendments. The effect has been to radically transform American law in ways that deeply divide citizens, with no hope of reasonable compromise, and has thus instigated a kind of ‘war of all against all’ and thus destroyed the possibility of social peace, tranquillity, and concord. Nothing has embittered our politics, and therefore nothing threatens our practice of self-government, like the Supreme Court’s various usurpations under the guise of protecting ‘fundamental’ rights. If any problem in our national life cries out to heaven for reform, it is this one.
- Enumerated Rights. The Court has made an ungainly patchwork of the rights of national citizenship through an overly narrow reading of the term ‘privileges or immunities of citizens of the United States’ in the first section of the Fourteenth Amendment, and through an awkward approach to protecting some but not all of those rights through a strained construction of the due process clause of the same section.
- Unenumerated Rights. The Court has often neglected to protect the retained, unenumerated rights of individuals from government infringement, in cases where positive law is ambiguous enough to allow for equitable interpretation. That is, the Court has failed to follow the old rule which holds that natural rights should control in the absence of sufficiently explicit positive law to the contrary.
The cumulative result of these various errors has been a consolidation of power at the national level and a concentration of power in ever fewer hands. Power has moved from the states to Washington, and from Congress to the President and the Supreme Court. This process of centralization has gone on for so long, and reached such an intense level, that the ordinary processes of election, representation, and legislation can no longer be counted on to check it. On the contrary, they sometimes help ensconce it. Take, for example, the Senate’s filibuster rule. Once it was a useful tool for blocking or slowing federal power-grabs. Now it facilitates them, by making it nearly impossible for the people’s representatives to overturn the errors of federal judges and the excesses of federal bureaucrats. The centralization of government power has become a one-way ratchet.
Meanwhile, the states have become so dependent on federal grace and largess that they no longer act as if they were truly independent sources of authority, with their own duties and powers. More and more, they function like mere provinces or administrative districts of a single consolidated state.
In weakening the principles of federalism, separation of powers, and enumeration of powers, the Court has undermined the republican character of our institutions, moving us dangerously in the direction of oligarchy and monarchy. As these errors have rooted themselves in the law and have grown and spread unchecked, the Supreme Court has quietly morphed from the least to the most dangerous branch, from a modest enforcer of constitutional limits to a part-time super-legislature whose radical enactments are well-nigh unrevisable. The U.S. Supreme Court has become the American equivalent of Iran’s Council of Guardians, a grand censor wielding effective veto power over everyone else in the system. Judicial independence has become judicial domination. We live under the ‘despotism of an oligarchy.’
Back to First Principles
To correct the aforementioned problems, we have to remind ourselves of, and re-commit ourselves to, the first principles of the constitutional system bequeathed to us by our ancestors. Here, in my opinion, are the most important of those principles.
Purpose of Government
—The only legitimate purpose of government is to ensure the safety and happiness of the people by protecting each and every individual’s inalienable rights to life, liberty, and the pursuit of happiness. (Declaration of Independence.)
Rule of Law
—The only good government is a government of laws and not of men. In a free government, no one is above the law. /2
—Living under the rule of law means freely binding ourselves to the law as it is and not as we might like it to be. But the law, to be binding, must also be legitimate. A law that is not legitimate is not law. A legitimate law, in our country, is one that is both just and constitutional. /3
—Being equal by nature, in our rights, we are all sovereign by nature, as individuals. We cede some of our natural sovereignty to government in order to secure our safety and happiness.
—Legitimate government is a compact among and between sovereign individuals, acting as individuals.
—Sovereignty is inalienable. Individuals can retrieve it at any time by withdrawing their consent from the compact of government, for example, by renouncing their citizenship or, when their inalienable rights are violated, by invoking their natural right of revolution. (Declaration of Independence.)
The United States is a republic, and not a monarchy, oligarchy, or pure democracy.
—The republican is the best form of government, although to be stable, it must include elements of the monarchical and democratic principles—a so-called mixed regime—and to be just, it must abide by constitutional limits that recognize and protect the natural rights of individuals. Without such limits, it is despotic.
—The marks of a republic are rule by the people and the rule of law. Certain kinds of laws are anti-republican by their nature. These include: bills of attainder, ex post facto laws, extreme debtor-relief measures, and laws that ‘take property from A and give it to B’ (redistribution of wealth).
—In the United States, the people are supposed to rule the rulers, not the other way around. All government officers are the servants or agents of the people, not their masters. The United States of America was the first nation in history to embrace this principle: popular sovereignty. It is this commitment to popular sovereignty, and this commitment alone, that entitles Americans to call themselves an exceptional people.
—The highest man-made law for Americans is the Constitution of the United States. (Article IV.) The Constitution is the act of our political sovereign, the people of the United States. (Preamble.)
—Sovereignty resides in individuals only. It does not reside in the people as a group, nor in the states, nor in the federal government, nor in any of branch or department of government. Our American governments are not sovereign in the traditional sense. Only individuals are truly sovereign. (Randy E. Barnett.)
—No government officer may lawfully alter, defy, or disregard the Constitution.
—The people may alter their forms of government when they become destructive of their safety and happiness. (Declaration of Independence.)
—The Constitution can only be changed by the people, using the process specified in the instrument. (Article V.)
Enumeration of Powers
—The Constitution grants only a limited set of powers to the federal government, which are enumerated in the instrument. These powers are to be wielded only for the common defense and general welfare of the United States, never for the benefit of favored regions, interests, persons, or groups. (Article I, Section 8.)
—All powers not granted to the federal government, nor prohibited by the Constitution to the states, are reserved to the people in their separate states. (Amendment X.)
—The enumerated powers of the federal government are to be construed narrowly, in favor of the retained rights of the people in their separate states. (Amendment IX.)
—The federal government has no general police power.
—The police powers of each state are limited by the federal and state constitutions and should conform to the requirements of justice and the common law.
—Powers delegated to the federal government are in all cases to receive the most strict construction that the instrument will bear, where the rights of a state or of the people, either collectively or individually, may be drawn in question. (St. George Tucker.)
—Powers granted to the federal government are never exclusive of similar powers existing in the states, unless the Constitution has expressly given an exclusive power to Congress or prohibited a concurrent power in the states or when the granted power is in its very nature incompatible with the existence of a like power in the states. (Justice Joseph Story, Houston v. Moore (1820).)
Separation of Powers
—The Constitution separates the three great powers of government, legislative, executive, and judicial, into three departments or branches, which, although interdependent, are coequal. (Articles I, II, and III.)
—The legislative powers delegated to the federal government are granted to Congress alone. (Article I.)
—Government officers take an oath to the Constitution, not to what the Supreme Court has said about the Constitution. Every officer, including every judge, has a solemn duty to nullify any law that violates the Constitution. When the Supreme Court reasons wrongly about the Constitution, its reasoning is not binding on other government officers. While inferior courts are rightly expected to follow the binding precedents of the Supreme Court, their duty to the Constitution requires them to counter and narrow the effect of erroneous Supreme Court precedents.
—The constitutional text must be construed according to its original public meaning, as it was understood by those who ratified it. The views of its drafters are also important, but it is the understanding of the ratifiers that counts. The original meaning of a provision is what a reasonable, competent speaker of English living at the time of the provision’s adoption would have declared its ordinary public meaning to be.
—We have many kinds of rights, natural, civil, and political. Some rights are the creation of government. Most come from nature. The rights created by government we call ‘positive-law’ or ‘stipulated’ or in some cases ‘civil’ rights. The rights that come from nature we call ‘natural,’ and they inhere in us as individuals. Some but not all of our natural rights are inalienable, that is, they cannot be relinquished permanently, and only with our consent. Some of our rights are individual. Some are collective. Some are enumerated in the Constitution. Most are unenumerated.
—Rights and powers are reciprocal or mutually exclusive. Where one exists, the other does not.
—Rights not relinquished are retained. The boundary between relinquished and retained rights may be established by defining the powers of the government or alternatively by defining the rights of the people. There are thus two ways in which the people may protect their natural liberty: by careful enumeration and limitation of the powers of government, or by reservation of the rights of the people through a bill of rights. These techniques come down to the same thing. Our Constitution employs both. (Michael W. McConnell.)
Rights of National Citizenship
—Governments are bound to respect all of our natural rights, enumerated as well as unenumerated, stipulated as well as retained, consistent with the common good, but not all of our natural rights are ‘fundamental’ rights protected by the federal constitution.
—The original Constitution, as ratified in 1788 and amended by the Bill of Rights in 1791, made a handful of natural and civil rights, which may be called rights of national citizenship, enforceable against the federal government. The Bill of Rights bound only the federal government, not the states. (Barron v. Baltimore (1833).) The Privileges or Immunities Clause of the Fourteenth Amendment (1868) made the Bill of Rights and a few other enumerated rights enforceable against the states. Section 5 of that Amendment authorizes Congress to enforce these enumerated rights by appropriate legislation. /4
—The rights of national citizenship incorporated against the states by the Privileges or Immunities Clause of the Fourteenth Amendment are found primarily in the first eight amendments to the federal Constitution (the personal rights provisions of the Bill of Rights), but are also found in Article IV of the original Constitution (right of U.S. citizens to travel and reside in other states without being discriminated against by those states), Article III (right of U.S. citizens to access the federal courts), and Article I (right of U.S. citizens to enjoy the privilege of habeas corpus and to be protected from bills of attainder and ex post facto laws). (Kurt T. Lash.)
—Importantly, the ‘incorporation’ of these rights of national citizenship against the states is effected by the Privileges or Immunities Clause, and not by the Due Process Clause or the Equal Protection Clause. Thus, incorporation is naturally limited, although unfortunately the Supreme Court has not seen it that way, preferring to incorporate parts of the Bill of Rights selectively, case by case, via the Due Process and Equal Protection Clauses. /5
—The Constitution does not give federal judges an unlimited power to enforce all of our unenumerated natural rights. That duty is left primarily to the people in their separate states. /6
—The Fourteenth Amendment does not obviate the Ninth. While federal judges have a duty to nullify legislative enactments that violate the rights of national citizenship, federal judges should err on the side of deciding the genuinely close calls in favor of state policy choices and local self-government. Otherwise, judges could go too far in diminishing the reserved powers of the states and be tempted to unlawfully impose their own policy preferences on the people in their separate states. This kind of usurpation has, alas, occurred many times, and is among the most pressing reasons why we need the present plank.
—Unenumerated retained natural rights are not ‘constitutional rights’ under the Ninth Amendment, but do continue to enjoy some degree of legal protection in their pre-constitutional status as retained natural rights. Unenumerated natural rights are protected through a combination of self-control on the part of political actors (reinforced by the separation of powers) and equitable interpretation by the courts, which entails the narrow construction of statutes so as to avoid violations of natural rights. In other words, natural rights control in the absence of sufficiently explicit positive law to the contrary. This equitable interpretation is predicated on the charitable assumption that the legislature likely did not intend, by the use of broad language not explicitly addressed to the point at issue, to violate the law of nature. Equitable interpretation seeks to effect the animating purpose or spirit of a law, rather than its letter. (Michael W. McConnell.)
—Equitable interpretation will decline to enforce laws that are illegitimate by their nature, namely, laws that violate rights which the people could never be presumed to have authorized their agents to violate, for example, ‘a law that destroys, or impairs, the lawful private contracts of citizens; a law that makes a man a Judge in his own cause; or a law that takes property from A. and gives it to B.’ (Justice Samuel Chase, Calder v. Bull (1798).) When interpreting the federal constitution, a judge will regard equitable interpretation as an exception to state authority. The default rule is for the judge to leave most individual rights to be protected by the people in their separate states. A federal judge may—indeed should—strike down a state or local law that is arbitrary or irrational, such as special-interest legislation masquerading as public health regulation, if it violates section 1 of the Fourteenth Amendment (meaning it violates a right of national citizenship protected under the Privileges or Immunities Clause or runs afoul of the Due Process Clause or the Equal Protection Clause). But under the federal constitution, prudence dictates that close cases should be decided in favor of the positive law of the state or local authority.
Interpreting the Fourteenth Amendment
—In judicial reasoning, the correctness of the reasoning is more important, ultimately, than the correctness of the outcome of the particular case. /3
Reliance on the Due Process Clause to enforce the rights of national citizenship is the leading cause of the rise of the ‘living Constitution.’ Progressives want to believe that the Due Process Clause, sometimes read in conjunction with the Equal Protection Clause, transforms the Constitution into a flexible document that can ‘evolve with the times.’ In this radical view, Supreme Court justices are authorized to function as high priests, divining for the masses the ‘ever-changing meaning of liberty.’ What does ‘due process’ require? It requires whatever the judges say it requires. The original meaning is not binding. It evolves. Even principles themselves evolve. All is change. Obviously, this is not the rule of law. Rightly reacting against the radical notion of the ‘living constitution,’ some thinkers go all the way to the opposite extreme and argue that the Fourteenth Amendment does not make any federal constitutional rights enforceable against the states. That too is wrong. The Fourteenth Amendment does make the rights of national citizenship enforceable against the states, but it does not ‘incorporate’ all of our retained, unenumerated individual natural rights. And it certainly doesn’t incorporate every imagined right that some judge happens to fancy.
In the Cruikshank case (1876), the Supreme Court effectively rendered the Privileges or Immunities Clause nugatory (and disastrously undermined the federal government’s ability to protect civil rights) by asserting that the Clause does not incorporate any enumerated rights against the states and that there are almost no privileges or immunities inherent in national citizenship. To say that this reading is overly narrow would be an understatement. Later, the Court did turn to the Due Process Clause to ‘incorporate’ some enumerated rights against the states. But this fallback approach opened the door to incorporating an essentially unlimited series of unenumerated rights. Eventually, the Court also declared some of these rights ‘fundamental,’ meaning that other rights could be disparaged, receiving less protection. Whence arises the modern construct of ‘levels of scrutiny,’ i.e., ‘strict scrutiny’ versus ‘rational basis.’ The imposition of ‘levels’ of scrutiny elevates some rights and disparages others, in violation of the Ninth Amendment.
—The Due Process Clause has no natural limits. Attempting to convert it into a source of substantive personal and ‘fundamental’ rights has led the Court to do both too little and too much: to leave some of our enumerated constitutional rights unincorporated against the states, while incorporating a potentially endless list of unenumerated rights against the states, in violation of the Ninth and Tenth Amendments.
Here, it is helpful to quote from Professor Kurt T. Lash’s 2014 monograph, The Fourteenth Amendment and the Privileges and Immunities of American Citizenship:
The term ‘privileges or immunities of citizens of the United States’ refers to all constitutionally enumerated personal rights. . . .
A jurisprudence of the Privileges or Immunities Clause based on its original meaning would include [i.e., incorporate] the entire Bill of Rights [i.e., the first eight amendments], as well as the other textually enumerated rights such as the great writ of habeas corpus and the equal protection coverage of the Comity Clause [Article IV, section 2, which prohibits states from discriminating against the citizens of other states]. An original meaning jurisprudence would not include unenumerated rights, whether progressive [Griswold v. Connecticut, Roe v. Wade], libertarian [Lochner v. New York], or conservative [Meyer v. Nebraska, Pierce v. Society of Sisters]. Unless covered under a separate clause in the Constitution, matters involving the rights of privacy, economic rights, and parental rights would remain subject to political debate in the several states. Some aspects of the right to privacy, sexual autonomy, and gay rights may be covered under the Equal Protection Clause [see, for example, Justice O’Connor’s concurring opinion in Planned Parenthood v. Casey] or preserved under the doctrine of stare decisis [see, for example, the majority opinion in Casey]. However, there is no originalist understanding of the Privileges or Immunities Clause that would include such rights. [Emphasis added.]
Note: The parenthetical citations in the above excerpt are from Prof. Lash’s original, where they appear as footnotes. I’ve edited them slightly here for readability.
To be clear, I do not think courts should always defer to the decisions of legislatures, nor the opposite. The right approach lies in the middle. (I try to flesh it out in the section titled ‘Rights of National Citizenship,’ above.) Sometimes legislatures pass laws under the guise of promoting public health, safety, welfare, or morals, but which laws are really gifts to some special interest, often designed to shut out competition or discriminate against a disfavored minority. Courts have an unavoidable duty to sniff out these ruses by looking beyond the plain words of a statute or regulation to weigh its real-world effects and to detect the probable motivations of its authors, and, where these are illicit and the judge has a power to do so, to nullify the law. But where there is serious doubt, the safer rule is for judges to defer. Otherwise, as we have seen, they can and will run wild. /7
The Supreme Court isn’t going to reverse its errors without pressure. Like any human institution, it is loath to admit mistakes and reluctant to relinquish power. Here are some possible options for ending judicial usurpation, with a brief thought or two on each.
a. Choosing better judges. By ‘better judges’ I mean, as I said at the beginning, principled originalists with an ample paper trail, that is, the opposite of stealth candidates. This idea should go without saying. But there is a challenge. We cannot always detect erroneous thinking at the time of confirmation, even in an ample record. Nor can we always predict how a judge will actually behave once confirmed. Sometimes a good judge turns out not to be so good, or goes bad. And of course even a good judge makes an occasional mistake. So while appointing better judges is necessary, it is not sufficient. /8
b. Impeachment. Long historical experience shows this particular tool works pretty well for policing ordinary crimes and malfeasance by judges but is ineffective as a tool for punishing erroneous judicial reasoning. Jefferson dismissed it as a ‘scarecrow,’ meaning the kind that crows enjoy resting on.
c. Nullification by state governments. State nullification or principled resistance of unconstitutional federal laws—the cherished ‘rightful remedy’ of John C. Calhoun and the Confederates—is politically and legally problematic, to say the least. Tainted by a long association with racism, which makes it impossible to defend, it only seems to work well where the feds already seem willing to reconsider an erroneous policy (for example, in recent years, on marijuana regulation). It does not work so well when it comes with a threat of violence (as in the Tariff Crisis of 1828-1832). This option should be used judiciously, with a preference for trying all other remedies first. Note: I’m speaking here only about nullification by state governments. I have no problem with nullification by individuals or juries.
d. Subject-specific constitutional amendments. This one is worth attempting, but hard to pull off. There are too many errors to correct. And of course there’s always a risk that the Court will simply ignore or misconstrue the amendment. This is why I think we ultimately have little choice but to reform the judiciary itself.
e. Structural and procedural reforms of the judicial branch, by way of legislation. The following are some of the legislative reform ideas I’ve heard mentioned: a) change the number of justices or circuits; b) redraw circuit boundaries; c) redefine lower courts’ jurisdiction in order to take certain issues out of their hands (‘court stripping’); d) alter Senate rules to make judicial nominations harder or easier to confirm, depending on what kinds of nominations are expected (for example, by eliminating senators’ ability to filibuster nominations or curbing the custom of permitting senators to block a vote on a nominee from their own home state (‘blue-slipping’)). While any or all of these structural and procedural reforms might be tried, the first (changing the number of justices) is the only one that strikes me as likely to have the desired effect. I would just change the number of justices to give principled originalists a majority, and leave it at that. If that reform doesn’t have the desired effect, then I would go ahead and reform the judiciary via constitutional amendment, as specified in the next point. Side note: Should the number of justices should go up or down? I could go either way. My own preference is that it go up, in order to make it harder for fixed partisan blocs to congeal. But expanding the Court requires legislation signed by the president. It is easier to let it go down through attrition. The Senate can simply announce that it will not confirm any Supreme Court nominee until the Court has dipped below, say, six or seven justices. (Six was the original number, in 1789.) But the number should be dictated by the goal, which is to give principled originalists a majority—and thereby save the republic. (P.S. Here’s a pretty good summary of the case for shrinking the Court through attrition.) /9
f. Structural reforms of the judicial branch, by way of constitutional amendment. Examples of possible constitutional amendments include ones providing for: a) judicial term limits, b) judicial elections, c) judicial retention elections, d) appointment of U.S. Supreme Court justices by the states, and e) allowing the states or Congress to overturn U.S. Supreme Court rulings by a supermajority vote. A constitutional amendment, as I’ve suggested, should be regarded as a last resort. But at the moment it also seems very close to being unavoidable, if we are serious about effecting permanent, positive changes in judicial behavior. If we do pursue an amendment, the best approach, I would argue, is to provide that henceforth justices of the U.S. Supreme Court are appointed by the states rather than by the President and Congress, with each state filling one seat and no justice serving more than, say, twelve years. (This idea is was first proposed, I believe, by Professor Michael Farris.) To avoid the downsides of having the people of the states elect the justices, the amendment should require that the governor nominate and the state senate confirm or reject justices, just as occurs at the federal level now. How would state appointment of justices benefit us? First, because the justices would be appointed by the states, they would tend to look out for the rights and powers of the states, breathing new life into federalism. Second, the reformed Court’s large size and built-in diversity would make razor-thin majorities less common and consensus-based rulings more common. It would be much harder for any one justice to become the all-powerful swing vote on every important issue. That would make radical legal impositions less frequent. Third, the quality of judging would improve because justices would know their hold on power is brief, thanks to the constitutional term limit. The average age of justices could rise, but a smaller percentage of justices would serve past the point of senility, so, one hopes, the average level of wisdom and sharpness of mind would also rise. Importantly, a greater rotation of justices would shorten the lifespan of erroneous rulings. If we had imposed a twelve-year term limit for justices beginning in 1981 and let the states fill the vacancies, I am pretty sure the worst Supreme Court decisions of the past would have been overturned by now, and that we’d have seen fewer bad new decisions. Some skeptics may object that this kind of restructuring would make the law too changeable and uncertain. I disagree. I think the stability of the law depends principally upon, not how long judicial rulings endure, but rather on whether, and to what extent, judicial rulings are perceived to be true and just. The stronger that perception, the more stability in the law.
Afterthought: What About Civil Rights?
Some who oppose the remedies I’m recommending here may try to smear them as a threat to civil rights. Baloney. Restoring the lost Constitution means restoring the color-blind Constitution. The Constitution, to quote Justice Harlan in his famous dissent in Plessy v. Ferguson (1896), ‘is color-blind and neither knows nor tolerates classes among citizens.’ The original Constitution famously tolerated slavery, but it never endorsed it. The very words ‘slave’ and ‘slavery’ were omitted because the framers knew they were compromising with evil in order to secure liberty and justice in the long run. They hoped they were placing slavery ‘in the course of ultimate extinction.’ After the Civil War, the Constitution mentions slavery only to abolish it. It is easy to discern from the original meaning of section 1 of the Fourteenth Amendment, and the often-overlooked Thirteenth, that ours is a constitution that ‘neither knows nor tolerates classes among citizens’ and thus cannot tolerate official government segregation of the races, especially since the Constitution has been explicitly amended to prohibit slavery and all its badges and incidents, of which segregation is obviously one. While Congress does not have an unlimited right to interfere in the domestic affairs of the states, these constitutional amendments give it sufficient power to enact federal civil rights statutes nullifying state-sponsored class legislation, segregation, Jim Crow, ‘separate but equal’ public accommodations rules, and the like. In legal terms, I think we can confidently conclude that the Court’s reasoning was wrong in Cruikshank (1876), the Civil Rights Cases (1883) and Plessy, but right in Brown v. Board (1954) and in upholding the Civil Rights Act of 1964. (I quibble with the exact logic of Brown, which tries to work around Plessy rather than overturn it, but the result, which was unanimously reached, is undeniably correct. To those who say the framers and ratifiers of the Fourteenth Amendment could not possibly have intended to end racial segregation in the public schools, because they themselves were doing that very thing at the very same time they wrote and passed the amendment, I reply: this is a good example of a case where Michael McConnell’s equitable interpretation principle comes into play. The framers and ratifiers may have been hypocrites on the issue of segregated schooling, but the words they wrote have clear, unavoidable implications that make school segregation unconstitutional.) In short, originalism emphatically supports civil rights, while ‘living constitutionism’ renders civil rights insecure, because it is essentially arbitrary.
1/ But Justice Gorsuch may be giving Justice Thomas a run for his money.
2/ Customary exceptions to the rule of law—such as sovereign immunity, eminent domain, and civil forfeiture—are inherently dangerous and so must be kept within extremely tight limits. So, by the way, is ‘administrative adjudication,’ which inherently violates due process.
3/ Each of us must accept as valid law those judicial outcomes we don’t like, when rightly reached, and reject outcomes we do like, when wrongly reached. Among my least favorite Supreme Court decisions are a whole host of bad Commerce Clause decisions (including Wickard v. Fillburn (1942) and U.S. v. South-Eastern Underwriters Association (1944)), some that undermine our natural property rights (for example, the Legal Tender Cases (1871), Julliard v. Greenman (1884), the Gold Clause Cases (1935), Veazie Bank v. Fenno (1969), and Kelo v. City of New London (2005)), and a number of so-called substantive due process cases that infringe our Ninth and Tenth Amendment-protected rights to local self-government (e.g., Griswold v. Connecticut (1965), Roe v. Wade (1973), Planned Parenthood v. Casey (1992), Lawrence v. Texas (2003), United States v. Windsor (2013), and Obergefell v. Hodges (2015)). By contrast, I like the outcomes in such famous substantive due process cases as Meyer v. Nebraska (1923), Pierce v. Society of Sisters (1925), and Troxel v. Granville (2000). But I oppose using any of the aforementioned cases, likable or not, as precedents, because of their incorrect reasoning. The property rights cases I mentioned impute to Congress a ‘plenary power’ to regulate the economy that it does not have. The substantive due process cases, likable and not, create new ‘fundamental’ rights out of whole cloth, in violation of both the Ninth and Tenth Amendments. Now, I will readily concede that some cases are close calls, about which reasonable minds can differ, and some cases that have been decided wrongly on the basis of the Due Process Clause might perhaps have been decided in the same way more defensibly on the basis of some other constitutional provision. But it is the reasoning that matters. And as a rule of prudence, I think the Constitution requires that the close calls be decided in favor of local self-government. That rule ensures that we do not simply disregard the Ninth and Tenth Amendments or weaken federalism and limits on federal power. Otherwise, unelected federal judges with life tenure will impose too tight a straight-jacket on all the states, such as by imposing unchallengeable ‘fundamental’ rights that not everyone agrees are fundamental. Centralization of power is the great enemy. Now, if someone can ever show me a defensible rule by which all of the due process cases whose outcomes I dislike (Roe, Casey, etc.) must fall and all of the ones whose outcomes I like (Meyer, Pierce, etc.) must stand, then I will cheerfully adopt that rule in lieu of my current one. Until then, I can only view the idea of ‘substantive due process’ as a source of ‘fundamental’ rights with profound skepticism.
4/ The lawyers call this ‘incorporation.’ Barron v. Baltimore (1833) held, correctly in my view, that the first eight amendments of the Constitution imposed limitations on the federal government but not on the states. The Fourteenth Amendment, overturning Barron, incorporated (via the Privileges or Immunities Clause) the first eight amendments, along with other rights of national citizenship against the states. The duty to protect those rights became obligatory on the state governments, with Congress authorized to enforce that duty. The Fourteenth added to the list of enumerated powers of Congress, as did a number of later amendments.
5/ Here are the relevant sections of the Fourteenth Amendment: ‘Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. [Emphasis added.] … Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.’
6/ For an excellent treatment of this issue, see this article by professor Michael McConnell. His conclusion is worth quoting in full: ‘We are left with the following construction of the Ninth Amendment: Courts should give presumptive protection to natural rights (but should not make up new positive rights), subject to congressional override through explicit and specific legislation. In other words: the rights retained by the people are indeed individual natural rights, but they enjoy precisely the same status, and are protected in the same way, that they were before the Bill of Rights was added to the Constitution. They were not relinquished, denied, or disparaged. Nor did they become “constitutional rights.” They are simply what all retained rights were before the enactment of the Bill of Rights: a guide to equitable interpretation and a rationale for narrow construction, but not superior to explicit positive law.’
7/ Lochner presents a good example of a close-call case that was wrongly decided, in my view. I offer it as an example because it has become a by-word, a negative symbol in American legal history, derided by everyone except modern-day libertarians, who alone support it. The Court ruled that the law at issue, a New York maximum hours law for bakers, violated the Fourteenth Amendment’s Due Process Clause, because that clause enshrines a natural-law ‘right of contract.’ While there is certainly a right of contract in the natural law, it is not an enumerated, federal constitutional right. The Constitution generally refrains from overriding the police power of the states, their inherent power to limit people’s freedom in order to protect public health, safety, welfare, and morals. There are exceptions, of course—when a state exercises its police power unreasonably. But when the exercise is reasonable, the Constitution has nothing to say about it. In this case, the Due Process Clause has nothing to say about a local maximum hours law for bakeshop employees. Nor has the Privileges or Immunities Clause, which, as we’ve seen, only incorporates a limited set of rights of national citizenship against the states, among which there is no enumerated right of contract. Now, it is possible the New York bakeshop law could have been struck down under the Equal Protection Clause, had it clearly burdened some bakeshop employees to the advantage of others with no demonstrable benefit to the public health and safety—in short, had it been mere special-interest legislation. But this is a question that turns on the specific facts of the case. In my view, the official case record is not clear enough on that point for judges to refuse to apply the statute. In Lochner I think the tie goes to New York’s not unreasonable restriction of liberty. Had I been a Justice, I would have joined the dissenters and voted to uphold the state law, even though as a citizen I would probably have opposed that very law on policy grounds. (Personally, I am open to maximum hours laws where clearly justified as necessary to protect health and safety, but I categorically oppose minimum wage laws on economic freedom grounds, and I think the federal government has zero power to impose either, except for its own employees.) I hasten to add that I am not endorsing Justice Holmes’s famous separate dissent in Lochner, a typical instance of his deplorable legal-positivist judicial philosophy and dark, might-makes-right worldview. Nor am I endorsing the modern left-wing view that economic rights are inherently inferior to other kinds of rights.
8/ Professors Randy Barnett and Josh Blackman have helpfully suggested six rules that should guide the selection, investigation, and confirmation of future judicial nominees. They are: 1) Bruising confirmation battles are worth the political capital for a lifetime appointment. 2) Paper trails are an asset, not a disqualification. 3) Reject clichéd calls for ‘judicial restraint.’ 4) Focus on the Constitution, not issues du jour. 5) Focus on clauses, not cases. 6) Beware of candidates who take refuge in stare decisis (reflexive deference to past judicial precedents, no matter how erroneous).
9/ Update, April 6, 2017: The Senate has changed its rules to eliminate senators’ ability to filibuster judicial nominations. It did this in two stages. In November 2013, with the Democrats in control of the Senate and White House, it eliminated the filibuster for all judicial (and executive branch) nominations except for the Supreme Court. In April 2017, with the Republicans in control of the Senate and White House, it eliminated the filibuster for Supreme Court nominations. So for nominations of any kind, a simple majority can end debate. But the filibuster rule remains in place with respect to legislation. To end debate on a bill or resolution currently requires the consent of three-fifths of the entire Senate. I am personally of the view that the filibuster rule should be eliminated altogether, for any purpose. It had its benefits in the pre-New Deal era, when the federal government was small and tightly limited, but in the present era it merely acts as a one-way ratchet helping to ensure the never-ending growth of government.
This plank (contingently) includes a constitutional amendment providing that justices of the U.S. Supreme Court are appointed by the states rather than by the president and Congress, with each state filling one seat and no justice serving more than twelve years. To avoid the downsides of popularly electing judges, the amendment would require that the governor nominate and the state senate confirm or reject, just as occurs at the federal level now. But note: this proposed amendment would only be necessary if altering the quality or number of justices proved insufficient to end judicial usurpation.
Will do much to revive the ‘American way’ of decentralization, local self-government, impartial justice, and equal civil rights for all.
Will encourage greater civil peace, social concord, and healthy, flourishing communities.
Revised: September 25, 2018.
Published: June 21, 2013.
Author: Dean Clancy.