The Director of the Center for Judicial Engagement at the Institute for Justice, Clark Neily, and an editor at the Library of Law and Liberty, Mark Pulliam, recently debated the role of the judiciary in American constitutional democracy over at City Journal. At issue is which judicial philosophy conservative and/or libertarian-minded people should support. Pulliam advocates for judicial “restraint,” where the judiciary defers to the legislative and executive branches unless the policies in question violate “clear provisions of the Constitution.” Neily supports a more “engaged” judiciary that stands up for even those rights that go unenumerated in order to keep a lid on a continuously growing federal government.
Pulliam, to defend his support for a deferential judiciary, writes,
“Judicial engagement” entails several features that are anathema to conservatives, especially recognition of “unenumerated” constitutional rights, which courts (in particular unelected, life-tenured federal judges) will enforce by striking down state and federal laws if the government is unable to justify them as necessary and appropriate. In some iterations of “judicial engagement,” the government has the burden of proof in constitutional challenges (that is, laws are presumed to be unconstitutional, in order to vindicate a “presumption of liberty” that libertarians believe is inherent in the Constitution), and the deferential “rational basis” standard of review would be replaced—across the board—with a more rigorous standard resembling the “strict scrutiny” currently reserved for laws impinging on fundamental rights and suspect classifications. Conservatives will never support a constitutional theory that condones Roe v. Wade, yet most libertarians are, at best, ambivalent about Roe—and actually agree with Obergefell.
According to Pulliam, the courts were wrong to recognize such unenumerated rights as a right to privacy in the case of Roe v. Wade, or that same-sex couples have the same unenumerated rights to marriage licenses as heterosexual couples in Obergefell v. Hodges.
In response, Neily points out the internal hypocrisy of judicial restraint:
Like many conservatives, Pulliam argues that properly restrained judges should strike down only laws that “violate a clear provision of the Constitution.” But that position can’t be reconciled with his belief that the Constitution protects various economic liberties, including occupational freedom, that appear nowhere in the text of the document and that Pulliam himself grounds in the controversial doctrine of “substantive due process.” Pulliam is at once confident that the Constitution protects the unenumerated right to economic liberty and disdainful of those who believe that the Constitution might protect other unenumerated rights—such as not having one’s reproductive organs ripped out by state-sponsored eugenicists—as well.
Georgetown University constitutional law scholar Randy Barnett has been a major advocate of a judicial framework that includes a “presumption of liberty” that would support some form of judicial engagement to protect individual rights and liberties that aren’t explicitly enumerated by the Constitution. Judges and justices in the past have relied on the Ninth and Fourteenth Amendments to protect the people’s unenumerated rights from overzealous legislative and executive actions. Neily writes:
Judicial restraint creates a ratchet effect in favor of more government power. Most constitutional cases that get to the Supreme Court present plausible arguments on both sides, and if the key question is, “Could I think of some way this policy might possibly be constitutional?” the answer will nearly always be yes. And the resulting expansion of government power in that case will then set the baseline for the next case, where the question will be, “Is this a permissible incremental expansion of power beyond the last one we upheld?” Once again, the answer will generally be yes. Repeat that simplistic equation enough times and eventually you get the government that we have today: massive, implacable, unaccountable, and impossible to square either with the Founders’ promise of a federal government whose powers were to be “few and defined” or with the Ninth Amendment’s command not to “deny or disparage” rights not specifically enumerated in the Constitution’s text—a command extended to the states by virtue of the Fourteenth Amendment’s Privileges or Immunities Clause.
This debate is sure to have new life breathed into it as President Trump’s ban on immigration from seven predominantly Muslim countries heads to the Supreme Court. Historically, the judiciary has deferred to the executive branch in cases related to immigration and national security. However, just yesterday, the Ninth Circuit Court of Appeals ruled unanimously against the administration, citing the Fifth Amendment’s “Due Process Clause” and the First Amendment’s “Free Exercise Clause.”