The Problem with Activism, Per Se

Although I obviously agree with his immediate point, something in this post by Damon Root strikes the ear funny, in a way that betrays the lack of long-term thinking among libertarians (emphasis added):

McCain’s response? “That’s an excellent point.” I don’t know if excellent is the word I’d use. When conservatives complain about judges “legislating from the bench,” they mean protecting rights that aren’t explicitly listed in the Constitution, such as privacy (or liberty of contract or the right to educate your child in a private school). Unless McCain starts campaigning to pass a new amendment reinstating slavery, I think Whoopi can rest easy. Besides, if she had read Lysander Spooner or Frederick Douglass, she’d know that slavery was already illegal before the ratification of the Thirteenth Amendment.

Are liberty of contract or the right to educate children in private school really on conservatives’ hit list? From the piece (of his own authorship) that Root links on the words “liberty of contract”:

Dissenting from the majority in Lawrence v. Texas (2003), which nullified that state’s anti-sodomy law, Supreme Court Justice Antonin Scalia argued that the Texas legislature’s “hand should not be stayed through the invention of a brand-new ‘constitutional right’ by a Court that is impatient of democratic change.”
Such views are widely shared on the right, where few subjects produce greater outrage than judicial activism, which conservatives blame for the forced imposition of liberal values on American society. But libertarians, who have frequently allied with conservatives in the effort to rein in the federal government, should not join their battle against the judiciary. There is no inconsistency between principled judicial activism and limited government.

Root goes on to explain that, in the past, “judicial activism was associated almost exclusively with the protection of economic rights” and “that a principled form of libertarian judicial activism–that is, one that consistently upholds individual rights while strictly limiting state power–is essential to the fight for a free society.” What’s jarring is that modern conservatives like those outcomes, and it’s instructive to consider ideological groups according to the beliefs that they actually hold, rather than in the relativist terms that equate today’s “conservatives” with yesterday’s.
The lesson for Root, who presumably joins many libertarians in approving of the more-recent social outcomes of judicial activism, is that the mechanism by which political ends are achieved matters, because the ends have a way of (quote, unquote) evolving. He describes the first, economic wave of judicial activism as a reaction to a movement among the states toward “legislating a variety of new ‘progressive’ regulations,” which amounts to a preservation of understood structures against the imposition of change. The social wave of judicial activism, by contrast, has entailed transforming the established understandings of “liberty” to include (most prominently) various sexual behaviors, with the trail leading predictably toward social recognition of all sexual relationships as equivalent in all respects.
The first wave made the statement: “The government can’t change that.” The second: “The government must change that.” The next step (again, predictable, indeed, already underway) is: “The government must enforce that.” In other words, one citizen’s liberty has a way of becoming another citizens compelled compliance when there’s an untouchable arbiter to persuade.
Peeling back Root’s statements by one layer, it becomes apparent that one could say much the same about any form of government or government action. He writes that “a principled form of libertarian judicial activism… is essential to the fight for a free society,” but both his boundary for principle and his chosen mechanism are arbitrary. One could just as easily declare that a principled dictatorship — a principled theocracy — is essential. The problem is that those who find themselves in positions of imbalanced power will find ways to control the levers of power, to ensure that their “principles” are included in the practical definition of the term, and the smaller the group that upholds the principles, the smaller the task of manipulating it.
Me, I say we should let states institute foolhardy, even oppressive rules, as long as folks are remain able to vote, to speak, and to leave. If Rhode Island were to forbid the use of private schools, for example, statistics suggest that I’d hardly be alone in taking my tax dollars and productivity elsewhere. Relying on judges to determine — especially for the entire nation — what is right and wrong, we invite a precedent that will remain even when judicial wisdom takes a turn that we oppose.

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15 years ago

Liberty of contract?
Not explicitly in the Constitution?
Um, what about Art. I, sec. 10 of the Constitution, which prohibits the states from passing any law “impairing the obligation of contracts?”
This provision of the original Constitution was one of the very few limitations on the power of state legislatures.
It is an explicitly textual right, and therefore could not be more different from the amorphous “right to privacy.”

Thomas Schmeling
Thomas Schmeling
15 years ago

Interesting post, Justin. Hope to be able to comment on it later.
I believe that the “liberty of contract” referred to is not the same as the protection in the Contract Clause. The latter, as I understand it, was (and is) a limitation on gov’t’s ability to impair rights under preexisting contracts. The “liberty of contract” was used to strike down laws interfering with the formation of contracts (minimum wages, maximum hours etc). , and was grounded not in the Contract Clause of Art. I sect. 10, but in the Due Process Clause of the 14th Amendment, as was the right of privacy later on. Neither contract nor privacy is explicitly mentioned in the 14th.
The poster-child for the liberty of contract idea is Lochner v. New York (1905).
Side-note on the Contracts Clause: Apparently, the behavior of the Rhode Island legislature was a significant motive behind the adoption of the Contracts Clause in 1787. See John Vile, “A Companion to the US Constitution and Its Amendments. p. 58

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