Wide Liberty: How to Reframe Judicial Activism

When I proposed "Democracy means trusting the people" as a liberal principle in my 10 Ideas for 2008, I walked into an obvious objection: "What about judicial activism? If you believe in democracy and trust the people, what about partial birth abortion or gay marriage? Why don't you trust the people on those issues?"

The judicial activism charge isn't going to go away. In order to face it head-on, we need to go back and understand our legal and political history better than the conservatives do. When we have done that, we will find the virtue of wide liberty where they see the vice of judicial activism.

The Judicial Activism Frame

By its nature, judicial activism is a negative frame. A judge is supposed to be impartial, and an activist has an ax to grind. So a judicial activist is a judge who abuses his position to push his own political and social agenda. That can't be good.

In practice, liberalism is an inescapable part of the Judicial Activism Frame. If you complain about conservative judicial activism, people don't get it. When Roy Moore set up a ten commandments monument in front of the state supreme court building in Montgomery, for example, he was using the power of his position as Alabama's Chief Justice to push his own agenda. But you are more likely to hear charges of judicial activism made against the federal judges who had the monument taken down than against Moore. You can protest until you're blue in the face about the judicial activism in the Bush v Gore decision, about conservative judges trying to extend the First Amendment to cover "commercial speech," or even the Supreme Court finding that corporations are "persons" in 1886. It won't matter. Judicial activism is liberal. Everyone knows that, and they're not going to un-know it just because the facts say something different.

So just by agreeing to have a conversation about judicial activism, liberals are conceding that liberal judges abuse their positions. Where can the discussion go from there? No place good. If we are to defend liberal judges and liberal legal theory at all, we have to reframe judicial activism.

When Do Charges of Judicial Activism Arise?

Invariably, charges of judicial activism arise when a court sides with a minority against the majority, or with the less powerful against the more powerful. Majorities or powerful minorities can get their way more easily through the other branches of government. (Why take years fighting through the courts when you can just write some campaign-contribution checks or have your members launch a letter-writing campaign?) But if you're a lone atheist trying to get under God out of the Pledge of Allegiance, or a lesbian couple who wants to get married, or a pregnant woman seeking a legal abortion, or a handful of smaller companies trying to break up the Microsoft monopoly, your executive and legislative options are limited.

Why would a judge take your side if Congress and the President won't? Maybe because you're right. Or rather, because you have rights. Rights are the way that a constitutional system balances the interests of the majority against the interests of minorities and individuals. Without rights, a democracy is just a tyranny of the majority -- 51% can vote to have the other 49% executed. Judges are precisely the people who need to defend the rights of minorities, because the majority can replace any other public official. From time to time Congress or the President may courageously refuse to let the majority trample on the minority, but the courts are a minority's last line of defense.

The kind of judge described by the Judicial Activism Frame, however, might have another reason to take your side: Your case suits his personal agenda. By finding in your favor he creates a new legal precedent that pushes society in the direction that he personally favors. Formally, his ruling would look just like the ruling of an impartial judge: It would thwart the will of the majority by referring to your rights. But instead of resting on rights that are well established and time honored, the ruling of the judicial activist relies on new rights that never existed until his ruling created them. Those new rights may be the whole point: He ruled in your favor precisely because it allowed him to change society by establishing a new right.

Now we have the complete description of the Judicial Activism Frame: A liberal judge promotes his personal agenda for society by inventing new rights.

Examples of Judicial Activism

Conservatives (and even many liberals) have no trouble coming up with examples of rights invented by activist judges: The Bill of Rights says nothing about a right to privacy, but Roe v. Wade says that such a right not only exists, but guarantees a woman's right to end her pregnancy with an abortion. Neither the U.S. nor the Massachusetts Constitution says anything specific about homosexual relationships, but somehow the Massachusetts Supreme Judicial Court found that gay and lesbian couples have the right to marry. A series of controversial rulings in the mid-to-late 20th century attempted to force racial balance on public school systems, despite the fact that the Constitution says nothing about public schools. I could go on.

It is an impressive list, and it is well known. We cannot ignore it or wish it away. If liberals intend to present themselves as the true defenders of democracy (as I think we must), we cannot at the same time defend the establishment of a thousand petty dictatorships in courtrooms across the country. And as beneficial to society as many of these rulings have been -- would even conservatives want to undo Loving v. Virginia, which gave interracial couples the right to marry? -- we cannot get away with an ends-justify-means argument. The ends so far may have justified the means so far, but citizens need to know that their life, liberty, and property in the future rest on something more solid than the whim of a judge.

And yet, should liberals turn their backs on Roe v. Wade? Does another generation of gays and lesbians have to live and die before legislatures get around to recognizing their relationships? Are we willing to watch the majority do anything not specifically forbidden by the Constitution?

In this article I lay out a third option. The Judicial Activism Frame, I claim, rests on an understanding of rights and the law which has gone seriously astray. The Founders would be quite horrified by (and some specifically denounced in advance) the understanding of rights that the general public -- liberal as well as conservative -- has today. In order to salvage our position and escape from the trap of the Judicial Activism Frame, we need to re-educate the public (beginning with ourselves) about the nature of rights and their proper role in a democracy.

Having done that, we will discover that the bete noir of the Right, the activist judge who is bound by nothing but his own liberal conscience, is largely a creature of myth. And to the extent that such creatures do exist, we will have no trouble denouncing them -- without sacrificing the social gains that supposedly depend on judicial activism.

Rights and Democracy

Rights and democracy seem to fit together like hands and gloves. It's hard to imagine a democracy without rights, or rights being respected for long without democracy. But why? Do they go together by historical accident, or is there some reason for it?

The Tyranny of the Majority

The alleged inventors of democracy, the Greeks, were already well aware of its weaknesses. Aristotle described the tyranny of the majority in Book IV of Politics:

A fifth form of democracy, in other respects the same, is that in which, not the law, but the multitude, have the supreme power, and supersede the law by their decrees. ... This sort of democracy, which is now a monarch, and no longer under the control of law, seeks to exercise monarchical sway, and grows into a despot ... this sort of democracy being relatively to other forms of democracy what tyranny is to other forms of monarchy. The spirit of both is the same, and they alike exercise a despotic rule.

The democratic Greek city-states tended towards this kind of rule, and as a result they were unstable. Democracies periodically elected popular tyrants, or they failed to reconcile their electoral losers and had civil wars. One tragic subplot of Thucydides' Peloponnesian Wars concerns the city-state of Corcyra, a newly independent Corinthian colony that seemed poised to take its place in the upper echelon of Greek cities. But after a democratic revolution, the aristocrats fled to Sparta, raised an army, retook the city, and executed many of the democratic leaders. The surviving democrats escaped to Athens, where they likewise raised an army and returned to slaughter aristocrats. After several rounds of this game, Corcyra never recovered.

Similar tragedies occurred across Africa when the independence wave of the 1960s created many new "democracies" with apparently flawless constitutions. In nation after nation, the winner of the first election saw no need to hold a second, and the result was either a bloody dictatorship or a bloody civil war. If the civil war resulted in a new democratic government, one election would be held and the cycle repeated.

It takes more than an election and a paper constitution to make a stable democracy. At a bare minimum, the following events have to happen:

Although I have put these events in chronological order, each is barely possible without the expectation of the others. After the disputed American election of 2000, for example, Al Gore did not start a civil war, and George Bush did not have him arrested. But Gore might have found civil war more tempting if he had expected Bush to arrest him. Likewise, arresting Gore would have seemed more reasonable if Bush expected him to lead a revolt. This chicken-and-egg problem is the major hurdle that a country has to overcome to establish a democracy. A country that cannot raise this level of mutual trust may occasionally have an election, but it cannot sustain a democracy.

From this analysis we see that minority rights are not just a social luxury, or a gift bestowed by a beneficent majority. Rather, minority rights are the necessary ballast that the majority takes on in order to stabilize its rule. In a healthy democracy, a general belief in the rights of minorities (but not necessarily a specific belief in every right claimed by particular minorities) is nearly universal. As conservative scholar Thomas Sowell puts it: "No one believes that whatever a majority does is morally right -- including the majority."

The American Experiment

Looking at the lone superpower of the 21st century, we easily forget how radical the American republic was when it was founded near the close of the 18th century. From the Babylonians onward, power and legitimacy had flowed from Heaven to the King, and then downward to the lower orders. This model (known by then as "the divine right of kings") was still the assumed norm when the Continental Congress declared its independence in 1776. But when Thomas Jefferson wrote (and the Congress approved) the line: "All men ... are endowed by their Creator with certain inalienable rights" the entire structure of legitmacy was turned upside-down. Rights, according to the Founders, were not granted by the government. Rights were given by God, and given equally to all.

For this reason, the logic of the U.S. Constitution runs exactly backwards from that of, say, the Magna Carta. In the Magna Carta, King John grants a series of rights to the Church of England, his barons, and (lastly) the common people. But in the Constitution, power implicitly flows from God to the people, and then from the people upward to the states and (finally) the national government. As Patrick Henry said:

The Constitution is not an instrument for the government to restrain the people, it is an instrument for the people to restrain the government.

For this reason, when the Constitution was presented to the States for ratification, it had no bill of rights. The spirited line-by-line defense of the Constitution which Alexander Hamilton, John Jay, and James Madison wrote (now collected as The Federalist) made the case for ratification without a bill of rights. In Federalist #84, Hamilton wrote:

I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?

Think about what this means. In the original Constitution, which contained no bill of rights and which did not mention freedom of the press at all, Hamilton found the right to a free press. He found this right not by imposing his own conscience onto the law, but because he approached the Constitution with a different question than most popular writers -- and many judges -- bring to it today. He did not ask: "Where does the Constitution give publishers the right to print what they want?" Instead, he asked: "Where does the Constitution give the government the right to regulate the press?" The answer to both questions is: Nowhere. But Hamilton saw that answer as a defense of individual rights, not an attack on them.

Hamilton's interpretation was not an idiosyncrasy of one Founder. The argument of Jefferson (and others) in favor of a bill of rights was not that the Constitution as written did not already protect rights, but that it needed to make a stronger statement. The general philosophy was shared by all: Power and legitimacy come from the people; governments have only those powers which the people, through the approval of a constitution, delegate to them.

When it became clear that the public demanded a bill of rights, fellow Federalist author James Madison wrote one. Speaking to Congress in support of his bill of rights, Madison addressed Hamilton's concern:

It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the [Ninth Amendment].

Madison's bill of rights became the Bill of Rights, whose Ninth Amendment clearly states:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The Right to Privacy: an example

And so we see that it requires no judicial activism -- no substitution of an individual judge's conscience for the law -- to defend rights not specifically enumerated in the Constitution. The burden of proof is on the federal government to show that the Constitution grants it the power to violate rights claimed by an individual, not on the individual to show that his or her rights are defended by the Constitution.

The right to privacy, which protects a woman's right to terminate her pregnancy, and which conservatives cite as a prime example of a right invented by activist judges, is quite easy to defend on the federal level. The right to privacy was first honored by name in Griswold v. Connecticut, which concerned a married couple's right to use contraception. In that case, Justice Arthur Goldberg reproduces the Hamilton/Madison logic perfectly:

To hold that a right so basic and fundamental and so deep-rooted in our society as the right of privacy in marriage may be infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment and to give it no effect whatsoever. ... The fact that no particular provision of the Constitution [381 U.S. 479, 496] explicitly forbids the State from disrupting the traditional relation of the family -- a relation as old and as fundamental as our entire civilization -- surely does not show that the Government was meant to have the power to do so.

In fact, a quick survey of the powers the Constitution grants the federal government (Article I, section 8) should convince even the most determined skeptics that only public powers are granted: coining money, regulating interstate commerce, raising armies, and so on. None of these powers can be stretched to allow the feds to regulate a person's most private decisions. And so, the legal case for striking down federal laws against abortion is clear and does not rely on a judge substituting his own agenda for the Constitution: Nowhere does the Constitution grant Congress the power to make such laws.

The States, Liberty, and the Fourteenth Amendment

Even if We the People of the United States have never granted the federal government the power to violate those implicit rights not enumerated in the Constitution, it still might be true that the people of a particular state have granted their state government such powers. And, in fact, the most controversial Supreme Court decisions are the ones (like Roe v. Wade) in which the Supreme Court strikes down a state law.

Many state constitutions are not written in the power-limiting language of the federal constitution. The constitution of Texas (site of Roe) is fairly typical: It begins with a bill of rights much lengthier than the federal bill of rights, and then describes the powers of the state government in a vague, open-ended way. Article 3 states:

The Legislative power of this State shall be vested in a Senate and House of Representatives, which together shall be styled "The Legislature of the State of Texas."

Exactly what legislative power means is never precisely defined. The most obvious interpretation of the Texas Constitution is that the legislature can pass whatever laws it wants, as long as it doesn't violate the rights listed in Article 1. In other words, Texas gives its citizens a long list of explicit rights, and leaves them little grounds for claiming any implicit rights.

So where does the Supreme Court get off in Roe? Surely this is an example of judicial activism, right? The Texas Constitution does not list a right to privacy, or any other right that is easily construed to apply to abortion. The Texas legislature was surely acting within its vague "legislative power" when it made abortions illegal. Right?

Prior to the Civil War, that argument would have been bulletproof. States could and did pass many laws that would have been out-of-bounds for the federal government. Slavery is the most obvious example: If you can take away a person's most basic rights and turn him into someone else's property, you can do pretty much anything. And states' rights was not a purely southern issue. Massachusetts, for example, had an established church until 1834 - despite the fact that the First Amendment prohibits the federal government from establishing a state religion. Prior to the Civil War, the Bill of Rights had no claim on the states.

Other than respecting the powers already granted to the federal government, the only constraints the original Constitution put on the states are in Article IV. They don't amount to much: states have to respect each other's judicial proceedings, extradict fugitives, grant visitors from other states all the rights they give their own citizens, and so on. The only clause that gives the federal government any real power over the states is in Article IV, Section 4:

The United States shall guarantee to every State in this Union a Republican Form of Government.

So if a military coup happened in some state, the feds could invade to restore the state's republic. But as long as a state government could style itself as "a Republican Form of Government," it could do pretty much whatever it wanted with its citizens.

After the Civil War, though, the Fourteenth Amendment was passed to make sure that slavery was dead for good. But rather than make a limited no-slavery statement, the Amendment is a sweeping assertion of individual rights:

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.

This is one of the most radical statements in the entire legal history of the United States. If you read it aloud with the right intonation, you should get goose bumps.

Every state is bound by this amendment. And almost all the major examples of so-called judicial activism revolve around interpreting phrases in the Fourteenth Amendment. What is due process? What is equal protection of the laws? And, most importantly, what is liberty?

Obviously, any right guaranteed explicitly in the federal Bill of Rights counts as liberty. But what about the implicit rights? Freedom of conscience, for example? The Founders explicitly protected your right to state your views and exercise your religion, but they never explicitly granted you the right to believe and doubt as you will -- probably because no power granted to the federal government could be stretched far enough to threaten it. But could a state pass a law making it illegal for you to be an atheist in the privacy of your own mind?

Surely not. Liberty has to include at least some of the rights granted implicitly by the federal constitution.

Which ones? That is a debate about the law, the intentions of the Founders, and the intentions of those who voted for the Fourteenth Amendment. It is not judicial activism.

Wide Liberty: an Alternative to Judicial Activism

What if we consistently interpret the Constitution from the Hamilton/Madison point of view? What if, in other words, we assume individual liberty as the default position, and allow government interference only when the people have granted government such power through the establishment of a state or federal constitution? What if, in addition, we give a wide interpretation to the term liberty in the Fourteenth Amendment, rather than a narrow one?

Then we arrive at position we might call wide liberty. Unlike judicial activism, wide liberty does not assume that we are wiser, smarter, or more moral than the Founders. It does not bend the law to our personal beliefs or allow us to pursue whatever social agenda we may find appealing. But it does defend individuals against the tyranny of the majority, and it provides a basis for defending our rights without appeal to judicial activism. It also, I believe, describes the thinking of liberal judges more accurately than the Judicial Activism Frame does.

The Flow of Power and "New" Rights

A wide-liberty judge would look skeptically at claims of government power over individuals, even those claims that have gone unchallenged for generations. Recognizing that all legitimate power ultimately comes from the people, the judge would trace the path of that power as it flows through the state and federal constitutions, through the legislative and executive branches of government, and finally to the particular agent of governmental power who appears in the courtroom. The burden would be on the government agent to show that the flow of power is legitimate, not on the individual to show that the law explicitly defends his or her rights.

I expect that such judges, over time, would come to recognize more and more individual rights. This would happen not through any imposition of their own values onto the law, but because encrustations of prejudice and unexamined assumptions would, over time, be swept away. Again and again in American history, prejudice has consigned one group or another to second-class citizenship. The power of government has been used to enforce a stratification that the ruling class of that day believed to be the natural order. Where does the power to construct these second-class citizenships come from? When and how did the members of the underclass surrender their right to full citizenship? During the era when the prejudice is dominant, such questions are rarely asked and, if asked, are laughed off rather than answered. ("Blacks go to the same schools as whites? What are you, crazy?")

Eventually, however, the scales fall from our eyes. Some brave and lonely judge tentatively points out that the Emperor is naked. The flow of power has relied on unexamined assumptions that, once examined, are insupportable. And then the judge has a duty to stop the illegitimate flow, no matter how long the practice has been going on. As former Chief Justice Warren Burger wrote:

It is obviously correct that no one acquires a vested or protected right in violation of the Constitution by long use, even when that span of time covers our entire national existence, and indeed predates it.

Same-Sex Marriage

In the Goodridge case, the Supreme Judicial Court of Massachusetts ruled in November, 2003 that same-sex couples could marry. The first such marriages were performed immediately after the ruling took effect six months later.(To date, God has not smitten Massachusetts, and the Red Sox' World Series victory may even be seen as a sign of divine favor. Florida, which denies same-sex marriage rights, has had four hurricanes in the same time period.)

Is this an example of judicial activism or wide liberty? The majority opinion in Goodridge, written by Massachusetts Chief Justice Margaret Marshall, is an excellent example of wide-liberty reasoning:

The Massachusetts Constitution requires that legislation meet certain criteria and not extend beyond certain limits. It is the function of the courts to determine whether these criteria are met and whether these limits are exceeded.

In other words, judges need to trace the flow of power. Marshall details the criteria legislation must meet as follows:

The Massachusetts Constitution requires, at a minimum, that the exercise of the State's regulatory authority not be "arbitrary or capricious." ... Under both the equality and liberty guarantees, regulatory authority must, at the very least, serve "a legitimate purpose in a rational way"; a statute must "bear a reasonable relation to a permissible legislative objective." ... Any law failing to satisfy the basic standards of rationality is void. ... For due process claims, rational basis analysis requires that statutes "bear a real and substantial relation to the public health, safety, morals, or some other phase of the general welfare." ... For equal protection challenges, the rational basis test requires that "an impartial lawmaker could logically believe that the classification would serve a legitimate public purpose that transcends the harm to the members of the disadvantaged class".

Power starts with the people, and flows through the state constitution to the legislature. But the people did not delegate "arbitrary power" to the legislature -- that would be the tyranny of the majority. Rather, the people delegated power to the legislature to promote the general welfare, and any law that does not have a rational connection to the general welfare is illegitimate.

In his dissenting opinion in Goodridge, Justice Robert Cordy shows just how hard it is to make a rational justification for banning same-sex marriage. In the public media, of course, the case is much easier. You can make any of three simple arguments:

But none of these arguments counts as "rational" in a court of law. So what do you have left? Antediluvian reasoning about procreation:

Civil marriage is the product of society's critical need to manage procreation as the inevitable consequence of intercourse between members of the opposite sex. Procreation has always been at the root of marriage and the reasons for its existence as a social institution.

Marshall shreds this claim easily:

[The Massachusetts marriage law] contains no requirement that the applicants for a marriage license attest to their ability or intention to conceive children by coitus. Fertility is not a condition of marriage, nor is it grounds for divorce. People who have never consummated their marriage, and never plan to, may be and stay married. ... People who cannot stir from their deathbed may marry.

So why not gays and lesbians? Marshall explains:

The absence of any reasonable relationship between, on the one hand, an absolute disqualification of same-sex couples who wish to enter into civil marriage, and, on the other, protection of public health, safety, or general welfare, suggests that the marriage restriction is rooted in persistent prejudices against persons who are (or who are believed to be) homosexual.

Opponents of same-sex marriage want the question to be: Where does the Massachusetts Constitution grant same-sex couples a right to marry? Marshall asks a different question: Where in the Massachusetts Constitution do gays and lesbians give up their right to equal protection under the law? Where did the legislature get the power to define the basic institutions of society so as to create a privileged class (straights) and an underclass (gays)? The answer to all three questions is: Nowhere.

Refuse to be Framed

The Judicial Activism Frame is a bludgeon for conservatives to use against liberals. President Bush put it this way in the 2004 State of the Union:

Activist judges have begun redefining marriage by court order, without regard for the will of the people and their elected representatives. On an issue of such great consequence, the people's voice must be heard. If judges insist on forcing their arbitrary will upon the people, the only alternative left to the people would be the constitutional process.

If we let this frame stand and argue inside it, we lose. We can't let conservatives stand up for "the will of the people" while we defend the right of judges to "force their arbitrary will."

Nor can we let ourselves fall into the trap of the end justifying the means -- as we do, in this case, if we jump straight into defending the worthiness of same-sex couples and the reasonableness of their desire to have the same rights and privileges that heterosexual couples take for granted. "Even if you're right," a conservative will counter, "you need to make that case to the people and to their representatives, not by having a judge legislate from the bench."

How should we respond when conservatives invoke the Judicial Activism Frame? By stating our own frame, the Wide Liberty Frame:

In America, the ultimate voice of the people is embedded in the Constitution, which limits the power of government to impose its will on individuals. The Fourteenth Amendment requires judges to defend the liberty of individuals against the tyranny of the majority. Like the Founders, we believe in a wide interpretation of liberty, not a narrow one.

Thomas Jefferson said that no people can expect to remain both ignorant and free. Those words are particularly true today, when we face a slick, well-funded conservative machine that effortlessly turns out reasonable-sounding misrepresentations of our history and political traditions. We must educate ourselves and our fellow citizens about our history and our law. For too long, we have let conservatives paint lovers of liberty as usurpers. We need to celebrate our heritage, and defend the liberal claim to the legacy of those original lovers of liberty, the Founders.

Doug Muder
January, 2005

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