The New Right v. The Constitution

Stephen Macedo

• Publisher: Cato Institute
• Year: 1997
• ISBN:
  9781937184254
• Topic: Politik & Internationale Beziehungen
• Subtopic: Öffentliche Ordnung

Perhaps the most enduring legacy of the Reagan administration will be the conservative judges it has placed on the Supreme Court and other federal courts. In this provocative essay, Harvard political scientist Stephen Macedo warns that the New Right's "Jurisprudence of Orginal Intent" seems to put untrammeled majoritarianism in place of constitutionally guaranteed liberties. Macedo accuses the New Right of "moral skepticism in the service of majoritarianism" and proposed instead a principled judicial activisim that interprets the Constitution as a charter of liberties protecting individual freedom against a whole range of legislative and executive assaults. Macedo's defense of constitutional liberties sharply challenges constitional theorists of both left and right.

VI. The Agenda of Principled Activism

"Principled activism" is a response to threats to the constitutional order from both the New Right and the left. Principled activism, as I have argued, seeks active judicial protection of civil and personal rights of the sort favored in recent decades by selective activists (such as Justice Brennan). It is equally committed, however, to the Constitution's obvious concern for economic liberty and property rights. So it rejects the New Right's wholesale moral skepticism as well as the left's untenable double standard of selective activism.

According to much current constitutional thought, laws restricting economic liberty or other liberties that fall outside a list of "preferred" or "fundamental" freedoms need only be "rational" to pass constitutional muster. But this minimal stan dard of judicial review has, as applied, become a mere pretense of review, a veritable blank check for state legislatures to deprive people of economic and other liberties with a "due process of law" that is mere form without substance. Under the guise of reviewing the rationality of government restrictions on disfavored liberties, the Court generally refuses critically to consider the government's arguments and evidence. To announce, as the Supreme Court has, that restrictions on economic and other liberties will be deemed acceptable without a meaningful inquiry into the quality of the case advanced to support these restrictions is to provide a cloak for unjust and arbitrary power.¹⁰⁶ Such power, as constitutionalists have long recognized, epitomizes government tyranny.

Once we acknowledge the Constitution's concern for a broad and inclusive range of liberties, the positive program of principled activism becomes apparent. Conscientious interpreters of the Constitution must reject the Court's effective refusal to review infringements on economic liberty and other liberties that fall reasonably within the Constitution's scheme of values. The consequence of a principled activism would be twofold. On the procedural side, judges would critically examine the reasons and the evidence offered to support restrictions on liberty; they would infuse a measure of real "critical bite" into their review of all government restrictions on constitutional liberty.¹⁰⁷ On the sub stantive side, principled activism would give greater weight to the interest in economic liberty and thus offer greater judicial protection to the whole range of individual liberties-economic, civil, and personal. Principled activism would require, at the very least, that governments provide "real and substantial" justification for restrictions on the full array of liberties protected by the Constitution's scheme of values.¹⁰⁸ Principled activism would help protect liberty and ensure reasonableness in all spheres of government.

We should be deeply disturbed by the failure of judges on the right and the left carefully to examine the reasons supporting restrictions on individual liberty, whether economic or personal. We pride ourselves, after all, on living under a constitutional regime, a government "of laws and not of men." If constitutionalism and the rule of law stand for anything, they stand for the idea that one system of law applies to government officials and citizens alike, and that citizens have a right to challenge govern mental acts in an independent court of law.¹⁰⁹ To act in a manner worthy of constitutionalism and the rule of law, public officials must be prepared not merely to assert their power over others, but to justify their acts in constitutional terms to dissenting citizens.

The Constitution provides grounds for challenging acts of government. It specifies the powers of the federal government and recognizes that citizens have rights that no government may infringe upon. Judicial review by the courts provides a forum for reasoned argument between citizens and public officials about the best interpretation of constitutional rights and powers. Judicial review expresses our commitment to treat even the weak and powerless in a reasonable and justifiable manner. As such, it embodies the nation's determination to be governed by more than mere force. The power of the courts in this system of government stands for the special form of respect we pay to those on the losing side of legislative battles or those who feel victimized by public officials carrying out the law.

Independent courts of law exercising judicial review embody and sustain a commitment to reasonable self-government. To absolve public officials from having to articulate adequate reasons justifying application of coercive power is to tear at the heart of constitutionalism and the rule of law. What the nonactivists of the right and the selective activists of the left threaten is, ultimately, the core aspiration of our constitutional order: the promise of reasonable self-government. Not only liberty itself, then, but constitutionalism's core commitment to genuine reasonableness is threatened by the ersatz rationality standard.

This chapter examines two recent cases raising issues that bear on the status of economic liberty under the Constitution. In these cases narrow Court majorities (to the consternation of both the right and left wings of the Court) seemed to accept a "beefed up" standard of minimum rationality, a standard with the critical bite that principled activism demands. We also examine a case involving personal liberty in which the Court refused to recognize the right to privacy of homosexuals, and in so doing relied on a rationality test with no critical bite whatsoever. The issue raised in all these cases is the legitimacy and vitality of a minimal rationality standard of review with no critical bite-the mere "reasonableness" test that prevails in most decisions involving what the Court arbitrarily calls nonfundamental rights. Beefing up this standard is, I shall argue, the first important step on the road to a more principled judicial activism: one that is reasonable and that recognizes the proper weight of economic liberty and the full range of human interests protected by such personal rights as privacy.

The Court has often held that Congress's power to regulate commerce implies that states may not enact discriminatory measures or erect trade barriers favoring local economic interests or protecting local markets.¹¹⁰ The Court's active deployment of the commerce clause as a means of restricting state economic regulation has been guided by the judgment that an underlying purpose of the commerce clause is to establish an integrated national economy. This in turn reflects an original judgment that nationalizing the governance of commerce would help protect property and economic liberties from the factions and oppressive tenden cies of state legislatures.¹¹¹

The privileges and immunities clause in Article IV, section 2, states, liThe Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." This clause has been taken to limit the ways in which states may discriminate against economic interests in other states. The Court recently struck down, for example, a New Hampshire rule limiting bar admissions to lawyers residing in the state. Citizens of one state, the Court affirmed, may not be prevented from doing business in another state on "terms of substantial equality with the citizens of that State."¹¹²

Since the downfall of the old substantive due process of the Lochner-era Court, Congress's power and discretion under the commerce clause have come to be regarded as extremely broad.¹¹³ Recently, however, the Court established a new limit to the sorts of commercial policies Congress may pursue: the equal protection clause. Congress itself has exempted the states from commerce clause restrictions with regard to the insurance industry, but in Metropolitan Life Ins. Co. v. Ward, the Court struck down an Alabama t...

Table of contents

• FOREWORD
• PREFACE
• I. INTRODUCTION
• II. THE FRAMERS OF THE CONSTITUTION V. JUDGE BORK
• III. THE MAJORITARIAN MYTH
• IV. MORALITY AND CONSTITUTIONAL LAW
• V. PRINCIPLED JUDICIAL ACTIVISM
• VI. THE AGENDA OF PRINCIPLED ACTIVISM
• VII. LIBERTY AND COMMUNITY
• VIII. CONCLUSION
• POSTSCRIPT: A DEBATE ON JUDICIAL ACTIVISM
• About the Author