Scalia v. Epstein

Two Views on Judicial Activism

Antonin Scalia, Richard A. Epstein

• Publisher: Cato Institute
• Year: 1985
• ISBN:
  9781937184469
• Topic: Politics & International Relations
• Subtopic: Public Policy
• Index: Politics & International Relations

With the appointment of William H. Rehnquist as Chief Justice of the United States and Antonin Scalia as associate justice, there is renewed interest in questions of judicial activism and the role of the courts in protecting personal and economic liberties. To further public discussion of these fundamental questions, the Cato Institute is pleased to present this debate between Judge Scalia and Richard A.Epstein, James Parker Hall Professor of Law at the University of Chicago and editor of the Journal of Legal Studies. These papers were originally delivered at the Cato Institute's conference "Economic Liberties and the Judiciary" on October 26,1984, and appeared in the Winter 1985 issue of the Cato Journal.

ECONOMIC AFFAIRS AS HUMAN AFFAIRS

Antonin Scalia

The title of this article—Economic Affairs as Human Affairs—is derived from a phrase I recall from the earliest days of my political awareness. Dwight Eisenhower used to insist, with demonstrably successful effect, that he was "a conservative in economic affairs, but a liberal in human affairs." I am sure he meant it to connote nothing more profound than that he represented the best of both Republican and Democratic tradition. But still, that seemed to me a peculiar way to put it—contrasting economic affairs with human affairs as though economics is a science developed for the benefit of dogs or trees; something tltat has nothing to do with human beings, with their welfare, aspirations, or freedoms.

That, of course, is a pernicious notion, though it represents a turn of mind that characterizes much American political thought. It leads to the conclusion that economic rights and liberties are qualitatively distinct from, and fundamentally inferior to, other noble human values called civil rights, about which we should be more generous. Unless one is a thoroughgoing materialist, there is some appeal to this. Surely the freedom to dispose of one's property as one pleases, for example, is not as high an aspiration as the freedom to think or write or worship as one's conscience dictates. On closer analysis, however, it seems to me that the difference between economic freedoms and what are generally called civil rights turns out to be a difference of degree rather than of kind. Few of us, I suspect, would have much difficulty choosing between the right to own property and the right to receive a Miranda warning.

In any case, in the real world a stark dichotomy between economic freedoms and civil rights does not exist. Human liberties of various types are dependent on one another, and it may well be that the most humble of them is indispensable to the others—the firmament, so to speak, upon which the high spires of the most exalted freedoms ultimately rest. I know no society, today or in any era of history, in which high degrees of intellectual and political freedom have flourished side by side with a high degree of state control over the relevant citizen's economic life. The free market, which presupposes relatively broad economic freedom, has historically been the cradle of broaa political freedom, and in modem times the demise of economic freedom has been the grave of political freedom as well. The same phenomenon is observable in the small scales of our private lives. As a practical matter, he who controls my economic destiny controls much more of my life as well. Most salaried professionals do not consider themselves "free" to go about wearing sandals and nehru jackets, or to write letters on any subjects they please to the New York Times.

My concern in this essay, however, is not economic liberty in general, but economic liberty and the judiciary. One must approach this topic with the realization that the courts are (in most contexts, at least) hardly disparaging of economic rights and liberties. Although most of the cases you read of in the newspaper may involve busing, or homosexual rights, or the supervision of school districts and mental institutions, the vast bulk of the courts' civil business consists of the vindication of economic rights between private individuals and against the government. Indeed, even the vast bulk of noncriminal "civil rights" cases are really cases involving economic disputes. The legal basis for the plaintiffs claim may be sex discrimination, but what she is really complaining about is that someone did her out of ajob. Even the particular court on which I sit, which because of its location probably gets an inordinately large share of civil cases not involving economic rights, still finds that the majority of its business consists of enforcing economic rights against the government—the right to conduct business in an unregulated fashion where Congress has authorized no regulation, or the right to receive a fair return upon capital invested in a rate-regulated business. Indeed, some of the economic interests protected by...

Table of contents

• ECONOMIC AFFAIRS AS HUMAN AFFAIRS
• JUDICIAL REVIEW: RECKONING ON TWO KINDS OF ERROR
• Cato Institute