by Matt Barr

More on liberty by fiat

Commenting on Ramesh Ponnuru's comment to this, which I'll excerpt in a minute, Mark Levin writes:

[T]he fundamental problem with the libertarian approach is its embrace of the judiciary as the institution that will best defend individual liberty, including economic liberty -- as a kind of benevolent Olympian council. But like any oligarchy, ultimately it abuses its power. At this point, any restraint it exercises is voluntary for it need not fear an effective response by the other branches. Indeed, any suggestion of impeachment (a modern day dead-letter, for the most part) or Article III limitations are met with tremendous resistance. It's really quite odd how libertarians embrace such a concentration of authority in the hands of so few -- hoping that only if the right people are appointed to the Court, and enough of them who share their principles, that cause of liberty will be advanced. And it's remarkable that despite 70 years of evidence of the judiciary's lurch to the left, they continue to argue for judicial supremacy. While it's true that the elected branches can often be no better, change and redirection are at least more likely through the ballot box.

While this is unassailably true, the libertarian response feints and tries to convince that it's not really judges they're relying on. In a technical, so very modern libertarian sense, that's true: If everyone were smart enough to agree with the libertarian, judges wouldn't need to referee conflicts and strike down laws. As such, judicial power is secondary to the whole exercise.

Again, though, while I distrust my fellow voter as much as anybody, I have the opportunity to either change his mind or cancel his vote out. Not so with federal judges.

The piece linked above by William Mellor is an important read.

Both liberals and conservatives take comfort in their belief that legislatures will respond to the will of the public and make informed policy decisions that can be changed as public sentiment dictates. Though appealing in principle, this trust in the democratic process ignores the realities of governmental institutions. Through gerrymandering and other means, elected representatives are increasingly insulated from constituents. Meanwhile, many policies are set and enforced by unelected, unaccountable agencies and commissions. What's more, politically powerful special interests often capture the regulatory process to keep out newcomers, or to take what doesn't belong to them. In the absence of democratic limitations, protection of economic and property rights is increasingly dependent on the self-restraint of government institutions-a commodity that is chronically in short supply.

In such a climate, the Court's role in reviewing the constitutionality of laws becomes especially important. Without judicially recognized constitutional constraints, perverse incentives lead inexorably to expansion of government power and the yielding of individual rights. That dynamic is nowhere more evident than in property rights and economic liberty, where the current constitutional debate is whether there should be any limits on governmental power. In effect, where does the outer boundary of government authority lie?

The difference, I think, was ably pointed out earlier by the Crank: Liberals favor and applaud judicial activism that strips power from the people effectively in perpetuity. Conservatives,

by contrast, generally tend at most to reallocate powers among the various branches of government rather than rule them out of the democratic sphere entirely. When the Supreme Court tells Congress that something like the Violence Against Women Act exceeds the commerce power, it leaves the people's representatives in the states with plenary authority to legislate in that area. When the Court limits the ability to sue states in federal court under the 11th Amendment - probably the most controversial area of Rehnquist Court "activism" - it leaves the people's representatives in the states with the ability to accomplish the same ends in state court, or through alternative state-law remedies, if that is what they want. By contrast, the Dormant Commerce Clause cases, which restrict state power, generally leave Congress with the ability to enact nationwide economic policy. If the Court had struck down the Independent Counsel statute, as Justice Scalia proposed, there would still be special prosecutors (as there are again today). And, of course, if the Court were to overturn Roe v. Wade, many states would go ahead and repeal their old statutes banning abortion.

Mellor's list of offenses against the republic is real, and all are real problems, but if the machinery of democracy is broken, there should be democratic reform, not a wholesale cessation of power to judges. Mellor doesn't see it that way:

When government growth is proceeding virtually unchecked, setting reasonable outer boundaries might be a good place to start. The problem, however, is that for economic liberty and property rights, the boundaries are set at such an outer extreme that, for all practical purposes, courts cede virtually unchecked authority to government. Bureaucrats become adroit at maximizing their power just short of the boundary. The result is a flourishing regulatory regime that too often leaves abused property owners and entrepreneurs without recourse.

Without recourse, though, or without quick, clean, decisive recourse? The analogy of amending the constitution may be apt. It is indeed easier, comparatively, and takes far less effort to convince the Supreme Court that there is a right to abortion on demand in the U.S. constitution than amending the constitution so there really is. But does anyone doubt that national attitudes about abortion in particular and sex in general have liberalized in 35 years? How many states, given the opportunity, would outlaw abortion? I don't guess very many, and I guess in the ones that did, the ban wouldn't last a decade. Democratic reform isn't often instant gratification, but that's no excuse for cheating your way to a quicker result.

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