THE BLOG

Denying the Dogma of Judicial Deference: A Reply to Carson Holloway (Part I)

04/09/2015 06:35 pm ET | Updated Jun 09, 2015

Time was, a defender of limited government could praise judicial restraint with complete confidence that he or she was affirming orthodoxy. Today, the dogma of deference is hotly disputed. No sooner did Carson Holloway publish an article in the National Review defending judicial restraint against "libertarian constitutionalism" than he finds himself fending off criticism from such "libertarian constitutionalists" as Damon Root, Tim Sandefur, and myself. Last week, Tim presented a robust defense of a judicial presumption of liberty to which I have little to add (except for my enthusiastic concurrence).

But Holloway's recent reply to my critique raises another fundamental question that has yet to be addressed: When, if ever, it is appropriate for judges to evaluate whether restrictions on liberty that are said to serve legitimate, public-oriented ends do in fact have a demonstrable, substantial connection to those ends? Holloway's endorsement of Justice Oliver Wendell Holmes, Jr.'s dissent in Lochner v. New York suggests that his answer is "rarely" -- specifically, only if the liberty claimed is explicitly spelled out in the text of the Constitution. In this post, I will argue that Holloway's approach to judicial review is informed by an understanding of rights that is alien to that of the Framers and ignores the express language of the Ninth and Fourteenth Amendments. In a subsequent post, I will trace the tragic consequences of that approach.

For Holloway, Lochner is an easy case. He considers it immaterial that the law at issue, which prohibited New Yorkers from working in a bakery more than ten hours in one day or 60 hours per week, bore the marks of protectionism. Whatever happened during the legislative sausage-making process, the "end" that the law was purportedly designed to serve was "protecting the health of bakers," and protecting public health is a legitimate end of government. The Court, says Holloway, should "not try to ascertain exactly how far the government can go." Furthermore, we do not have to worry about possible violation of the bakers' "liberty of contract," because such liberty has no "clear textual basis." Thus, the maximum-hours restrictions were constitutional. Q.E.D.

This analysis is essentially identical to that of Holmes, whose dissent made him a jurisprudential hero among Progressives. And it is wrong for precisely the same reasons.

The fact that a right is not expressly listed in the text of the Constitution does not mean that the Constitution does not guarantee it and judges should not protect it. Defenders of the proposed, unamended Constitution argued that enumerating rights would imply that no others existed beyond those specifically listed. Thus, James Wilson argued that: "If we attempt an enumeration... everything that is not enumerated is presumed to be given (to the government)."

Despite these misgivings, the Federalists ultimately promised to add a bill of rights in order to ensure ratification of the Constitution. To ensure that the enumeration of certain rights would not be taken to imply that the government was free to deprive people of others not listed, James Madison drafted what would become the Ninth Amendment. The Ninth Amendment provides: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." As Professor Randy Barnett has shown, these "retained" rights are natural rights. Natural rights define the moral space people need to peacefully pursue their own happiness -- space that the government may not encroach upon without a rational, public-oriented justification.

The Lochner Court did not invent liberty of contract. On the contrary, it was widely understood that the rights of emancipated blacks and white Unionists had been systematically and improperly violated during Reconstruction, and a key goal of the Fourteenth Amendment was to ensure the constitutionality of the Civil Rights Act of 1866 -- legislation that guaranteed, among other things, the right to "make and enforce contracts." The liberty to sell one's labor on mutually agreed upon terms is among the "privileges or immunities of citizens of the United States" referred to in section one of the Fourteenth Amendment. Senator Jacob Howard, one of the leading authors of the Fourteenth Amendment, explained that the Privileges or Immunities Clause protects "the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety," as well as "the personal rights guaranteed and secured by the first eight amendments of the Constitution."

The Due Process Clauses of the Fifth and Fourteenth Amendments are also properly read to protect unenumerated rights. The concept of due process of law can be traced back to the "law of the land" clause in the Magna Carta and was understood by the founding generation to refer to inherent limits on governmental authority. The Supreme Court affirmed this understanding as early as 1819, when it interpreted a state's law-of-the-land clause as being "intended to secure the individual from the arbitrary exercise of the powers of government, unrestrained by the established principles of private rights and distributive justice." As the Court put it in the 1884 case of Hurtado v. California, the due process clauses serve as "bulwarks against arbitrary legislation" that strikes at "the very substance of individual rights to life, liberty and property." The concept of liberty of contract was forged by state courts in the wake of the Civil War before being unanimously embraced by the Supreme Court in the 1897 case of Allgeyer v. Louisiana -- a decision that did not give rise to any impassioned originalist criticism.

As Professor David Bernstein observes in his invaluable book, Rehabilitating Lochner, the Progressive critique of liberty-of-contract cases was anti-originalist -- progressives argued that the Constitution should be interpreted in light of the changing needs of modern, industrialized society. Holloway counsels adherence to the "Founders' Constitution." But his misunderstanding of the theory of rights that informs the Constitution leads him astray. Ultimately, as we will see, he embraces a judicial approach that renders the Constitution's limits on government ineffectual and leaves ordinary Americans at the mercy of arbitrary power.