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Professor: Who Needs Judges? Let's Put Our Constitutional Rights to a Vote

02/19/2015 03:02 pm ET | Updated Apr 21, 2015
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You may have read somewhere that the Founders of our country rebelled against a government that regarded individual rights as mere privileges. You may have been under the impression that the Framers of our Constitution designed a system of checks and balances to ensure that government in America would protect, rather than pay lip service to, individual rights. You may even have heard that the Framers established an independent judiciary to ensure that the political branches stayed within constitutional limits.

Forget all that, argues political science professor Greg Weiner. At Law & Liberty, Weiner argues for reflexive judicial restraint in the face of government restrictions on liberty, on the grounds that "(i)t might be healthier and, crucially, ultimately better for liberty if rights claims were to be politically resolved." His case is flatly inconsistent with the judicial power established by the Constitution, the lessons of history, and what we know about how that kind of judicial restraint works out for ordinary Americans in real life.

Let's start with the judicial power. The judiciary was established to serve as an intermediary between the political branches and the people. The duty of judicial review obliges judges to ensure that the political branches do not act exceed the scope of the powers delegated to them. The Framers were well aware that what James Madison referred to in Federalist 10 as the "mischiefs of faction" could lead overbearing majorities and entrenched special interests to use government power to oppress minorities and further their own, private ends. Thus, Alexander Hamilton argued in Federalist 78 that constitutional limitations "can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void."

The system devised by the Framers contemplated that the states would act as faithful guardians of individuals' rights. This premise proved to be false, and the failure of the original Constitution to expressly secure individual rights against state encroachment gave rise to brutal majoritarian tyranny. Southern legislators intent on perpetuating the institution of slavery aggressively enacted laws restricting freedom of speech and the press in an effort to suppress antislavery ideas, and systematically denied both procedural and substantive rights to blacks. State constitutional guarantees proved empty, as legislators devised ingenious ways to work around them and state courts often refused to protect the individual rights of free blacks and white abolitionists, among others. After the Civil War, the southern states adopted "black codes" that ensured that former slaves were kept in a state of constructive servitude, denying them the rights to contract or own and exchange property, and leaving them at the mercy of mob violence.

That is what it looks like from the perspective of the politically powerless and socially marginalized when rights claims are "politically resolved," to borrow Professor Weiner's language.

The Reconstruction Amendments were designed to end these state-sanctioned deprivations of liberty and re-affirm the principles set forth in the Declaration of Independence. Experience having shown that the states could not be fully trusted to respect individual rights, those who ratified the Fourteenth Amendment explicitly empowered the federal government, including particularly the federal judiciary, to ensure that those rights remained secure against both federal and state deprivations.

Unfortunately, most constitutional rights today do not receive meaningful judicial review and thus continue to be resolved politically. The result? Ordinary Americans' peaceful pursuit of happiness is impeded by innumerable arbitrary restraints that serve only the interests of those with the lobbying power to secure their passage. This status quo is in substantial part the product of the "rational basis test," the default standard of review in constitutional cases that do not involve one of a handful of rights that the Supreme Court has arbitrarily pronounced "fundamental." Under the rational basis test, courts do not seek the actual reasons for laws and do not require the government to submit any evidence in support of their legitimacy. To apply rational basis review is, in practical effect, to allow the asserted right to be "politically resolved," as Professor Weiner urges.

But, just as we were reminded during Reconstruction, political resolution of rights is a disaster for those who lack the money, clout, or connections to influence policy. In the case of Meadows v. Odom (2005), for example, a federal judge left Sandy Meadows' constitutionally guaranteed right to earn honest living to be "politically resolved," accepting patently bogus claims about the supposed physical dangers of unlicensed floristry and upholding a licensing scheme that plainly did not protect the interests of anyone but established florists. Sandy, who had been fired from her job managing the floral department of an Albertsons grocery store because she was unable to secure a license, died shortly thereafter-- alone, unemployed, and in poverty. Her case is not exceptional--it is representative of the experiences of countless Americans across the nation who are subjected to protectionist schemes that they are in no position to undo politically.

Proponents of constitutionally limited government must reject the false choice Weiner offers between elective despotism on the one hand and government-by-judiciary on the other. Judicial engagement offers a third way. By requiring the government in every case to demonstrate, with record evidence, that it is pursuing a constitutionally valid end through constitutionally legitimate means, judicial engagement ensures that the government offers us a sufficient reason when it restricts our liberty. If we seek to restore the rule of law established by the Constitution, we need judges to consistently hold the political branches accountable to itv-- not leave our rights to be voted up or down.