Lies the government told you

by Andrew P. Napolitano

  This poorly reasoned opinion did the right thing (uphold freedom of contract) for the wrong reason (the state’s claim of right to interfere was not strong enough). The state is without any right to interfere in freely negotiated for contracts. But sadly, Lochner is no longer the law. Since the days of Lochner, the defense of natural rights has fallen into disrepute with courts. If individuals know that the government can step in and nullify the contracts they enter into, what purpose do they serve? The post-Lochner era challenges both the sanctity and meaning of contracts themselves, taking another one of our fundamental rights with it.

  We Are Free to Work as Much

  (or as Little) as We Want

  Flash forward. What do cases like Wickard v. Filburn, Home Building & Loan Association v. Blaisdell, or Lochner v. New York mean today? While there may not be too many cases involving backyard wheat production in recent memory, the right to keep the fruit of our own labor is still in peril. Between the current economic downturn and the Big Government crowd still in power, it would not seem unlikely for the government to put constraints on our freedom to work. A New York Times article suggests that the federal government should force workers to take extended vacations, days off, or restrict their weekly hours, in order to reduce the number of layoffs.27 The suggestion is to adopt a policy similar to European countries like France, where the law dictates the number of hours workers are allowed to clock in per week, thereby reducing the amount of overtime individuals are able to receive and, essentially, the amount of money they are able to make. In Blaisdell, the Supreme Court opened the door to exactly this type of government assault on our right to enter into and enforce binding private contracts.

  While longer vacations never fail to sound appealing, mandates like this from the government are patently un-American. We have always been a self-made, individualistic people who pick ourselves up by the bootstraps and work as hard, and for as many hours as needed to reach our intended goals. And the bottom line is, this is a democracy whose government is by law restrained by a Constitution that guarantees enforcement of the Natural Law, and it should be our choice to work as much or as little as we please.

  One of the reasons why people come to America is that there are fewer speed bumps to the top of the ladder in comparison with other countries. People from a variety of backgrounds can toil and sweat their way up the ladder here. If sanctions were put on the number of hours we were allowed to work, there would be fewer avenues open to reach the top, and only certain people would be able to make it (likely those with the best educations, most social and family connections, the most money, and in favor with the government). This is not what America is about, and this is certainly not freedom in a broad sense.

  All of the natural rights discussed in this chapter deal with subject matter that is exceedingly personal. The private decisions we make about where we want to raise our families, the agreements we make with other parties, and the amount of work we decide to do, are all choices that have an effect on our personal health, wealth, and happiness. As individuals, we make decisions that are varied. What is good for one may simply not be good for another. It is time for the government finally to recognize the American people as individuals and hand us back our natural rights.

  Lie #3

  “Judges Are Like Umpires” 1

  President Barack Obama, in an interview conducted less than two months into his presidency, was asked about the toughest decisions he had to make as president. He responded by stating that “[b]y the time an issue reaches my desk, it’s a hard issue. If it was an easy issue, somebody else would have solved it and it wouldn’t have reached me.”2 The same goes for Supreme Court justices, and to a lesser extent, appellate judges. The Supreme Court is mainly faced with the hard cases in which the law is unclear, or lower federal courts or state supreme courts have ruled differently or inconsistently on federal issues. In deciding these cases, the Supreme Court justices must essentially state what they believe the law to be. By doing so, the majority of the Court, in clarifying the meaning of the law, makes policy.3

  One of the main concerns that politicians in the legislative and executive branches of government have with the federal judiciary is that judges will engage in “judicial activism.” According to Black’s Law Dictionary, a source universally accepted in the American and British legal communities, judicial activism is “[a] philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions.”4 Judges espousing this philosophy tend to “find constitutional violations and are willing to ignore precedent.”5 This definition implies that judicial activists are biased judges who intentionally disregard the true meaning of the law to further their own policy agendas, and essentially legislate from the bench. Given these characteristics, judicial activists have no place on any court, let alone the United States Supreme Court.

  Recent Supreme Court confirmation processes have revolved around the concept of judicial activism. President George W. Bush made it perfectly clear that he would nominate judges who would “exercise not the will of men, but the judgment of law.”6 When nominating Judge John G. Roberts to be Chief Justice of the United States Supreme Court, President Bush vowed that Roberts would “strictly apply the Constitution and laws, not legislate from the bench.”7 At his Senate confirmation hearing on September 12th 2005, then-Judge Roberts told the Senators, “Judges are like umpires. Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire.”8

  President Bush later stated, when nominating my Princeton classmate, Judge Samuel A. Alito, that then-Judge Alito “understands that judges are to interpret the laws, not to impose their preferences or priorities on the people.”9 Senator Jeff Sessions, a Republican from Alabama, who interviewed Roberts prior to voting to confirm him, criticized “[a]ctivist rulings not based on statutes or the Constitution.”10 Senator Tom Coburn, a Republican from Oklahoma, echoed Sessions’s complaint, stating that “[d]ecades of judicial activism have created . . . huge rifts in the social fabric of our country.”11

  During the debate over the nomination of Supreme Court Justice Sonia Sotomayor, conservative senators and commentators were troubled with comments Judge Sotomayor repeatedly made in speeches outside of the courtroom. Senator Sessions voted against Sotomayor’s confirmation, fearing that she lacks “the deep-rooted convictions necessary to resist the siren of judicial activism.”12 Senator John McCain, a Republican from Arizona, also opposed Sotomayor’s confirmation, stating that while he had “great respect” for her, she had a “long record of judicial activism.”13

  The senators’ reservations about confirming Sotomayor are mainly derived from a lecture she gave at the University of California-Berkeley, in 2001. Her lecture was entitled “A Latina Judge’s Voice.” In the speech, Sotomayor focused on her heritage and her gender, and concluded that her background and personal experiences influence her judging. Toward the end of the speech, Sotomayor stated that she “would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”14 Sotomayor reiterated this sentiment in later speeches. Furthermore, at a conference at Duke University in 2005, Sotomayor stated that “the court of appeals [the court on which she was sitting at the time] is where policy is made.”15 Taking these out-of-court statements at face value, it may appear that Sotomayor feels that her personal experiences and biases will directly influence her decisions, that she seeks to develop policy from the bench, and that she harbors legal views based on nationality or race.

  Yet, Judge Sotomayor’s decisions as a federal district court judge, and as a judge on the Second Circuit Court of Appeals, indicate that she is far from an activist. I do not agree with all of her decisions, but it is clear that she is highly intelligent, has a tremendo
us respect for the law and precedent, and exercises judicial authority well within the present-day parameters of American legal thinking. She will likely be an intellectual asset to the Supreme Court.

  It is dangerous for judges actively to make policy, and there are structural constraints in place to prevent them from doing so. The judicial power of the United States is outlined in Article III of the United States Constitution, which states, “The judicial Power shall extend to . . . Cases . . . arising under this Constitution and the Laws of the United States . . . [and] to Controversies between two or more States. . . .” (emphases added). Section 2 goes on to define the types of cases that federal court judges can hear. This Section limits a federal judge’s power by requiring that a federal court must be presented with a case or controversy over which it has jurisdiction in order to act. Furthermore, when a case reaches an appellate court, the legal issue at hand becomes so specific and fine-tuned that there is very little room for a judge drastically to affect the law.

  Nevertheless, judges at the Court of Appeals level, and justices of the Supreme Court, are not judicial umpires who merely “officiate” disputes between parties. They are not moderators whose sole purpose is to keep order while the parties resolve their disagreements. They are legal scholars often faced with serious decisions about uncertain areas of the law.

  The Supreme Court’s behavior in defining the law does not make its members “judicial activists.” In fact, the Framers wanted the Supreme Court to perform this function. They envisioned the federal judiciary as a branch of government independent of the legislative and executive branches, and one that would preserve the Constitution.

  In The Federalist, No. 78, Alexander Hamilton* wrote that given our “limited constitution” (one that identifies certain specified exceptions to legislative authority), the courts must be independent in order to check legislative action.16 According to Hamilton:

  Limitations [on legislative authority] can be preserved in practice no other way than through the medium of the courts of justice; whose duty it must be to declare all acts contrary to the manifest tenor of the constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.17

  James Madison agreed with Hamilton, stating that the job of the judiciary is to act as an “impenetrable bulwark” to protect our constitutional liberties against the political branches of government.18 There is no serious dispute that the Framers envisioned judges engaging in what I’d like to call “constitutional activism,” whereby judges interpret the Constitution, preserve its legitimacy, uphold the Natural Law, and restrain the power of all governments to take away our individual liberties.

  The Birth of “Judicial Activism”:

  Marbury v. Madison

  Chief Justice John Marshall’s opinion in Marbury v. Madison19 mimicked the Framers’ views on the federal judiciary. On February 27th 1801, a week before the end of President John Adams’s term in office, Congress adopted an act permitting the president to appoint forty-two justices of the peace.20 Adams and the Federalist Party had been turned out of office and lost the presidency to Thomas Jefferson and the anti-Federalists (sometimes called by the odd-to-contemporary-ears name, Democratic-Republican Party), but the Federalists’ terms in office had not yet expired. Adams submitted his nominations on March 2nd, and the Senate confirmed his nominees on March 3rd, the day before Jefferson took office.21

  John Marshall had begun serving as Chief Justice of the United States on February 4th 1801, but had been Secretary of State of the United States since June 6th 1800. He served as both Chief Justice and Secretary of State until Jefferson took over the presidency. As Secretary of State, he was charged with signing the new justices’ commissions. After signing them, Marshall called upon his brother, James Marshall, to deliver them.22 Unfortunately, a few of the commissions, including William Marbury’s, were not delivered until after Jefferson’s inauguration. Jefferson, a Democratic-Republican and anti-Federalist, instructed James Madison, his Secretary of State, to withhold the commissions. Marbury filed suit in the Supreme Court of the United States seeking a writ of mandamus, which would have compelled Madison to deliver his commission. The commission was the formal document naming Marbury, who had validly been appointed by President Adams and validly confirmed by the Senate. In an era before personal identifications, photographs, and other means of identifying and recognizing someone, a judge, especially a newly appointed judge, needed to show his commission to court authorities before taking the bench.

  Chief Justice Marshall, writing for the Court, broke the case down into three issues: (1) whether Marbury has a right to the commission; (2) if he has a right to the commission, whether he has a legal remedy for the failure to deliver it; and (3) if he has a legal remedy, whether the Supreme Court of the United States can provide him with such a remedy. Since Adams nominated Marbury, and the Senate confirmed him, Marshall held that Marbury did have a legal right to the commission. Marshall went on to state that “where there is a legal right, there is also a legal remedy.”

  It is necessary, in every case, for a court to determine whether a legal right has been violated before it can act. In the case of Baker v. Carr (1962), the plaintiffs, Tennessee citizens and urban dwellers, argued that the Tennessee Legislature violated the Fourteenth Amendment to the United States Constitution by not reapportioning (altering voting-district lines) to account for population changes in the state. By not acting, the plaintiffs argued that the Tennessee Legislature gave the less-populated rural areas more influence than the urban areas. The Supreme Court held that it could hear reapportionment cases, and found that the Tennessee Legislature violated the Fourteenth Amendment, and the means to remedy that violation was a federal lawsuit, filed with a federal district (trial level) judge.

  Justice Felix Frankfurter, however, dissented in Baker, arguing that the Legislature had not violated a federally protected legal right. All Tennessee citizens maintained the right to vote, and their votes were counted. Frankfurter stated that the plaintiffs were simply “dissatisfied” with their current degree of representation, and argued that it is not the job of the federal courts to give them more political power. According to Frankfurter, “there is not under our Constitution a judicial remedy for every political mischief, for every undesirable exercise of legislative power. The Framers, carefully and with deliberate forethought, refused so to enthrone the judiciary.” In Baker, Frankfurter reiterated his plurality opinion in Colegrove v. Green (1946), in which he stated that “Courts ought not to enter this political thicket.”

  In Marbury v. Madison, unlike in Baker, Marbury did, in fact, have a legal right and a remedy. The problem for Marbury was that the United States Supreme Court could not provide the remedy Marbury deserved. Marbury filed his case directly in the Supreme Court because Section 13 of the Judiciary Act of 1789 stated that the Supreme Court had “original jurisdiction” over the matter. That is, the statute stated that the case could be filed directly with the Supreme Court; it did not need to make its way through lower federal courts or through a state court system first, as is usually the route, and as was the route in Baker v. Carr.

  Article III, Section 2, of the Constitution, however, states that “[i]n all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original jurisdiction.” This clause clearly did not cover Marbury’s predicament. The question for Chief Justice Marshall, then, was whether the constitutional provision at issue represented an exhaustive list, or whether Congress could expand the Supreme Court’s original jurisdiction through legislation. Marshall held that Article III does, in fact, create a ceiling on the Supreme Court’s original jurisdiction, and therefore declared Section 13 of the Judiciary Act of 1789 unconstitutional. Unfortunately for Marbury, he had filed his case in the wrong court because he had followed a law that was the very first in history to be declared unconstitutional.

  This case is signi
ficant because it established the Supreme Court as the authoritative interpreter of the Constitution, and asserted the Supreme Court’s power of judicial review. The concept of judicial review permits the federal judiciary to review and to strike down as unconstitutional acts of the legislative and executive branches (and eventually of state governments as well). According to Marshall, “It is emphatically the province and duty of the judicial department to say what the law is.”

  Chief Justice Marshall clearly engaged in a form of policymaking, or “activism.” Marshall held that Article III limits the Supreme Court’s original jurisdiction. More importantly, he advanced the policy that the Supreme Court, and neither of the other two branches, is the final authority on “what the law is.” Therefore, it had the power to strike down executive and legislative acts repugnant to the Constitution. The Constitution, however, is silent on the role of the judiciary, aside from the rules that judges will “hold their Offices during good Behavior,” receive compensation, and hear certain types of cases.

  Who, then, was Chief Justice Marshall to create unilaterally a role for the federal judiciary not envisioned in the Constitution? Or was it envisioned? Don’t the members of the popular branches also take an oath to uphold the Constitution? What’s so special about judges? If the branches of government are equal, how can one branch invalidate the official behavior of the other two?

  The answer to these questions, simply, is that it is dangerous to leave constitutional questions up to the branches of government that are actually making the laws, and the Framers understood that. If Congress and the President had the power to make laws and interpret the Constitution, there would essentially be no check on their power. The Constitution would be toothless, and the popular branches would work systematically to restrict our liberties. (We know this because Congress and the President still try to take away our freedoms.)