Overruled

by Damon Root

  The conflict between Siegan’s libertarianism and Bork’s majoritarianism was perhaps nowhere more apparent than in Siegan’s treatment of the Supreme Court’s controversial 1965 decision in Griswold v. Connecticut, which recognized the privacy rights of married couples to obtain and use birth control devices. Griswold was of course the very case that launched Bork on his career as the right’s chief advocate of judicial deference and as its leading critic of activist liberal judging. For Siegan, on the other hand, Griswold was a defensible ruling that matched up nicely with his larger argument for how the courts should scrutinize the government’s actions in each and every case. In fact, Siegan’s only real complaint about Griswold was that Justice William O. Douglas had followed the “uncharted and circuitous” path of “emanations” and “penumbras” in his majority opinion rather than just using classic Fourteenth Amendment libertarianism to strike down the offending state law. “Applying pre-1937 substantive due process,” Siegan explained, the Court might have simply said, “By selling a professional service to married couples, the defendants were exercising liberty of contract. Connecticut’s ban was an arbitrary and unjustifiable infringement of this liberty.”17

  That argument proved appealing to libertarians, but Bork rejected it out of hand. Although he did praise Siegan for the clarity of his thinking, Bork still thought Siegan’s basic position would grant the judiciary an impermissible license to do mischief. “The logic is impeccable if one accepts Griswold and Roe, and much else in contemporary jurisprudence, as proper discharges of the judicial function,” Bork granted. But if one did not accept the judicial methodology of those cases, as Bork certainly did not, then Siegan’s “case for unmentioned economic liberties is, by a parity of reasoning, defeated.” The problem, Bork argued, was that Siegan would place the Supreme Court “in a stance of across-the-board libertarianism,” when in fact what the Court should be doing is removing itself entirely from these sorts of disputes and letting the democratic process run its course. “There being nothing in the Constitution about maximum hours laws, minimum wage laws, contraception, or abortion,” he concluded, “the Court should have said simply that and left the legislative decision where it was.”18

  “Your Classic Case of Majoritarian Tyranny”

  From the early 1980s forward, libertarians and conservatives would battle repeatedly over the proper role of the courts, facing off in the halls of the academy, in the pages of learned journals, and in countless debates organized by the Federalist Society and other groups. At first, this debate attracted little notice outside of legal and academic circles. But the clash of visions would not remain hidden in the scholarly shadows for long. Indeed, by the early 2000s, the libertarian-conservative divide would come to play a prominent supporting role in the high-profile struggle over gay rights. Here’s how it happened.

  In 1986 the U.S. Supreme Court considered the constitutionality of a Georgia law criminalizing the act of sodomy, defined by the state as “any sexual act involving the sex organs of one person and the mouth or anus of another.”19 The case originated in 1982, when the police arrived at the home of an Atlanta man named Michael Hardwick in order to serve a warrant. After a roommate let the officers into the residence, they found Hardwick in his bedroom engaged in sexual activity with another man. Both men were then arrested for committing sodomy, although the district attorney later declined to prosecute. Arguing that the existence of the sodomy ban violated his constitutional rights, Hardwick brought suit and took the case all the way up to the Supreme Court.

  Writing for a five-to-four majority in Bowers v. Hardwick, Justice Byron White upheld the statute. “The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy,” White wrote, “and hence invalidates the laws of the many States that still make such conduct illegal, and have done so for a very long time.”20 He added that the case also raised significant questions about the proper role of the judiciary in a democratic society. Although it is true, White observed, that the Supreme Court had previously protected the sexual privacy of married couples to use birth control in the home without state interference in 1965’s Griswold v. Connecticut, and then later extended that same right to cover the use of contraceptives by unmarried persons in 1972’s Eisenstadt v. Baird, the Court was unwilling to push the right of sexual privacy any further in order to reach protected status for homosexual conduct.

  Because “the Court is most vulnerable and comes nearest to illegitimacy” when granting judicial protection to unenumerated rights “having little or no cognizable roots in the language or design of the Constitution,”21 White concluded, the justices lacked sufficient cause to sign off on the recognition of gay rights in the present case. As for Hardwick’s claim that the state’s ban was rooted in a discriminatory bias against gay people, White responded that legislation “is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed.”22 The fatal combination of majority rule and judicial deference therefore spelled doom for the legal challenge to Georgia’s sodomy ban. Predictably, Robert Bork was among the many conservatives who cheered the outcome of the case. “Hardwick’s suit,” he wrote, “rested upon nothing in the Constitution and so was one more sortie in our cultural war.”23

  In the wake of Bowers, gay rights advocates redoubled their efforts, and in 2003 a promising new case landed on the Supreme Court docket. At issue in Lawrence v. Texas was the Lone Star State’s 1973 Homosexual Conduct Law, which singled out same-sex sodomy as a criminal offense. Once again, the case generated enormous interest among activists on both sides of the contentious issue, with more than thirty different organizations filing friend-of-the-court briefs urging the justices to rule for one party or the other. Among those supporting the state of Texas in its fight to maintain criminal sanctions against homosexuality were well-known conservative groups such as the Family Research Council and Concerned Women for America. Siding with petitioners John Geddes Lawrence and Tyron Garner, the two men originally charged with violating the statute, were liberal stalwarts such as the American Civil Liberties Union and the National Organization for Women.

  But Lawrence and Garner also received a critical piece of support from an organization whose involvement on their side of the case surprised more than a few observers at the time. That organization was the Cato Institute, a leading Washington think tank whose agenda of limited government and free-market economics is more typically associated with the political right. Founded in 1977, Cato takes its name from Cato’s Letters, a series of political pamphlets published in early eighteenth-century Britain that influenced many of the leaders of the American Revolution. The institute’s principles are unapologetically libertarian, and its mission is to transform public policy by advancing and defending those principles in the public arena. When the Supreme Court finally ruled to invalidate the Texas ban on homosexual conduct, Cato’s friend-of-the-court brief on behalf of Lawrence and Garner would be cited twice by the majority and would play a valuable role in shaping the Court’s reasoning.

  Cato’s influence in the realm of legal affairs is due primarily to the vision of a man named Roger Pilon, the director of the institute’s Center for Constitutional Studies, which he founded in 1989 and has been running ever since. Sitting in his Washington office on a crisp November afternoon in 2013, Pilon explained to me why the decision to join the fight against Texas’s Homosexual Conduct Law was “an easy call for us.” In the wake of Bowers v. Hardwick, he said, “this was a case that cried out to be addressed. These are people who are harming no one. It’s your classic case of majoritarian tyranny.”24

  By the time Lawrence arrived in 2003, Pilon was already a seasoned veteran in the long libertarian war against conservative majoritarianism. He got his start in political philosophy, earning a PhD from the University of Chicago in 1979 with a dis
sertation entitled “A Theory of Rights: Toward Limited Government.” Among the members of his dissertation committee was the Nobel Prize–winning libertarian economist Milton Friedman. “Not fully realizing at that time the jurisprudential implications of what I was doing,” Pilon explained, “my aim was to show that the natural rights orientation of the Founders, stemming from Locke, was right, whereas the welfare rights orientation of modern liberals was wrong. Clearly, that set me apart from the anti-rights posture many conservatives were taking in reaction to the liberal judicial activism of the time.”25

  Pilon set himself even further apart from those conservatives when his focus shifted to the philosophy of law. “The conservatives reacted to what the Warren and Burger Courts were doing by criticizing the rights revolution. And I thought to myself, this isn’t right either, because this country was founded on the notion of natural rights,” Pilon recalled. “So while the liberals are wrong in moving in the direction of constitutionally protected welfare rights,” he added, “the conservatives were little better in calling on the Court to defer to the political branches that had given us the Leviathan. So I began thinking there’s got to be a path between these two extremes.”26

  Pilon began the work of charting that path by taking his case directly to the conservatives in April 1981, addressing the annual national meeting of the Philadelphia Society, which at that time was the country’s foremost gathering of right-leaning intellectuals. Among the members of his audience that night was future Attorney General Ed Meese, who had just arrived in Washington to serve as an adviser to President Ronald Reagan. Meese was there to deliver the event’s keynote address. Pilon’s speech, entitled “On the Foundations of Justice,” began with a reminder to the assembled conservative worthies that by embracing judicial deference, they were essentially surrendering the field when it came to the fight over an entire branch of the government, and thereby undermining the system of checks and balances in the process. “We do not live in a pure democracy but rather in a republic wherein the ‘will’ of the legislature or of the executive is subject to scrutiny by the ‘reason’ of the Court,” he observed. Turning next to the text of the Constitution, Pilon observed that its broad guarantees of individual rights are not just there for show, but are instead designed “to stand athwart the utilitarian calculus, to brake the democratic, majoritarian engine.”27

  Pilon later described that speech to me as a “gentle”28 critique of the conservative mainstream, designed to get the libertarian perspective into circulation among the right’s top thinkers. But when it came time to deal with the majoritarian arguments put forward by Robert Bork, Pilon pulled no punches. He first grappled with Bork in the pages of Reason magazine, the flagship libertarian monthly, where he argued that Bork’s calls for a deferential judiciary “would give wide berth to the majority to plan and regulate our lives.” Bork’s misguided emphasis on democracy over liberty “is our inheritance from the Progressive Era, not from the Founding,” Pilon wrote. “At the Founding they got it right. They started with the individual.”29

  Pilon pressed the point with even greater force in a 1991 editorial written for the Wall Street Journal titled “Rethinking Judicial Restraint.” Bork’s case for a deferential judiciary, Pilon argued, was not just wrong as a strategic matter, it was wrong on the fundamentals of constitutional law. “The Founders took every step to protect our liberties, even from the majority—indeed, especially from the majority,” Pilon argued. Yet under the Bork approach, he wrote, the judiciary is required to “shirk its duty to secure those rights by deferring to the political branches in the name of ‘self government.’” The correct approach, Pilon countered, was for the courts to “hold the acts of the other branches up to the light of strict constitutional scrutiny. There is no place for ‘restraint’ in this.” The time had arrived, Pilon concluded, for conservatives “to rethink ‘judicial restraint’ and restore the judiciary to its rightful place in a system of separated powers.”30

  “Libertarians Threw Down the Gauntlet”

  At the same time, Pilon was also working behind the scenes to advance the growing libertarian insurgency. One of his key contributions came in 1983, when he approached his future colleagues at the Cato Institute with the idea for a conference devoted to the topic of “Economic Liberties and the Judiciary.” In a lunch meeting with Cato president Ed Crane and Cato Journal editor James Dorn, Pilon pitched the idea of bringing together prominent libertarian and conservative experts to draw attention to the widening debate. “On the back of a napkin,” Pilon remembered, “I sketched out who should be there and what should be covered, and a year later it was put together and held in a hotel here in Washington.”31

  The result was a seminal event in the evolution of modern legal conservatism. Held in October 1984, the Cato conference attracted a standing-room-only crowd of Washington insiders. Among the invited participants was University of Chicago law professor and rising libertarian star Richard Epstein, who argued that the judiciary should play an active role in defending economic liberty (much as it did in cases such as Lochner v. New York), and Antonin Scalia, then a judge on the U.S. Court of Appeals for the District of Columbia Circuit, who advanced the Borkean (and Oliver Wendell Holmesian) view that the courts should defer to the political branches on such matters.

  “The Supreme Court decisions rejecting substantive due process in the economic field are clear, unequivocal and current,” Scalia declared. He added that “in my view the position the Supreme Court has arrived at is good—or at least that the suggestion that it change its position is even worse.” Scalia clarified that he was not personally hostile to the idea of economic liberty—far from it. “Rather, my skepticism arises about misgivings about, first, the effect of such expansion on the behavior of courts in other areas quite separate from economic liberty, and second, the ability of the courts to limit their constitutionalizing to those elements of economic liberty that are sensible.” The best course, he concluded, was for the courts to adopt a thoroughgoing posture of judicial restraint. “In the long run, and perhaps even in the short run, the reinforcement of mistaken and unconstitutional perceptions of the role of the courts in our system far outweighs whatever evils may have accrued from undue judicial abstention in the economic field.”32

  Rising in response, Richard Epstein tossed aside his prepared remarks and instead launched an impromptu attack on Scalia’s call for judicial deference. “Scalia’s position represents the mainstream of American constitutional theory today,” he began. “My purpose is to take issue with the conventional wisdom.”33 Under the view endorsed by Scalia, Epstein declared, “it is up to Congress and the states to determine the limitations of their own power—which, of course, totally subverts the original constitutional arrangement of limited government.” The Scalia view, Epstein said, ignores the Constitution’s “many broad and powerful clauses designed to limit the jurisdiction of both federal and state governments,” as well as those clauses “designed to limit what the states and the federal government can do within the scope of their admitted power.”34 Just compare “the original Constitution with the present state of judicial interpretation,” he continued, and “the real issue becomes not how to protect the status quo, but what kinds of incremental adjustments should be made in order to shift the balance back toward the original design.” Taking the text of the Constitution seriously, Epstein concluded, requires “some movement in the direction of judicial activism”35 on behalf of economic rights.

  This debate brought the libertarian-conservative divide into the spotlight. “That’s why the conference was so important as a benchmark,” Pilon later explained. “For the first time, libertarians threw down the gauntlet.”36

  Building on the success of that conference, the Cato Institute and its libertarian allies proceeded to turn up the heat on the Bork-Scalia approach. The next major offensive came in 1986 when Cato published a short book by the Harvard political scientist Ste
phen Macedo carrying the provocative title The New Right v. The Constitution. Macedo’s target was the majoritarian jurisprudence of Bork and Scalia. “When conservatives like Bork treat rights as islands surrounded by a sea of government powers,” Macedo wrote, “they precisely reverse the view of the Founders as enshrined in the Constitution, wherein government powers are limited and specified and rendered as islands surrounded by a sea of individual rights.”37 That philosophical stance would later animate Cato’s brief in the Lawrence case challenging Texas’s ban on homosexual conduct.

  Meanwhile, at the University of Chicago, Richard Epstein was putting the finishing touches on the book that would make him one of the premier names in both libertarian and conservative legal scholarship. Published in 1985 by Harvard University Press, Takings: Private Property and the Power of Eminent Domain revolutionized both the academic and political debates over property rights and the Constitution. Drawing from law, philosophy, economics, and history, Epstein advanced a sweeping challenge to the constitutional underpinnings of the modern regulatory state. Pointing to the text of the Fifth Amendment, which forces the government to pay just compensation when it takes private property for a public use, Epstein reasoned that any “taking” of an individual’s property, whether it is done through physical seizure or government regulation, triggers the just compensation requirement. Furthermore, because “representative government begins with the premise that the state’s rights against its citizens are no greater than the sum of the rights of the individuals whom it benefits in any given situation,” a forced taking could only be legitimate if it left “individuals with rights more valuable than those they have been deprived of.”38

  In practical terms, Takings argued that “the eminent domain clause and parallel clauses in the Constitution render constitutionally infirm or suspect many of the heralded reforms and institutions of the twentieth century: zoning, rent control, workers’ compensation laws, transfer payments, progressive taxation.”39 As a corollary, the federal courts were expected to curtail or invalidate such government practices under Epstein’s reading of the Constitution.