Not only does this vague “balancing” approach maximize the power of judges—replacing legal safeguards for liberty with a judge’s notion about what is convenient to society as a whole—but it conflicts with the Constitution’s basic commitment to the protection of individual rights—protections that were adopted not because they facilitated the majority’s decisionmaking powers but because individuals need and deserve a shield against democracy, especially when legislators or the majority claim that they “need” to violate people’s rights.
Breyer’s view is straight out of the Progressive Era. Rejecting the Founders’ focus on individual freedom, the Progressives sought ways to expand government’s power over private life and to overthrow legal precedents that they saw as obstacles to social progress. On one hand, Progressive political scientists proposed fundamental changes in the definition of the word “liberty.”32 Rather than referring to the right of the individual “to dispose, and order, as he lists, his Person, Actions, Possessions, and his whole Property, within the Allowance of those Laws under which he is; and therein not to be subject to the arbitrary Will of another, but freely follow his own,”33 as Locke had characterized it, the Progressives defined freedom as an individual’s ability to participate in collective decisionmaking—and more. According to the leading philosopher of Progressivism, John Dewey, liberty meant the individual’s “effective opportunity to share in the cultural resources of civilization.”34 Writing in 1935, Dewey acknowledged that the Founders believed individuals should be protected from government intrusion, but that view, he claimed, was now obsolete. In today’s world, lawmakers must create “favorable institutions, legal, political and economic,” so as to shape the souls of citizens. “An individual is nothing fixed, given ready-made,” he wrote, but “something achieved,” and achieved by the government, “with the aid and support of conditions . . . including . . . economic, legal, and political institutions as well as science and art.” Government must redistribute wealth and redesign society so as to mold the mind and character of each person. As historian Eric Foner puts it, Dewey and his allies “repudiated liberal individualism in favor of an organic vision of the good society.”35
Progressive politicians presided over a dramatic expansion of government programs—everything from minimum-wage legislation to laws banning alcohol and segregating people by race—aimed at transforming people’s very nature.36 At the same time, Progressive legal thinkers sought to make room for new forms of social engineering by abolishing long-standing constitutional restrictions on government.37 Repudiating the classical liberal principles of the Declaration in favor of the primacy of government power, judges like Oliver Wendell Holmes, Louis Brandeis, and others substituted democracy for liberty as the central constitutional value, although this was a special kind of democracy, often overseen by unaccountable expert administrative agencies and social planners.38 This meant emphasizing the idea of judicial restraint, which would give legislators broader discretion and allow constitutional boundaries to erode.39 It also meant focusing not on whether the policies lawmakers implemented were just or fair but rather on the procedures whereby the majority forms and expresses its will.40 As historian Louis Menand writes, Progressives came to hold that “if the legal process was adhered to, the outcome is just,”41 regardless of what that outcome might be. In fact, Progressive legal theory was so morally agnostic that some leading judges and law professors hoped to devise a theory of law that would be entirely separate from ethics—a wertfrei, or value-free, law that would not depend on such messy, unscientific notions as individual rights.42 Their attitude is perhaps best summarized by contrasting Alexander Hamilton’s understanding of the role of courts—as “an intermediate body between the people and the legislature, in order . . . to keep the latter within the limits assigned to their authority”43—with that of Holmes. “If my fellow citizens want to go to Hell,” Holmes once told a friend, “I will help them. It’s my job.”44
In a Progressive world of process and moral agnosticism, judicial review exists not primarily to protect substantive rights, or to promote pre-political ideas of justice, but to sustain the machinery of collective decisionmaking. Unsurprisingly, this collectivist approach regards individual rights as justified only as a tool for honing the majority’s power.45 This is why freedom of speech receives protection, not as an essential right of all people, but because it helps resolve political disputes and form a social consensus. And it is why individual rights may be constricted or abolished when a judge thinks society’s “needs” outweigh them. The Founders saw liberty as the right of individuals to be left “free to regulate their own pursuits of industry and improvement.”46 The Progressives understood liberty as the right of the majority to enact its preferences into laws binding on individuals.
Bork and Conservative Progressivism
Although Progressive theories are usually seen as politically liberal, one of the most influential conservative critics of judicial activism, Robert Bork, wholeheartedly embraced those theories in his book, The Tempting of America. The “temptation” to which he referred is the temptation of judges to implement their political preferences as constitutional law and thus intrude on the power of the majority. This is deplorable, because in the “Madisonian system,” which is the American Constitution, “in wide areas of life majorities are entitled to rule, if they wish, simply because they are majorities.”47 The majority need not enunciate any practical, general purpose for its commands, nor are its powers limited to the protection of individual rights, since “[m]oral outrage is a sufficient ground for prohibitory legislation.”48 Although Bork claimed to recognize that courts have a duty to protect the individual against the majority, he provided no recipe for doing so, and he believed individual liberties should be strictly limited to those specified in the Bill of Rights.49 Of course, the Ninth Amendment declares that this is the wrong way to read the Constitution: it says that the fact that some rights are specified must not be interpreted to deny the existence or importance of other rights. But Bork tried to dodge the import of the Ninth Amendment by claiming, falsely, that there is “almost no history that would indicate what the ninth amendment was intended to accomplish,”50 and even likening that amendment to an indecipherable “inkblot.”51 Actually, Madison, Hamilton, and others wrote at length about what that amendment was intended to accomplish, making clear that it was designed to ensure that nobody would think the Bill of Rights lists all individual rights.52
Bork’s Progressive-style rejection of the idea that rights precede the state and limit its powers was rooted in his Progressive-style moral agnosticism. “There is no principled way to decide that one man’s gratifications are more deserving of respect than another’s or that one form of gratification is more worthy than another,” he wrote.
There is no way of deciding these matters other than by reference to some system of moral or ethical values that has no objective or intrinsic validity of its own and about which men can and do differ. . . . The issue of the community’s moral and ethical values, the issue of the degree of pain an activity causes, are matters concluded by the passage and enforcement of the laws in question. The judiciary has no role to play other than that of applying the statutes in a fair and impartial manner.53
Thus, despite his reputation for moralistic conservatism, Bork was actually a relativist: the majority has virtually unlimited freedom to adopt its (entirely subjective) moral preferences as law, and to impose those preferences on others.54 There is no way to judge the rightness or wrongness of the majority’s decisions in this matter, because the fact that a majority has adopted something just makes it right.55
This argument is an updated version of the wolf’s view of political authority: legislative majorities have a basic right to do whatever they want with the citizen and the product of his labor, and those protections that are accorded to individual rights are only matters of legislative grace. In fact, Bork indignantly rejected Justice Harry Blackmun’s statement in a 19
86 case that individual rights are protected because “a person belongs to himself and not others nor to society as a whole.”56 Such “extreme individualism,” Bork contended, would lead to a world in which “morality is completely privatized and society may make no moral judgments that are translated into law.”57 Thomas Jefferson wrote that each of us is “made for ourselves,” and that it would be “slavery” to “suppose that a man had less right in himself than one of his neighbors or indeed all of them put together,”58 but in Bork’s view, the notion that each person belongs to himself and not to society “can hardly be taken seriously.” Nobody, he wrote, “should act on the principle that a ‘person belongs to himself and not to others.’ No citizen should take the view that no part of him belongs to ‘society as a whole.’”59
The real target of Bork’s assault was not “activism,” but judicial review itself. He was surprisingly open about this, calling the Supreme Court’s landmark Marbury v. Madison decision, in which it first declared an act of Congress unconstitutional, an “intellectually dishonest”60 example of judicial “misbehavior[].”61 Of course, this is only consistent. If the majority has the right to rule simply because it is a majority, and judges may not impose their own values by interfering with the majority’s arbitrary choices, then there can be no sensible justification for constitutional limits on the majority—except that the majority has temporarily chosen to tie one hand behind its back. Without a grounding in natural rights, even these limits make little sense. Why should a 200-year old constitution, written for a nation of 3 million people, bind a Congress that today represents a hundred times that number? If the majority is entitled to obedience simply because it is a majority, then it seems pointless to prevent today’s majority from enforcing its political preferences just because they conflict with the words of an antique document written by men long dead. Bork’s majoritarianism is too extreme to support judicial review or even loyalty to a written Constitution.
Activism and Abdication
We can put some flesh on these abstract principles by examining two Supreme Court decisions that are often at the center of debates over “judicial activism” and the role of the judiciary: Lochner v. New York62 and Kelo v. New London.63 Decided in 1906, long before the Progressive revolution in constitutional law was complete, Lochner involved a New York law that limited the number of hours that bakers could work per day. When Utica bakery owner Joseph Lochner allowed his employee, Aman Schmitter, to work more than 10 hours per day, Lochner was charged with violating the statute, and he appealed his conviction to the Supreme Court.64
It struck down the law. Although it acknowledged that states have broad power to protect “the safety, health, morals and general welfare of the public,” and can even “prevent the individual from making certain kinds of contracts”65 when necessary to protect the public’s interests, the Court found no reason to believe the maximum-hours rule actually protected the public or the bakery workers. Bakers, wrote Justice Rufus Peckham, are generally “equal in intelligence and capacity to men in other trades,” and are “able to assert their rights and care for themselves without the protecting arm of the State.”66 Nor was the bread they baked unhealthful or of poor quality due to their choice to work overtime. Therefore, since the law restricted their freedom without advancing any public goal, it was a “mere meddlesome interference[]” with the rights of employers and employees “to make contracts regarding labor upon such terms as they may think best.”67Lochner was a textbook application of the classical liberal principles embodied in the Declaration of Independence and the Constitution.
“The general right to make a contract in relation to his business is part of the liberty of the individual protected by the Fourteenth Amendment,” and while states may restrict that liberty when necessary to prevent injury to workers or the general public, they may not simply limit people’s freedom at will.68 Courts must ensure that any such limits are “fair, reasonable and appropriate exercise[s] of the police power,” rather than “unreasonable, unnecessary and arbitrary interference with the right of the individual to his personal liberty or to enter into those contracts . . . which may seem to him appropriate or necessary for the support of himself and his family.”69 If courts were to look the other way any time the legislature asserts that its laws promote the public good, the Fourteenth Amendment would become a sham, “and the legislatures of the States would have unbounded power.” Lawmakers could then deprive people of liberty by “a mere pretext.” Any time the legislature violated a person’s rights, it could claim that doing so was somehow good for the public, and courts would have to regard the legislation as valid, “no matter how absolutely without foundation the claim might be.” This was unthinkable, since the Constitution guarantees to each person due process of law, thus forbidding arbitrary interference with freedom. The Constitution was meant to protect liberty, not to allow the legislature to alter or revoke rights at will.
Although the Lochner decision received little attention at first, it gradually came to symbolize what Progressives considered an outdated, individualist view of the Constitution and of the judiciary’s role. Professor Roscoe Pound denounced it as “mechanical jurisprudence,”70 meaning that the Court was excessively concerned with abstract rules and deaf to the practical hardships faced by workers. Justice Holmes, who dissented in the case, argued that the justices were forcing their own private opinions about economic policy on the country in the guise of constitutional interpretation. President Theodore Roosevelt attacked the decision as an instance of “stick-in-the-bark legalism, the legalism that subordinates equity to technicalities” and is thus “a potent enemy of justice.”71 He wanted to “emancipate the people” from “the iniquity of enforced submission to a doctrine which would turn Constitutional provisions which were intended to favor social justice and advancement into prohibitions against such justice and advancement.”72
Few of these criticisms had merit. Contrary to Pound’s implications, the Lochner Court did consider the complexities of industrial life when writing the opinion.73 Notwithstanding Justice Holmes’s assertion, the other justices did not rely on any economic theory at all, but on the principle that people are presumed free unless the government has sufficient reason to limit their freedom.74 And whatever the value of President Roosevelt’s comments, they simply had nothing to do with the questions about the legitimacy of the restrictions on liberty that were at issue in the case.
It was not until the 1930s that the Progressive outlook came to dominate the legal world. In the 1934 case of Nebbia v. New York,75 the Supreme Court abandoned the vigilant, Lochner-style protections of substantive due process and adopted a new legal theory, called the rational-basis test, under which courts would defer to the decisions of legislatures in virtually every case on the theory that elected officials and bureaucrats are better suited to address the subject matter in question than are courts. This test is extremely deferential to political bodies—according to some precedents, a court must uphold legislation even where it serves no public good, so long as the judge can imagine that a legislature might have thought it would be a good idea.76 The Court backtracked somewhat in 1938 when it announced in notorious Footnote Four of United States v. Carolene Products77 that it would still give some rights meaningful protection. But at the same time, the Court subtly changed the way it described those rights. No longer were they the basic protections for individual autonomy to which all free people are entitled; instead, the justices protected primarily those rights that enhanced the majority’s decisionmaking powers. Judges should apply “more exacting judicial scrutiny” to “legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation” or that “curtail the operation of those political processes ordinarily to be relied upon to protect minorities.”78 The New Deal Court viewed the protection of freedom in terms of how it served democracy, rather than seeing democracy as a device for protecting freedom.
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n this new atmosphere, the name Lochner became an epithet for “undemocratic,” and the case came to symbolize an out-of-control judiciary bent on imposing its political will in the guise of interpreting the law. This meant the case could stand for practically anything—a bogeyman instead of a Supreme Court decision. The tradition of invoking Lochner to represent whatever the speaker dislikes continues today, leading to what Professor David E. Bernstein calls a “simplistic discourse” that obscures what the case was really about.79 Bernstein, the nation’s leading Lochner expert, notes that even in recent debates over the constitutionality of the Obama administration’s health insurance legislation, the law’s defenders repeatedly invoked Lochner as a codeword for “activist judges,” even though the two cases had absolutely nothing in common.80 Considered on its own merits, Lochner was an unremarkable use of judicial power to invalidate a law that deprived people of liberty without reasonable justification. But today’s liberals condemn the case out of an indifference, if not a hostility, to economic freedom—in alliance with conservatives who want to downplay natural rights and the role of abstract ideas in constitutional interpretation.
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