Come to My Side, Prof. Rosenthal — We Have Humility and Prudence!

I’m bewildered by Prof. Rosenthal’s references to “humility” and “prudence” when advocating for a legal position that would leave legislatures virtually unconstrained to violate the rights of individuals. I would have thought that someone advocating humility and restraint would want a strong judiciary to protect people against the brazen, often imprudent, passion-driven actions of legislatures. That, after all, was exactly the reasoning that led the founding fathers to create a strong, independent judiciary: they believed government should be humble and prudent, and should not see people as the raw materials of legislative “experimentation,” and the only preventative to this was an actively engaged judiciary.

In a democracy, writes Hamilton in Federalist 71, the people commonly intend the public good, but they do not “always reason right about the means of promoting it.” They

sometimes err; and the wonder is that they so seldom err as they do, beset, as they continually are, by the wiles of…sycophants… [and] the artifices of men who possess their confidence more than they deserve it…. When occasions present themselves, in which the interests of the people are at variance with their inclinations, it is the duty of the persons whom they have appointed to be the guardians of those interests, to withstand the temporary delusion, in order to give them time and opportunity for more cool and sedate reflection. Instances might be cited in which a conduct of this kind has saved the people from very fatal consequences of their own mistakes, and has procured lasting monuments of their gratitude to the men who had courage and magnanimity enough to serve them at the peril of their displeasure.

Humility and prudence mean respecting the rights of others and acting only in carefully considered, fully conscious, fair, non-arbitrary ways. Judicial enforcement of constitutional limits serves these ends. One who truly believes in humility and prudence should therefore welcome an engaged judiciary that will help ensure that legislatures act, not arbitrarily, but in humble and prudent ways. Observe that it’s in our era of judicial deference that government has most clearly abandoned these virtues, and imposed increasingly intrusive, ambitious, burdensome schemes—whether aimed at “social justice” or at a “morally upright society”—all built on violations of our liberty and erosions of our constitutional rights.

Take Kelo v. New London. If that case is anything, it’s a monument to judicial deference—and to government’s lack of humility and prudence when not constrained by meaningful judicial enforcement of constitutional limits. Judicial deference is the opposite of humility and prudence—it is the open door to legislative ambition and folly. (I’ll never forget the attorney for the City borrowing a famous cliché during his oral argument before the Court—the city, he said, must make the trains run on time. This, of course, was famously, and falsely, said of Mussolini.) And Kelo is hardly the only example.

As I’ve argued elsewhere, the dangers of deference far outweigh the dangers of an overly active judiciary. First, deference blinds courts to the dangers of rent-seeking and to what Cass Sunstein has called “naked preferences”: the self-interested use of government power by the politically influential. Wrongfully upholding laws is more dangerous than wrongfully striking them down, since the hardship caused by an error falls much more heavily on an oppressed individual than on a temporarily stymied legislature, and courts are poorly suited to determine what sorts of things are best relegated to the democratic process and what things are not.

In the end, the answer was given by Justice Sutherland, when he responded to Justice Brandeis’ famous dissent in New State Ice Co. v. Liebmann. Many people know of Brandeis’ dissent because he argued that states serve as “laboratories of democracy” that can “experiment” with new kinds of legislative schemes. Not many remember Sutherland’s answer: states have no legitimate power to “experiment” on human subjects against their will:

Unreasonable or arbitrary interference or restrictions [on liberty] cannot be saved…merely by calling them experimental…. [I]t would be strange and unwarranted doctrine to hold that [states] may [“experiment”] by enactments which transcend the limitations imposed upon them by the federal Constitution. The principle is imbedded in our constitutional system that there are certain essentials of liberty with which the state is not entitled to dispense in the interest of experiments.

In a majority-rules society like ours, legislative experiments are the primary threat to humility and prudence—and judicial enforcement of individual rights are the guarantors of those values.

Also from this issue

Lead Essay

  • Why Substantive Due Process Makes Sense by Timothy Sandefur

    Timothy Sandefur argues that the phrase “due process of law” is a promise of regular, non-arbitrary treatment by the government. That promise certainly entails procedural elements, but we would be hard-pressed to justify any of them without reference to a deeper, implicit, and ultimately substantive guarantee. “Citizens are entitled to procedures only because they are entitled to lawful treatment,” Sandefur writes. Arbitrary, irrational, or merely self-serving government acts are not lawful acts, properly speaking, and they should be overturned on substantive grounds. The process of law that is due to citizens is more than just a ritual or a procedure; it also requires judges to ask whether the law serves public or merely private ends.

Response Essays

  • Not So Fast, Mr. Sandefur by Lawrence Rosenthal

    Professor Rosenthal sympathizes with the idea that the Constitution protects us against unjust majorities. But he holds that the Due Process clause does not act as Sandefur claims. “The First Amendment expressly limits the scope of legislative power,” he writes, “[but] the Due Process Clause does not.” Even were we to grant that laws must be in the service of a general, public principle, substantive due process wouldn’t necessarily yield the results we predict or desire. Instead, it would amount to an unreviewable judicial veto.

  • Substantive Due Process in Historical Context by Ryan Williams

    Ryan Williams argues that substantive due process is both an intelligible concept and also a part of American law. He argues, however, that it did not become a part of the federal Constitution until the ratification of the Fourteenth Amendment in 1868. Prior to that, public understandings of “due process of law” did not contain any reliable understanding of a check on the legislature, only on the executive and the courts. Substantive due process needs to be understood as a relatively recent historical development, though not by any means a bad one.

  • Would Half a Loaf by Any Other Name Throw Out the Baby? Why Sandefur is Both Right and Wrong about Substantive Due Process by Gary S. Lawson

    Gary S. Lawson agrees that the Constitution, even without the Fifth Amendment, seems to instantiate a rule against arbitrary conduct — for the federal government. The Fifth Amendment makes the matter more explicit. But does the Fourteenth Amendment do the same for the states? On this point, Lawson proposes several important doubts. Still, he argues, Sandefur has made a very strong case for a substantive element to due process.

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