FOUR MORE YEARS: What kind of judges should the president nominate? The kind who are willing to place limitations on government power and to protect individual rights against federal and state intervention. By Richard A. Epstein.
Nonetheless, a second division in sentiment, which
takes place largely within the ranks of the
Republican Party, should not be overlooked in the current anxiety about
judicial nominations. Part of the genius of Ronald Reagan was his ability
to balance off the tension between the libertarian and social-conservative wings of the Republican Party. The differences
between them are in
many cases quite profound. Social conservatives may have great affection for judicial restraint, but
libertarians usually do not. And the difference shows on key issues that really matter to the long-term social
agenda. Let me mention just three that are now before the Court.
Social conservatives are willing to champion highly
expansive readings of federal power to fight a drug war that looks
counterproductive to say the least.
Libertarians (like me) are depressed at how, in Ashcroft v. Raich (2004), a Republican administration is
invoking in its struggle New Deal precedents (most notably Wickard v. Filburn in 1942, which allowed federal officials, in their efforts to rig grain markets, to treat grain fed to
one’s own cows as commerce “among the several states”).
Competition among states is one of the best ways to limit government power,
which cannot happen when the federal government
can instantly take up the slack. A similar story took place on issues of individual rights. Justice O’Connor was
one of the coauthors of a misguided opinion in McConnell
v. Federal Election Commission (2003) that upheld the extensive network of restrictions on free
speech, with a direct appeal to the Progressive
tradition. Later this term, in Kelo v. New
London, it is an open question whether the
left and the right on this Supreme Court will again unite to allow powerful
local governments to bulldoze private homes with the bare chance that the
land taken might someday be used for a project with some indirect benefit.
These three cases reveal a deep tension that could be
replicated on other hot-button issues. President Bush is right to insist
that the justices of the Supreme Court not
impose their personal preferences on society in deciding the great cases of our times. But he is wrong to assume that
fidelity in interpretation necessarily results in giving full sway to broad
federal powers, on the one hand, and little protection of individual rights
against federal and state intervention, on the other. No explicit provision
in the Constitution commands either judicial restraint or judicial
activism. A full range of strong structural and individual guarantees was
intended to place major limitations on government power. Sound
interpretation should respect that commitment.
That result is no mistake; the Framers wanted a Constitution that threaded the needle between public institutions
too weak to govern, such as the Articles of Confederation, and those that
are too strong, which would snuff out all our private liberties and initiatives.
The moral seems clear. Recognize that more than one
strand falls under the overbroad label of
conservative. And by all means pick a mix of judges for the Supreme Court and lower courts, for diversification is a good
strategy for judicial appointments as it is everywhere else. But please,
Mr. President, remember that a sound mix
includes judges who hold up the libertarian wing of the Republican tradition. That wing has a vital role to play in
preserving the welfare of the nation.
Special to the Hoover Digest. Available from the Hoover Press is Leviathan: The Growth of Local Government and the Erosion of Liberty, by Clint Bolick. To order, call 800.935.2882. Richard Epstein is the Peter and Kirsten Bedford Senior Fellow at Hoover. He also holds an endowed professorship at the University of Chicago Law School, where he directs the Law and Economics Program. As of 2007, he is also a visiting professor at New York University Law School. His areas of expertise include constitutional law and property rights, among others. His just-released book is Supreme Neglect: How to Revive the Constitutional Protection for Private Property. |
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