The Counterrevolution

Wednesday, January 30, 2002

When voters went to the polls in November 2000, they faced an unusual "three-fer"—an election not only for a new president and Congress but also for a federal judiciary. By the end of his two terms, Bill Clinton had appointed nearly half of all federal judges (including two Supreme Court justices), with most of the remainder having been appointed by Presidents Ronald Reagan and George H. W. Bush.

Although the subject evoked little attention, in terms of real-world impact the judiciary was the election’s crown jewel. For better or worse, the federal judiciary touches the life of every American, deciding cases ranging from education to commerce to religion, to equal opportunity to crime to immigration.

The federal judiciary today remains an enduring legacy of the Reagan and Bush administrations. Rarely today do federal courts inject themselves into extrajudicial adventures of the type that impugned their integrity in decades past, such as taking over school and prison systems, imposing taxes to fund lavish social engineering schemes, or letting criminals free on technicalities. At the same time, the Reagan/Bush judiciary has reinvigorated basic individual liberties such as private property rights and equality under law.

Debates rage, mostly in academic circles (though also recently in the U.S. Senate, where the Democratic majority has been seeking to squelch judicial nominations by President George W. Bush), over the federal judiciary’s proper role. Complaints of judicial activism, once heard exclusively from conservatives, now are voiced by liberals who oppose the federal judiciary’s present direction.

Judicial activism, in the pejorative sense, takes two forms. The first is the more obvious variety where judges invent new rights unknown to the Constitution or assume powers entrusted under the Constitution to the executive or legislative branch. But the more subtle type of judicial activism is where courts decline to protect rights that are expressly protected by the Constitution. This species of judicial activism is even more pernicious than the first because the federal courts are entrusted in our democracy with the responsibility of protecting fundamental individual rights against encroachments by other branches of government. Where the courts abdicate that responsibility, liberty is endangered.

It is to curbing this second type of judicial activism that the Institute for Justice has principally dedicated itself since its creation in 1991. Along with other pro-freedom public interest law firms such as the Pacific Legal Foundation and the Center for Individual Rights, the Institute for Justice seeks judicial protection for vital constitutional liberties. In the process we often use tactics that liberal groups, such as the NAACP Legal Defense Fund and the American Civil Liberties Union, have used with success for nearly a century: Strategic, long-term, step-by-step litigation; David-versus-Goliath battles; nontraditional, cross-ideological alliances; and advocacy not only in courts of law but in the court of public opinion. Two examples illustrate both the themes and the potential of pro-freedom public interest litigation.

Economic Liberty

In the early 1990s, Taalib-din Uqdah and Leroy Jones were two men in search of the American dream. Uqdah and his wife, Pamela Ferrell, were operating a small African American hairstyling salon called Cornrows & Company in the nation’s capital. Meanwhile, Jones was working to establish a new taxicab company called Quick Pick Cabs in Denver, Colorado. Uqdah and Jones had everything they needed to succeed in business: Talent, capital, a good idea, and a market niche—everything except the government’s permission.

"The federal judiciary today remains an enduring legacy of the Reagan and Bush administrations. Rarely today do federal courts inject themselves into extrajudicial adventures of the type that impugned their integrity in decades past."

For Uqdah, the awakening came with the proverbial knock on the door, in the form of a District of Columbia police officer bearing a warrant instructing Uqdah and Ferrell to terminate their business or face arrest and incarceration. The crime? Braiding hair without a cosmetology license. But to secure a license, practitioners at Cornrows & Company had to acquire 1,600 hours of specified training—more than a police officer and emergency medical technician combined—in practices unrelated to hair-braiding. Then they would have to pass a test demonstrating proficiency in all manner of activities they don’t perform—such as using chemicals in the hair, setting obsolete hairstyles and permanent waves, painting fingernails, and applying cosmetics—everything except braiding hair, all to satisfy the dictates of a Board of Cosmetology made up of licensed practitioners with the power of government at their disposal.

For Jones, the epiphany that America is not always a land of opportunity came when Quick Pick Cabs sought the requisite "certificate of public convenience and necessity" from the state’s Public Utilities Commission. When the decision came, it was the same as for every applicant for a new taxicab permit for the past 50 years: Application denied. It turns out that in order to demonstrate public convenience and necessity, an applicant had to show not only that a market was not being served by the existing oligopoly but that it could not be served by the current companies—an impossible standard.

So Uqdah and Ferrell faced incarceration, and Jones and his colleagues were consigned to work for someone else, all because they were trying to enter markets sheltered from competition by excessive government regulations.

Uqdah and Jones thought they lost their rights when government denied them a chance to pursue their chosen vocations. But in reality, they lost their rights long before they were born, in an 1873 decision of the U.S. Supreme Court aptly denominated The Slaughter-House Cases. Following the Civil War, many former slaves possessed skills they sought to sell in the marketplace. Southern legislatures, determined to preserve a servile labor supply, enacted "black codes" denying blacks basic economic liberties such as freedom of contract and the right to own private property. Congress responded by passing the Fourteenth Amendment, which guaranteed due process, equal protection of the laws, and the "privileges or immunities" of citizenship—including the economic liberties that were eviscerated by the black codes.

The ink on the amendment was barely dry when the Supreme Court nullified it. A group of butchers challenged a Louisiana law, procured through bribery, that created a slaughterhouse monopoly and drove competing butchers out of business. By a 5-4 decision, the Court ruled that the privileges and immunities clause added no substantive rights to the Constitution. Hence, in the more than 125 years since Slaughter-House, federal courts routinely wield the due process and equal protection clauses to rein in abusive state action but have never invalidated a state law as a violation of the privileges and immunities clause.

We at the Institute for Justice filed Fourteenth Amendment challenges to both the District of Columbia’s cosmetology licensing laws and Denver’s taxicab monopoly. We lost both cases when sympathetic federal courts concluded that the law favored government regulation over economic liberty. But we prevailed in the court of public opinion: While both cases were pending on appeal, the glare of media attention was so intense that both governments capitulated. Taxicabs were deregulated in Denver, and cosmetology was deregulated in the District of Columbia.

In the meantime, we have prevailed in four other cases, overturning bans on street corner shoeshine stands in Washington, D.C., and on jitney streetcars in Houston, and overturning California’s cosmetology licensing laws and a Tennessee law giving funeral homes a monopoly over casket sales. We cannot overturn Slaughter-House and restore economic liberty as a fundamental civil right until one of our cases reaches the U.S. Supreme Court. But step by step, we are building a jurisprudence of economic liberty and, perhaps just as important, an ethos of economic liberty.

"When activist courts fail to protect fundamental individual rights against encroachments by other branches of government, liberty itself is endangered."

Today there are approximately 100 African American hairstyling salons operating legally in the nation’s capital. And there is competition with the previous taxicab oligopoly in Denver. But it isn’t Quick Pick Cabs. During his ordeal, Jones realized that there was something greater at stake than his own plight. So he and his partners changed the name of their company to Freedom Cabs. And today in Denver there is a fleet of 50 cabs bearing the Freedom insignia—a tangible step in the long fight to reinvigorate a precious American liberty that was excised from the Constitution in a brazen act of judicial activism.

Private Property Rights

"Nor shall private property be taken for public use without just compensation." These words are contained in the Fifth Amendment, smack in the middle of the Bill of Rights, yet courts sometimes act as if they were written in disappearing ink. One of the proudest legacies of the Reagan/Bush judiciary is the reinvigoration of these words, known as the takings clause. Today, if government regulates someone’s property to such an extent that it completely diminishes the property’s value, it must pay "just compensation," exactly as the framers intended.

But the Supreme Court has not reinvigorated the Fifth Amendment’s limitation on when government may take property at all—that is, only when it is for a "public use." In a disastrous 1984 decision, Hawaii Housing Authority v. Midkiff, the Court unanimously held that a public use is whatever the government deems to be a public use, essentially removing any substantive restraint on the power of eminent domain.

Unleashed from constitutional tethers, state and local governments run roughshod over private property rights all across America, taking property from certain owners and giving it to others for purposes the government deems more appropriate. These forced private-to-private transfers are antithetical to the purposes of the takings clause.

"The right to private property is clearly specified in the Fifth Amendment, yet courts sometimes act as if this part of the Bill of Rights right was written in disappearing ink."

Given that Midkiff is of such recent vintage, to restore limits on the eminent domain power, we had to look in places other than the federal Constitution: In this instance, to state constitutions, which often contain broader protections of individual liberty. And we had to find a villain so heinous that a court would be willing to buck the jurisprudential tide to do justice.

For that role, central casting provided Donald Trump.

Trump decided that he needed a parking lot adjacent to his Atlantic City casino to park his limousines. The property he coveted was occupied by a gold and silver shop, an Italian restaurant called Sabatini’s, and a home owned by an elderly woman named Vera Coking who had raised her family there. They didn’t want to sell.

Fine, said Trump, if you won’t sell me the property, I’ll have the Atlantic City government exercise its power of eminent domain to take the property and sell it to me. And he did just that. The city’s "public use" justification was that anything that benefits casinos benefits Atlantic City.

We took Trump to state court, invoking the takings clause in New Jersey’s Constitution. Again, we had help in the court of public opinion. Both John Stossel of ABC News and Doonesbury’s Garry Trudeau vilified Trump and Atlantic City for their thuggery. In the end, the court ruled in favor of the property owners. The first step was taken toward rebuilding the sanctity of property rights: Trump has to park his limousines on his own property, and you can still enjoy a dinner at Sabatini’s.

"Conservatives and libertarians must learn to use judicial action to safeguard the rights of individuals against encroaching government power."

Since then, we’ve fought similar battles, successfully resisting Pittsburgh’s efforts to seize Pittsburgh Wool Company and sell it to Heinz Company, as well as the city’s efforts to take an entire working-class business district to transfer to a Chicago developer. We’re in court today in Mississippi, Connecticut, New York, and Arizona waging similar battles—and so far we’re only touching the tip of the iceberg. But it’s an important beginning.

New Frontiers

In recent years the Institute for Justice and similar organizations have made important strides in restoring basic liberties in such other areas as the guarantee of equal protection of the laws and the right of parents to control their children’s education. Many frontiers remain. The Ninth Amendment, which reserves unenumerated rights to the people, has rarely been invoked to establish a legal presumption in favor of liberty, as it was intended to do. The contract clause (Article I, section 10) forbids governments from impairing the obligation of contracts—yet governments do just that every day, and the courts fail to enforce the guarantee. State constitutions offer a treasure trove of freedom protections, but whereas the left has focused on state constitutional litigation for decades, conservatives and libertarians have done so only episodically. Much untapped potential remains, and we must fulfill it if America’s legacy of freedom is to continue to burn bright in the new millennium.

Our success so far stems from principled, systematic, long-range litigation and from the recognition that freedom is about people. Abstract legal principles rarely resonate except in the most esoteric ways, so we must make them tangible. As a freedom movement, we must champion the interests of those in our society who are least free, and we must recognize that so long as any one of us is not free, then none of us truly is.

We also need to shed our disdain for judicial action. It is one thing properly to condemn courts that take on executive or legislative powers. It is another to wrongly condemn the entire judicial enterprise. The courts are uniquely equipped—and entrusted in our constitutional system—to safeguard the rights of individuals against majoritarian tyranny. As government proliferates, so inevitably does tyranny. We must use the tools at our disposal to make sure that the nation we leave to our children is at least as free as the one whose blessings we enjoy.