Most modern discussions about the Supreme Court address the strong and systematic disagreements between the court’s liberal and conservative wings. Rather than focusing on these differences, let me instead discuss a very rare species: the constitutional maverick, someone I define as challenging liberals and conservatives in the key areas on which they agree. My test of who qualifies is simple: a maverick must support positions that would lead every Democratic or Republican senator to oppose his appointment to the federal bench at any level. Many sound positions can earn the thoughtful lawyer that dubious honor.
This separation reflects a deep philosophical disagreement. The maverick takes issue with both modern liberals and modern conservatives because he alone refuses to abandon two key pillars of our classical liberal constitutional theory: limited government and strong property rights. The modern maverick thus works in the Lockean tradition that was ascendant during the founding period. This classical liberal approach should not be misconstrued to hold that all forms of legislation and taxation are illegitimate. The classical liberal is no hard-line libertarian, for she accepts the legitimacy of state power, even if she thinks that it is always an uphill battle to justify government limits on individual freedom. Stated otherwise, the classical liberal does not ask, as do modern liberals and conservatives, why any assertion of individual rights poses a challenge to democratic institutions. Rather, he insistently questions the extent to which democratic institutions may misuse political power to limit individual rights. The position is not geared solely to economic issues of private property and contractual freedom; it also extends to such key areas of human interaction as political speech and religious conscience.
A constitutional maverick supports positions that would lead Democrats and Republicans to oppose his appointment to the federal bench.
The second inquiry ties these classical liberal concerns into the ongoing debates over judicial review—the power of the courts to strike down federal or state legislation that is inconsistent with constitutional commands. Classical liberals welcome this practice on the ground that judicial intervention places another useful obstacle against the proliferation of unwise laws at both the state and the federal levels. Sight unseen, classical liberals view all legislation under a presumption of error. Moderns of both political stripes treat democracy as an end in itself. They accept judicial review but remain wary about its scope, except for laws that fall so far beyond the pale that no rational person could support their enforcement. Needless to say, few statutes that can muster democratic majorities will fail this toothless test.
THREE POINTS OF CONTENTION
In general, then, the modern left/right coalition rejects the classical liberal model by championing a judiciary imbued with passive virtues. To my mind, the intelligence of a court varies inversely with the level of deference it shows to the political branches of government. The greater the deference, the lower the collective judicial intelligence, converting claims of limited judicial expertise into self-fulfilling prophecies. Here are three examples of the difference:
Economic liberties. The classical liberal takes issue with the modern left/right consensus to afford little or no constitutional protection to economic liberties, by demanding strong public justifications to restrict the right of ordinary people to contract. Controlling monopoly power meets that test, as a counterweight to deadweight social losses. Claims of inequality of bargaining power between employer and employee do not. The rubber hit the road for certain classes in Lochner v. New York (1905), which struck down a ten-hour maximum work day for certain classes of bakers. Modern liberals and conservatives condemn that decision as inexcusable judicial meddling in areas ripe for regulation. They agree with Justice Holmes, who wrote, “The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics.” But the classical liberal applauds the decision for striking down a protectionist New York law that hamstrung nonunion bakers for the benefit of their unionized rivals.
Today Lochner is excoriated by left and right alike as an abuse of the judicial function, akin to Dred Scott v. Sandford (1856), which did so much to legitimate slavery. The purported equivalence between human bondage and market freedom lays bare the poverty of their position. How sad that modern liberals hate Lochner because they support all sorts of dubious regulation on competitive markets. How sad that conservatives hate Lochner because they worship at the altar of judicial restraint. I think of Lochner as part of the basic constitutional plan for limited government, influenced by John Locke, Adam Smith, and, yes, Herbert Spencer. In our modern political climate, that view counts as a hanging offense.
States today cannot regulate the use of guns near schools, but they can organize wholly destructive agricultural cartels.
Federalism. The same liberal/conservative consensus holds firm on key questions of federalism. The classical view held that the power of Congress to regulate “commerce . . . among the several states” meant the ability to control transportation, communication, and trade that crossed state lines. The modernist rejected that narrow definition because it allowed states to compete with each other to attract manufacturing, mining, and agriculture that were, in this view, beyond the power of Congress to regulate. The modern view fears that limited federal power leads to a race to the bottom, whereby states will compete for business by offering more-favorable environments to firms that should be uniformly and tightly regulated, which only the federal government can do. Exhibit A was interstate competition that reduced the maximum age for child-labor statutes.
Interstate competition is best understood as a race to the top, which allows competition between states to curb excess regulation, even on an issue as contentious as child-labor laws. The classical liberal view let Congress pass laws to allow railroads and phone companies to operate across state lines. The risks of comprehensive federal regulation in this domain are real, but they can be countered by judicial protection of economic liberty and private property. So the pre–New Deal line between manufacturing and commerce makes sense to the maverick.
Left and right stand as one in their determination to allow Congress to act in areas where it could not tread if the original small-government plan had been faithfully maintained.
Unfortunately, modern conservatives have made only feeble efforts to police that line. States today cannot regulate the use of guns near schools, but they can organize wholly destructive agricultural cartels by limiting the amount of wheat a farmer can grow to feed his own cattle. Make no mistake about it, lots of labor and civil rights legislation falls if the Commerce Clause is read as it was written—a result that is all to the good. And so the maverick pleads guilty to a second hanging offense.
Standing. The maverick’s heretical outlook extends to the judicial doctrine of standing, which asks who “stands” in a position to sue the government to restrain its illegal actions. Standing is critical because it is said to allow suits only by people who suffer some special injury. If, therefore, there are some key uses of government power that no one can sue to enjoin, the doctrine of judicial review is to that extent abrogated.
Oddly enough, however, the modern champions of judicial restraint can point to no textual basis for their restrictive reading of standing. The Constitution provides that “the Judicial power [of the United States] shall extend to all cases in law and equity” that fall into certain broad classes. Those words do not sound narrow to me. Ironically, the word standing is nowhere in the Constitution. So it is imported by judicial fiat, supposedly in recognition of the limited nature of federal judicial power. But this deus ex machina fails. Judges should recognize that the importation of any standing doctrine is not unique to federal courts with limited jurisdiction. It is found in the English courts, where there is no constitution, and the American states, where courts have unlimited jurisdiction.
How standing should be understood turns on the use of the phrase “in law and equity,” which covers two different kinds of cases. The first type lets everyone sue for damages to their own persons or property. Given a single plaintiff with large damages, your longtime friend has no standing to sue, even though his social losses are traceable to your injury. But elsewhere, the courts of equity have long allowed one shareholder to sue on behalf of all shareholders when they suffer a common injury at the hands of the board of directors. That pattern should apply when public moneys are spent on illegal projects, a view that has long conferred standing on individual citizens or ratepayers to sue municipal governments. But the second type of standing is improperly denied in federal cases, so that citizens and taxpayers cannot sue in federal court to stop illegal acts of state or federal officials.
The word standing appears nowhere in the Constitution. So it is imported by judicial fiat, supposedly in recognition of the limited nature of federal judicial power.
The modernists, both left and right, approve of this emancipation of government officials from constitutional restraint. Starting in the 1920s, a unanimous Supreme Court denied citizens and taxpayers the right to sue, which in turn allowed government to grow free of judicial restraint. To be sure, one limited exception allows taxpayers to challenge property transfers to religious organizations as an establishment of religion. But neither liberal nor conservative is prepared to undo the damage by generalizing that rule to all cases of government illegality. The liberals want to keep the exception on the ground that it is special—always a sign of intellectual weakness. The conservatives are split into two camps. Justices Scalia and Thomas wrongly oppose any relaxation of the standing requirement in religion cases, which means that they sacrifice constitutional accuracy across the board. Chief Justice Roberts and Justice Alito draw an unprincipled distinction that allows individuals to challenge legislative acts but not presidential decisions. Neither side is prepared to go back to first principles and scrap the limitations on taxpayer and citizen standing altogether. The maverick is again unheeded.
A SOMBER CONCLUSION
These three doctrines look diverse, but their underlying rationales are closely connected. Whatever their differences, left and right stand as one in their determination to allow Congress to act in areas where it could not tread and by means it could not use if the original small-government plan of the classical liberals had been faithfully maintained. And so it’s no secret why the left/right coalition in the Senate ostracizes the constitutional maverick. No politician will vote for judges who will limit their political prerogatives.
