Not a fan of judicial restraint.

Photographer: Mark Wilson/Getty Images

Rand Paul's Brand of Judicial Activism

Cass R. Sunstein is a Bloomberg View columnist. He is the author of “The World According to Star Wars” and a co-author of “Nudge: Improving Decisions About Health, Wealth and Happiness.”
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For many decades, the Supreme Court’s 1905 decision in Lochner v. New York has ranked among the most universally despised rulings in the history of American law. In that long-repudiated case, the court struck down a maximum-hours law for bakers.

A week ago, Senator Rand Paul -- a likely candidate for president, and among the most influential members of the Republican Party -- explicitly embraced Lochner, and proudly endorsed the whole idea of “judicial activism.” That tells us a lot about contemporary law and politics, and probably about the future of conservative thinking as well.

In its ruling in Lochner, the court relied on the due process clause of the 14th Amendment, which bars states from depriving people of life, liberty or property “without due process of law.” In the court’s view, “liberty” includes freedom of contract. The court said that if states cannot offer a strong justification for intruding on that form of freedom, they have violated the Constitution.

Under this approach, a lot of modern legislation could run into constitutional trouble, including minimum-wage laws, rent-control laws, occupational-safety laws, even laws forbidding discrimination on the basis of race, sex and disability -- and Obamacare as well.

By the late 1930s, however, the Supreme Court repudiated its whole approach in the Lochner case. It embraced instead a version of Oliver Wendell Holmes’ dissent, which insisted that “a constitution is not intended to embody a particular economic theory,” and that “the word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law.”

Ever since the 1930s, there has been widespread agreement that, at least in the economic sphere, Holmes was right and Lochner was wrong. But people have disagreed about exactly why.

In rejecting Lochner, many conservatives have called broadly for “judicial restraint.” In their view, federal judges should be reluctant to second-guess the judgments of the elected branches, whether the issue involves maximum-hour laws, the criminal justice system, voting rights, school prayer or abortion.

Other conservatives have emphasized that the Lochner Court was unfaithful to the text and original meaning of the Constitution. In their view, the due process clause doesn't give general protection to freedom of contract; it says, much more narrowly, that before states can take your property, your liberty or your life, they have to give you a hearing (“due process”).

But more recently, conservative constitutional thought has undergone a reversal, even a kind of revolution. The University of Chicago’s Richard Epstein and Timothy Sandefur of the Pacific Legal Foundation have argued for a much more aggressive judicial role in protecting private property and freedom of contract. Sandefur himself believes that Lochner was right.

On the Supreme Court, that position has no support, and in Congress, it remains a fringe view. But among a younger generation, conservative judicial activism has unmistakable, and growing, appeal. The fringe seems to be moving toward the center.

Senator Paul’s own stand is clear: “I’m a judicial activist when it comes to Lochner," he said in a speech at the Heritage Action Conservative Policy Summit. “I’m a judicial activist when it comes to the New Deal.” He continued, “I think if the states do wrong that we should overturn them,” because “there is a role for the Supreme Court to mete out justice.”

Paul derides Holmes and complains that, with judicial restraint, “we move all the way up to Obamacare.” He even uses the word “great” to describe Sandefur’s recent pro-Lochner book, "The Conscience of the Constitution."

Within the federal courts, Paul’s position is closely aligned with that of Judge Janice Rogers Brown of the powerful U.S. Court of Appeals for the District of Columbia Circuit. Brown has contended that the New Deal “inoculated the federal Constitution with a kind of underground collectivist mentality,” which transformed the Constitution into “a significantly different document.” In a recent opinion, she complained that without an active judiciary, “property is at the mercy of pillagers.”

Judge Brown has no enthusiasm for judicial restraint. Along with like-minded colleagues, she has played a leading role in a series of aggressive lower-court decisions, striking down restrictions on commercial advertising, invalidating financial regulations and otherwise protecting economic liberty.

There’s good reason to resist this trend, which would empower federal judges to exercise far too much authority over the American people. Contrary to Senator Paul, the Supreme Court doesn't have a general authority “to mete out justice.”

But whatever we think of the growing conservative enthusiasm for judicial activism, there is no mistaking its importance. There’s thunder on the right, and it’s getting a lot louder. 

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Cass R Sunstein at csunstein1@bloomberg.net

To contact the editor on this story:
Mary Duenwald at mduenwald@bloomberg.net