Judicial Restraint can be Disastrous | Eastern North Carolina Now

    Publisher's note: This article appeared on John Hood's daily column in the Carolina Journal, which, because of Author / Publisher Hood, is linked to the John Locke Foundation.

    During a March 27 talk at North Carolina State University, Georgetown University law professor Randy Barnett told the assembled faculty, students, and other members of the audience that many of his allies on the political Right were wrong.

    Barnett is a libertarian who has helped craft or argue several high-profile cases before the U.S. Supreme Court, including the constitutional challenge to the Affordable Care Act that reached the high court in 2012. While Obamacare wasn't struck down, Barnett's argument - that the federal constitution did not assign to Congress the power to compel Americans to purchase a product such as health insurance - actually prevailed.

    Most justices agreed with the plaintiffs that, as Chief Justice John Roberts put it in the majority opinion, to affirm the Obama administration's defense of the mandate to purchase federally approved health plans would constitute "fundamentally changing the relation between the citizen and the federal government." Famously, however, Roberts then retroactively rewrote the ACA in his ruling to transform a fine for not complying with the individual mandate into a federal tax.

    No one disputes that the federal government possesses the power to tax, so Roberts' legal gimmick kept Obamacare alive. Barnett, among other constitutional scholars, took comfort in the fact that the Supreme Court had recognized the validity and importance of doctrine of enumerated powers, which states that Congress can't just enact laws about anything a majority might want to tackle at a given point in time. Scholars also took comfort in another part of the decision that blocked the Obama administration's attempts to force states to expand Medicaid, another affirmation of constraints on federal power.

    Still, as Barnett wrote in his new book The Republican Constitution, the result of the Obamacare challenge was unsatisfying. For Roberts to bend over backward to preserve a law passed by Congress was, in many ways, the logical outcome of decades of conservative arguments in favor of unelected judges deferring to elected officials when it comes to claims about rights, responsibilities, and powers. "The chickens of the conservative commitment to judicial restraint had thus come home to roost," he observed.

    In his book and his talk at N.C. State, Barnett traced the history of the federal constitution and its interpretation by different generations of Supreme Court justices. Sometimes, the prevailing view was that the operating principle of American government is and ought to be rule by the majority. Barnett calls this conception the "Democratic Constitution." At other times, the prevailing view was the text and architecture of the federal constitution and other founding documents were intended to limit the ability of majorities to injure or nullify the fundamental rights of minorities, a conception he calls the "Republican Constitution."

    For Barnett, a key phrase is that free governments are instituted with "the consent of the governed." This can't simply mean that everyone agrees to live under any policy adopted by 50 percent plus one of elected politicians. Rather, Barnett suggested that free individuals wouldn't consent to be governed in the first place if they had good reason to fear their fundamental rights would be endangered by that government.

    Checks and balances, the doctrine of enumerated powers, explicit protections of some individual rights, and implicit protections of other individual rights (found in the Ninth and 10th Amendments) were necessary in order for the federal government to secure such public consent. Barnett believes that one of the roles of federal judges is to enforce those provisions and limitations, even if that means actively striking down federal laws. It's not enough to "debate what the constitution means," he wrote in The Republican Constitution. "We also need to debate the proper role of judges in enforcing that meaning."

    If judicial activism consists of crafting public policy, that's wrong. Courts aren't legislatures. But if judicial activism consists of standing up to elected lawmakers and executives when they seek to exercise power they don't really have, that's not only permissible but obligatory. Judicial restraint in the face of tyranny is no virtue.
Go Back

Leave a Guest Comment

Your Name or Alias
Your Email Address ( your email address will not be published)
Enter Your Comment ( no code or urls allowed, text only please )

CommonTerry: Volume One Hundred Six Carolina Journal, Editorials, Op-Ed & Politics How to Make University Foundations More Transparent


Latest Op-Ed & Politics

Haley wants big corporations to dictate immigration policy
Local woman Kelly Reese somehow remained completely unmoved today despite her husband Tom reciting every single word from the Lord of The Rings movies from memory.
The mezuzah attached to the front door frame of our house has a little rolled scroll inside that has been blessed by a Rabbi.
A lawyer representing former President Donald Trump told Daily Wire Editor Emeritus Ben Shapiro that Justice Department special investigator Jack Smith was putting the American justice system in jeopardy after he brought another indictment against Trump.


State Supreme Court justices split on a decision to vacate a Court of Appeals ruling addressing a media outlet's "fair report privilege." The decision prompted commentary from four of the court's seven justices.
After announcing major budget cuts to the city’s police force and Education Department last week, New York City Democratic Mayor Eric Adams blamed the federal government for leaving him with no choice but to strip money away from New Yorkers to deal with the illegal immigration crisis.
A local Chick-fil-A ground to a halt Wednesday after an employee accidentally told another employee, "My pleasure." As a result, the pair of employees became trapped in an endless loop of "my pleasure" with no end in sight.
The Iranian-backed terrorist group Hezbollah reportedly caused “heavy damage” to an Israeli military base on Monday after it launched a rocket and drone attack at the army base.
The state Supreme Court has agreed to hear a New Bern eye surgeon's legal challenge against North Carolina's certificate-of-need law.
There were no survivors on Kfar Aza's street of nightmares, where evidence remains as proof of Hamas atrocities


proposed legislation would provide 10 year prison sentence, huge fines


Back to Top