The Magazine

Is There a Third Way?

Challenge, not deference, to the majority.

Jan 20, 2014, Vol. 19, No. 18 • By JONATHAN V. LAST
Widget tooltip
Audio version Single Page Print Larger Text Smaller Text Alerts

One of the government’s slyest powers is the right to grant licenses. As a piece of law, the license is rooted in the idea of communal interest: In areas of life where the general public can easily be harmed by bad actors, the government seeks to mitigate harm by credentialing certain actions. Hence the driver’s license, which ensures some minimal competency for operating an automobile. And the physician’s license, which upholds a reasonably high standard of competency for doctors.

J. Harvie Wilkinson, Antonin Scalia, Robert Bork

J. Harvie Wilkinson, Antonin Scalia, Robert Bork

Wilkinson: Diego M. Radzinschi / THE NATIONAL LAW JOURNAL SCALIA AND BOrK: newscom

But sometimes the license isn’t about general welfare. In Louisiana, for instance, the state requires a license to practice floristry. In order to earn such a license, applicants take a written test and then must pass a practical exam in which they create four floral arrangements to be graded, completely subjectively, by a panel of certified florists. Very few applicants pass this ludicrous exercise, suggesting that the Louisiana floristry license is really an example of a business cartel hijacking the power of the state and using it to protect its interests.

Clark Neily, a lawyer at the nonprofit Institute for Justice, led a legal challenge against the Louisiana florist’s license—and lost. He was dismayed at the spectacle of a federal judge refusing to halt this obvious abuse of government power. But he was more troubled by the way in which conservative judicial philosophies aided and abetted the decision. In Terms of Engagement he has written a rebuke to the legal doctrines of majoritarianism and originalism, and a brief for a conservative Third Way: a philosophy he calls “judicial engagement.”

Unlike most conservatives, Neily isn’t (principally) concerned about judicial activism. It’s not the specter of courts amending the Constitution that bothers him. Instead, he worries that government, by its nature, is constantly seeking to expand the bounds of its power and that the only check on this expansion is the judiciary. For all the talk of America’s activist courts, Neily argues, our judges mostly let the government do as it pleases. From 1954 to 2002, he writes, Congress enacted 15,817 laws—of which the Supreme Court invalidated just 103—or 0.65 percent. 

“The court struck down an even smaller proportion of federal administrative regulations—about 0.5 percent,” he writes, “and a still smaller proportion of state laws: just 452 out of one million laws passed, or less than 0.05 percent.”

Which leaves only two possible conclusions: (1) Our wise and disinterested elected representatives—men and women like Harry Reid, Nancy Pelosi, Tom DeLay, and Bob Ney—have, for half-a-century, been playing error-free lawmaking; or (2) the courts have been swallowing their whistles. Neily believes the latter to be true and argues that the judiciary’s abdication of its responsibility to check lawmakers is its cardinal sin.

Yet for a generation, conservative legal minds have concerned themselves not with the abuses of the legislature but with the potential for abuse from the bench. Hence the late Judge Robert Bork’s majoritarianism, which attempts to justify nearly all laws stemming from the will of the people. Or Justice Antonin Scalia’s originalism, which seeks to confine judicial maneuver within a framework narrowly defined by the Constitution. Thinkers such as Judge J. Harvie Wilkinson argue that judges “should be modest in their ambitions and overrule the results of the democratic process only where the Constitution unambiguously commands it.” But Neily counters that the Constitution is “not designed to provide that level of detail, and furthermore, what counts as an ‘unambiguous’ command turns out to be highly subjective.” Such a philosophy, he says, “is a recipe for more government, pure and simple.”

Instead, Neily proposes a philosophy of judicial engagement. He asks that judges approach cases neutrally, rather than acting as advocates for the government who look to create justifications for laws (as John Roberts spectacularly did for the individual mandate/tax in Obamacare two years ago). They should also treat all cases consistently, Neily says. Today, some cases are decided under the doctrine of “rational basis” (meaning that the government can merely hypothesize as to what the motive for a law might be), while others are subject to “strict scrutiny,” where the government must provide a genuine explanation for its actions. Neily would radically cut back “rational basis” hearings. Finally, Neily suggests that when the government seeks to regulate, the courts should force it to shoulder the burden of proof. (Nonlawyers may be surprised to learn that, in rational-basis cases, the government is assumed to be in the right and individuals are given the burden of proving that their rights are being infringed upon.)

Terms of Engagement is an engaging and important book, and it’s encouraging to see conservatives having a vigorous debate about legal philosophy. Yet it is disconcerting to realize that, ultimately, such conversations may matter little. Because while conservatives debate philosophies, liberals worry only about outcomes. In 1995, the liberal legal theorist Duncan Kennedy argued simply that “law is politics.” Many liberal jurists agree, as does Richard Posner, who may be the closest thing there is to a heterodox legal mind: 

Constitutional cases in the open area [i.e., those cases for which there’s no clear binding Supreme Court precedent directly on-point] are aptly regarded as “political” because the Constitution is about politics and because cases in the open area are not susceptible of confident evaluation on the basis of professional legal norms. They can be decided only on the basis of a political judgment, and a political judgment cannot be called right or wrong by reference to legal norms.

When one side of legal theory decides that the law is simply politics by other means, then it hardly matters what the other side believes. In the long run, naked power is a proposition with which no coherent, principled philosophy can compete.

Jonathan V. Last, senior writer at The Weekly Standard, is the author of What to Expect When No One’s Expecting: America’s Coming Demographic Disaster