Simone Gao: This is a passage from one of your articles recently: “’The Vote on Brett Kavanaugh Won’t Solve America’s Deeper Supreme Court Problems’ Thus, we now have two jurisprudential schools. Liberals urging judicial activism to promote evolving liberal values; conservatives urging judicial restraint, making peace, essentially, with the New Deal Court’s deference to the political branches.” This is very interesting. Are you saying neither party in today’s America has stayed faithful to the constitution?
Roger Pilon: The Constitutional revolution of 1937 through 1943 led, eventually, to two fundamentally different approaches to constitutional interpretation: one liberal, the other conservative, in the American context. Both schools are wrong. And I’ll explain why, but I have to go into a little bit of the history to do so. After the supreme court was brow-beaten into taking those three steps that I mentioned earlier, it’s posture was essentially deferential to the political branches. It said to the Congress and the executive branch, and to the states as well: Go ahead and regulate and redistribute at will, we will check you only if you violate certain fundamental rights as we understand them to be. So this deferential policy of the court essentially stepping out of the way and allowing government to grow topsy-turvy continued for about another 15 years or so. But around the mid-1950s and through the 60s, 70s, and thereafter, the court its second wind. The Warren Court, the court of Earl Warren, the Burger Court, and later the Rehnquist court to a lesser extent, started becoming more active. By that I mean that the Warren Court, in an effort to address the civil rights movement, which had been growing for some years, in 1994 handed down the Brown v. Board of education decision which overturned the 1986 decision of Plessy v. Ferguson which gave us the “separate but equal” doctrine. In the 1954 Brown decision, the court rejected that doctrine, and that began the effort to desegregate so much that was segregated in the south under so-called “Jim Crow” laws.
The court did not stop there however, it went on to find a number of rights that were nowhere to be found, either among our explicit rights in the Bill of Rights or under our unenumerated rights pursuant to the Ninth Amendment. And so, that led to a conservative backlash, conservatives, especially with the abortion decision of 1973, Roe v. Wade, thought the court had gone too far in enforcing what the liberals on the court thought were evolving social values. This was not for the court to do, conservatives said, this was for democratic legislators to determine, not the court. The court they saw as being composed of judges that were invoking their own social values and imposing on majorities at the state and federal level.
And so you had two schools of thought. And here’s the way they broke down. I’ll divide it between powers and rights. With respect to powers, both of them accepted the end, the demise of the doctrine of enumerated powers, which the Court had eviscerated in 1937. Conservatives, because they thought it a lost cause; liberals because they liked government with all this expanded power. Where the two schools differed was on the rights side. The liberals were enforcing rights episodically, the liberals on the Court were enforcing rights episodically, namely finding rights that were nowhere there to be found while ignoring or disparaging rights like property rights, contract rights, economic liberty that were plainly there to be protected under the Constitution. By contrast, fearing that kind of liberal judicial activism, conservatives on the Court urged the Court to enforce rights that were only—only those rights that were expressly in the Constitution, thereby ignoring the rights that were meant to be protected under the Ninth Amendment, which reads “the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” Notice: “retained by the people.” You can’t retain what you don’t first have to be retained. The Ninth Amendment was alluding to the vast sea of natural rights that we have, essentially, rights to be free. And so you had both schools that, as I said earlier, were wrong. They were wrong on the power side, and they were wrong on the rights side.