As the debt-ceiling debacle shows, Americans are genuinely frightened that our ever-expanding federal government will spend us into national collapse. But while Americans are delivering a message of limited government to Congress and the President, proponents of small government have actually been sending a completely different message to the judiciary for decades. That message–that any judge who strikes down a bad law is an “activist”–has been destructive to freedom and conducive to runaway growth in government.
Americans have always believed more in the power of individuals and the free market than in government power. For example, ABC News and The Washington Times have been asking people the same question since 1984: Do you favor smaller government and fewer services, or larger government and more services? The results show a consistent national preference for smaller government. In 1984, 49 percent of respondents favored smaller government while 40 percent favored larger government. Today it is 56 percent versus 40 percent.
The American commitment to limited government is embodied in our Constitution. The Founders were distrustful of government power and they wanted to limit government’s interference in our lives. Largely ignored in today’s debate over limited government, however, is the role that our courts should play in keeping the government in check.
Our courts are a constitutionally co-equal branch of government. The Founders spent considerable time debating the best way to ensure judicial independence so that the judiciary could temper overly ambitious presidents and legislatures.
A Constitution that says “no” to government requires judges who are willing to say “no” to government, too. Yet when judges actually strike down a law as unconstitutional, they are frequently derided as “activists” by people who ordinarily think of themselves as advocates for smaller government.
And so we have a seeming paradox: people want less government, but they bash judges who say “no” to government. This must change if our courts are going to fulfill their constitutional duty of restraining government power. A misguided adherence to the philosophy of judicial minimalism means that the Constitution is not being interpreted or enforced as the document itself demands.
Judges need not choose between judicial activism and judicial passivism. This paints a false dichotomy wherein judges can only invent results as they go, or else defer entirely to the “wisdom” of the legislature. If we want America to reflect the vision embodied in our Constitution, we need to demand that our judges actively engage the cases that come before them. Too often in cases that involve the government, judges ignore evidence, invent facts, and accept implausible explanations for government regulations.
If we expect judges to engage the Constitution, proponents of limited government need to stop accusing any judge who strikes down a law on constitutional grounds of “legislating from the bench.”
Courts enjoy the power of judicial review because the Founders were wise enough to recognize that the elected branches cannot be trusted to respect limits on their own power. The political elite demonize judges with labels like “activist” to delegitimize the very act that the Constitution entrusts to them: striking down laws that violate our basic freedoms. But what was true in the days of Washington and Jefferson remains true today. The courts are the thin black line necessary for liberty and we should applaud the courage of judges who stand on that line defending the Constitution.
Matt Miller is the executive director of the Institute for Justice Texas Chapter, in Austin.
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