Commentary

The Great American Behemoth

I’m not surprised that Justice Antonin Scalia, when asked by the Journal to name and discuss “the most significant development in the law over the past thousand years (“How Democracy Swept the World,” editorial page, Sept. 7), should focus on democracy, not liberty. His award to “the principle that laws should be made not by a ruler, or his ministers, or his appointed judges, but by representatives of the people” is perfectly consistent with his well-known aversion, often well-founded, to “judicial activism.”

But the answer ignores the centuries of judge-made common law that America’s Founders fought a revolution to restore. And it forces Justice Scalia to spend the better part of his essay explaining how the democratic principle squares with individual liberty — or with the rights of minorities, as he puts it. And here his explanation falls short, not least because to ensure those rights, judges would need to be more “active” than Justice Scalia would likely, want.

To square the two principles, he looks, rightly, to constitutionalism (which truly deserves the award). And he points especially to the “calculated inefficiency” in the U.S. Constitution: Minorities are protected because majorities, to prevail, must overcome “bothersome obstacles” — bicameral legislatures, executive vetoes, “certain” individual rights, and the like. What he fails to note, however, speaks volumes about his own judicial philosophy.

For nowhere do we find mentioned the principal constitutional impediment to majoritarian tyranny — the doctrine of enumerated powers. The best way to guard against overweening power, the Framers understood, was to not give power in the first place. Thus, the founding generation authorized a federal government of delegated powers only, which they enumerated in a constitution — expecting, if necessary, that judges would limit the political branches to those powers if political checks should fail.

The closest Justice Scalia comes to that conception is his bare mention of “our federal structure.” He immediately adds, however, that the structure “is not as vigorous as it once was,” due to the 17th Amendment: once senators were directly elected, rather than elected by state legislatures, the ability of states to resist federal expansion was weakened.

That is true. But it is merely a political, not a legal explanation for why we have the massive federal government we have today despite Madison’s assurance that the powers delegated to the federal government were “few and defined.” The more important, legal explanation goes not to the failure of political forces to remain within their constitutional limits — that was anticipated by the Framers — but the failure of courts to keep them there.

Following Franklin Roosevelt’s notorious Supreme Court-packing scheme in 1937, judges have been asleep at the switch in policing the enumerated powers doctrine — and leviathan is the result. It would hardly be “activism” for judges to reassert their authority to restrain the democratic behemoth. To the contrary, that is what judges took an oath to do.

Roger Pilon is Vice President for Legal Affairs and the Director of the Center for Constitutional Studies at the Cato Institute.