Unleash the judges: the libertarian case for judicial activism.

• Author: Root, Damon W.

Speaking to the Heritage Foundation in 1996 on the topic of "judicial activism," the conservative commentator Pat Buchanan denounced the Supreme Court as a "judicial dictatorship"; the Court's beneficiaries, he said, were "criminals, atheists, homosexuals, flag burners, illegal immigrants (including terrorists), convicts, and pornographers." In his influential 1996 book Slouching Towards Gomorrah: Modern Liberalism and American Decline, former federal appeals court judge Robert H. Bork declared that "the Supreme Court has usurped the powers of the people and their elected reprsentatives." Dissenting from the majority in Lawrence v. Texas (2003), which nullified that state's anti-sodomy law, Supreme Court Justice Antonin Scalia argued that the Texas legislature's "hand should not be stayed through the invention of a brandnew 'constitutional right' by a Court that is impatient of democratic change."

Such views are widely shared on the right, where few subjects produce greater outrage than judicial activism, which conservatives blame for the forced imposition of liberal values on American society. But libertarians,who have frequently allied with conservatives in the effort to rein in the federal government, should not join their battle against the judiciary. There is no inconsistency between principled judicial activism and limited government.

Lincoln's Property-Rights Activist

For the better part of six decades, in fact, judicial activism was associated almost exclusively with the protection of economic rights, while its counterpart, judicial restraint, was the rallying cry of liberal reformers. Between Reconstruction and the New Deal, as the states began legislating a variety of new "progressive" regulations, it was judges acting in the name of private property and "liberty of contract" that "usurped" the power of the people, "invented" new rights, and gave birth to judicial activism as we know it today.

This history suggests that a principled form of libertarian judicial activism--that is, one that consistently upholds individual rights while strictly limiting state power--is essential to the fight for a free society. In fact, a genuinely libertarian jurisprudence would, in the words of the legal scholar Randy Barnett, "requir[e] the state to justify its statute, whatever the status of the right at issue." The real legal challenge facing libertarians isn't judicial activism; it is defending individual rights from the liberals and conservatives who seek to take our liberties away.

For a historical model, look to Supreme Court Justice Stephen J. Field. Appointed by Abraham Lincoln in 1863, Field sat on the Court for more than three decades, retiring in 1897 at age 81. In the words of biographer Paul Kens, Field was "the prototype for the modern judicial activist." He was among the first judges to create a body of legal authority by penning extensive dissenting and concurring opinions; he eagerly wielded the power of judicial review; he recognized few "political thickets" into which the courts should not tread. Nor did Field bind himself exclusively to legal precedent or to the text of the Constitution. Anticipating those 20th-century judges whose decisions draw on the political and social sciences, Field's opinions resound with such extra-constitutional sources as Adam Smith's Wealth of Nations and the precepts of natural law--the doctrine that man's rights derive from nature, not from human institutions.

Most important, Field advocated a groundbreaking jurisprudence of unenumerated natural rights. Through a number of creative and forceful opinions, particularly his dissents in the Slaughterhouse Cases (1873) and Munn v. Illinois (1877), and his concurrence in Butchers' Union Co. v. Crescent City Co. (1884), Field worked to enhance judicial power, nullify popular legislation, and expand individual liberty under the 14th Amendment.

Ratified in 1868, the...