Supreme Court Justice Antonin Scalia made waves earlier this summer by calling judges who strike down certain laws “Mullahs of the West.” There is nothing new in that; Scalia has been referring to American (and European) judges who see a more active role for courts in protecting individual liberty as “Mullahs” for years.
That’s because, like many judges, Scalia is profoundly uncomfortable with the idea of courts striking down laws that are not unambiguously prohibited by the Constitution.
In my forthcoming book, “Terms of Engagement: How Our Courts Should Enforce the Constitution’s Promise of Limited Government,” I refer to this as the “bullet-point Constitution”: That is, the idea that the Constitution protects only those rights that are explicitly set forth in its text.
But in fact the Constitution was plainly designed to protect unenumerated rights, and seeking to implement that plan does not make judges “Mullahs.” Instead, it reflects a consistent, conscientious attempt to protect the full measure of freedom to which every American is entitled—what my book calls “judicial engagement.”
If you ever stopped to count up the rights specifically set forth in the text of the Constitution, you would find that they encompass only a tiny fraction of the things that matter to you and that you might wish to do on any given day.
Watching television and reading blogs on the Internet? Yes. Taking your family to church? Yes. Preventing the government from quartering troops in your home? Yes (in the unlikely event that ever comes up).
But what about other important matters like choosing what food to put in your body, how to earn a living, how to raise and educate your children, and whether or whom to marry?
Does the Constitution’s failure to specifically address any of those decisions leave government with complete control over them? And what if you were diagnosed with a terminal illness one day, as some of us will be—does the Constitution expressly protect your right to seek potentially lifesaving medical treatment?
It does not. And, according to the en banc D.C. Circuit Court of Appeals, that means there is no judicially enforceable right to do so.
The Framers understood perfectly well that it is impossible to create a comprehensive list of all the rights that should be protected from unwarranted government interference.
That is why they included in the Bill of Rights the Ninth Amendment, which provides that “[t]he enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” The same concern is reflected in the text of the 14th Amendment, which protects, among other things, “the privileges or immunities of citizens of the United States.” One might think that respecting those provisions and giving them substance makes one a good textualist. But not in Justice Scalia’s view; instead, he believes it turns judges into illegitimate, authoritarian arbiters of morality—Mullahs, that is.
Unfortunately, instead of seriously engaging the challenging question of unenumerated rights, Scalia trivializes it with a mocking illustration.
Addressing the North Carolina Bar Association on June 21, he quipped, “I accept for the sake of argument, for example, that sexual orgies eliminate social tensions and ought to be encouraged . . . . Rather, I am questioning the propriety, the sanity of having a value-laden decision such as this made for the entire society by unelected judges.”
Though frivolous, this example illustrates the fundamental flaw in Justice Scalia’s characterization of judges as “Mullahs.”
Unlike the Mullahs with whom Americans are most familiar (the Taliban’s Mullah Omar and the leaders of Iran’s repressive theocracy, for example), judges who protect unenumerated rights aren’t forcing anyone to do anything against their will.
Rather, they are preventing the government from exercising arbitrary authority over individuals. In other words, a properly engaged judge understands that the Constitution prohibits democratic majorities from bringing the coercive power of law to bear on others without sufficient justification.
To suggest, as Justice Scalia does, that this amounts to an act of judicial tyranny is deeply incoherent. Indeed, there are still plenty of ways to express moral disapproval toward particular conduct besides outlawing it. There is a difference, after all, between being forced to participate in conduct one finds morally objectionable (engaging in sexual orgies, let’s say) and merely being prevented from putting people in jail who choose to engage in that conduct voluntarily and without violating anyone else’s rights.
The idea that judges have arrogated to themselves a substantial policymaking role, as the term “Mullah” implies, is empirically unfounded. As documented in Chapter 7 of my book, from 1954 to 2002, Congress enacted 15,817 laws, of which the Supreme Court struck down103—just 0.67 percent.
The Court struck own an even smaller proportion of federal regulations (0.5 percent) and a still smaller proportion of state laws (0.05 percent). To be sure, the Court has exerted its influence in hotly contested policy disputes over abortion, guns, same-sex marriage, and affirmative action. But the idea that the Constitution leaves every one of those issues entirely—entirely!—to the unfettered discretion of the political branches is untenable, particularly for true textualists who believe judges should give full meaning to every provision in the Constitution, and not just the ones that empower government.
Clark Neily is a senior attorney for The Institute For Justice and he helped create the Institute’s Center for Judicial Engagement. He litigates economic liberty, property rights, school choice, First Amendment and other constitutional cases in both federal and state courts.
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