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A brief handshake-and-a-few-words encounter with Supreme Court
Justice Clarence Thomas, who was in Orange, Calif., to dedicate the new
building at Chapman University’s Law School, reminded me of what may
develop into a surprising turn of events for somebody who has spent most
of his life criticizing courts and the judicial system. It just might
turn out that the courts in the United States will turn out to be — at
least sometimes — the defenders of personal freedom and the rights of
the people the Founders intended them to be.

In his remarks Justice Thomas tried to encourage such a hope. He
joked that it might not be unreasonable to regret the opening of yet
another institution devoted to producing more lawyers. But the real
problem in this country, he said, is not so much too many lawyers as
such, but “too few lawyers truly dedicated to the higher aspirations of
law. Too few who understand that this great nation of ours is great and
free precisely because it is devoted to the rule of law and not of
men.” Chapman University, he hoped, would graduate ethical lawyers of
distinction, dedicated to the principles of human liberty, equality and
dignity embodied in the Declaration of Independence.

Just in passing, I agree and disagree. I think there simply are too
many lawyers in this country for a healthy society. But I also know some
lawyers and law professors who are among the most genuine and effective
friends of liberty around. And I know some of the people involved in
Chapman’s Law School, and I believe their desire is to increase the
number of lawyers committed to using their profession to safeguard
liberty rather than to undermine it.

As University of San Diego law professor Bernard Siegan explains in
such books as “Economic Liberties and the Constitution” and “The
Supreme Court’s Constitution,” the Founders expected (or hoped) that on
balance the courts would safeguard and protect the individual liberties
of the citizens from the virtually inevitable tendency of the other
branches of government to violate those liberties the constitution
protects.

The Founders were realists; they didn’t expect the system to work
perfectly or that there wouldn’t be periods when the courts abandoned
their duty to citizens and served as apologists for the growth of state
power. They probably wouldn’t even have been shocked to learn that some
courts, in pursuit of a political agenda that had little or nothing to
do with the workings of the judicial system, have busily invented
spurious rights that simply weren’t in the original Constitution. But
they hoped that over time the judiciary would provide some checks on the
power of the other branches, even as the other branches should have at
least some interest in checking the power of the judiciary from time to
time.

That’s why the commonplace kneejerk conservative objection to
“activist” judges — although often understandable in light of the
record of courts inventing “rights” at least since the Warren period
and perhaps since the “switch in time” in 1937 — is misplaced.

If a court intervenes to invalidate a law because it is
unconstitutional or violates the inalienable rights of citizens, then
it’s not being “activist,” it’s doing what it is supposed to do (if you
buy Marbury v. Madison, which is another lively dispute). A court that
fails to invalidate an unconstitutional law is shirking its duty. A
court that creates a law never passed by a legislature or creates a
“right” that’s not really a right or is not specified or implied in the
Constitution is being objectionably activist.

(My take on what constitutes a right, by the way, is that if it can
be exercised freely without violating the equal rights of all other
citizens, like speaking or owning property, it’s a right. If it requires
taking something from somebody else or can only be exercised by
violating the rights of others, like the “right” to welfare or free
health care, it’s not a right but a privilege, and one of the major
goals of the Founders was to eliminate legally granted privileges to any
citizen or group of citizens. The Founders knew there was no such thing
as equality in an existential sense; when they talked about equality
under the law they meant a situation where nobody had special privileges
others didn’t have — and especially not at the expense of those
others.)

The question before us, then, is whether the courts, having passed
through a mostly objectionable activist phase (though I find less
practical fault with some of the expansion of the privileges of those
encountering law enforcement than some do), are poised to become more
like the defenders of citizens’ rights against overweening government
power they are supposed to be.

I think Justice Thomas, although he might not understand matters
quite so clearly as scholars like Bernard Siegan, Richard Epstein or
Randy Barnett, sees his role on the High Court as moving it as much as
possible in that direction. And while the evidence is mixed (and some of
it downright appalling), it is just possible that the Supreme Court as a
whole is doing something similar.

For the last several years the Supreme Court has signaled, by its
choice of cases and decisions, that it is in the midst of reconsidering
and reshaping the relations between the central government in Washington
and state and local governments. Many of the hot-button and divisive
cases due to be considered during the current term are centered around
the broad issue of federalism.

For years, for example, U.S. courts accepted the rationale, developed
during the New Deal era, that the interstate commerce clause gave the
federal government the power to regulate interstate commerce in whatever
way it chose, and that interstate commerce could be broadened to include
not just commerce that went across state borders, but actions and
transactions that could arguably, even if indirectly, have an influence
or effect on interstate commerce. In practice, that meant the federal
government could regulate anything.

In 1995, in the Lopez case, the Supreme Court invalidated the
Gun-Free Schools Act, a federal law making it a crime to have a gun
within 1,000 yards of a school (unless you were a government agent, of
course). The court said there were some limits to the power conferred by
the interstate commerce clause (without specifying, of course, exactly
what they are). Chief Justice Rehnquist even began the decision by
reminding all concerned that “We start with first principles. The
Constitution establishes a government of enumerated powers.” This was
the first time in at least 50 years that a court ruled the government
had overstepped its interstate commerce powers.

Combine this with a 1992 New York case on federal mandates for
nuclear waste disposal, the 1997 Printz case, which ruled Congress
didn’t have the power to force local law enforcement to conduct the
background checks required under the Brady bill, and three obscure cases
handed down on the last day of the previous session in June having to do
with patents and federal labor law enforcement. What could be emerging
is a pattern of the Supreme Court trying to shift the balance of
effective power from the central government and back toward the state
governments, restoring a system more closely resembling what the
Founders had in mind.

Among cases on the current term’s docket with federalism implications
are Kimel v. Florida Board of Regents and the review of the Violence
Against Women Act. If these are decided in a fashion friendly to states’
rights (or of trimming the power of the central government), it will be
cause to break out at least the domestic Champagne.

All this isn’t necessarily enough to make me want to lay down for
Dubya because the next president is likely to appoint a lot of Supreme
Court Justices. When Republican presidents appoint justices the Clarence
Thomases are the exception rather than the rule. But it’s enough to
encourage at least some hope that some trends in the courts might make
them more like the friends of freedom they were designed to be.

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