The newly released 2003-2004 issue of the Cato Supreme Court Review features a lead article by Walter Dellinger. Prof. Dellinger served as Acting Solicitor General of the U.S. during part (1996-97) of the Clinton administration. The title of this eloquent, worthwhile, and refreshingly succinct article is “The Indivisibility of Economic Rights and Personal Liberty.” Prof. Dellinger – even citing Hayek – explicitly proclaims that “The failure to protect either economic or personal liberty inevitably weakens both.”
Amen.
………….
Two related questions: First, is it unusual that a legal scholar serving a Democratic president would write such an article? Second, wouldn’t you expect that an article with this theme would be written by a noted conservative jurist?
The answer to the first question is “It’s a bit surprising, perhaps, but not shocking.” The answer to the second question is more certain: “No!”
The reason it’s now largely futile to expect a conservative jurist in America to write an article proclaiming the indivisibility of economic rights and personal liberties is that the typical conservative jurist – Scalia, Thomas, Bork (especially Bork) – is governed by one great fear – namely, a return to Warren-court judicial activism. Sensible people correctly fear and fight against such activism. But in their obsession with avoiding unwarranted judicial activism, conservative jurists have become lackeys for the legislative and executive branches of government. Unless the Constitution explicitly prohibits either of the other branches from doing something, modern conservative jurists throw up their hands and declare to those challenging some legislative or executive action “Take up your gripe with your elected officials. That’s what democracy is about. The only rights you have against government impositions are those that are clearly and explicitly spelled out in the Constitution. So go!”
In short, modern conservative jurists in America believe merely in the specific, narrowly construed words of the Constitutional text. They do not believe in rights.
One great irony, pointed out by Prof. Dellinger, is that modern conservative “judicial restraint” is the direct product of the New Deal Court’s utterly unjustified and unprecedented wholesale refusal to recognize implicit economic rights that the framers of the Constitution most certainly understood to be part of the background law of that document. The likes of William “Zero” Douglas and other Warren-court jesters became unprincipled judicial activists precisely because their rejection of implicit economic rights protected by the Constitution obliged them – when confronted with threats to personal liberties (such as the right to buy condoms) – to devise ad hoc, tortured excuses for finding particular non-explicitly protected Constitutional rights. The result of this Warren-court activism was indeed arbitrary and capricious judicial interference and non-interference with other branches of government.
But as Prof. Dellinger nicely argues, the solution is not Borkian-style “judicial restraint.” It is, instead, a recognition that the Constitution does presume a large body of background (that is, common) law — law that the framers understood to protect a broad range of personal and economic liberties.
