Have Our Judges Forgotten the Constitution?

Judicial Apathy: An Epidemic of Silence
(Created 1/11/09; updated 4/18/14)

The United States judiciary has a steadily worsening record of protecting individual liberties in the face of governmental regulation and overzealous law enforcement.  We take a look at some of the causes of this trend.


We at FreeExistence.org often receive outraged emails from readers asking how a certain law can possibly be constitutional, or how a particular court ruling (be it a widely-publicized Supreme Court decision, or a local traffic court ruling) can possibly be in keeping with the United States Constitution.  And just about anyone who has ever fought the government (whether city, county, state, or federal) in a United States court will agree that trying to assert one's constitutional rights before many judges is, at the very least, an uphill battle.  Whether you're the average Joe fighting a speeding ticket in traffic court, or Susette Kelo fighting to keep the City of New London from stealing her home and giving it to commercial real estate developers, you're more likely to find judges acting as apologists for government policies than acting as defenders of the Constitution.  How can so many impossibly unsustainable rulings be made at all levels of the American legal system?  Why do so many obviously unconstitutional laws remain in force despite the presence of a judiciary sworn "to support and defend the Constitution" and "to faithfully and impartially discharge and perform all the duties incumbent under the Constitution?"


Editorials and political columns from the past decade are rife with complaints about judicial activism, and more specifically, discussions of how the constitutional rights of Americans have been steadily eroded since FDR's Supreme Court appointments.  Freedom-minded Americans are often quick to rally against such activism, but they are missing a far larger and more pervasive problem.  Judicial apathy is undermining freedom at a far greater rate than activism, largely because this apathy has been overlooked or ignored for so long.

Judicial apathy (or "judicial deference," as it is more euphemistically known among legal scholars) is the tendency for judges simply to be apologists for every government policy that is challenged in their courtroom.  Unfortunately, one need not look very far to get a taste of the toxic fruits of judicial apathy.  Every day, abusive and exploitive eminent domain and civil forfeiture laws are upheld by judges seemingly too apathetic or jaded to uphold their vows to defend the United States constitution.

At first glance, it's easy to arrive at some of the more cynical explanations for such judicial tendencies.  It's certainly easier for a judge to go along with existing policy than the alternative; much of the work involved in agreeing with existing law can be foisted off on a team of judicial clerks of average skill, unlike laying the constitutional foundation for overturning an established law.  Further, to get appointed as a judge (especially a high-level judge, such as those at the federal and/or appellate levels), one generally needs strong political connections with those in the government.  It's no surprise that those in the government tend to favor, at the very least, the status quo.  Sometimes they go beyond this, and endorse the statist ideals that seem to be rampant in both mainstream political parties today, favoring the steady expansion of governmental power.  In short, sticking to the status quo (often backing up the "law and order" platform of the politician who appointed the judge) avoids "rocking the boat" and keeps the judge out of the news headlines.

However, there are some less cynical (and less obvious) explanations for this epidemic which pervades the institutions of the American judiciary.  Take, for example, the "rational basis" standard of judicial review.  The "rational basis" test is the default standard of review for deciding issues pertaining to "non-fundamental" constitutional rights, which includes the economic interests of citizens along with many other rights which are presently restricted by Congress using the Commerce Clause of the Constitution as justification.  The "rational basis" standard requires that a law must be upheld if there is any "reasonably conceivable state of facts that could provide a rational basis" for it.  Further, legislatures are not even required to articulate their reasons for enacting a statute, because according to the Supreme Court's 1993 FCC v. Beach Communications decision, "it is entirely irrelevant for constitutional purposes whether the conceived reason for the challenged distinction actually motivated the legislature."  The court further clarified that a "legislative choice is not subject to courtroom fact-finding and may be based on rational speculation unsupported by evidence or empirical data."  This standard of review would seem in theory to be ridiculously easy for the government to meet, and unfortunately this is borne out in practice.

One of the earliest abuses under the "rational basis" standard was United States v. Carolene Products Co., wherein the Supreme Court applied this standard in a case where the court upheld a 1923 act of Congress which banned interstate shipment of filled milk.  The ban was in response to intense lobbying by the dairy industry, which was attempting to protect its market share against foreign competition.  On its face, the decision enabled special interest legislation to "expropriate the property of a lawful and beneficial industry; to deprive working and poor people of a healthful, nutritious, and low-cost food; and to impair the health of the nation's children by encouraging the use as baby food of a sweetened condensed milk product that was 42 percent sugar" (quoting Geoffrey Miller's article "The True Story of Carolene Products") using a specious public interest justification that was never actually relied upon by Congress.  The decision actually introduces a "presumption of constitutionality" which has since been used to relegate all manner of constitutional issues to "legislative judgment" instead of that of courts.  Carolene Products represented the American judiciary giving up a massive portion of the oversight power enumerated in the famous 1803 Marbury v. Madison case.  Just as significantly, the Carolene Products decision dealt a grievous wound to economic due process rights in the United States, and opened the floodgates for legislative and executive abuse of constitutional rights.

A 1942 case known as Wickard v. Filburn broadened the judicial deference given to Congress when it held that Congress can regulate virtually everything American citizens do.  Roscoe Filburn was an Ohio farmer growing wheat for on-farm consumption.  The government had imposed limits on wheat production to drive up wheat prices during the Great Depression as part of the Agricultural Adjustment Act, and Filburn grew more than the permitted amount.  He was ordered to destroy his crops and pay a fine, even though he was producing the excess wheat for his own use and had no intention of selling it.  As described by Steve Simpson, "[Filburn] challenged the law in court, arguing that it exceeded Congress's power to "regulate commerce . . . among the several states."  That power, as Filburn saw it, would only allow the federal government to regulate his sales to people in other states.  But he consumed most of his wheat himself and sold only a small amount within his own state, so he argued that Congress had no business telling him how much wheat he could produce.  Filburn was in good company.  The Framers gave Congress the commerce power largely to prevent states from erecting trade barriers.  That's why the provision is generally known as the interstate commerce clause-because it allows Congress to regulate only interstate commerce, not all commerce.  Unfortunately . . . the Supreme Court decided that if a little Congressional power was good, a lot was better.  In the Court's view, it didn't really matter if a particular activity was actually "commerce," as opposed to consumption or production, and it wasn't terribly important if that activity was done over state lines, as long as it might affect interstate commerce.  Congress needs to solve economic problems, as the Court saw it, and the courts should not get in the way."

The judicial deference first created by Carolene Products and furthered by the Wickard precedent has grown more widespread, and is still going strong today.  Under the guise of the Commerce Clause, Congress and federal agencies restrict citizens' rights to firearms, medical marijuana, and other arguably fundamental, non-economic rights.  The recent Gonzales v. Raich case provides a good illustration of this phenomenon.  Angel Raich, a California woman with an inoperable brain tumor, was using homegrown medical marijuana to treat chronic pain in full compliance with California's "Compassionate Use" laws.  It's important to note that Angel was not selling marijuana, and was not engaged in any interstate commerce, and thus her acts fell outside of the language of the Commerce Clause (which gives Congress the power "to regulate commerce with foreign nations, and among the several states").  However, the Supreme Court inexpicably concluded that Angel's personal creation and use of the drug affected interstate commerce.  The Court stated that "Congress had a rational basis for concluding that leaving home-consumed marijuana outside federal control would similarly affect price and market conditions."  In other words, the fact that Angel didn't need to buy marijuana from a local dealer would depress the pot market, and would therefore have an indirect effect on interstate prices, and thus have an effect on interstate commerce.  Regardless of one's position on the "War on Drugs", the Court's cited justifications for upholding the federal law in this case goes well beyond weakly rationalized and borders on complete incoherency.  But the Court went on to say that "we need not determine whether respondents' activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a 'rational basis' exists for so concluding", apparently formalizing the Supreme Court's divorce from reality.

This type of judicial reasoning is not uncommon, unfortunately.  Under the "rational basis" standard of review, rather than looking at the government's actual basis for a given law, the judge is actually doctrinally required to try to think up a new basis which might make more sense.  If such a hypothetical basis occurs to the judge, then the law must be upheld regardless of the actual basis used by the government in enacting the law.  As further explained by the Wikipedia article on the rational basis test, "Generally, to pass the rational basis test, the government need not make any argument.  Rather, the opposing party must negate 'every conceivable rationale' for the challenged regulation."  Obviously, this is a very easy standard for the government to meet, and so any law reviewed under this standard is almost certain to be upheld.  As unbelievable as it may seem, for a law to be "rationally related" to a legitimate state purpose, it doesn't even need to achieve that purpose.  All that's required is that a legislator might reasonably believe that the law would contribute to a goal.  This is compounded by the fact that the test does not take into account any harmful side effects which are peripheral to the purpose of the law.

By now, it's undoubtedly clear that the "rational basis" standard is not merely a legal detail of concern only to scholars of constitutional law -- it actually defines the role of judges in America as rationalizers of government rules.  What's more, the "rational basis" test is used not only to justify federal government action, but also actions by local and state governments due to the dynamics of the 14th Amendment.  Further, it is used to uphold both legislative (e.g., Congressional) and executive (e.g., federal regulations and presidential actions) erosions of individual liberty.  This standard effectively creates two sets of rules: the rules the government must obey, and the rules for everyone else unfortunate enough to face the government in an American courtroom (and indeed, those of subsequent generations who are bound by the precedent).  And while the roots of this particular constitutional litmus test go back over a century, judicial passivism has allowed abuse of the "rational basis" standard to flourish, permitting reckless government policies to run rampant while using the rhetorical creativity of hypothesizing judges to fuel the juggernaut.


In the long term, the solution to this problem is to decrease societal tolerance for judicial apathy through education.  Awareness of this problem must be spread not only in our law schools and judicial nomination and selection committees, but by writers, commentators, bloggers, and others who contribute to the opinions of the general public through their work.  In the meantime, judges must be pressured to stop reflexively deferring to the other branches of government, and to start actually defending the constitutional rights of citizens.

In the short term, don't wait for top-down reforms.  Believe it or not, up until the dawn of the 20th century judges were required to inform the jury that they may take into account the justness of the law when deciding the criminality of the defendant.   A 5-4 Supreme Court decision in the 1895 Sparf v. United States case eliminated that requirement, and today a lawyer who mentions this option to a jury can get jailed on contempt, or even disbarred.  But rest assured that the power of the juror to nullify unjust laws still exists.  Consider using jury nullification to strike down senseless or unconstitutional laws whenever the opportunity arises.  This little-known power can give the juror as much authority as the judge -- the juror can vote to nullify the very law the defendant is accused of violating.  For more information, see this primer on jury nullification.

If you take one thing away from this article, it should be this: judicial apathy presents a far more immediate and widespread danger to freedom in America than judicial activism.  


April 2014: Clark Neilly of the IJ was recently interviewed by Reason.tv about judicial apathy, the Rational Basis Test, and unenumerated rights that all citizens have.  This video provides a great summary of what he calls "judicial abdication."  He's also published a book out on the subject, which based on our own experience with Mr. Neily, we anticipate will be a welcome addition to the legal scholarship on the subject.

April 2011: The Institute for Justice has recently started the much-needed Center for Judicial Engagement to combat judicial apathy.  Click here for more information on their efforts, and how you can help.

According to a 2011 study by IJ, between 1954 and 2003, Congress passed 16,015 laws, only 104 of which (that's six tenths of one percent) were struck down by the US Supreme Court.  During the same period, state legislatures passed 1,209,075 laws of which only 455 (that's three hundredths of one percent) were found unconstitutional by the Supreme Court.  Evidently, either the legislatures are doing a near-perfect job and hardly need a Constitutional gatekeeper, or the Supreme Court is doing an abysmal job and has almost entirely abandoned its constitutional duties.  (Watching CSPAN for even five minutes clearly suggests the latter.)

See also: Judicial 'Activism' Isn't the Issue Liberals and conservatives both show too much deference to Congress by Jeff Rowes of the Institute for Justice

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