No one needs to look far to see the ferocity of the battle between statists and those calling for limited government. But what most Americans don’t understand is that we have come to this brink in part because for more than 75 years judges have abandoned their important constitutional roles as checks on the relentless expansion of government power.
It is particularly striking, therefore, that a unanimous U.S. Supreme Court ruling this past term — in the case of Bond v. United States — halted a decades-long trend of judicial abdication, pointedly instructing lower courts to become more engaged guardians of individual rights in some constitutional cases.
The framers of the Constitution were unambiguously on the side of liberty: To secure individual rights, they divided government power, creating checks and balances among the branches of government and, further, between the federal and state governments — a policy known as “federalism,” emphasized by the 10th Amendment.
Since the 1930s, however, federal courts have retreated from enforcing constitutional limits on power. The relentless intrusion of government into every aspect of our lives has been the natural result — along with the inevitable arguments over who will pay for and who will receive the dizzying array of handouts provided by big government.
Bond dealt with a criminal matter — a woman who assaulted another after a bitter personal dispute by smearing chemicals on her mailbox and door knobs. But rather than being prosecuted by state or local officials as would typically occur, she was charged and convicted by the federal government of violating an international treaty against chemical weapons. The woman’s lawyers moved to dismiss the federal charges on the grounds that Congress has no general police power and therefore no authority to criminalize the conduct with which she was charged — a power the 10th Amendment explicitly leaves to the states.
Lower courts rejected that argument — just as most federal courts have dismissed similar 10th Amendment claims since the New Deal, when courts gutted meaningful constitutional limits on federal power. Justice Anthony Kennedy, writing for the Court, reversed course: “By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake.”
Kennedy continued: “If the constitutional structure of our Government that protects individual liberty is compromised, individuals” have a right to have their claim decided by a court.
Justice Ruth Bader Ginsburg, in a separate opinion issued in the Bond case, admonished judges that when individuals challenge federal power to enact laws — even good laws — those claims cannot be summarily dismissed but “must be considered and decided on the merits.” What Justice Ginsburg, in essence, was calling for is judicial engagement in the face of an epidemic of judicial passivism where the constitutional rights of citizens are at stake.
Bond shows that when the U.S. Supreme Court works as an independent, co-equal branch of government, it exemplifies a properly engaged judiciary: judges who look at the facts, and at the purposes and the effects of the laws they are called to judge. What’s more, the Supreme Court justices are leading by example, showing that judges need to stand as sentries to defend the principle — increasingly honored more in the breach than in reality — that government may not deprive individuals of life, liberty or the pursuit of happiness unless authorized to do so by the Constitution.
Larry Salzman is an attorney with the Institute for Justice. For more information on judicial engagement, please visit IJ’s Center for Judicial Engagement at www.ij.org/cje.