Ask the Expert: Ilya Shapiro

Jaffe Abeshaus from Lewis & Clark College asks:

"To promote individual liberty, is a conservative or liberal Supreme Court advantageous?"

Ilya Shapiro answers: 

In the policy world, we know that conservatives are better on economic issues and regulation, while liberals better protect civil rights and civil liberties (or at least that's what the respective sides espouse). Libertarians care about all of these things so are never satisfied with our two-party system.

In the legal world, and especially when it comes to deciding the constitutional cases that thrust the Supreme Court into the national spotlight, we see something of the same, but it varies from case to case. In an area like medicinal marijuana, for example, all four "liberal" justices (along with the "moderate" Justice Kennedy) voted that Congress can trump a state's relaxed laws—because they didn't want to support federalism and other structural limitations on the federal government's powers. See Raich v. Gonzales, 545 U.S. 1 (2005) (Justice Scalia also voting that way, for different reasons; Chief Justice Rehnquist and Justices O'Connor and Thomas dissenting).

This is so because "conservative" justices tend to be "originalists," interpreting the Constitution with a view to understanding the original meaning of its text-not to be confused with the original "intent" of the Framers. Those who reject originalism, as the "liberals" often do, say that the Constitution is a "living" document whose meaning changes with the times. Yet if the Constitution is constantly evolving, judges become little more than super-legislatures, making up new doctrine as they go along. In such a regime, government power—the delegation, enumeration, and thus limitation of which was the whole point of drafting the Constitution—can grow without any definable check. It is for this reason that we saw the politics of the Progressive Era lead to the constitutional excesses of the New Deal and the modern administrative state. A Constitution that judges can effectively amend without going through the formal amendment processes isn't worth the parchment it's written on.

To be sure, differences remain between conservatives and libertarians, mostly over the scope of rights that federal courts can protect, especially as against the states, as well as on certain aspects of criminal procedure. Conservatives tend to be much more deferential to the elected branches and reluctant to support judicial involvement in disputes over what libertarians consider to be victimless crimes (such as homosexual sodomy, contraceptives, and self-medication). Robert Bork famously said that the Ninth Amendment—"The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people"—is akin to an "ink blot" because nobody knows which rights those are. Libertarians, on the other hand, encourage judges to protect those unenumerated rights that were meant to be protected under the Ninth Amendment, such as those freedoms, the exercise of which violate no rights in turn. Note, however, that while abortion is a controversial policy matter for libertarians, most libertarian legal scholar thinks Roe v. Wade was wrongly decided because, unlike other privacy rights cases, abortion potentially involves conflicting rights claims (and so should have been left to the political process).

In sum, as Randy Barnett pronounced in his Simon Lecture at Cato's Constitution Day conference this year, the Constitution is a fairly libertarian document because it enumerates (and thus limits) government powers while leaving unenumerated a full panoply of individual rights. Conservative justices, because they try to stay faithful to the original meaning of the Constitution, thus tend to be better friends of liberty than their liberal brethren-but, again, it depends on the legal issue.