Overruled (15 page)

“A Stance of Across-the-Board Libertarianism”

One of the first libertarian challenges to the Borkean view came from University of San Diego law professor Bernard Siegan, whose powerful case for libertarian judicial action reverberated throughout the conservative legal world. Siegan became so influential, in fact, that President Reagan even tried to make him a judge on the U.S. Court of Appeals for the Ninth Circuit, although the Senate ultimately rejected Siegan's 1987 nomination—which came on the heels of the Bork debacle—on a party-line vote.

Born in Chicago in 1924, Siegan served in World War II and then went on to complete a law degree at the University of Chicago in 1949. He spent the next two decades practicing real estate law in the greater Chicago area, where he found himself face-to-face with what he saw as a fundamentally unworkable regulatory and bureaucratic regime. He made the leap to the academic world with the 1972 publication
of
Land Use without Zoning,
a book-length argument in favor of deregulation and laissez-faire, using the example of Houston, Texas—a major American city that had developed and thrived despite having no zoning laws on the books—to support his case. Based on the strength of his scholarship, Siegan joined the faculty of the University of San Diego School of Law in 1973, where he would remain for the next thirty years.

At San Diego, Siegan completed work on the volume that would make his name in libertarian and conservative circles. Published in 1980 by the University of Chicago Press,
Economic Liberties and the Constitution
presented a sweeping legal and historical argument: The Supreme Court was wrong to abandon liberty of contract and in fact subverted the Constitution in the fateful year of 1937. “Justices are not intended to be government agents, furthering the interests of the executive or legislative branches in their disputes with citizens,” he observed. “A judicial system more concerned to protect the power of the government than the freedom of the individual has lost its mission under the Constitution.”
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Yet thanks to the bifurcated system put in place by Footnote Four of the
Carolene Products
decision, Siegan maintained, the courts now performed exactly that sort of pro-government role when it came to those cases dealing with allegedly “non-fundamental” rights, such as the economic freedom to work in a common occupation. According to Footnote Four, judicial deference should be the rule in all cases dealing with economic regulation. By contrast, if the dispute was over voting rights, the treatment of racial minorities, or the Bill of Rights, Footnote Four openly invited the courts to practice aggressive judging and put the government's actions under the microscope.

In Siegan's view, it was ludicrous for the Supreme Court to enforce this fictitious distinction. At the same moment the Court was busy recognizing and protecting new rights under the Fourteenth
Amendment, he complained, “economic liberties, which significantly touch almost every person's life, have not been accorded appreciable protection.”
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His solution was for the courts to treat all rights equally and for judges to meaningfully scrutinize the government's actions in every case that came before the bench, not just in those areas where the right at issue had been arbitrarily labeled as fundamental. To accomplish this end, Siegan proposed a three-part test for judges to administer when seeking to determine the constitutionality of economic and social legislation. First, the government must shoulder the burden of proof and demonstrate “that the legislation serves important governmental objectives”; second, there must be a close fit between the regulatory means selected and the governmental ends those means are supposed to accomplish; and third, the government must show “that a similar result cannot be achieved by a less drastic means.”
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In other words, his approach “would require the same judicial priority for economic as for other rights.”
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It was a brazen challenge to the reigning liberal orthodoxy. But it also flew in the face of the judicial restraint championed by conservatives such as Bork. Remember that Bork agreed with the Progressives and saw the Supreme Court's 1905 ruling in favor of economic liberty in
Lochner v. New York,
in which the Court struck down a state law preventing bakery employees from working more than sixty hours per week, as a regrettable example of conservative judicial activism. Siegan took the opposite view, praising the
Lochner
majority for refusing to defer to New York's “speculative conclusions and paternalism.”
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Whereas Bork took his inspiration from the deferential philosophy of Justice Oliver Wendell Holmes, Siegan followed the path of Justice Stephen Field.

The conflict between Siegan's libertarianism and Bork's majoritarianism was perhaps nowhere more apparent than in Siegan's treatment of the Supreme Court's controversial 1965 decision in
Griswold
v. Connecticut,
which recognized the privacy rights of married couples to obtain and use birth control devices.
Griswold
was of course the very case that launched Bork on his career as the right's chief advocate of judicial deference and as its leading critic of activist liberal judging. For Siegan, on the other hand,
Griswold
was a defensible ruling that matched up nicely with his larger argument for how the courts should scrutinize the government's actions in each and every case. In fact, Siegan's only real complaint about
Griswold
was that Justice William O. Douglas had followed the “uncharted and circuitous” path of “emanations” and “penumbras” in his majority opinion rather than just using classic Fourteenth Amendment libertarianism to strike down the offending state law. “Applying pre-1937 substantive due process,” Siegan explained, the Court might have simply said, “By selling a professional service to married couples, the defendants were exercising liberty of contract. Connecticut's ban was an arbitrary and unjustifiable infringement of this liberty.”
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That argument proved appealing to libertarians, but Bork rejected it out of hand. Although he did praise Siegan for the clarity of his thinking, Bork still thought Siegan's basic position would grant the judiciary an impermissible license to do mischief. “The logic is impeccable if one accepts
Griswold
and
Roe,
and much else in contemporary jurisprudence, as proper discharges of the judicial function,” Bork granted. But if one did not accept the judicial methodology of those cases, as Bork certainly did not, then Siegan's “case for unmentioned economic liberties is, by a parity of reasoning, defeated.” The problem, Bork argued, was that Siegan would place the Supreme Court “in a stance of across-the-board libertarianism,” when in fact what the Court should be doing is removing itself entirely from these sorts of disputes and letting the democratic process run its course. “There being nothing in the Constitution about maximum hours laws, minimum wage laws, contraception, or abortion,”
he concluded, “the Court should have said simply that and left the legislative decision where it was.”
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“Your Classic Case of Majoritarian Tyranny”

From the early 1980s forward, libertarians and conservatives would battle repeatedly over the proper role of the courts, facing off in the halls of the academy, in the pages of learned journals, and in countless debates organized by the Federalist Society and other groups. At first, this debate attracted little notice outside of legal and academic circles. But the clash of visions would not remain hidden in the scholarly shadows for long. Indeed, by the early 2000s, the libertarian-conservative divide would come to play a prominent supporting role in the high-profile struggle over gay rights. Here's how it happened.

In 1986 the U.S. Supreme Court considered the constitutionality of a Georgia law criminalizing the act of sodomy, defined by the state as “any sexual act involving the sex organs of one person and the mouth or anus of another.”
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The case originated in 1982, when the police arrived at the home of an Atlanta man named Michael Hardwick in order to serve a warrant. After a roommate let the officers into the residence, they found Hardwick in his bedroom engaged in sexual activity with another man. Both men were then arrested for committing sodomy, although the district attorney later declined to prosecute. Arguing that the existence of the sodomy ban violated his constitutional rights, Hardwick brought suit and took the case all the way up to the Supreme Court.

Writing for a five-to-four majority in
Bowers v. Hardwick,
Justice Byron White upheld the statute. “The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy,” White wrote, “and hence invalidates the laws of
the many States that still make such conduct illegal, and have done so for a very long time.”
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He added that the case also raised significant questions about the proper role of the judiciary in a democratic society. Although it is true, White observed, that the Supreme Court had previously protected the sexual privacy of married couples to use birth control in the home without state interference in 1965's
Griswold v. Connecticut,
and then later extended that same right to cover the use of contraceptives by unmarried persons in 1972's
Eisenstadt v. Baird,
the Court was unwilling to push the right of sexual privacy any further in order to reach protected status for homosexual conduct.

Because “the Court is most vulnerable and comes nearest to illegitimacy” when granting judicial protection to unenumerated rights “having little or no cognizable roots in the language or design of the Constitution,”
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White concluded, the justices lacked sufficient cause to sign off on the recognition of gay rights in the present case. As for Hardwick's claim that the state's ban was rooted in a discriminatory bias against gay people, White responded that legislation “is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed.”
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The fatal combination of majority rule and judicial deference therefore spelled doom for the legal challenge to Georgia's sodomy ban. Predictably, Robert Bork was among the many conservatives who cheered the outcome of the case. “Hardwick's suit,” he wrote, “rested upon nothing in the Constitution and so was one more sortie in our cultural war.”
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In the wake of
Bowers,
gay rights advocates redoubled their efforts, and in 2003 a promising new case landed on the Supreme Court docket. At issue in
Lawrence v. Texas
was the Lone Star State's 1973 Homosexual Conduct Law, which singled out same-sex sodomy as a criminal offense. Once again, the case generated enormous interest among activists on both sides of the contentious issue, with more than
thirty different organizations filing friend-of-the-court briefs urging the justices to rule for one party or the other. Among those supporting the state of Texas in its fight to maintain criminal sanctions against homosexuality were well-known conservative groups such as the Family Research Council and Concerned Women for America. Siding with petitioners John Geddes Lawrence and Tyron Garner, the two men originally charged with violating the statute, were liberal stalwarts such as the American Civil Liberties Union and the National Organization for Women.

But Lawrence and Garner also received a critical piece of support from an organization whose involvement on their side of the case surprised more than a few observers at the time. That organization was the Cato Institute, a leading Washington think tank whose agenda of limited government and free-market economics is more typically associated with the political right. Founded in 1977, Cato takes its name from
Cato's Letters,
a series of political pamphlets published in early eighteenth-century Britain that influenced many of the leaders of the American Revolution. The institute's principles are unapologetically libertarian, and its mission is to transform public policy by advancing and defending those principles in the public arena. When the Supreme Court finally ruled to invalidate the Texas ban on homosexual conduct, Cato's friend-of-the-court brief on behalf of Lawrence and Garner would be cited twice by the majority and would play a valuable role in shaping the Court's reasoning.

Cato's influence in the realm of legal affairs is due primarily to the vision of a man named Roger Pilon, the director of the institute's Center for Constitutional Studies, which he founded in 1989 and has been running ever since. Sitting in his Washington office on a crisp November afternoon in 2013, Pilon explained to me why the decision to join the fight against Texas's Homosexual Conduct Law was “an easy call for us.” In the wake of
Bowers v. Hardwick,
he said, “this was a
case that cried out to be addressed. These are people who are harming no one. It's your classic case of majoritarian tyranny.”
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By the time
Lawrence
arrived in 2003, Pilon was already a seasoned veteran in the long libertarian war against conservative majoritarianism. He got his start in political philosophy, earning a PhD from the University of Chicago in 1979 with a dissertation entitled “A Theory of Rights: Toward Limited Government.” Among the members of his dissertation committee was the Nobel Prize–winning libertarian economist Milton Friedman. “Not fully realizing at that time the jurisprudential implications of what I was doing,” Pilon explained, “my aim was to show that the natural rights orientation of the Founders, stemming from Locke, was right, whereas the welfare rights orientation of modern liberals was wrong. Clearly, that set me apart from the anti-rights posture many conservatives were taking in reaction to the liberal judicial activism of the time.”
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