Photo: Flickr/IXQUICK

Government is growing ever more intrusive and arrogant, George Will argues in an important new article:

The original constitutional structure has, [law professor Elizabeth Price Foley] says, been inverted: Citizens are required to convince the courts that laws restricting liberty are “irrational”; government should be required to articulate justifications for limiting liberty. The Founders’ goal — in John Adams’s formulation, a nation of “laws, and not of men” — has, Foley believes, “been taken much too far.”

The courts, Will concludes, “incit[e] governmental arrogance by deferring to it. So judicial deference often is dereliction of judicial duty.”

While Will describes a case at the local level, this trend is particularly worrisome at the federal level, where judges have assented to the growth of an extra-constitutional administrative state. Administrative agencies, Gary Lawson ably explains, justify their broad, unchecked powers using a dubious “rationality” argument. And “constitutional law buffs know that ‘rationality’–so-called rational basis review–is code for ‘the government wins.’”

Lawson sums it up colorfully: “When the basic institutions of modern administrative governance are at stake, the Court closes ranks and hurls the constitutional text into the Potomac River.”

This isn’t to say that we need “conservative activist judges” to undo the damage. Instead, we need judges who recognize the importance of the Constitution and America’s first principles. In their decisions, former attorney general Ed Meese insists, jurists should recognize “the importance of grounding their decisions on the bedrock of original understanding instead of the shifting sands of public or personal opinion.”

She added that the failure to engage foreign decisions had resulted in diminished influence for the United States Supreme Court.

The Canadian Supreme Court, she said, is “probably cited more widely abroad than the U.S. Supreme Court.” There is one reason for that, she said: “You will not be listened to if you don’t listen to others.”

The Supreme Court does not exist, however, so that its rulings might be influential in foreign courts or cited favorably abroad. Instead, the Constitution empowers the federal courts to judge cases, not to curry favor; Publius elaborates on these “proper objects” of the “federal judicature” in The Federalist. Furthermore, each Supreme Court justice takes an oath “that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as [title] under the Constitution and laws of the United States.”

In “faithfully and impartially discharg[ing] and perform[ing]” these duties, the court can serve as a model to the world. But this is a happy consequence of sound judicial decision-making, and ought not to be the justices’ aim, as Ginsburg suggests. The justices’ duty is first and foremost to uphold “the Constitution and laws of the United States,” even if this means their peers overseas disapprove of their reasoning or the results.

Justices who seek citation by foreign courts might consider a career in academia instead of on the bench. There they can focus their energies on analyzing court cases from anywhere in the world without any fear of abrogating their responsibilities to America’s Constitution and laws.

The Washington Post reports, for example, that “gay groups and liberal legal scholars say they are prevailing” in lawsuits against private individuals and companies that do not offer services to homosexuals “because an individual’s religious views about homosexuality cannot be used to violate gays’ right to equal treatment under the law.” The article cites several businesses, including a psychologist and a photographer, that have been penalized in the courts for offering their services only to heterosexuals. And it accepts that there is a fundamental “right to be free from discrimination” that clashes with other, more traditional rights.

But what fundamental rights are harmed if a psychologist or photographer chooses one client over another–whether for religious reasons or more mundane reasons like his bottom line? Is there really a natural “right to counseling” that imposes on psychologists the obligation to take any patient? Is there really a God-given “right to have your picture taken” that imposes on photographers the obligation to snap pictures of all comers? And is there really a “right to be free from discrimination?”

There are, in fact, no such natural rights. As with any “right” that imposes an obligation on another individual, these are inventions of the state, more akin to entitlements than to anything described in the Declaration of Independence or the Constitution. The “right to be free from discrimination” is more a social ideal, a goal for interpersonal interaction, than it is a description of a core characteristic of a human individual, like property ownership or speech. In fact, since these social “rights” impose obligations on others, they tend to infringe upon individual liberty, for instance the freedom of a service provider to specialize his practice. Far from securing “equal treatment under the law,” this tends to create special legal privileges for some and special legal obligations for others.

The psychologist and photographer in question were almost certainly in the wrong. In most cases it would be uncouth to turn away a customer simply because of an objection to his sexual preferences (or race or any other immutable characteristic), even if that objection is grounded in the sincerest religious or moral belief. But to do so is merely rude, not a violation of the customer’s fundamental rights as a human being. It is in fact a violation of the provider’s liberty for the government to enforce an invented right in the name of equality and prevention of discrimination. A better solution than turning to government would rely on two time-tested methods to set things straight: shame and the provider’s bottom line. If you don’t like how the provider runs his business and chooses his clients, you are free to criticize him and take your business elsewhere.