What Judges Have to Do with Runaway Government

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.”