The Reactionary Utopian

The Judicial Veto

October 11, 2007

[Originally published by the Universal Press Syndicate, January 9, 1998]

In hearing the arguments for assisted suicide before the Supreme Court, Justice Anthony Kennedy said to the plaintiff’s lawyer, “You’re asking us in effect to declare unconstitutional the law of 50 states.”

An excellent point, but it hasn’t stopped the Court in the past. Most notably, the Court declared, in 1973, that all 50 state laws governing the killing of a human fetus, the most permissive as well as the most restrictive, were unconstitutional. The Court then found such killing protected by a vague right of “privacy” nowhere mentioned in the Constitution, but allegedly located in “penumbras” of other rights.

In 1992 Justice Kennedy himself reaffirmed and broadened that supposed right by discovering — by direct mystical intuition, not by quoting the text of the Constitution — an even broader right of “autonomy.” Such putative rights defy definition and consistent application. Does your privacy right protect you against having to tell the government how much you earned last year? Is there any law that doesn’t interfere with your autonomy? And if the Supreme Court can arbitrarily decide where these ethereal rights begin and end, would you call that the rule of law, or tyranny?

The vital question of a right to die doesn’t fall under the constitutional authority of the federal government, unless the fact that Dr. Kevorkian crosses state lines to kill people makes suicide a form of interstate commerce. If you think that’s an outlandish possibility, you haven’t been keeping up with recent developments in jurisprudence.

One of the marks of sound constitutional law is that it doesn’t always give you what you want. A justice whose “interpretations” regularly coincide with his policy preferences is cheating. At bottom he is saying, “Whatever I don’t like is unconstitutional. Whatever I would like to see enacted in law must be required by the Constitution, so let’s just save time and skip the legislative process.”

Constitutionally, the states are free to enact all sorts of evil laws, including laws permitting assisted suicide. Personally, I hope no state ever legitimates such a practice, but I can’t pretend that the federal government has any authority to prevent it.

This is called federalism, as opposed to centralized (or, in the old phrase, “consolidated”) government. The American people have allowed federalism to decay into top-heavy, congested rule from Washington, and we are paying the price in countless ways.

[Breaker quote for The Judicial Veto: Abolishing the federal market]

[Breaker quote for The Judicial Veto: Abolishing the federal market]

Most of the reforms currently being proposed wouldn’t be necessary if we had stuck to the constitutional plan: the line-item veto, balanced-budget amendments, deficit-reduction schemes, term limits, privatizing entitlements, curbing the judiciary. All these, and others like them, are partial (and inadequate) functional equivalents for what has become defunct: the Tenth Amendment.

By limiting the powers of the federal government to a short list, the Constitution attempted to veto in advance, as it were, everything that wasn’t on the list. This would have spared us the high taxes, higher public debt, perennial fiscal crisis, and endless political contention that have now become our way of life.

Many people think — or assume — that the change from federalism to national democracy has been “progressive.” But as Justice Kennedy reminds us, the laws of 50 states can be struck down by five out of nine votes — even laws reflecting an ancient cultural consensus about the value of human life. Government can hardly get more centralized, or more undemocratic, than that. Centralized legislation has been accompanied by centralized jurisprudence, and both are unrestrained by competition.

The Constitution is an antitrust act for government. Taken seriously, which means with full weight accorded to every clause, it ensures that each state has sovereignty within a wide sphere. This allows tyrannical possibilities, but it also puts the most effective check on those possibilities: the individual can move from a less free state to a freer one. Federalism, like Adam Smith’s market, creates an “invisible hand” that promotes maximum liberty.

But the Supreme Court doesn’t give equal weight to every clause of the Constitution. It has given the relatively narrow First Amendment far wider scope and force than the Tenth Amendment, which expresses the basic principle of federalism. In effect, the Court already exercises a line-item veto — over the Constitution.

Joseph Sobran

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