Overruled (16 page)

Pilon set himself even further apart from those conservatives when his focus shifted to the philosophy of law. “The conservatives reacted to what the Warren and Burger Courts were doing by criticizing the rights revolution. And I thought to myself, this isn't right either, because this country was founded on the notion of natural rights,” Pilon recalled. “So while the liberals are wrong in moving in the direction of constitutionally protected welfare rights,” he added, “the conservatives were little better in calling on the Court to defer to the political branches that had given us the Leviathan. So I began thinking there's got to be a path between these two extremes.”
26

Pilon began the work of charting that path by taking his case directly to the conservatives in April 1981, addressing the annual national meeting of the Philadelphia Society, which at that time was the country's foremost gathering of right-leaning intellectuals. Among the members of his audience that night was future Attorney General Ed Meese, who had just arrived in Washington to serve as an adviser to
President Ronald Reagan. Meese was there to deliver the event's keynote address. Pilon's speech, entitled “On the Foundations of Justice,” began with a reminder to the assembled conservative worthies that by embracing judicial deference, they were essentially surrendering the field when it came to the fight over an entire branch of the government, and thereby undermining the system of checks and balances in the process. “We do not live in a pure democracy but rather in a republic wherein the ‘will' of the legislature or of the executive is subject to scrutiny by the ‘reason' of the Court,” he observed. Turning next to the text of the Constitution, Pilon observed that its broad guarantees of individual rights are not just there for show, but are instead designed “to stand athwart the utilitarian calculus, to brake the democratic, majoritarian engine.”
27

Pilon later described that speech to me as a “gentle”
28
critique of the conservative mainstream, designed to get the libertarian perspective into circulation among the right's top thinkers. But when it came time to deal with the majoritarian arguments put forward by Robert Bork, Pilon pulled no punches. He first grappled with Bork in the pages of
Reason
magazine, the flagship libertarian monthly, where he argued that Bork's calls for a deferential judiciary “would give wide berth to the majority to plan and regulate our lives.” Bork's misguided emphasis on democracy over liberty “is our inheritance from the Progressive Era, not from the Founding,” Pilon wrote. “At the Founding they got it right. They started with the individual.”
29

Pilon pressed the point with even greater force in a 1991 editorial written for the
Wall Street Journal
titled “Rethinking Judicial Restraint.” Bork's case for a deferential judiciary, Pilon argued, was not just wrong as a strategic matter, it was wrong on the fundamentals of constitutional law. “The Founders took every step to protect our liberties, even from the majority—indeed, especially from the majority,” Pilon argued. Yet under the Bork approach, he wrote, the judiciary
is required to “shirk its duty to secure those rights by deferring to the political branches in the name of ‘self government.'” The correct approach, Pilon countered, was for the courts to “hold the acts of the other branches up to the light of strict constitutional scrutiny. There is no place for ‘restraint' in this.” The time had arrived, Pilon concluded, for conservatives “to rethink ‘judicial restraint' and restore the judiciary to its rightful place in a system of separated powers.”
30

“Libertarians Threw Down the Gauntlet”

At the same time, Pilon was also working behind the scenes to advance the growing libertarian insurgency. One of his key contributions came in 1983, when he approached his future colleagues at the Cato Institute with the idea for a conference devoted to the topic of “Economic Liberties and the Judiciary.” In a lunch meeting with Cato president Ed Crane and
Cato Journal
editor James Dorn, Pilon pitched the idea of bringing together prominent libertarian and conservative experts to draw attention to the widening debate. “On the back of a napkin,” Pilon remembered, “I sketched out who should be there and what should be covered, and a year later it was put together and held in a hotel here in Washington.”
31

The result was a seminal event in the evolution of modern legal conservatism. Held in October 1984, the Cato conference attracted a standing-room-only crowd of Washington insiders. Among the invited participants was University of Chicago law professor and rising libertarian star Richard Epstein, who argued that the judiciary should play an active role in defending economic liberty (much as it did in cases such as
Lochner v. New York
), and Antonin Scalia, then a judge on the U.S. Court of Appeals for the District of Columbia Circuit, who advanced the Borkean (and Oliver Wendell Holmesian) view that the courts should defer to the political branches on such matters.

“The Supreme Court decisions rejecting substantive due process in the economic field are clear, unequivocal and current,” Scalia declared. He added that “in my view the position the Supreme Court has arrived at is good—or at least that the suggestion that it change its position is even worse.” Scalia clarified that he was not personally hostile to the idea of economic liberty—far from it. “Rather, my skepticism arises about misgivings about, first, the effect of such expansion on the behavior of courts in other areas quite separate from economic liberty, and second, the ability of the courts to limit their constitutionalizing to those elements of economic liberty that are sensible.” The best course, he concluded, was for the courts to adopt a thoroughgoing posture of judicial restraint. “In the long run, and perhaps even in the short run, the reinforcement of mistaken and unconstitutional perceptions of the role of the courts in our system far outweighs whatever evils may have accrued from undue judicial abstention in the economic field.”
32

Rising in response, Richard Epstein tossed aside his prepared remarks and instead launched an impromptu attack on Scalia's call for judicial deference. “Scalia's position represents the mainstream of American constitutional theory today,” he began. “My purpose is to take issue with the conventional wisdom.”
33
Under the view endorsed by Scalia, Epstein declared, “it is up to Congress and the states to determine the limitations of their own power—which, of course, totally subverts the original constitutional arrangement of limited government.” The Scalia view, Epstein said, ignores the Constitution's “many broad and powerful clauses designed to limit the jurisdiction of both federal and state governments,” as well as those clauses “designed to limit what the states and the federal government can do within the scope of their admitted power.”
34
Just compare “the original Constitution with the present state of judicial interpretation,” he continued, and “the real issue becomes not how to protect the status quo, but what kinds of incremental adjustments should be made in order to shift the
balance back toward the original design.” Taking the text of the Constitution seriously, Epstein concluded, requires “some movement in the direction of judicial activism”
35
on behalf of economic rights.

This debate brought the libertarian-conservative divide into the spotlight. “That's why the conference was so important as a benchmark,” Pilon later explained. “For the first time, libertarians threw down the gauntlet.”
36

Building on the success of that conference, the Cato Institute and its libertarian allies proceeded to turn up the heat on the Bork-Scalia approach. The next major offensive came in 1986 when Cato published a short book by the Harvard political scientist Stephen Macedo carrying the provocative title
The New Right v. The Constitution.
Macedo's target was the majoritarian jurisprudence of Bork and Scalia. “When conservatives like Bork treat rights as islands surrounded by a sea of government powers,” Macedo wrote, “they precisely reverse the view of the Founders as enshrined in the Constitution, wherein government powers are limited and specified and rendered as islands surrounded by a sea of individual rights.”
37
That philosophical stance would later animate Cato's brief in the
Lawrence
case challenging Texas's ban on homosexual conduct.

Meanwhile, at the University of Chicago, Richard Epstein was putting the finishing touches on the book that would make him one of the premier names in both libertarian and conservative legal scholarship. Published in 1985 by Harvard University Press,
Takings: Private Property and the Power of Eminent Domain
revolutionized both the academic and political debates over property rights and the Constitution. Drawing from law, philosophy, economics, and history, Epstein advanced a sweeping challenge to the constitutional underpinnings of the modern regulatory state. Pointing to the text of the Fifth Amendment, which forces the government to pay just compensation when it takes private property for a public use, Epstein
reasoned that any “taking” of an individual's property, whether it is done through physical seizure or government regulation, triggers the just compensation requirement. Furthermore, because “representative government begins with the premise that the state's rights against its citizens are no greater than the sum of the rights of the individuals whom it benefits in any given situation,” a forced taking could only be legitimate if it left “individuals with rights more valuable than those they have been deprived of.”
38

In practical terms,
Takings
argued that “the eminent domain clause and parallel clauses in the Constitution render constitutionally infirm or suspect many of the heralded reforms and institutions of the twentieth century: zoning, rent control, workers' compensation laws, transfer payments, progressive taxation.”
39
As a corollary, the federal courts were expected to curtail or invalidate such government practices under Epstein's reading of the Constitution.

The anti-majoritarian implications of this approach were not lost on the members of the conservative old guard. Bork himself rejected Epstein's views as “not plausibly related”
40
to the Constitution, while Charles Fried, who served as Ronald Reagan's solicitor general between 1985 and 1989, later complained about Epstein's pernicious influence on many of the young conservative lawyers then working in the Reagan Justice Department. Those lawyers, Fried recalled in his memoir, “many drawn from the ranks of the then-fledgling Federalist Society and often devotees of the extreme libertarian views of Chicago law professor Richard Epstein—had a specific, aggressive, and it seemed to me, quite radical project in mind: to use the Takings Clause of the Fifth Amendment as a severe brake upon federal and state Regulation.”
41

Epstein's radical position soon became so famous—some might say infamous—that it was even used in an attempt to derail a conservative Supreme Court nominee. During Clarence Thomas's 1991
Supreme Court confirmation hearings, before Anita Hill's explosive allegations of sexual harassment claimed the headlines, Senator Joseph Biden of Delaware tried to discredit Thomas by linking him to Epstein, pointing to a speech Thomas had once given to a conservative audience in which the future justice said he found something attractive in Epstein's arguments. Biden even theatrically waved around a copy of
Takings
to make his point, prompting one libertarian publication to quip that Biden's approach was tantamount to asking, “Are you now or have you ever been a libertarian?”
42

Theatrics aside, Biden was right to worry. As we'll see in the coming chapters, Clarence Thomas would indeed reveal a libertarian streak in several areas of the law.

“Judicial Responsibility”

These various libertarian currents came to a head with the establishment of the Cato Institute's Center for Constitutional Studies in January 1989. In his original October 1988 proposal for the center, an eighteen-page, single-spaced document, Roger Pilon placed heavy emphasis on the libertarian vision of an active judiciary committed to protecting a wide range of fundamental rights, an approach that openly challenged the reigning legal orthodoxies on both the left and the right. “This ‘third position'—which in truth is the original position of the Founders—calls upon judges to interpret the broad language of the Constitution neither by deferring to legislative majorities nor by consulting contemporary social values,” Pilon wrote, “but rather by repairing to the moral, political, and legal theory of natural rights and individual liberty that has stood behind and informed the Constitution from its inception.”
43

Not only would the proposed Center for Constitutional Studies provide a headquarters for the libertarian insurgency in its escalating campaign against the legal establishment, Pilon argued, it would also
serve as a sort of shadow university for libertarian legal scholarship, publishing and promoting such work through books, studies, and articles, as well as through conferences, speeches, and other events aimed at reaching a wider audience. “If the price of liberty is indeed eternal vigilance,” Pilon wrote, “then one form that vigilance takes, especially in the age of communications, is constant attention to the ideas that support the institutions of liberty,”
44
including the idea of “a return to judicial responsibility.”
45
Over the coming decades, Cato's Center for Constitutional Studies would play precisely that role in the growing national debate over the courts. All things considered, it would be difficult to overstate Cato's influence, particularly in terms of pushing the conservative legal movement in a more libertarian direction.