Judicial aggression through the use of "substantive due process" undermines ordered liberty and our constitutional balance of powers, thereby encouraging a tyranny of the judiciary.

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An excessively deferential judiciary constitutes a threat to liberty.  But so does an excessively aggressive judiciary. 

Unfortunately, George Will, perhaps the leading beacon of conservative thought, performs a disservice in advocating the latter in his ongoing effort to rehabilitate the discredited judicial concept of "substantive due process." 

In his recent commentary entitled "A Missouri Town Demands Substantive Due Process," Will begins by rightfully taking aim at the way in which the municipality of Pagedale, Missouri funds its government: 

"Pagedale residents are subject to fines if they walk on the left side of a crosswalk; if they have a hedge more than three feet high, a weed more than seven inches high or any dead vegetation on their property; or if they park a car at night more than 500 feet from a street lamp or other source of illumination; or if windows facing a street do not have drapes or blinds that are 'neatly hung, in a presentable appearance, properly maintained and in a state of good repair'; or if their houses have unpainted foundations or chipped or aging layers of paint (or even gutters); or if there are cracks in their driveways; or if on a national holiday - the only time a barbecue may be conducted in a front yard - more than two people are gathered at the grill or there are alcoholic beverages visible within 150 feet of the grill.  All this and much more is because Missouri's legislature, noting excessive reliance on traffic tickets, put a low cap on the portion a community could raise of its budget from this source." 

So far, so good.  As a matter of public policy, the town's methods of wrenching more dollars from its impoverished citizens demands condemnation and reform. 

Unfortunately, Will proceeds to encourage something that he once rightfully disparaged.  Namely, that unelected judges overturn the town's laws based upon the oxymoronic concept of "substantive due process," even though they contravene no identifiable constitutional or statutory text: 

"Granted, the Constitution's text does not explicitly infuse the concept of due process with substance.  But there are implicit limits on government power, limits inherent in the idea of law...  So, in determining whether there has been due process, a court must examine not just the form of a statute or the procedural formalities that produced it, but also its substance." 

Will thereby openly advocates that judges substitute their personal view of what is right over constitutional or statutory text they are appointed to interpret.  "The due process clause," Will claims, "is not purely about process." 

No, that's precisely what the due process clause is purely about.  And Mr. Will knows better. 

Here's why this debate matters.  Judicial aggression through the use of "substantive due process" undermines ordered liberty and our constitutional balance of powers, thereby encouraging a tyranny of the judiciary. 

Our Founding Fathers devised a system that protected the right of democratic majorities to govern on most questions, while simultaneously removing certain individual rights against majoritarian infringement.  Accordingly, they ratified a Bill of Rights to safeguard certain sacred freedoms against even overwhelming democratic majorities.  In addition to ratifying the Bill of Rights, the Founding Fathers also devised a system that divided powers so that the three branches - legislative, executive and judicial - would possess specific duties and balance each other.  Thus, the legislative branch (Congress) would make laws, the executive branch (the president) would carry out the laws and the judicial branch would interpret laws. 

Should a branch exceed its designated powers, that balance is disrupted and liberty is threatened in a way the Founding Fathers sought to avoid.  Barack Obama's presidency provides a vivid and tragic illustration of overreach by the executive branch. 

In similar fashion, when judges attempt to make law rather than interpret law, they become an unaccountable, unelected superlegislature.  

None of this is to say that the judicial branch should sway too far to the other end of extreme judicial deference.  A judiciary that refuses to overturn laws that contravene constitutional or statutory text has no reason for existence and becomes superfluous.  But at the other extreme, a judiciary that makes laws rather than interpreting them renders the legislative and executive branches increasingly superfluous. 

Both extremes jeopardize ordered liberty and the constitutional balance the Founding Fathers created.  As Chief Justice John Roberts's famously summarized during his confirmation hearings, the judge's proper role is one of impartial umpire, not biased advocate on behalf of a personally preferred public policy. 

Indeed, Mr. Will himself once forcefully advocated that proper role of judge as unbiased advocate, writing in 1989: 

"If the framers' and ratifiers' original understanding of the Constitution is no longer controlling, what is?  Judges become rampant, unrestricted by anything but their own principles or prejudices.  Those might be noble;  enforcing them might serve some public good.  But when judges are in a legislative mode, the doctrine of the separation of powers is shredded and, in the long run, so is a great public good - popular sovereignty.  When constitutional construing is severed from the anchor of original intent, judges cannot avoid exercising illegitimate discretion.  So severed, judges' reasoning is no longer constituted, no longer rests on the foundation of fundamental law.  Judges' reasoning becomes a personal choice followed by a rationalization - 'results first, premises to follow.'" 

Just as presidential candidates scrambling for electoral advantage possess the power to either elevate or degrade conservative and libertarian principles, so do leading conservative commentators.  With that in mind, hopefully Mr. Will returns to his former wisdom instead of advocating this dangerous and discredited judicial philosophy.