A Sentinel at Liberty's Barricades Karen Burke • An Interview with Dr. Roger Pilon November 2004

How often do policymakers ask one another, “but does the Constitution allow for this?” If anyone still poses this question in Washington, D.C., it is probably owing to the influence of the Cato Institute. Dedicated to “limited government, free markets, personal liberty, and peace,” Cato leads the charge for a strict interpretation of government power under the Constitution.

Dr. Roger Pilon, director of Cato’s Center for Constitutional Studies, came on September 30th to speak at the Yale Law School Federalist Society following a lively Saybrook Master’s Tea co-sponsored by The Yale Free Press. In between, the YFP sat down with him for a few questions about the courts, the Constitution, and the future of libertarianism.

YFP: Constitutional issues did not receive much national media attention during this election season. While President Bush and Senator Kerry sparred about national security and the economy, were there constitutional questions relevant to these topics that they failed to address?

RP: Constitutional questions surround nearly every issue in this election. Regrettably, however, the most fundamental constitutional question – namely, whether there is authority for the government to do the many things it’s doing – has been all but off the table since the New Deal. Candidates imagine themselves authorized to pursue any policy that’s popular, even if there is no authority under the Constitution’s core principle, the doctrine of enumerated powers, to pursue such a policy.

We’ve come to think of government as a service agency, with citizens as consumers of those services. That’s a long way from the original constitutional design. The Framers gave us a limited government, designed to secure the legal framework within which we would be free to provide and obtain goods and services on our own, in our private capacities – not through public agencies. The idea that one obtained retirement security, or health care, or day care through the government would have been quite foreign to the founding generation, yet that’s the main stuff of political campaigns today.

YFP: But Clinton said, “The era of big government is over.”

RP: That’s right – but it was all talk. When Newt Gingrich blinked over the closing of the government toward the end of 1995, the “Republican Revolution” that followed upon the Contract with America pretty much petered out.

That means that we’re left with the Court as the last bastion of liberty, to protect against overweening government. The Rehnquist Court, to some extent, has engaged in that effort to limit government by resurrecting the doctrine of enumerated powers, at least at the margins. But even there, in the last couple of years, the Court has fallen back; it has because, for all intents and purposes, we’re dealing not with the Rehnquist Court, but with the O’Connor Court. Justice O’Connor comes from the legislature and, before that, from a regulatory agency; she tends to think more like a legislator than a judge. When you read her opinions, they’re more policy than law; other than a cliché or a shibboleth here or there, you find only a limited grasp of the underlying principles of our system of government. She is the one who comes down on the winning side of most 5-4 decisions, often the most controversial cases that pit a limited government side against an expansive government side.

But no one on the Court today has a consistent record of defending the Constitution’s limits on government against those who would expand it into all areas of life. Each has his own idiosyncratic approach; no one has a truly systematic approach, grounded in the nation’s first principles.

YFP: You mention the increasingly legislative nature of the judicial branch. Is the public pretty much used to thinking of positions in the judiciary as political appointments?

RP: There’s a sense in which that indeed is true; and closely related, they come to think of judges as one more set of political actors. That’s why someone like Senator Charles Schumer (D-NY), who sits on the Senate Judiciary Committee, can object to a judicial nominee because, in Schumer’s view, the nominee doesn’t “share the values of the American people.” Set aside whether Schumer himself has a handle on that question – judges aren’t supposed to be selected on the basis of whether they do or do not share the values of the American people, assuming we can make sense of that notion. They’re supposed to be selected for their qualifications, including their capacity to apply the law impartially in cases or controversies that are brought before them. They’re not politicians pursuing policies; they’re judges applying law. To be sure, there are cases that require judicial interpretation of the law, and a judge’s ideology can and sometimes does affect his reasoning in such cases. But if we come to think of judges as just one more set of political actors – as increasingly we do – then we will have lost something very precious, something Western civilization took centuries to produce – the rule of law.

YFP: In the work you do through Cato and in your scholarship, you’ve written extensively about the kinds of steps Congress and the courts can take to restore limited constitutional government. But what reforms do you see as likely in the near future – where are you close to victory?

RP: In the near future, I don’t see any reforms, I regret to say. The political branches have proven to be disinclined to limit their power: the closest they came was after the 1994 congressional elections, when the 104th Congress, under the so-called Contract with America, sought to institute measures to limit government. That lasted just about a year, and then fell apart.

YFP: Were you previously more optimistic about the potential for a rollback of government? How has your perspective changed since you began your career in constitutional law?

RP: I’m still optimistic, because I take the long view. It’s my view that government can expand only so far before it starts to eat away at itself. Even in Western Europe today we’re seeing a reaction to overweening government. In a free world – that is, a world engaged in free trade, something we’re seeing increasingly today – pressures will be brought to bear on those countries that move too far in a socialist direction. They simply won’t be able to compete; they’ll suffer the consequences of their political and economic folly and fall behind. So that’s the beauty of free trade – there’s a correcting mechanism about it that disciplines countries.

And so I’m hopeful in the long run, but these changes take time, lots of time, because of institutional inertia. The Supreme Court is a perfect example of that: there hasn’t been a new member on the Court in a decade now. Intellectual sclerosis is setting in. That’s why I’m for amending the Constitution to provide for judicial term limits. One would hope that a new justice would be more cognizant of these issues than the current members are, many of whom are themselves products of New Deal era teachers, reflecting a certain mindset that is, shall we say, out-ofdate – and fundamentally mistaken.

YFP: You’ve spoken to many groups of students to teach the generation that is going to live through this long term you mention. But do you see a different attitude or cause motivating our generation, different perhaps from yours?

RB: Well, it is difficult to speak of a particular generation as having a certain mindset. When we look at “kids today” – let me use that idiom – and what motivates them, my experience in lecturing and debating at law schools is that they’re a good deal more libertarian than many of their teachers. And I take great comfort in that. Last summer, the Cato Institute’s intern program had over 650 applications for 25 or so spots. The explosion of interest in libertarian ideas amazes and delights us. Most everyone today recognizes, of course, that socialism is dead, that it’s a losing proposition, and that is a major difference between today and the ’60s and ’70s. Yet many today, unthinkingly, still support policies that are themselves small elements of a larger socialist scheme. It seems to me, therefore, that we’ve constantly got to be at the barricades, pointing out these errors.

And in that connection, one of the great problems for those of us who believe that the Republican Party should be the voice of limited government is that it has neglected this role, primarily because the leadership of the party is so inarticulate. We’ve had sixteen years of inarticulate, often clueless leadership. One can only contrast that with the Thatcher-Reagan years, when the Iron Lady and the Great Communicator spoke in bold, principled colors. Republicans today hardly have ideas. And when they do, the ideas are often inconsistent with a free society. But Democrats too often are even worse, believing that for every problem there’s a government solution.

For all that lack of principled leadership from above, I sense a libertarian ferment below. I’m confident that leadership will emerge in time, and that it will speak the language of liberty.

Karen Burke is a junior in Saybrook College and Senior Editor of The Yale Free Press.