EDITORrnThomas FlemingrnMANAGING EDITORrnTheodore PappasrnSENIOR EDITOR, BOOKSrnChilton Williamson, ]r.rnEDITORIAL ASSISTANTrnChristine HaynesrnART DIRECTORrnAnna Mycek-WodeckirnCONTRIBUTING EDITORSrnJohn W. Aldridge, Harold O.J.rnBrown, Katherine Dalton, SamuelrnFrancis, George Garrett,rnE. Christian Kopff, Clyde WilsonrnCORRESPONDING EDITORSrnJanet Scott Barlow, Bill Kauffman,rnJohn Shelton Keed, David R. SlavittrnEDI rORIAL SECRETARYrnLeann DobbsrnPUBLISHERrnAllan C. CarlsonrnPUBLICAIION DIREC’IORrnGuy C. ReffettrnCOMPOSITION MANAGERrnAnita FedorarnCIRCULATION MANAGERrnRochelle FrankrnA publication of The Rockford Institute.rnEditorial and Advertising Offices:rn934 North Mam Street, Rockford, IL 61103.rnEditorial Phone: (815) 964-5054.rnAdvertising Phone: (815) 964-5811.rnSubscription Department: P.O. Box 800,rnMount Morris, IL 61054. Call 1-800-877-5459.rnFor information on ad’ertising in Chronicles.rnplease call Rochelle Frank at (815) 964-5811.rnU.S.A. Newsstand Distribution by Eastern NewsrnDistributors, Inc., 1130 Cleveland Road,rnSandusk>,OII 44870.rnCopyright © 1993 by The Rockford Institntc.rnAll rights reserved.rnChromcks (ISSN 0887-5731) is publishedrnmonthly for S28 per vear bv I he RockfordrnInstitute, 934 North Main Street, Rockford,rnIL 61103-7061. Second-class postage paidrnat Rockford, IL and additional mailing offices.rnPOSTMASTER: Send address changes tornChronicles, P.O. Box 800, Mount Morris,rnIL 61054.rnThe views expressed in Chronicles are thernauthors’ alone and do not necessarily reflectrnthe views of The Rockford Institute or of itsrndirectors. U^nsolicited nranuscripts cannot bernreturned unless accompanied b’ a self-addressedrnstamped cn’clopc.rnChroniclesrnVol. 17. No, 10 October 1993rnPrinfccl m the I ‘iiitcd Shitra uf AmcriciirnPOLEMICS & EXCHANGESrnOn ‘Judicial Activism’rnSamuel Francis (“A Perpetual Cen.sor,”rnJuly 1993) carefully criticizes the dubiousrn”substantive due process” doctrine.rnBut he errs repeatedly in his facts andrnanalysis, not least in counting me amongrnthe doctrine’s adherents.rnFrancis correctly criticizes judicial activismrnof the sort that creates constitutionalrnrights out of thin air. But he ignoresrnthe even more pernicious judicialrnactivism that reads rights out of the Constitution.rnAmong these are the “privilegesrnor immunities” of citizens protectedrnby the 14th Amendment againstrnabridgment by state government, a protectionrnnullified by the Supreme Courtrnin the 1872 Slaughterhouse Cases.rnForemost among these privileges orrnimmunities was economic liberty, thernbasic right to pursue a business or trade.rnThe 1872 challenge was not to thernhealth or safety provisions of thernLouisiana slaughterhouse law, but ratherrnto the bribery-induced imposition of arnmonopoly that needlessly destroyedrncompetitors’ livelihoods.rnNo one can seriously maintain thatrnthe ubiquitous restraints on economicrnliberty that arc Slaughterhouse’s contemporaryrnlegacy are expressions ofrn”community” desire. They are promotedrnby special-interest groups andrnenforced by unelected bureaucraticrnagencies—precisely the evils the 14thrnAmendment’s equal protection and duernprocess clauses were designed to eonstrain.rnFor better or worse, the judiciary isrnthe last refuge for individual rightsrnagainst government tyranny. That thernleft has abused this forum is no argumentrnagainst those who would restorernthe judiciary’s intended role as a primaryrnbulwark for liberty.rn—Clint BolickrnJnstitute for JusticernWashington, D.C.rnDr. Francis Replies:rnMr. Bolick conveniently neglects to specifyrnany of the occasions on yvhich I “errrnrepeatedly in [my] facts and analysis.” Irnunderstand that it is Mr. Bolick’s opinionrnthat the Slaughterhouse Cases of 1873rn(not 1872, as he twice erroneouslyrnwrites) nullified economic liberties andrnthat it is his opinion that the 14thrnAmendment guarantees these liberties.rnBut with all due respect to Mr. Bolick,rncontradicting his opinions does not necessarilyrnconstitute an error of fact or reasoning.rnMr. Bolick’s response strikes me asrnbizarre. The 5-4 decision in the SlaughterhousernCases is conventionally held byrnlegal historians to be a narrow rejectionrnof the doctrine of substantive due process.rnThus, Melvin Urofsky writes, “Inrn1873, the Supreme Court almost adoptedrnsubstantive due process in the SlaughterhousernCases,” and Loren P. Bethrnwrites of Slaughterhouse that it was “thernfirst ease seriously to introduce the idearnthat due process of law could be appliedrnto the substance of laws rather thanrnmerely to legal procedures,” that had thernminority in the case prevailed, their victoryrn”would have made the [14th]rnAmendment a bill of rights against thernstates, enforceable by the nationalrngoverninent, which is in effect what itrnhas now become anyway.” It makes absolutelyrnno sense for Mr. Bolick to denyrnthat he is among the adherents of therndoctrine of substantive due process andrnin the same breath advocate the reversalrnof Slaughterhouse for the same reasonsrnthat the minority on the Court dissented.rnMr. Bolick can’t have it both ways.rnI le can’t say, in one paragraph of his letter,rnthat he doesn’t agree with substantiverndue process and also say, in the nextrnparagraph, that he thinks the 14thrnAmendment strikes down state and localrnlegislation on the grounds of substantiverndue process. Nor can he condemnrn”judicial activism” if at the same time hernsupports the broad interpretation of thern14th Amendment that creates substantiverndue process and makes judicial activismrnpossible (indeed, inevitable).rnI will bow to Mr. Bolick’s expertise onrnwhy states and localities choose to enactrncertain laws. Unlike him, I am not preparedrnto second-guess the interests,rnneeds, norms, and wishes of communitiesrnof which I am not a member, andrnalso unlike him, I am not prepared tornconscript the power of the federalrngovernment to impose my own preferencesrnon these communities when theirrn4/CHRONICLESrnrnrn