David Boaz

Three months ago a Wisconsin judge ruled that Wisconsin's controversial collective-bargaining had been passed improperly. (That ruling was reversed in June by the Wisconsin Supreme Court, and the law went into effect.)

Whatever you think about the substance of these laws, we should all be glad that there are independent judges, in both federal and state courts, prepared to strike down the actions of the legislative and executive branches when necessary. When liberal judges do that, conservatives disparage it as "judicial activism." When conservative judges do it, it's liberals who complain about "judicial activism." But everyone who believes in individual rights, limited government, and the rule of law should welcome a vigilant judiciary. It is the responsibility of judges to strike down laws, regulations, and executive and legislative actions that exceed the authorized powers of government, violate individual rights, or fail to adhere to the rules of due process.

In proposing the Bill of Rights in the House of Representatives, James Madison said that

And in Federalist 78, Alexander Hamilton wrote that the judiciary would be the "least dangerous" branch of government because it possesses the power of neither sword nor purse.

Sometimes the courts live up to those aspirations, in cases from Lochner and Brown v. Board right up to the last days of the past Supreme Court term. Sometimes not so much, as Robert A. Levy and William Mellor wrote in The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom. But as legal scholar Richard Epstein said in a 1984 debate with Judge Antonin Scalia, "the imperfections of the judicial system must be matched with the imperfections of the political branches of government." And legislatures make plenty of mistakes.

Last summer Judge Andrew Napolitano concluded one of his Freedom Watch programs on the Fox Business Channel by hailing four federal judges who had courageously and correctly struck down state and federal laws:

• Judge Martin L. C. Feldman, who blocked President Obama's moratorium on oil drilling in the Gulf of Mexico;
• Judge Susan Bolton, who blocked Arizona's restrictive immigration law;
• Judge Henry Hudson, who refused to dismiss Virginia's challenge to the health care mandate; and
• Judge Vaughn Walker, who struck down California's Proposition 8 banning gay marriage.

It was a remarkable summer for judicial protection of individual rights and limited government.

One charge that's often raised in these politically polarized times is that judges simply rule on the basis of their partisan allegiance — Democratic-appointed judges uphold Obamacare, Republican-appointed judges rule against it. That would be a troubling pattern. One of the reasons we have life tenure for federal judges is to free them from such political pressures. Fortunately, the charge is not entirely true. Judge Jeffrey Sutton, a former law clerk to Justice Scalia who was vigorously opposed by liberals when President George W. Bush appointed him to the Sixth Circuit, voted to uphold the individual mandate. Judge Frank Hull, a Clinton appointee, voted in the 11th Circuit to strike down the law. Judge Freudenthal, who struck down the Obama administration's attempt to make oil and gas drilling on federal lands more difficult, is not only a Democrat; she was appointed to the bench in 2009 by President Obama while her husband Dave served as the Democratic governor of Wyoming. And perhaps most famously, Judge Vaughn Walker, who struck down Proposition 8, was appointed by President Reagan in 1987; his nomination was so effectively opposed by Rep. Nancy Pelosi, Sen. Edward M. Kennedy, the NAACP, and gay-rights groups that he had to be renominated two years later by another Republican president, George Bush.

Democrats and Republicans alike can read the Constitution. They both know that it says that "Congress shall make no law ... abridging the freedom of speech, or of the press." They both know that the principal author of the Constitution, James Madison, wrote in Federalist 45, "The powers delegated by the proposed Constitution to the federal government are few and defined." They both know that American citizens, even those accused of terrorism, are entitled to their "constitutional rights — like habeas corpus, which requires the government to justify continued detentions, and the Sixth Amendment, which assures a speedy and public jury trial with assistance of counsel."

The separation of powers, with an independent judiciary, is essential to the rule of law and the protection of freedom. It is refreshing to see how often judges do live up to the expectation that they would "be an impenetrable bulwark against every assumption of power in the legislative or executive."

In his May 9 column, "Ron Paul's Land of Second-Rate Values," he went after Rep. Paul for his endorsement of drug legalization in the Republican presidential debate. "Dotty uncle," he fumed, alleging that Paul has "contempt for the vulnerable and suffering." Paul holds "second-rate values," he added.

What did Paul do to set him off? He said that adult Americans ought to have the freedom to make their own decisions about their personal lives — from how they worship, to what they eat and drink, to what drugs they use. And he mocked the paternalist mindset: "How many people here would use heroin if it were legal? I bet nobody would say, 'Oh yeah, I need the government to take care of me. I don't want to use heroin, so I need these laws.'"

Gerson accused Paul of mocking not paternalists but addicts: "Paul is not content to condemn a portion of his fellow citizens to self-destruction; he must mock them in their decline." Gerson wants to treat them with compassion. But let's be clear: He thinks the compassionate way to treat suffering people is to put them in jail. And in the California case Brown v. Plata, the Supreme Court just reminded us what it means to hold people in prison:

Gerson knows this. His May 27 column quoted this very passage and concluded, "[I]t is absurd and outrageous to treat [prisoners] like animals while hoping they return to us as responsible citizens."

Gerson contrasted the "arrogance" of Paul's libertarian approach to the approach of "a Republican presidential candidate [who] visited a rural drug treatment center outside Des Moines. Moved by the stories of recovering young addicts, Texas Gov. George W. Bush talked of his own struggles with alcohol. 'I'm on a walk. And it's a never-ending walk as far as I'm concerned... . I want you to know that your life's walk is shared by a lot of other people, even some who wear suits.'"

Gerson seems to have missed the point of his anecdote. Neither Bush nor the teenagers in a Christian rehab center were sent to jail. They overcame their substance problems through faith and personal responsibility. But Gerson and Bush support the drug laws under which more than 1.5 million people a year are arrested and some 500,000 people are currently in jail.

Our last three presidents have all acknowledged they used illegal drugs in their youth. Yet they don't seem to think — nor does Gerson suggest — that their lives would have been made better by arrest, conviction, and incarceration. If libertarianism is a second-rate value, where does hypocrisy rank?

Gerson seems to have a fantastical view of our world today. He writes, "[D]rug legalization fails. The de facto decriminalization of drugs in some neighborhoods — say, in Washington, D.C. — has encouraged widespread addiction."

This is mind-boggling. What has failed in Washington, D.C., is drug prohibition. As Mike Riggs of Reason magazine wrote, "I want to know where in D.C. one can get away with slinging or using in front of a cop. The 2,874 people arrested by the MPD for narcotics violations between Jan. 1 and April 9 of this year would probably like to know, too."

Michelle Alexander, author of The New Jim Crow, writes, "Crime rates have fluctuated over the past few decades — and currently are at historical lows — but imprisonment rates have soared. Quintupled. And the vast majority of that increase is due to the War on Drugs, a war waged almost exclusively in poor communities of color." Michael Gerson should ask Professor Alexander for a tour of these neighborhoods where he thinks drugs are de facto decriminalized.

In a recent Cato Institute report, Jeffrey Miron of Harvard University estimated that governments could save $41.3 billion a year if they decriminalized drugs, an indication of the resources we're putting into police, prosecutions, and prisons to enforce the war on drugs.

What Gerson correctly observes is communities wracked by crime, corruption, social breakdown, and widespread drug use. But that is a result of the failure of prohibition, not decriminalization. This is an old story. The murder rate rose with the start of alcohol Prohibition, remained high during Prohibition, and then declined for 11 consecutive years when Prohibition ended. And corruption of law enforcement became notorious.

Drug prohibition itself creates high levels of crime. Addicts commit crimes to pay for a habit that would be easily affordable if it were legal. Police sources have estimated that as much as half the property crime in some major cities is committed by drug users. More dramatically, because drugs are illegal, participants in the drug trade cannot go to court to settle disputes, whether between buyer and seller or between rival sellers. When black-market contracts are breached, the result is often some form of violent sanction.

When Gerson writes that "responsible, self-governing citizens ... are cultivated in institutions — families, religious communities and decent, orderly neighborhoods," he should reflect on what happens to poor communities under prohibition. Drug prohibition has created a criminal subculture in our inner cities. The immense profits to be had from a black-market business make drug dealing the most lucrative endeavor for many people, especially those who care least about getting on the wrong side of the law. Drug dealers become the most visibly successful people in inner-city communities, the ones with money and clothes and cars. Social order is turned upside down when the most successful people in a community are criminals. The drug war makes peace and prosperity virtually impossible in inner cities.

There is a place where drugs have been decriminalized, not just de facto but in law. Maybe Gerson should have cited it instead of Washington, D.C. Trouble is, it doesn't make his point. Ten years ago Portugal decriminalized all drugs. Recently Glenn Greenwald studied the Portuguese experience in a study for the Cato Institute. He reported, "Portugal, whose drug problems were among the worst in Europe, now has the lowest usage rate for marijuana and one of the lowest for cocaine. Drug-related pathologies, including HIV transmission, hepatitis transmission and drug-related deaths, have declined significantly."