February 15 marks the 270th birthday of the English philosopher and social reformer Jeremy Bentham.  Bentham is typically remembered for his formulation of the principle of utility: the greatest happiness of the greatest number as the measure of legislation.  He's also known for instructing that his body be preserved as an "auto-icon" and the apocryphal story that the body is regularly brought out for board meetings at the University College London.

But in these days, when judges are de facto legislators, what we ought to remember Bentham for is his perspicacious warning about the danger of judicial power.  Judges in Bentham's Great Britain were supposed to be limited by the principle of parliamentary sovereignty.  As the ultimate authority, Parliament had the uncontrollable ability to make, enlarge, or abrogate laws.  Courts had a role in interpreting parliamentary enactments and expounding the customary law of the realm, but they could not overturn an Act of Parliament as unconstitutional. 

Despite the constitutional limitations on the British judiciary, Bentham noticed a tendency in the judges to aggrandize their office through interpretative chicanery.  Parliament, the judges oft observed, would not knowingly enact any law contrary to reason; therefore, the judiciary had to construe statutes to ensure a reasonable result.  And what is reasonable?  "[F]or my part I will speak plainly," Bentham declared, "and confess that with me to be most evidently contrary to reason, is to be most evidently contrary to my reason, i.e., to what I like."  The same tendency, Bentham concluded, was true of the judges and was obvious in their rulings. 

Bentham saw a similar judicial legerdemain used in the exposition of the common law.  Under the pretense of merely declaring what was pre-existing customary law, the judges created new law and built upon judicial precedents to direct the law's development to suit their own inclinations.  If they came across an earlier case that was incongruent with their policy preferences, the judges again turned to the inward reason of the law.  "The trick is," Bentham wrote, "when [the judges] are satisfied that the thing is not Law, say it is not reason."  This allows for long existing precedent to be overturned and replaced.

To counter the unbridled power of the judges, Bentham proposed that all laws be codified.  The citizen, Bentham believed, should be able to search and study the laws that applied to him rather than guess about what a judge believed was reasonable.  Moreover, Parliament was subject to regular election, and thus the people could exercise some influence and control over the lawmaking body of the realm via the franchise.  With the judiciary, the people had no avenue of remonstrance or control.

Modern American judges use many of the same tricks that Bentham inveighed against, but to a degree unimaginable in Bentham's day.  For example, despite the U.S. Constitution specifically providing that government may take the life, liberty, or property of a convicted criminal if proper procedures are followed, many judges and academics insist that the death penalty is per se unconstitutional.  They argue that capital punishment is unreasonable and that established, written constitutional law evolves to suit the judges' conception of a good society.

Similarly, the Supreme Court has ruled that constitutional safeguards requiring "due process of law" grant the courts the power to review the substance – that is, the reasonableness – of all legislation.  This has set the courts up as super-legislatures examining various federal and state statutes under a sliding scale of scrutiny.  Today, the courts evaluate the policy objectives of everything from marriage law to immigration regulations.  Enactments contrary to the judges' personal opinions are declared unreasonable and struck from the code books.  This doctrine of "substantive due process" has worked a great unconstitutional shift of power away from the people and their representatives to the federal judiciary.

We would do well to remember Jeremy Bentham on his 270th birthday.  At the heart of Bentham's criticisms were concerns about unelected and unaccountable officials making law for the people.  Bentham recognized that only those beholden to the people should be permitted to make law.  We too should seize on this principle as we seek to reform our constitutional order.

William J. Watkins, Jr. is a research fellow at the Independent Institute and author of Crossroads for Liberty: Recovering the Anti-Federalist Values of America's First Constitution (2016, Independent Institute).