I’ve always admired David Upham’s scholarship, and his essay “Let’s Keep (Some) Judicial Restraint” is an example of why: he roots his argument in a careful attention to the language and the philosophical context of the Constitution. And he appears to agree with my position that while there are obviously some things courts have no business doing, the Progressive ideological construct we now know as “judicial restraint”—or what I’ve called the Dogma of Deference—is really a different fish altogether from what earlier generations of judges meant when they acted out of respect for coordinate branches of government.
As Prof. Upham writes, the Progressives believed that rights should be redefined in the interest of progress—or, rather, that individual freedom was a privilege given to individuals by society, and not among the rights with which human beings are naturally endowed. (As I argue in The Conscience of The Constitution, that was actually a very reactionary position, and hardly represented “progress.”)
The Dogma of Deference builds on that presumption by regarding judicial intervention as inherently suspect, because it’s “undemocratic”—and by recharacterizing individual rights in terms of their service to the “democratic process.” This is what was really going on in Footnote Four of Carolene Products—when the Court announced that a certain category of individual rights would receive meaningful judicial protection. It was not merely subdividing rights without constitutional instruction to do so. It was picking out those rights that were seen as particularly instrumental to the idealized “democratic process.” Thus speech and voting are given elevated status, not because they are important rights for the individual, but because they are seen as useful to the success of collective decisionmaking. The courts are then seen as umpires in the democratic game, but more or less unconcerned about that game’s outcome. As G. Edward White puts it, “[b]y the close of the Second World War the core dilemmas for American judges in constitutional cases centered not on boundary policing but on surmounting the countermajoritarian difficulty.” That difficulty was itself an artifact of the Progressive rewriting of the Constitution. None of this would have made sense to the Constitution’s authors. To them, countermajoritarian wasn’t the difficulty—majoritarian was the difficulty!
But to pause a bit in my Progressivism-bashing, it’s worthwhile to recall that the history isn’t all in one direction. With the coming of World War II, a wing of the Progressive legal elite began to rethink some of their views about politics and social engineering. In the world of politics, this change is best seen in the Civil Rights Movement, when leaders like Martin Luther King Jr. succeeded in reinjecting principles of justice into political deliberations. (Segregation, of course, had itself been a Progressive program.) But in the realm of jurisprudence, it’s witnessed in the slow revival of concern for individual freedoms that don’t necessarily contribute to the democratic process.
I see it as beginning in 1943, when in West Va. Bd. of Ed. v. Barnette, the Supreme Court overruled the Gobitis decision of only three years earlier. Gobitis had upheld the constitutionality of forcing school children to pledge allegiance to the flag. Written by Justice Felix Frankfurter, the opinion reads like the doxology of Deference. When the Court overruled it in Barnette, Justice Robert Jackson—who would later serve as prosecutor at Nuremburg—ruled that the legislature had no constitutional authority to instruct children in loyalty to the state. “The very purpose of a Bill of Rights,” he wrote, “was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.” One can hardly imagine a clearer rejection of the Dogma than this. Frankfurter, in a fuming dissent, prayed his Deference beads: courts aren’t experts on education, protecting individual rights is just subjective value-judgments, the democratic process should work unimpeded, and so forth.
This clash was echoed when Justices William Douglas and Hugo Black squared off in Griswold v. Connecticut. Whatever one thinks of Douglas’s phraseology about penumbras and emanations, the bottom line was that there are realms of personal autonomy into which no state may justly trespass. These privacy rights are not Footnote Four rights—they are not protected in order to promote democratic goals. And Black—correctly—accused Douglas of reviving the spirit of Lochner in protecting them. Holding to the old Progressive line, Black insisted that “I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision.” It was because Douglas did not want to acknowledge his abandonment of the Dogma that he devised the clumsy notion of penumbras.
Today’s courts have never managed to smooth out these wrinkles. The law today pushes in two different directions, leading to confusion and inconsistency. New Deal era precedents protect rights that serve the democratic process, while some more recent decisions protect a miserly degree of freedom that is, rightly, seen as central to individual flourishing—yet the list of such rights leaves off equally valid freedoms for no good reason. And so we see decisions like Williams v. Morgan, in which the court upheld Alabama’s prohibition on the sale of dildos against a privacy-rights challenge, on the grounds that any and all commercial transactions are “inherently public activity.” Which just isn’t true. Or we get the situation Justice Thomas noted in his Kelo dissent: while the government must meet a high standard to search or intrude into a person’s home, it can take the home away entirely with hardly any judicial review at all.
I submit that this incoherence is a consequence of bad political philosophy—specifically the infatuation of our intellectual elites for “democracy,” unconnected to the conception of individual rights with which any proper understanding of democracy ought to begin. Yes, within that conception, there’s a time and a place for courts to remain silent. But today’s consensus view approaches the problem wrongly from step one. It’s steeped in the ideas of the Progressives, to which are added only a few confusing qualifications. Because they assume that democracy is our central constitutional value, and deduce jurisprudence from there, today’s lawyers, judges, and law professors—both conservative and liberal—are incapable of advocating a sensible theory of judicial review. Instead, they’re left with the Dogma of Deference.