In his essay, Timothy Sandefur rejects the alleged virtue of “judicial restraint” as opposed to the alleged vice of “judicial activism.” He defines judicial restraint as judicial deference to majoritarian policies. This deference, he claims, was invented by Progressives. It is hostile to the Founders’ principles, foreign to the Constitution, and exalts the alleged rights of majorities at the expense of the bona fide rights of individuals.
I think Sandefur is partly mistaken. Properly defined, judicial deference to the elected legislatures is consistent with the Founders’ principles, incorporated into the Constitution, and favorable to the rights of both the community and individuals.
As a preliminary matter, Sandefur notes that the term “judicial activism” lacks a clear definition. Sandefur, citing Clark Neily, contends that the term properly applies to any instance whenever judges “refuse to enforce the Constitution,” for such refusal “creates a constitutional system the people never ratified.”
I agree. The Constitution is the supreme law, and judges must treat it as such in exercising their power to resolve cases or controversies. Judges disobey the Constitution not only when they invent constitutional rights in usurpation of the reserved powers of the states, or the vested powers of the political branches, but also when judges engage in judicial abdication—or more properly, judicial dispensation or suspension of constitutional limits.
In both cases, a willful judicial disobedience to the Constitution can properly be called “activist.” In disregarding the rights and powers of the Constitution, the judge is not faithful to the Constitution. This infidelity, when knowing or reckless, has an aggressive, entrepreneurial character, and therefore merits the pejorative term “activist.”
In this regard, I dissent from the term lately coined by some scholars to describe judges’ failure to invalidate unconstitutional laws: “judicial passivism.” Such judges are not passive. Judges are passive in neglecting their dockets. But when they issue orders to resolve cases or controversies, they are most certainly active. And any time a judge issues an order in reckless or knowing disregard of the Constitution, the judge is more than active: he is an activist. Activist judges consciously embrace flexibility and creativity, disdaining “strict rules and precedents” and any “inflexible and uniform adherence to the rights of the Constitution, and of individuals.”
In this sense of obedience to law, judicial restraint is a virtue, and judicial activism a vice. At least the Founders thought so. I think Sandefur would agree.
But there is anther sense of “judicial restraint” that Sandefur challenges: the notion that judges should defer to majoritarian legislatures, and thus hesitate to strike down laws as unconstitutional. Sandefur claims that this judicial restraint proceeds from an erroneous assumption, namely that the Founders viewed not individual liberty but popular, majoritarian sovereignty as a “basic value,” and drafted a Constitution primarily to facilitate this sovereignty.
It is true, as he writes, that our nation’s Founders deemed individual rights to be logically and temporally prior to the political rights of the majority. As the Declaration of Independence explains, God creates human rights, but human beings, in turn, create governments. The end of all just government is the security of human rights, while the people have the authority only to choose the means. They have the right and duty to establish the “principles” and “form” of government that they believe will best secure these rights. In this way, the people are sovereign, but that sovereignty is limited by “the laws of nature and nature’s God.”
It is also true that the Founders viewed popular government, in part, as a good instrumental and secondary to individual rights. Virtually all the Founders deemed republican government to be best, in part because accountability to the people was the most important and primary safeguard against governmental abuse. As Madisonpointed out, the “dependence on the people is, no doubt, the primary control on the government.”
In other respects, however, the Founders ranked popular government as a fundamental good. Madison provided this defense of republican government: “It is evident that no other form would be reconcilable with the genius of the people of America; with the fundamental principles of the Revolution; or with that honorable determination which animates every votary of freedom, to rest all our political experiments on the capacity of mankind for self-government.” Free popular self-government is an honorable goal, good for its own sake. To adapt Lincoln’s formula, the American political experiment aimed to secure not only government for the people (i.e., their natural rights), but also by the people (through republican government). As Madison wrote, the main purpose of the federal Constitution was to ensure both these fundamental goods: “To secure the public good and private rights against [majority] faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our inquiries are directed.”
So in adopting the federal Constitution, the Founders intended to safeguard not only individual rights, but also the people’s right to self-government. Indeed, the Constitution begins not with individual rights but with popular self-government: “We, the People,” (not “we, the autonomous individuals”) “ordain and establish” a constitution, designed not only to ensure interpersonal “justice,” but also to secure the “blessings of liberty” to all current and future members of our self-governing community.
Unlike Sandefur, I do not think the word “liberty” here meant individual freedom. Rather in context, the liberty seems to identify the political freedom of the community—the same liberty that the American people exercised in establishing this new constitution, and the same liberty that this “one people” had exercised a decade earlier in dissolving their political bonds with the British Empire. It was in this sense, I believe, that our new nation was “conceived in liberty,” as Lincoln said.
Popular sovereignty figures prominently elsewhere in the Constitution. The first matter is not individual rights, but the most popular branch, the House of Representatives. This body was the only federal entity to be chosen directly and expressly by the sovereign people—the “people of the several States.” This House’s very name indicated its special quality—it alone was called “representative.”
Popular sovereignty is further protected by Article IV’s Republican Guarantee Clause. This provision imposed on the United States the duty to guarantee to each state a popular form of government. On the face of the Constitution, this duty seemingly applies to the wholeUnited States, including every department and officer thereof.
If so, the judicial officers of theUnited Stateshave an express constitutional duty to protect the states’ republican liberty. Therefore, judicial activism in disregard of the states’ reserved authority represents not only a violation of the Tenth Amendment, but also an abdication of the federal judge’s duty to safeguard the republican liberty of each state’s citizenry.
In sum, the Founders viewed popular sovereignty as both a primary and an instrumental good. Securing popular self-government—popular liberty—was one of the chief, express purposes of the Constitution.
Consistent with the Founders’ devotion to popular sovereignty, the Founders recognized the propriety of (limited) judicial deference to the legislatures, especially Congress. In McCulloch v. Maryland, Chief Justice Marshall, writing for a unanimous court, explained that where a constitutional question admits different plausible answers, the “exposition of the Constitution, deliberately established by legislative acts, ought not to be lightly disregarded.” Given that “the people,” not the states, ordained and established the Constitution, it is proper that in expounding the Constitution, the judges should give some deference to the interpretation offered by the people’s representatives. The deference is especially appropriate where these representatives have acted after long and able debate, and repeatedly readopted the legislation. A similar deference seems due those laws repeatedly reaffirmed by popular governments of many states.
In this way, the acts of the legislatures are precedents, falling somewhere between what we today call “binding” and “persuasive.” They are not binding, for the federal judiciary is not “inferior” to Congress or the states in the way that the lower federal courts are “inferior” to the Supreme Court. But at the same time, the precedents established by the people’s more direct representatives should, in doubtful matters, be given great respect by the judges charged with expounding the people’s Constitution.
There are other reasons why the Founders would endorse this limited deference to legislative (especially congressional) precedents. The national legislative process is marked by several important procedural safeguards designed to make majoritarian government safe for natural rights. For the Founders, these critical mechanisms included several that directly regulated and limited congressional lawmaking: “legislative checks and balances” (i.e., bicameralism, veto power), representative legislatures, and a large republic. Before any bill becomes a law, it must get the approval of three separate institutions: House, Senate, and President, each of which represents a large republic containing a multiplicity of interests. Further, each of these branches are bound, no less than the judiciary, to obey the Constitution. Most of these safeguards also regulate the lawmaking process in nearly all the states. Given these arduous procedural hurdles, then, legislative precedents are especially persuasive.
In sharp contrast, our courts, and especially our Supreme Court, enjoy none of these safeguards. The Supreme Court is a small unicameral chamber, composed of members that are only remotely chosen by the people and virtually unaccountable to them. Its members, at least in recent years, are all drawn from a tiny coastal elite; whether “conservative” or “liberal,” the members have almost no geographical or educational diversity. Only five judges in this chamber can create a national judicial precedent. For this reason alone, the judges should be more deferential to legislative precedents than judicial ones.
Note, however, that this limited form of judicial restraint—deference to legislative precedents—is thoroughly subordinate to the most important kind of judicial restraint: obedience to the Constitution. The courts are bound first to obey the Constitution, and to defer to popular and legislative precedents only where there is bona fide doubt as to a law’s constitutionality.
As Sandefur suggests, progressive jurisprudence brought about a new, more radical notion of judicial deference. Progressives rejected natural law in favor of history; they embraced the notion that rights must be redefined in the interest of progress. Franklin Roosevelt explained it starkly: “The task of statesmanship has always been the re-definition of… rights in terms of a changing and growing social order. New conditions impose new requirements upon Government and those who conduct Government.”
Under this approach, deference to democratic majorities became a substitute for, and not a supplement to, constitutional fidelity. The masses gave voice to the authoritative zeitgeist. But the old Constitution threatened to quench this spirit. In response to this problem, progressive jurists provided the creative, contra-textual interpretations that would sweep any constitutional obstacles to progress, whether federalism, separation of powers, or individual rights.
Judicial restraint in the progressives’ sense, then, is indeed hostile to the Founders’ principles, and foreign to our Constitution. But judicial restraint, in the sense of a limited, conditional deference to legislative precedents, is thoroughly consistent with our constitutional tradition.
Finally, Sandefur’s fears about the dangers of such limited deference strike me as ill-founded. The chief examples he gives of such horrific cases are inapposite. Neither Plessy v. Ferguson nor Korematsu v. United States involved challenges to laws passed by bicameral, representative legislatures. In Plessy, the challenged law had been passed by a rump legislature in a state where the majority—African-Americans—had been excluded from the suffrage by lawless violence. In Korematsu, the “law” in question was a congressional act that delegated legislative power to military officers. These governmental acts, then, reflected not popular self-government, but the violent usurpation (Plessy) or reckless abdication (Korematsu) of popular legislative authority. In neither case was judicial deference appropriate.
 Cf. Bill of Rights (Eng. 1689) (listing as the first and second principle, a denunciation of the “pretended power” to “suspend” or “dispense with… the laws by regal authority”), available at http://www.constitution.org/eng/eng_bor.htm.
 U.S. Const. art. I, § 2.
 Texas v. White, 74 (7 Wall.) U.S. 700, 727 (1869) (describing the Clause as stipulating “the obligation of the United States to guarantee to every State in the Union a republican form of government”), available at http://scholar.google.com/scholar_case?case=1134912565671891096&hl=en&as_sdt=6&as_vis=1&oi=scholarr.
 McCulloch v. Maryland, 17 U.S. 316, 401 (1819), available at http://scholar.google.com/scholar_case?case=9272959520166823796&q=mcculloch+v.+maryland&hl=en&as_sdt=6,44.
 Franklin D. Roosevelt, Campaign Address on Progressive Government at the Commonwealth Club in San Francisco, California, Sept. 23, 1932, available at http://www.heritage.org/initiatives/first-principles/primary-sources/fdrs-commonwealth-club-address.
 See, e.g., Disfranchisement after the Reconstruction Era, Wikipedia, available at http://en.wikipedia.org/wiki/Disfranchisement_after_the_Reconstruction_Era.
 Hirabayashi v. United States, 320 U.S. 81, 87–92 (1943) (discussing but rejecting the defendant’s claim that Congress had delegated its legislative power to the military), available at http://scholar.google.com/scholar_case?case=5939600273001810074&hl=en&as….