Ed Whelan is puzzled in several respects by my case for judicial engagement, and he expresses his puzzlement in five neatly organized challenges and queries. In what follows, I will address them in turn.
1. Whelan finds it “surprising” that I do not discuss the importance of originalism as a methodology of constitutional interpretation. Pointing to what he generously describes as a “cogent” article that I recently published—one in which I argued that libertarians should embrace originalism rather than urging judges to depart from the law in the name of libertarianism—Whelan raises the question of why I would, at such a critical juncture in time, not focus on the pressing need for an originalist Justice on the Supreme Court.
There are two reasons why I focused solely on the need for engagement in my essay. The first is that many constitutional cases do not turn on constitutional interpretation. Rather, they turn on the application of constitutional constructions—implementing doctrines that have been developed over the years to give legal effect to the Constitution’s meaning in particular contexts. Consider the rule of strict judicial scrutiny for content-based restrictions on constitutionally protected speech. You will not find such a rule in the text of the Constitution—the rule was constructed by the Supreme Court to implement a constitutional prohibition against “abridging the freedom of speech” and the rule is predicated upon the recognition that content-based speech restrictions lend themselves to censorious ends even when they are not enacted for censorious reasons. In Reed v. Town of Gilbert (2015), an important recent decision involving a sign code that treated signs promoting church services more harshly than signs promoting other messages, Justice Clarence Thomas—as thoroughgoing an originalist as we have ever had on the Court—did not discuss the original meaning of the First Amendment. He simply applied the relevant doctrine: If an enactment either facially or by design targets protected speech on the basis of its communicative content, strict scrutiny applies. Justice Thomas determined that 1) the sign code classified speech on the basis of its content; and 2) the government did not come close to demonstrating that it had pursued a compelling interest through a means narrowly tailored to achieve that interest.
Many constitutional cases proceed in exactly this fashion. They are resolved on the basis of constitutional constructions, many of which (including the modern rational basis-test that I have criticized) allocate the burdens of production and persuasion between the parties in ways that can be outcome-determinative. Unless one is committed to the proposition that an inquiry into original meaning will produce a single determinate answer in every constitutional case—not simply that such an answer could be ascertained but that it will be ascertained—the development and application of such constructions is inevitable, and the questions of how judges should allocate the burdens of production and persuasion and how they should seek to determine whether parties have carried those burdens is of critical importance.
The second, related reason that I focused solely on engagement is that I do not believe that the original meaning of the Constitution requires a particular degree of judicial deference (or lack thereof). I regard both originalism and engagement as necessary to the effective enforcement of the law of the land—but they must be distinguished from one another, just as interpretation and construction must be distinguished from one another.
As Whelan notes, Professor John McGinnis has recently published a paper in which he presents evidence that Article III’s reference to “[t]he judicial power” incorporates a “duty of clarity”—a duty to invalidate government enactments only if they clearly conflict with the Constitution after Founding-era interpretive techniques have been applied. Evaluating McGinnis’ arguments in detail is well beyond the scope of a short essay; in a forthcoming paper, Professor Randy Barnett and I will do so. Nonetheless, I will provide a brief sketch of why I believe that McGinnis has not sufficiently demonstrated that “[t]he judicial power” is a term of art—a term with meaning that is accessible only to specialized readers—and that it would have been widely understood by specialists in eighteenth-century law to incorporate a duty of clarity.
In the materials presented by McGinnis, the term “the judicial power” appears exactly twice. Oliver Ellsworth used it at the Connecticut Ratifying Convention, and James Iredell used it in a private letter to James Spaight that was not published until long after the ratification of the Constitution and indeed, until after Iredell’s own death. Ellsworth said only that “[i]f the United States go beyond their powers, if they make a law which the Constitution does not authorize, it is void; and the judicial power, the national judges … will declare it to be void.” He does not discuss any clarity requirement. Iredell, defending judicial review against a critic, did state that “[i]n all doubtful cases, to be sure, the Act ought to be supported: it should be unconstitutional beyond dispute before it is pronounced such.” But as Professor Gerald Leonard observes, Iredell’s arguments for judicial review in that letter—grounded in the nature of judicial power and popular sovereignty—supported not a rule of deference but “full judicial power over constitutional meaning just insofar as the constitution bore on the outcome of a litigation.” Thus, Iredell wrote that “when an act is necessarily brought in judgment before them, and must, unavoidably, determine one way or another,” it would be incoherent for judges to enforce legislation “to which … the people owe no obedience.” Leonard’s conclusion—that Iredell was making a “practical concession in order to win over an opponent”—finds support in Iredell’s open letter to the public on August 17, 1786, in which he urged the North Carolina Superior Court to invalidate a statute on constitutional grounds and which prompted his exchange with Spaight. In that letter—widely regarded as one of the most influential Founding-era writings on the judicial power—Iredell discussed “the judicial power” and explained that the “the duty of that power” is to “decide according to the laws of the State,” including the “superior law” of the state’s constitution. Thus, we have “the judicial power” publicly associated with a requirement to displace unconstitutional legislation—but not with any displacement standard.
What of Federalist 78, in which Alexander Hamilton implies that judges will not declare acts that are not contrary to the “manifest tenor of the Constitution” void and that variances between the Constitution and subordinate enactments that can be reconciled through trusted interpretive techniques should be so reconciled? McGinnis acknowledges the need to separate “contingent” aspects of constitutional concepts from those that are necessary. McGinnis presents Federalist 78 as an “example of the manner in which the obligation of clarity is intertwined with the defense of judicial review” and offers it as evidence that the requirement of clarity was a not a “contingent aspect of the judicial review that could be eliminated.” According to McGinnis, Hamilton was concerned to address Anti-Federalist fears about arbitrary judicial power, and the discussion of the requirement of clarity was intended to address those concerns.
But the passages highlighted by McGinnis are not properly understood as part of a response to Anti-Federalist concerns about arbitrary judicial power. In Federalist 78, Hamilton addresses concerns about “arbitrary discretion in the courts” only by referring to “strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them.” The passages highlighted by McGinnis appear earlier in the essay. It is in Federalist 81 that Hamilton addresses Anti-Federalist concerns about arbitrary judicial power most directly. In Federalist 81, Hamilton emphasizes the limited “objects” of the “judicial power,” its “comparative weakness” and “total incapacity to support its usurpation by force,” and points to the availability of impeachment (which he described as being “alone a complete security.”) He does not speak of a requirement of clarity. This is unsurprising when one considers that Anti-Federalists were not primarily concerned that federal judges would be too hasty to invalidate legislation. Rather, they feared that federal judges would be more deferential to assertions of federal power than state judges were to assertions of state power, and that federal judges would draw upon the Constitution’s more abstract clauses to expand federal power.
All of this is not to say that specialists in eighteenth-century law would not have recognized a clarity requirement. But McGinnis’ argument that such a requirement is part of the communicative content of the “[t]he judicial power” fails to persuade.
2. Whelan seems to believe that that my case against judicial restraint presupposes that any concept of restraint incorporates James Bradley Thayer’s “clear-error” rule, which provides that judges should decline to apply a federal statute only when the unconstitutionality of the statute is “so clear that it is not open to rational question.” Whelan evidently regards Thayerian deference as a straw man—thus, he asserts that “few if any modern proponents of restraint embrace Thayer’s standard.” “(Ironically, several sentences later, he links to an article by Professor Matthew Franck in which Franck expresses considerable sympathy for Thayerian deference.).
Whelan misunderstands me. My argument against judicial restraint applies to Thayer’s clear-error rule, which Thayer applied only to acts of Congress; it applies to the heedlessly deferential conceivable-basis review that currently serves as our constitutional default; and it applies to the requirement that an “irreconcilable variance’” between a government enactment and the Constitution be found before that enactment is set aside.
Whelan suggests that my position would entail disputing “much more venerable authorities” than Thayer—but I do not deny that Thayer, Alexander Hamilton, John Marshall, or anyone else believed that restraint was desirable or even that they believed it to be a matter of judicial duty. I do deny that anyone has yet demonstrated that the Constitution incorporates what any of them believed about the degree of deference that judges ought to accord government enactments.
3. At this point, I expect that Whelan will object that judges at common law and during the Founding era understood themselves to be obliged to exercise independent judgment, free from the distorting influence of internal will (their own beliefs and desires) or external will (the beliefs and desires of government officials), and also to set aside government enactments only in cases where those enactments were manifestly contrary to a law of higher obligation. Evidently, they did not see any tension between presuming government enactments to be valid and exercising independent, unbiased judgment. How could I coherently argue that there is such a tension?
Answering this question entails a brief foray into epistemology. Concepts—here, the concept “independent judgment”—are cognitive tools that are used to group together (or integrate) particular kinds of things—whether physical objects, practices, relationships, institutions, or beliefs. They refer to all past, present, and future things of a particular kind. Concepts are not identical to beliefs about their referents that are held by any particular person or group of people at a particular point in time. Thus, the fact that video games or thermal imaging were not known to anyone during the Founding era does not mean that the former is not a referent of the concept of “the freedom of speech” or that the use of the latter to detect the heat produced from marijuana cultivation inside of a house is not a referent of the concept of “search.” It is possible for a person or a group of people to err concerning their understanding or application of a concept. For example, the relevant Founders widely believed that it was constitutional to give more representatives to Maryland than to North Carolina—thus, Article I, Section 2 provided before that until a census could be performed, Maryland was to receive six representatives and North Carolina five. But that conclusion depended on the erroneous belief that Maryland’s free population, taken together with three fifths of its enslaved population, was larger than North Carolina’s. Fidelity to the applicable constitutional rule governing the apportionment of representatives among states—“according to their respective numbers”—entailed departing from the Founders’ incorrect belief. Thus, after the first census yielded more information about the states’ respective populations, Maryland had eight representatives and North Carolina ten.
I submit that there is a tension between any presumption in favor of the legal position held by the party that is asserting power over the other in the first instance—that party’s beliefs that what it is doing is constitutional—and the concept of independent judgment. The stronger that presumption, the more pronounced the tension. To the extent that the obligation to reconcile a variance between the Constitution and a government enactment entails actively assisting the government in making its case by adopting an interpretation of an enactment that is different than the interpretation which the judge would arrive absent such a perceived obligation, the tension becomes a contradiction. That judge is indeed subordinating her judgment to the beliefs of the most powerful of parties—that is, the government—concerning the law. That judge is indeed giving way to external will.
My objection to Chief Justice Roberts’ effort to reconcile the Affordable Care Act’s individual mandate with the Constitution—to decline to pursue “the most natural interpretation of the mandate” and instead seek to determine whether the government’s interoperation was “fairly possible”—is thus not, as Whelan suggests, an objection to Roberts’ failure to properly apply a valid approach. It is an objection to Roberts’ approach—and to Whelan’s.
4. Whelan wonders how I could “fairly dispute” Judge Robert Bork’s proposition (advanced in The Tempting of America) that “in wide areas of life majorities are entitled to rule, if they wish, simply because they are majorities.” I dispute it because it states an incorrect premise about our constitutional order. There is no context in which majorities are “entitled to rule” over others simply because they are majorities—to rule on the basis of mere will. Don’t take my word for it—take the word of Madison, with whose thought Bork (wrongly) identified his proposition. The notion that mere majoritarian might could ever trump individual rights was utterly foreign to Madison’s thought. Thus, Madison affirmed that the “[s]overeignty of the Society as vested in & exerciseable by the majority, may do any thing that could be rightfully done, by the unanimous concurrence of the members; the reserved rights of individuals (of Conscience for example), in becoming parties to the original compact, being beyond the legitimate reach of Sovereignty, wherever vested or however viewed.”
It is true that Bork in the very next sentence of his book stated that “there are nonetheless some things majorities must not do to minorities, some areas of life in which the individual must be free of majority rule.” But that sentence only further illuminates a profound misunderstanding of our constitutional order. Bork begins with a majoritarian premise and carves out limited, individualist exceptions. As I explain in my response to Professor McDonald, our political order rests on individualist premises and authorizes democratic processes in order to implement those premises. Bork gets our Madisonian system precisely backwards.
5. As if exasperated, Whelan asks “What is judicial engagement anyway, and how should it have any significance apart from the logically prior question of what the Constitution means?”
With respect, Whelan knows perfectly well what judicial engagement is. He has read my colleague Clark Neily’s book Terms of Engagement, which defines and defends engagement at length—indeed, Whelan wrote a six-part critical review of the book. I presented a definition of engagement in my lead essay and identified instances of engagement (and abdication). And I have explained why judicial engagement has significance apart from the question of what the Constitution means.
I am not sure what to make of Whelan’s expression of skepticism about whether judicial engagement is a mere “camouflage for libertarian judicial activism,” seeing as I expressly rejected departure from law in the name of libertarianism in the article he cites. (And for good measure, I will do it again: Judges have no business departing from the law in the name of libertarianism). Does Whelan believe that those who disagree with him concerning whether the Constitution commands a judge to adopt a particular degree of deference and who call for an approach that they believe is calculated to effectuate the Constitution’s guarantees are necessarily trying to pull a fast one? If Whelan wants to take issue with engagement on the basis of “straightforward persuasive arguments about original meaning,” I am at his disposal. The charge of subterfuge is without merit.