About this Issue

Judicial activism has long been a term of disapproval, particularly on the political right, which has objected to the apparent creation of rights in the personal sphere not clearly articulated in the Constitution’s text. Before the mid-twentieth century, however, the shoe was on the other foot: Progressive legal theorists argued not for judicial activism, but for judicial restraint, as Congress and the states passed more and more laws restricting economic freedom.

Is some middle path possible, and if so, is it better? The judiciary must not supplant the legislature, of course; nor may it supplant the process of constitutional amendment. That said, however, its legitimate functions are implied in its very name, and the power of judgment brings the possibility of disapproval. This month’s lead essayist, Evan Bernick, proposes to thread the needle, and to articulate a basis for a strong, independent, and engaged judiciary. Joining him to comment will be Edward Whelan of the Ethics and Public Policy Center, Barry P. McDonald of Pepperdine University School of Law, and David A. Strauss of the University of Chicago School of Law.

Discussion and comments will be enabled through the month, and we welcome your comments and questions for our panelists.

Original image by Stephen Masker (Supreme Court Justice Antonin Scalia) [CC BY 2.0 (http://creativecommons.org/licenses/by/2.0)], via Wikimedia Commons.



Lead Essay

The Supreme Court Needs a New Judicial Approach: The Case for Judicial Engagement

As goes the Supreme Court, so goes the trajectory of American constitutional law—and partisans on both sides of the political aisle know it. It is therefore entirely unsurprising that the passing of Justice Antonin Scalia and President Barack Obama’s subsequent nomination of Judge Merrick Garland to the Court have given rise to a heated political conflict and produced no end of commentary and strategic advice from scholars and pundits.

But there has been little discussion of precisely what kind of approach Justice Scalia’s eventual replacement should take in constitutional cases. We hear of particular decisions that must either be preserved or overruled but virtually nothing about how the next Justice should evaluate assertions of government power. The silence concerning the latter subject is striking. The outcomes of many constitutional cases turn upon whether judges carefully scrutinize the evidence in the record, strive to identify the government’s true ends, and evaluate the constitutional propriety of those ends, or instead systematically defer to the government officials’ factual assertions and assurances that they are pursuing proper ends. 

In this essay, I will argue that all Americans who believe that it is the function of the federal judiciary to “guard the Constitution and the rights of individuals” should insist that the next Justice be committed to a particular judicial approach. That approach is judicial engagement.

I will begin by identifying a constitutional duty that any proposed judicial approach must equip judges to discharge: the duty of independent judgment. I will go on to discuss historical attacks on independent judgment and corresponding calls for “judicial restraint,” understood as systematic judicial deference to the legislative and executive branches in constitutional cases, and detail how judicial restraint has failed to deliver constitutionally limited government. Finally, I will explain how judicial engagement can ensure that Americans receive the kind of adjudication that they expect and deserve in our courts of law.


“The Duty of the Power”: The Constitutional Duty of Independent Judgment

Article III’s textual commands to judges are sparse. The Constitution assumes that judges will bring an understanding of their constitutional duties to their office. “The judicial power” incorporates a rich conception of judicial duty that can be traced back through hundreds of years of Anglo-American jurisprudence.

As Professor Philip Hamburger has shown in his exhaustive historical study, Law and Judicial Duty, common law judges were understood to have a duty of independent judgment—a duty to independently interpret and give effect to what Chief Justice Edward Coke called the “artificial reason” of the law of the land. Judges were not to give way to external or internal will—that is, to beliefs or desires of government officials, or to judges’ own beliefs and desires that had no foundation in the law. In eighteenth-century America, this ideal of independent judgment had profoundly countermajoritarian implications. The principal threats to liberty during the founding era came from state legislatures and popular majorities that (as Hamburger puts it) “repeatedly threatened the freedom of various racial, religious, political, and propertied minorities.”

The establishment of a structurally independent federal judiciary, staffed by judges who were duty-bound to give effect to “[t]his Constitution” was not, as one scholar recently put it, a mere “afterthought.” When the Supreme Court in Marbury v. Madison (1803) declared the Judiciary Act of 1789 to be void, it was discharging a well-established duty of independent judgment. That duty is central to maintaining the rule of law that the Constitution is designed to establish and safeguarding individual rights that it is designed to secure.


The Progressive Assault on Independent Judgment and the Rise of Judicial Restraint

In the late nineteenth century, Harvard Professor James Bradley Thayer and a small collection of students initiated a vigorous attack on the ideal of independent judgment. These students would go on to become some of the most influential jurists and scholars in the nation’s history, including Oliver Wendell Holmes, Jr., Louis Brandeis, Learned Hand, and Alexander Bickel.

Thayer viewed the Constitution as pervasively indeterminate and constitutional law as largely the product of judges’ beliefs and desires—their will. As Hand would recount, Thayer taught that “most of constitutional law had been constructed out of circular propositions, which justified the predetermined attitudes of the judges.” What, then, should judges do? In an influential 1893 article, Thayer argued that judges should broadly defer to majoritarian will— that they should only strike down congressional statutes if their unconstitutionality is “so clear that it is not open to rational question.”

Such judicial restraint was attractive to progressives, who rejected the very concepts of limited government and individual rights as outmoded, and who had come to perceive the judiciary as an impediment to social and economic goals that they hoped to achieve through majoritarian politics. In his important book Rehabilitating Lochner, Professor David E. Bernstein documents how the Supreme Court of the late nineteenth and early twentieth century was far more deferential to economic regulations than conventional wisdom has long held. But the Court did make genuine efforts to determine whether regulations that burdened individual rights were actually designed to protect public health and safety, or served only to impose the mere will of the politically powerful. Such rights included the right to earn a living in the lawful occupation of one’s choice—a right that the Court (properly) deemed to be protected by the Fourteenth Amendment.

Lochner v. New York (1905) showcased the then-prevailing legal order and the critique that brought about the fall of that order. In Lochner, the Court held that a provision of New York’s Bakeshop Act that prohibited the employment of biscuit, cake, and bread bakers for more than ten hours in one day or sixty hours in one week arbitrarily deprived bakers and their employers of their “liberty of contract as well as of person.” Writing for the Court, Justice Rufus Peckham determined that there was “no reasonable foundation for holding [the hours provision] to be necessary or appropriate as a health law” and concluded that it was “in reality, passed from other motives.”

But it is Justice Oliver Wendell Holmes’ pithy, pungent dissent that everyone remembers. Holmes denied that the principle of “liberty of contract as well as of person” was embodied in the Constitution or even consistently enforced in the Court’s jurisprudence. He put forward an alternative principle: “[T]he word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles.” Thus did a version of Thayer’s “clear-error” rule make its way into the United States Reports.

Holmes’ dissent, widely celebrated by progressives, was the future. Eventually, the Court would adopt a posture of systematic judicial restraint in all cases involving “economic” regulations. A majority of justices came to believe that Holmes had been right about the Court’s jurisprudence. The Court did, however, carve out some ground on which to stand in the future. In a famous footnote (known today simply as “Footnote Four”) in the 1938 case of United States v. Carolene Products, the Court laid the foundation for what would become a defining feature of our jurisprudence—the framework of “tiered scrutiny,” according to which different standards of review are deployed in different constitutional contexts. While economic regulations would be presumed constitutional until proven otherwise, Footnote Four left open the possibility that legislation implicating rights that were specifically enumerated in the Bill of Rights, targeting “discrete or insular minorities,” or interfering with the political process might receive “more exacting judicial scrutiny” (today, “heightened scrutiny,” which requires the government to affirmatively demonstrate the constitutionality of its actions.)


The Warren Court: The Decline of Progressive Judicial Restraint and the Rise of Conservative Judicial Restraint

As Footnote Four suggested, progressives’ commitment to judicial restraint did not last. The political and jurisprudential career of Earl Warren, appointed Chief Justice of the Supreme Court in 1953, is illustrative. Warren’s jurisprudence was informed by his prior experience as an executive official in California, which taught him that progressives’ vision of (in the words of G. Edward White’s illuminating biography) “a beneficent government, staffed by nonpartisan experts” needed to be amended. Warren saw firsthand how much room there was for government officials to abuse their power, and his battles with the California legislature led him to become “a thoroughgoing skeptic about the representativeness or democratic character of the legislative forum.”

The cases with which Chief Justice Warren was soon confronted would confirm his experience and lead him to adopt a judicial approach that progressives once rejected. No case did more to forge Warren’s approach than Brown v. Board of Education (1954), in which the Court unanimously held racial segregation in public education to be unconstitutional. White explains that Brown led Warren to bring about a “return[] to a scrutinizing role for the courts that was of longer standing in American life than the role that Holmes helped to originate.” The Warren Court’s most famous cases primarily saw the Court carefully scrutinizing and invalidating assertions of government power. Many of these cases fell outside of the Footnote Four framework—among them, cases involving unenumerated “fundamental” rights like the right to marry, the right of married couples to use contraceptives, and the right to associate with others for lawful purposes.

The modern conservative legal movement was borne of opposition to the Warren Court’s jurisprudence. Conservatives charged that many of Court’s decisions were the product of the justices’ mere will rather than law. They adopted Holmes’ critique of the Lochner Court, and turned it against the Warren Court’s “judicial activism.”

Conservative restraint proponents did not attack the ideal of independent judgment free from will—they argued that the Warren Court was disregarding that ideal. But their proposed judicial approach differed scarcely, if at all, from that of the progressives. The Constitution, they contended, did not protect any unenumerated rights—thus, neither the right of married couples to use contraceptives nor the right to earn a living merited judicial enforcement. As Judge Robert Bork memorably put it, “in wide areas of life majorities are entitled to rule if they wish, simply because they are majorities” (emphasis added)—and outside of a few settings, judges who required government officials to offer more than majoritarian will to justify legislation were anathema.


Judicial Restraint in Practice: The Decline of the Rule of Law

Calls for judicial restraint have demonstrably failed to produce constitutionally constrained government. By requiring judges to abdicate their duty of independent judgment, judicial restraint prevents the judiciary from maintaining the rule of law.

For every governmental depredation of which conservatives rightly complain, one can point to a doctrine that tips the judicial scales in the direction of government officials’ mere will. Consider Chevron deference,” which requires judges to defer to federal executive agencies’ interpretations of congressional statutes when agency officials write and enforce regulations pursuant to the statutes unless those interpretations are “unreasonable.” There is also Auer deference,” a doctrine which commands sweeping judicial deference to agencies’ interpretations of regulations that they write and enforce. Consider also the modern rational basis test, the standard of review that is used to evaluate all government burdens that do not implicate one of a handful of rights that the Supreme Court has deemed “fundamental.” In FCC v. Beach Communications (1993), the Court stated that challengers in rational basis cases must “negative every conceivable basis which might support [the government’s actions]”—a logically impossible feat. Rational basis review has led the Supreme Court and lower courts to uphold patently protectionist restrictions on everything from pushcart food vending to floristry to teeth-whitening. It even led the Court to approve the bulldozing of an entire working-class neighborhood by a private corporation, exercising the government’s power of eminent domain, for so-called “economic development” in the infamous case of Kelo v. New London (2005).

Few decisions illustrate judicial restraint’s failure to restrain government as vividly as did NFIB v. Sebelius, the 2012 decision in which the Court upheld the Affordable Care Act’s individual mandate to purchase government-approved health insurance. Chief Justice John Roberts cast the deciding vote and wrote the opinion for a fractured Court, determining that the individual mandate was definitely not authorized by the Commerce Clause but could be construed as a tax authorized by Congress’ taxing power—even though the mandate is referred to some 18 times as a “penalty” in the text of the ACA. Roberts’ reasoning was the product of his commitment to restraint—he understood himself to be obliged to adopt any “fairly possible” interpretation that would “save [the statute] from unconstitutionality.” Judicial restraint thus facilitated the greatest expansion of federal power since the New Deal. 

Liberals too have reason to reject judicial restraint. All of the concerns about majoritarian politics that led the Warren Court to reject restraint still apply today. Further, a growing body of public choice scholarship has shown that legislation does not even reliably embody majoritarian preferences—it often embodies only the preferences of politically powerful special interests. Finally, majoritarian politics cannot protect criminal defendants or victims of injuries by law enforcement officers. For the latter, judicial deference is a recipe for rights-violations without effective recourse. Consider the impact of the Court-fashioned doctrine of qualified immunity, which insulates government officials from civil liability for constitutional and statutory violations unless their actions violate “clearly established” law. Qualified immunity has become an almost insuperable bar to civil liability for all but the most egregious and incompetent official misconduct. The result: a status quo of constitutional rights without remedies.


Judicial Engagement: A Call to Judicial Duty

Few have discussed in any great detail what the next Justice should do. But what judges are doing in a number of important areas of law is profoundly troubling. The next Justice will be in a position to either ensure that we have more of the same or to challenge the status quo and point the way towards a different approach.

The judicial approach that I advocate is called judicial engagement. As defined and defended by my colleague at the Institute for Justice, constitutional litigator Clark Neily, in his book Terms of Engagement, judicial engagement consists of a genuinely impartial effort to assess the constitutional propriety of the government’s true ends and means in light of evidence in the record. It provides that the government must bear the burden of producing evidence and must articulate a reason for its actions when those actions are challenged in court. Judges must determine whether the government’s actions are in fact calculated to achieve a constitutionally proper end of government.

The text of the Constitution does not command any particular degree of judicial deference. Judicial engagement is a constitutional construction that does not contradict the text and is consistent with a central function (at common law and in the early American republic, the “spirit”) of Article III—ensuring that those burdened by governmental actions that they believe to be unlawful have access to a neutral forum in which government power is measured against the law of the land. Judicial engagement treats both parties as presumptive equals, recognizes that one party is seeking to impose its will upon the other, and requires the party seeking to impose its will upon the other to offer evidence and a reason that justifies its actions. Any deference to mere will would require a departure from the duty of independent judgment—judicial engagement ensures, to the extent possible, that mere will does not sway judgment.

We know that such engagement is possible. Engagement takes place routinely in cases in which judges apply heightened scrutiny, whether intermediate or strict. We occasionally find the hallmarks of engagement even in cases in which the Court has said that it is applying the rational basis test. For example, in City of Cleburne v. Cleburne Living Center (1985), the Court held to be irrational and therefore unconstitutional a decision by a city government to deny a permit for a group home for the mentally disabled. The Court in Cleburne independently evaluated the evidence and rejected asserted purposes that were implausible in light of that evidence, ultimately finding that only “irrational prejudice” could explain the decision. (For example, the Court found the asserted purpose of “avoiding concentration of population and… lessening congestion of the streets” to be implausible because “apartment houses, fraternity and sorority houses, hospitals and the like, [could] freely locate in the area without a permit.”)

The questions of what rights are protected by the Constitution and what reasons are constitutionally proper are hotly contested. But there is substantial agreement that genuine constitutional rights should be enforced, and that judges should distinguish constitutionally proper from constitutionally improper reasons for burdening people’s rights or treating them differently. Liberals have celebrated recent decisions in which the Supreme Court and lower courts have invalidated regulations of abortion clinics and voter-ID laws, precisely because they believe that judges in those cases engaged in fact-sensitive review and careful means-ends analysis. Conservatives have criticized the Supreme Court for declining to review a Ninth Circuit Court of Appeals decision upholding Washington state regulations that require pharmacists and pharmacies to dispense emergency contraceptives, precisely because they believe that the court below brushed aside evidence that the state deliberately singled out religious conduct. Neither liberals nor conservatives want judges taking government officials’ factual assertions at face value and failing to identify and evaluate the government’s true ends when the Constitution is actually implicated—nor should they.


Defending Reason’s Republic

The partisanship that has dominated the debate over Justice Scalia’s replacement has been dispiriting if predictable. But we must not allow that partisanship to obscure a fundamental question that has yet to be sufficiently explored: How should the next Justice adjudicate? Article III promises a means through which ordinary Americans can put government power to the test of the principles of reason in our law. To the extent that Americans who stand to lose their liberty, their property, their livelihoods, or even their lives are denied adjudication that is driven by independent judgment rather than will, they do not live under a government of laws but of men—and their rights are insecure. For the sake of the rule of law, the next Justice must be prepared to engage.









Response Essays

The Name Game

Evan Bernick’s interesting essay describes, and also contributes to, the oscillating path that rhetoric about the Supreme Court has taken over the last century. In the first third of the twentieth century, when the Court was often hostile to social welfare and regulatory legislation, progressives were advocates of “judicial restraint.” Toward the middle of the century, when the Court attacked racial segregation and expanded civil liberties and the rights of criminal defendants, it was the conservatives who called for restraint and accused the Court of “judicial activism.” Liberals often celebrated the Supreme Court, and judges generally, as voices of principle and reason. When the Court turned conservative again, in the 1970s and after, liberals stopped being so enamored of judges, but conservatives began to think that maybe judges aren’t so bad after all. And now, since “activism” is a dirty word, from the libertarian conservative side we have: “judicial engagement.”

There’s a fallacy that crops up in all of these discussions. It’s sometimes called the “Nirvana fallacy,” although that seems like an odd term. Advocates of free markets are familiar with this fallacy in a different context: it’s what happens when someone identifies a market failure and then asserts, without further argument, that government intervention is justified because the government will correct the failure. The fallacy is to compare the messy, real-life version of one institution with an ideal version of its competitor. In the example I just gave, the contrast is between a real-world market and an idealized version of the government, not a government that is subject to incomplete information, interest group pressures, and the like, and that therefore might fail to correct the deficiencies of the market or even make things worse. The fallacy often goes in the other direction too: people argue against regulation by saying (fairly) that the government is flawed, but then just assume that the market is free of serious imperfections and don’t entertain the possibility that even regulation by a flawed government might make things better.

Bernick, I fear, commits this fallacy in his treatment of courts and judges. He is well aware of how the political process can go awry, but he implicitly treats all judges as paragons of their profession. Judges, he suggests, should “carefully scrutinize the evidence in the record, strive to identify the government’s true ends, and evaluate the constitutional propriety of those ends.” Judicial engagement “consists of a genuinely impartial effort to assess the constitutional propriety of the government’s true ends and means in light of evidence in the record.” Courts should be “a neutral forum in which government power is measured against the law of the land.” “[G]enuine constitutional rights should be enforced, and … judges should distinguish constitutionally proper from constitutionally improper reasons for burdening people’s rights or treating them differently.”

As a prescription for an all-knowing, all-wise judiciary, these ideas sound great. But, to state the obvious, judges might mess up, in good faith or bad. They might misapprehend “the government’s true ends.” They might be mistaken about what rights the Constitution actually protects. They might be wrong about what the constitutionally proper objectives of government are. Their decisions might be unduly affected by their own experiences or commitments. Stranger things have happened.

Even if the judges themselves are paragons, the judicial process has characteristic weaknesses. Courts are passive institutions; they depend on the parties to bring lawsuits and to make the appropriate arguments. Bernick talks about how interest groups influence legislatures, but interest groups are also pretty good at getting their way in court, by bringing strategically timed, well-financed litigation. Beyond that, judges, compared to officials in the other branches of government, have a very limited ability to get information. They can’t initiate investigations into complex empirical issues; they have, at most, only a very limited ability to solicit the views of experts.

And then there are the complicated normative issues—issues about what the legitimate ends of government are, about what kinds of tradeoffs among those ends are justified, about when it is acceptable to sacrifice some of those ends in order to obtain a legislative outcome that is better on balance than what would otherwise exist. Those seem like exactly the kinds of issues that we ordinarily entrust to the political process, which is in the hands of officials who are more democratically accountable than judges. Is there a reason to think that a group of federal judges (that is, lawyers who are selected by those officials) will do a better job?  Judicial review in any form—whether or not you call it “engagement”—enables flawed judges, operating a flawed judicial process, to overturn the decisions of an (also flawed) political process. Sometimes that is a good idea. The Carolene Products footnote, which Bernick discusses, tried to say when it’s a good idea: when the political process fails in a way that is unlikely to be self-correcting, so judges are really the only hope. That may be right or wrong, but at least it  addresses the important question: when should we prefer flawed judges—not ideal judges, who do not exist—to the political process. That question has to be answered, but Bernick does not even seem to ask it.[1]

I think the reason Bernick does not ask that question is that he already assumes the answer. His treatment of NFIB v. Sebelius, at least, suggests as much. “Judicial restraint” in that case, he says, “facilitated the greatest expansion of federal power since the New Deal.”

So what? Maybe that great expansion of federal power was a completely legitimate effort by the government to pursue completely appropriate ends, and maybe it was a good thing that the Court was restrained so that it did not exceed its authority under the Constitution and harm people’s lives.[2]  Or maybe not. But in order to make the kind of full evaluation of the propriety of the individual mandate that Bernick seems to envision, you would have to make an enormous number of complex factual and normative judgments—about how health care markets function, about what kinds of health care should be available to people, about which means of accomplishing those objectives comport with the constitutional role of the federal government, and probably about a lot of other things, too. But Bernick seems to think it is an easy question: it’s a significant expansion of federal power, so the Court should not have upheld it.

If you are operating with a simple set of political and moral principles—for example, that government action is impermissible unless it is based on a very limited set of powers recognized by the common law (which I take to be one version of libertarianism)—then asking judges to implement those principles might make sense. Maybe, in that case, all the limitations of judges and the judicial process are outweighed by the supposed shortcomings of the political process, although I have my doubts about that. But before we even get to the question of courts’ ability to enforce libertarian principles, libertarians have to justify those principles to the rest of us. Renaming the judges’ role—calling it “judicial engagement”—doesn’t do the trick.



[1] A couple of less important aspects of Bernick’s account are also questionable. Marbury v. Madison did not “declare the Judiciary Act of 1789 to be void.” It declared unconstitutional only one relatively technical provision of that very important statute. Although there is some uncertainty about what was going on in some of the cases, the English common law judges Bernick refers to operated in a system in which Parliament was sovereign; common law judges did not uniformly, or probably ever, assert the power to strike down legislation. Bernick seems to suggest that the U.S. Supreme Court engaged in vigorous judicial review of federal legislation from the founding onward, but after Marbury, the Supreme Court did not strike down another Act of Congress for over half a century, until the notorious decision in Dred Scott v. Sandford—a decision that I am sure Bernick, like the rest of us, reviles, but that can serve as a reminder of the problems with “judicial engagement.”

[2] I am not sure I disagree with what Bernick says about the claim that the individual mandate was a tax; I think that is a difficult question. But the individual mandate was, in my view, unquestionably constitutional under the Commerce and Necessary and Proper Clauses. The contrary view expressed (in dictum) by five Justices was wrong, and I predict it will have little or no significance in the future.

The Case for Judicial Disengagement… Except Where Appropriate

“The day is gone when this Court uses the Due Process Clause … to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought. … For protection against abuses by legislatures the people must resort to the polls, not to the courts.” So wrote Justice William O. Douglas for a unanimous Court in 1955 after that body had learned a valuable lesson from the Lochner era—in a democracy, it is not for five or more unelected judges to second guess the economic policy decisions of the people’s elected representatives. Yet Evan Bernick urges a return to the Lochner approach of judges vigorously scrutinizing the importance or need for laws adopted by those representatives whenever they are alleged to conflict with any “genuine constitutional right.” And he does so under a new veneer: the duty of judges to exercise independent judgment or “judicially engage,” an approach he equates with the judicial practice of applying heightened scrutiny to challenged laws in certain areas of constitutional law.

This argument has many problems, most notably the implication that exercising independent judgment is the same thing as applying such scrutiny. It is not. I am all for Supreme Court justices and other judges applying “principles of reason in our law,” as Bernick puts it. In other words, judges should and do have a duty to apply legal rules in a neutral, objective and principled fashion when deciding cases—as much as possible keeping their own political and ideological preferences, and those of political majorities, out of the mix when doing so. This is the essence of the rule of law, and not the rule of particular individuals wearing black robes or that of transient majorities.

Moreover, judges should adhere to this practice no matter what degree of scrutiny they apply to a challenged law—be it strict or vigorous scrutiny (where the government bears a very heavy burden of showing constitutionality), intermediate scrutiny or a general balancing of interests (where the government bears a more realistic chance of demonstrating constitutionality), or the deferential scrutiny that Bernick complains of where the plaintiff bears a heavy burden of demonstrating the unconstitutionality of a law. The level of scrutiny the Court applies is an analytical tool based on its judgment about the importance of the right allegedly being infringed or the suspectness of the government’s actions in passing a law. Independent judgment, on the other hand, should be a pervasive judicial philosophy and practice no matter what tools a court is applying to aid its review.

What Bernick is really complaining about is which rights the Court has chosen to apply heightened scrutiny to, and those it has judged to be worthy of only minimal judicial review. The former includes those due process rights of personal autonomy deemed fundamental or important, and certain equal protection, free speech and freedom of religion rights where illicit government discrimination seems to be afoot. Notably absent from this list, however, are the conservative favorites of economic and property rights. After the Lochner era, the Court decided that protection for the latter sort of rights was best left to the push and tug of the political process rather than the judiciary. As noted, this decision was based on the notion that heightened judicial protection for such rights inevitably involved courts in the business of making judgments about economic and social policy that they were ill-equipped to make—and that were more appropriate for legislatures to make in a democratic republic.

Now one can certainly make a decent argument that the Court overreacted to the Lochner era criticisms, and that economic and property rights do not deserve the severity of downgraded constitutional treatment they have been given—particularly in cases where it seems that special interest groups have captured the legislature or government bureaucrats are pursuing agendas divorced from the popular will. But the product of such an argument should be a discussion about the importance of those rights and the ability of courts to protect them consistent with democratic principles, rather than an end run around that discussion by urging heightened scrutiny for all rights—and thereby elevating the treatment of economic and property rights through the back door.

Which brings me to my biggest complaint about Bernick’s arguments concerning independent judgment. Not only are they misguided in equating such judgment with a given level of judicial scrutiny, but they miss the boat in terms of where independent judgment is really needed. As noted, the level of scrutiny used in a particular case is a function of the Court’s a priori determination about whether to recognize an asserted right and how much importance to accord it. That is where most of the judicial work is done in a particular case, since the particular scrutiny applied too often tends to be a post hoc rationale for a result driven by the initial “ranking” (e.g., should an asserted due process right be deemed fundamental or not, or should a non-discrimination claim be viewed as implicating a suspect class). If the right is ranked as really important or the government’s action suspect, strict scrutiny applies and the law will be invalidated; if not, the dreaded rational basis review applies and the law will be upheld (unless some sort of middle tier scrutiny is used). And it is that initial determination that generates the criticism that Supreme Court justices are either making up rights that cannot fairly be derived from the Constitution, or they are otherwise according rights importance (or not) depending upon their personal ideological preferences.

Examples of such contested rights abound. Rights to gay marriage, abortion, and even the Lochnerian liberty of contract that Bernick applauds, have all been inferred from a constitutional provision that protects people from being deprived of “liberty” without due process of law—a provision designed to ensure the government uses fair and lawful procedures when denying someone their liberty, and not affirmative rights against a government that complies with them. A right to keep guns in one’s home (and perhaps other places) for purposes of general self-defense has been found in a provision that was designed to prevent the professional standing army created by the new Constitution from disarming the citizen-soldier militias of the states—just in case that army was used to oppress Americans. A right of large corporations to spend their earnings to get favored politicians elected has been found in free speech guarantees designed to ensure Americans would be able to freely debate and keep tabs on what the new federal government they were creating was doing. To make matters worse, virtually all of these rights were found to exist, and to deserve the heightened scrutiny Bernick extols, by bare majorities of five justices coalescing in predictable ideological voting blocs. And this problem of “politics dressed up as law” is not limited to the enforcement of constitutional rights. As the Obamacare decision illustrates, it also extends to questions about the nature and scope of federal power. There, the key ruling depriving Congress Commerce Clause power to pass the law was decided along typical ideological voting lines, even though Chief Justice Roberts joined the liberal wing of the Court to find Taxing Clause power for the law, which he probably did to avoid even harsher criticisms of a politicized Court.

This state of affairs is the exact opposite of one might expect from a Court that was truly exercising “independent judgment” grounded in neutral legal principles. If one wants to urge Supreme Court justices to exercise more of such judgment, this is the place where one should make a stand—particularly when the advocate admits the question of what rights the Constitution protects is “hotly contested.” To urge greater judicial engagement and independent judgment to protect “genuine constitutional rights” is simply ignoring the huge elephant in the room. Bernick also argues that such greater engagement is needed to prevent majorities from trampling individual rights. But when the very existence and strength of rights involve such debatable and contestable judgments that are being made in the manner described above, who do you want recognizing and protecting them in a self-governing democracy? Five lawyers appointed to the Court who do not even reflect the diversity of values and beliefs of Americans generally—almost all being drawn from the Boston to Washington, D.C. corridor—or Americans themselves? The answer seems obvious.

Accordingly, I would not attack judicial restraint as the abdication of a judge’s role to vigorously challenge the will of the majority whenever an individual right is alleged to be implicated. Properly understood, such restraint should be praised. It calls on unelected judges to recognize their proper role in a democracy, making sure that when they foist their will on over 300 million Americans, the exercise of that power is clearly authorized by the Constitution and the rule of law. If it is not, if claims of constitutional right are open to honest debate by fair and reasonable people, deference to majoritarian resolutions of those issues in the give and take of the political process is the most appropriate course. At least that is the judicial attitude I hope to see in our next Supreme Court justice.

Let’s Break Off the Engagement

I’m puzzled in several respects by Evan Bernick’s case for what he calls judicial engagement:

1. On the matter of how judges should approach the Constitution, the most fundamental and glaring divide in the American legal culture is between originalism on the one hand and various non-originalist theories (the “living Constitution,” pragmatism, and so on) on the other.

The core principle of the family of originalist methodologies is that the various provisions of the Constitution, like the provisions of other laws, should be interpreted in accordance with the meaning they had at the time they were adopted. (The competing schools of originalism differ as to what evidence is most probative of that meaning.) By contrast, advocates of the decades-dominant non-originalist approaches maintain that judges have broad authority to impose new meanings on the Constitution—to eviscerate, for example, rights and limits on government power that interfere with perceived contemporary needs and to invent whatever new constitutional rights they think desirable.

Bernick knows all this very well and just last month, in making a cogent case for originalism, emphasized that the “first and foremost reason … to adopt any particular mode of constitutional interpretation is to figure out what the Constitution actually means.” So it’s surprising that the word originalism and its cognates never appear in his essay, and it’s especially jarring that he seems to think it less important that the next Supreme Court justice be committed on the first-order issue of originalism than on the subsidiary question of judicial engagement.

2. Bernick’s attack on judicial restraint seems to presuppose that any such concept incorporates 19th-century scholar James Bradley Thayer’s theory 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.”[1] But few if any modern proponents of judicial restraint embrace Thayer’s standard. (Indeed, Thayer himself did not apply his standard of exceptional deference to judicial review of state laws.)

Does Bernick believe it to be illicit judicial restraint to hold that a judge, after deploying the traditional tools of interpretation, may deem a statute unconstitutional only if it clearly conflicts with the determined meaning of a constitutional provision? If so, he is disputing much more venerable authorities than Thayer. As Chief Justice John Marshall stated in 1810 in Fletcher v. Peck, in order for a judge to deem a law void, “[t]he opposition between the constitution and the law should be such that the judge feels a clear and strong conviction of their incompatibility with each other.” (Emphasis added.) Indeed, Alexander Hamilton’s famous defense of the power of judicial review in Federalist No. 78 contemplates that judges will decline to enforce a statute on constitutional grounds only when there is an “irreconcilable variance” between the statute and the Constitution.

In a supposed illustration of “judicial restraint’s failure,” Bernick laments that Chief Justice Roberts, in the first Obamacare case, “understood himself to be obliged to adopt any ‘fairly possible’ interpretation that would “save [the statute] from unconstitutionality.” (Bernick’s emphasis and brackets.) But such an understanding comports fully with Hamilton’s: “So far as [two legal texts] can, by any fair construction, be reconciled to each other, reason and law conspire to dictate that this should be done.” (Hamilton is referring in the actual sentence to reconciling two statutes, but he is expressly doing so to illustrate how the Constitution and statutes are to be read together.) Bernick’s real complaint would instead appear to be that Roberts misapplied judicial restraint by adopting an interpretation that Bernick thinks wasn’t “fairly possible.” That would be a mark against misapplying judicial restraint, not a mark against applying it properly.

3. Bernick claims that there is some sort of conflict between judicial restraint and a judicial duty of independent judgment (of not indulging will). Insofar as judicial restraint requires that a statute not be deemed unconstitutional unless it has been clearly shown to violate the meaning of a constitutional provision, that conflict is illusory.

Bernick relies on Philip Hamburger’s Law and Judicial Duty for the duty of independent judgment. But Hamburger spells out in that same historical work that the duty of independent judgment required that judges treat a statute as binding unless it was “manifestly contrary” to the Constitution. (I understand Hamburger’s account to comport with Hamilton’s and Marshall’s—to contemplate, that is, that judges will use the traditional tools of clarification before determining that a manifest contradiction exists.)

4. Bernick correctly observes that conservative critics of the Warren Court faulted it for failing to exercise judgment independent of will. But he somehow contends that their judicial approach “differed scarcely, if at all, from that of the progressives.” If I’m understanding him properly, he is implying—wrongly, in my view—that the conservative position that the Constitution does not protect “unenumerated” rights is itself an exercise of will rather than judgment. But Bernick doesn’t even trouble himself to provide any support for his apparent claim.

Bernick also seems to find fault with Judge Robert Bork’s statement that “in wide areas of life majorities are entitled to rule, if they wish, simply because they are majorities.” But Bork was stating a constitutional proposition of American self-government, not a moral proposition, and I don’t see how anyone can fairly dispute it. Further, in his very next sentence, Bork stated the second of “two opposing principles” in our “Madisonian system”—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.”

5. What is judicial engagement anyway, and how should it have any significance apart from the logically prior question of what the Constitution means?

Bernick says that judicial engagement “consists of a genuinely impartial effort to assess the constitutional propriety of the government’s true ends and means in light of evidence in the record” and “provides that the government must bear the burden of producing evidence and must articulate a reason for its actions when those actions are challenged in court.” Well, which ends and means are “proper” and whether there is any need for “evidence” surely depend on the meaning of the constitutional provision that the challenger of a law is invoking. Moreover, contrary to what Bernick seems to suggest, it is “genuinely impartial” for a judge to insist that a challenger bear the burden of establishing that a law is clearly unconstitutional.

In the end, is judicial engagement anything more than camouflage for libertarian judicial activism—an effort to smuggle in the back door what can’t be formally established by straightforward and persuasive arguments about original meaning? Count me extremely skeptical.



[1] By John McGinnis’s account, Thayer argued not only that federal judges should “defer [to congressional enactments] whenever there is any lack of clarity on the face of a [constitutional] provision” (emphasis added) but also that they should not resort to the traditional tools of interpretation to resolve any lack of clarity.

The Conversation

It Takes a Theory to Beat a Theory

Having my ideas about what Americans should be looking for in the next Supreme Court Justice discussed and carefully criticized by Professor David Strauss, Professor Barry McDonald, and Ed Whelan is an honor, and I am confident that our subsequent exchange will be illuminating and highly enjoyable. I cannot hope to engage with all of the substantive points raised in the initial round of responses to my essay, but I will do what I can.

I will begin with Professor Strauss’s response. Strauss presents my call for judicial engagement as a somewhat naive effort to instantiate libertarian political ideals by judicial fiat without doing the hard work of convincing my fellow citizens that those ideals ought to be instantiated. Damning, if true—but Strauss cannot prove his case. Nor does he offer any alternative theory of constitutional adjudication. By criticizing his critique, I hope to clarify my position and inspire him to articulate a theory of his own.

Strauss begins by situating judicial engagement in the context of a “libertarian conservative” movement that, having been disappointed by the results of the “judicial restraint” that conservatives once called for, is now coming around to the idea that “maybe judges aren’t so bad after all.” Of course, Strauss and I both come to the study of the Constitution with our own political and moral convictions, as indeed everyone does. Discourse about the Constitution would be impossible if we could not identify and define legal principles that are somehow distinguishable from those convictions. If Strauss is implying that judicial engagement really does not have much to do with the Constitution and a great deal to do with “libertarian principles” that I believe ought to be implemented, regardless of what the Constitution has to say about the matter, one would expect him to explain why he believes this to be so.

He does not. Strauss does not take issue with my claim that Article III’s authorization of “[t]he judicial power” imposes a duty upon judges to exercise independent, unbiased judgment in accordance with the “supreme law of the land” ; he does not dispute my characterization of the constitutional function of our independent judiciary (“guard[ing] the Constitution and the rights of individuals”); he does not rebut my argument that, although the Constitution does not specify any particular degree of judicial deference to the other branches of government (or lack thereof) in constitutional cases, judicial engagement equips judges to discharge their duty of independent judgment and enables the judiciary to perform its constitutional function. (Ed Whelan, drawing upon the work of Professor John McGinnis, seems convinced that the Constitution does command a particular degree of judicial deference—I will explain why I believe that he and McGinnis are wrong in a separate response.)

Nor does Strauss even take issue with my description of our current jurisprudence. I have claimed that numerous doctrines of judicial deference fashioned by the Supreme Court that are applicable in consequential areas of law require judges to abdicate their duty of independent judgment and allow Americans to be wrongfully deprived of their liberty, their property, and even their lives. I have claimed that immunity doctrines that insulate government officials from civil liability when they violate constitutional and statutory rights undercut the supremacy of the law and have created a status quo of rights without remedies. I have argued that the default rule of constitutional review—the so-called “rational-basis test”—that is applied in most constitutional settings has been interpreted to require those who would challenge legislation to perform the logically impossible feat of proving that there is no conceivable basis that might support that legislation—even a basis for which there is no evidentiary support—if they are to prevail.

Instead of denying that my description of our current jurisprudence is accurate, or defending that jurisprudence, or articulating a theory of constitutional adjudication of his own, Strauss attacks a straw man. He seems to believe that the case for judicial engagement rests upon the proposition that judges can be transformed into automatons who reliably churn out correct answers to difficult constitutional questions involving complex facts. Thus, while he admits that judicial engagement sounds great as “prescription for an all-knowing, all-wise judiciary,” he claims that I am in the grips of the “Nirvana fallacy”—that I am comparing an actual regime that is imperfect in various ways with an unattainable alternative.

But the case for engagement does not depend upon the proposition that any theory of adjudication can produce infallible constitutional enforcement. It rests instead on the propositions that 1) judges are capable of engagement; 2) engagement equips judges to discharge their constitutional duties and enables the judiciary to perform its constitutional function; and 3) where they apply, the doctrines that I have criticized prevent judges from discharging their duties and the judiciary from performing its constitutional function.

We know that proposition 1 is true. As I noted in my initial essay, judges routinely engage in evidence-based efforts to assess the constitutionality of the government’s true ends and means in cases involving a handful of rights that the Supreme Court has identified as “fundamental” on a largely ad hoc basis or which involve “suspect classifications.” Heightened scrutiny, whether intermediate or strict, has all of the hallmarks of what I am calling judicial engagement—that is, judges seek to identify whether the government’s actions are actually designed to achieve a constitutionally proper end (or ends); they do not take the government’s assertions concerning its ends at face value or accept unsupported factual assertions; and they evaluate the fit between the government’s purported ends and its choice of means by scrutinizing record evidence. As I noted in my initial essay, we can also find those hallmarks in a number of cases in which the Court has said that it is applying the rational-basis test. I have made my case for positions 2 and 3 as well; Strauss has yet to meet it.

Of course, if we had reason to believe that judges would consistently arrive at the wrong answers if they took the approach that I advocate in every constitutional case, rather than broadly deferring to the government in all but a few contexts, the case for engagement would be weak. But Strauss does not give us reason to believe that judges are so incompetent.

Strauss points to what he describes as the “characteristic weaknesses” of the judicial process—its passivity, its dependence upon parties bringing lawsuits to “make the appropriate arguments,” its insulation from majoritarian politics. Yet when one considers the peculiar function of the judiciary—again, enforcing the Constitution and thereby safeguarding individual rights—these are not bugs but features. Precisely because judges are passive—because they do not participate in the creation of the enactments under their review, have not represented to the public, either implicitly or explicitly, that those enactments are constitutionally sound, and must wait for cases to be presented to them—their evaluation of those enactments is more likely to be impartial than that of the officials whose activity produced those enactments. Precisely because only certain kinds of arguments are appropriate in constitutional litigation, judges are more likely than legislators to concentrate on whether those arguments—and only those arguments—are persuasive. Precisely because Article III judges are relatively insulated from majoritarian pressures, they are less likely than legislators to take majorities’ views of the rights of individuals.

Strauss also suggests that “complicated normative issues” like, say, “what the legitimate ends of government are,” are “ordinarily entrust[ed] to the political process.” But surely Strauss would not deny that the Constitution takes a stand on a variety of complicated normative issues. One struggles to think of landmark constitutional cases that do not involve complicated normative issues—a number of them involve the legitimate ends of government. It certainly seems appropriate for those with legal expertise and a duty to decide cases brought before them in accordance with the Constitution to speak to those issues. Indeed, I would go further. Because judges receive tremendous discretionary power over their fellow citizens in exchange for promising to “support this Constitution,” they are both morally and legally bound to give effect to the Constitution’s normative commitments. To borrow a concept from noted contracts scholar Professor Steven Burton, judges must  forego the opportunity to act on the basis of considerations extraneous to the law—their own aversion to grappling with hard, value-laden questions being among such extra-legal considerations—and they must not seek to recapture that opportunity. To the extent that they shy away from controversy, judges betray our trust and leave us vulnerable to abuses of legislative and executive power.

To be sure, there is intense disagreement about when the Constitution does take a stand on normative issues. I do not claim that judicial engagement is sufficient to equip judges to discharge their constitutional duties. Judges need a methodology of constitutional interpretation that equips them to accurately ascertain what the Constitution means as well as a framework for assigning the burdens of producing evidence and persuading the court concerning the merits of constitutional claims between the parties, specifying those burdens, and determining whether those burdens have been carried. As Ed Whelan notes, I have defended originalism on the grounds that it equips judges to accurately ascertain the meaning of the Constitution and thereby maintain the rule of law that the Constitution is designed to establish. But to the extent that judges uphold enactments if challengers have not demonstrated that there is no conceivable basis for believing that those enactments are consistent with the Constitution’s original meaning, originalism’s capacity to maintain the rule of law in practice will be thwarted. Judicial engagement is necessary if one wants consistent and effective constitutional enforcement of the Constitution’s meaning—whatever one believes that that meaning consists in or how one can best ascertain it.

Upon examination, then, Strauss’s effort to paint judicial engagement as a libertarian power play is unsuccessful. He fails to demonstrate that engagement is unmoored from the law; he fails to refute the propositions upon which the case for engagement as a means of constitutional enforcement depends; he fails to articulate an alternative theory of adjudication that would better equip judges to discharge their constitutional duties than that which I have put forward. To return to the initial question that I posed: How should the next Justice adjudicate? I look forward to Strauss’s answer.

Judicial Engagement and the “Will of the People”: Dispelling the Myth of Majoritarianism

Barry McDonald and Ed Whelan have both responded to my call for judicial engagement with thoughtful defenses of “judicial restraint,” understood as judicial deference to assertions of government power when those assertions are challenged in court—albeit restraint of different kinds, supported by different justifications. Doing each justice will require separate responses.

McDonald advocates a form of judicial restraint that bears a striking resemblance to that championed by Harvard Professor James Bradley Thayer in the late nineteenth century, embraced by legal progressives, and introduced into American constitutional law through the pen of Justice Oliver Wendell Holmes, Jr. As I noted in my essay, Thayer argued that judges should only strike down congressional statutes if their unconstitutionality is “so clear that it is not open to rational question.” Compare the following passages. The first is from Justice Holmes’ now-canonical dissent in Lochner v. New York (1905), the second, from McDonald’s response to my essay:


I think that the word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law.


If claims of constitutional right are open to honest debate by fair and reasonable people, deference to majoritarian resolutions of those issues in the give and take of the political process is the most appropriate course.

It is no surprise, then, that McDonald approves of the Supreme Court’s decision in Williamson v. Lee Optical (1955), in which the Court transformed the default standard of constitutional review—the rational-basis test—from a deferential but not toothless standard into the equivalent of judicial rubber-stamp. Instead of allowing constitutional challengers to rebut the presumption of constitutionality that attached to legislative action by adducing evidence that the government’s actions did not serve any public-oriented end that the government claimed to be pursuing, the Court would in Lee Optical and subsequent rational-basis cases uphold legislation by hypothesizing justifications for the government’s actions that had no basis in the record, thus creating a well-nigh irrebuttable presumption of constitutionality. Today, those rights that have not been identified by the Court as “fundamental” (on the basis of vague criteria that have changed over time), and thus receive rational-basis review, are rarely vindicated. McDonald would subject all assertions of government power to this form of review.

McDonald’s case for judicial restraint is essentially majoritarian. McDonald believes that the Constitution establishes a “self-governing democracy” that is primarily committed to resolving “debatable and contestable value judgments” through majoritarian politics. The judiciary, in this view, is a suspect institution precisely because it is (at least at the federal level) relatively insulated from majoritarian politics. For McDonald, judicial restraint is a means of keeping judges in their place—as he puts it, “making sure that when they foist their will on over 300 million Americans, the exercise of that power is clearly authorized by the Constitution and the rule of law.” 

McDonald’s description of the judicial nullification of unconstitutional government enactments—judges “foisting their will” on the rest of us—betrays a misunderstanding of the nature and purpose of the government established by the Constitution and the constitutional role of the judiciary. The Constitution is, as Professors Gary Lawson, Guy Seidman, and Robert Natelson have shown, a particular kind of legal instrument that creates a particular kind of legal relationship—a fiduciary relationship in which government officials are entrusted with power for stated purposes and authorized to carry out those purposes through specified means. Like other eighteenth-century fiduciary documents, the Constitution begins with a preamble that states its purposes. It then delegates power to government actors and institutions. The Constitution refers to “public trust” and to public offices “of trust”; Congress is empowered to enact measures that are “necessary and proper” for carrying delegated powers into execution, and to “lay and collect taxes, duties, imposts, and excises” in order to “provide for the … general welfare”; and the President is required to “take care that the laws be faithfully executed.” All of this language, writes Natelson, discloses a “purpose … to erect a government in which public officials would be bound by fiduciary duties to honor the law, exercise reasonable care, remain loyal to the public interest, exercise their power in a reasonably impartial fashion, and account for violations of these duties”

Judges who draw their power from Article III are entrusted with that power only after making a public promise to “support this Constitution.” With judicial power comes fiduciary duties—central among them, ensuring that the people’s agents in the other branches adhere to their fiduciary duties. In giving effect to the law of the land, even in the teeth of legislative majorities—as Alexander Hamilton explained in Federalist 78—judges act as representatives of the will of the people; they do not impose their own will. Thus Hamilton: “[W]here the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former.”

How could this possibly be right? How could Hamilton have believed—and why should we believe—that a handful of unelected lawyers could represent the will of the people?  The answer is that the will of the people embodied in the Constitution is not mere majoritarian might. The Constitution, no less than the Declaration of Independence, presents popular consent (thus, “We the People”) as the source of all government power—but, as in the Declaration, popular consent is bounded by individual rights. We cannot, after all, delegate power that we do not rightfully possess—and none of us rightfully possesses the arbitrary power to deprive other rational moral agents of their freedom on the basis of mere will. The democratic processes authorized by the Constitution are a means to the end of protecting individual rights—in the words of the Preamble, “secur[ing] the blessings of liberty.” Although reconciling judicial review with majority rule has long been a scholarly obsession, no counter-majoritarian difficulty is presented by unelected judges who, in giving effect to the Constitution, set aside the will of contemporary majorities—our Constitution is not primarily majoritarian, but, rather, individualist. McDonald’s case for restraint fails because it rests upon a false premise. 

McDonald also offers some specific criticisms of my case for judicial engagement. I have contended that judges have a constitutional duty to exercise independent judgment—understood as judgment in accordance with the law, without deference to the beliefs or desires of government officials, or to judges’ own beliefs and desires that have no foundation in the law. I have also explained that heightened scrutiny—whether intermediate or strict—has all the hallmarks of judicial engagement, in that it sees judges seeking to ascertain whether the government’s actions are actually (rather than hypothetically, as under modern rational-basis review) calculated to achieve constitutionally proper ends by scrutinizing evidence in the record and evaluating the fit between the government’s purported ends and its choice of means; and that engagement equips judges to discharge their duty of independent judgment. McDonald avers that judges are capable of exercising independent judgment “no matter what degree of scrutiny they apply to a challenged law”—the idea apparently being that so long as judges are faithfully applying that level of scrutiny, they are judging in accordance with the law. Thus, he contends that “[w]hat Bernick is really complaining about is which rights the Court has chosen to apply heightened scrutiny to, and those it has judged to be worthy of only minimal judicial review.”

Not so. I am really complaining that a number of doctrines fashioned by the Supreme Court have been interpreted to require judges to do things that are incompatible with their constitutional duties and, indeed, require them to violate the constitutional rights of those challenging assertions of government power. Independent judgment does not consist solely in applying previously formulated legal rules. If those previously formulated rules require judges to assist one party—the party asserting power over the other in the first instance—by creating justifications for legislation that have no foundation in the record, judges are not exercising independent judgment but, rather, are working to support a judgment that has already been reached. They are to that extent deferring to government officials’ beliefs that the challenged actions are constitutional. They are also depriving litigants of due process of law, which guarantees (among other things) impartial adjudication, free from bias. That the bias in question is the product of doctrine rather than the proclivities of individual judges does not make it any less troubling. Indeed, systematic bias is more damaging than individual bias, as it affects outcomes in entire classes of cases and undermines the legitimacy of the judiciary as an institution—an institution the authority of which depends upon its independence and impartiality. Given that the doctrines I have identified were created by (as McDonald describes them) “particular individuals wearing black robes,” I am surprised that McDonald is untroubled by them.

And I am complaining about all the above because the rule of law that the Constitution is designed to establish is of surpassing value. The Constitution is, as Frederick Douglass described it, a “glorious liberty document.” As a blueprint for a government that is designed to secure and enlarge individual freedom, it has been extraordinarily successful. I fear that McDonald’s approach would deprive Americans of even more of the blessings of liberty that have been placed out of reach as a consequence of judicial abdication—few (if any) consequential constitutional questions do not involve “debatable and contestable judgments.” Consistent judicial engagement, by contrast, would ensure that no rights secured by the supreme law of the land are disregarded by judges as a matter of course, even if they are disregarded by the people’s agents in the legislative and executive branch. Article III promises a place of redress for individuals who are unable to persuade their agents not to betray their trust, and judges promise to exercise their own discretion consistently with the instructions given them by We the People. Judicial engagement is a means of ensuring that these promises are kept.

Is Judicial Engagement Consistent With Original Meaning? Five Answers for Ed Whelan

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.

Five Replies to Evan Bernick

Lest we exhaust the valiant readers who have made it this far, I will reply as concisely as I can to Evan Bernick’s five responses:

1. Given that Bernick is an originalist, a commitment to originalism ought to be the top quality that he seeks in a Supreme Court justice. The fact that many cases “are resolved on the basis of constitutional constructions” makes it more, not less, important to ensure that those constructions are consistent with originalism.

Bernick says that he “do[es] not believe that the original Constitution requires a particular degree of judicial deference.” But his original essay, citing Philip Hamburger’s Law and Judicial Duty, posited that there exists a “constitutional duty of independent judgment,” and I pointed out that Hamburger explains that that duty of independent judgment required that judges treat a statute as binding unless it was “manifestly contrary” to the Constitution. Bernick offers no response.

2. Bernick “do[es] not deny” that “Alexander Hamilton, John Marshall, or anyone else believed that restraint”—i.e., the requirement of a clear conflict between statute and Constitution before a judge declines to apply the statute—“was desirable or even that they believed it to be a matter of judicial duty.” (I’ve dropped Thayer from Bernick’s quote, as I don’t rely on Thayer.) But it’s not just that Hamilton and Marshall “believed it to be a matter of judicial duty”; Hamilton explained in Federalist No. 78 why what we now call the power of judicial review rests on such a duty.

3. We don’t need to go far afield into epistemology to recognize that the duty of independent judgment is entirely compatible with a clear-conflict requirement. Again, Bernick’s source for the former (Hamburger) explains that the two went together.

4. In support of his claim that Judge Bork got “our Madisonian system precisely backwards,” Bernick states: “The notion that mere majoritarian might could ever trump individual rights was entirely foreign to Madison’s thought.” (His emphasis.) But it’s precisely because Madison knew that “majoritarian might” could in practice violate individual rights that he devised a constitutional system that dispersed majoritarian power in order to limit that risk.

Bernick strangely relies on an 1835 letter by Madison that discusses social-contract theory and what the majority may “rightfully” do. Bernick thus repeats the very mistake I identified: confusing an elementary constitutional proposition of American self-government with a moral proposition.

5. No, I’m still not sure that I have any clear idea what judicial engagement is, and the arguments for it continue to strike me as feeble. Does that mean that I think that Bernick is “necessarily trying to pull a fast one”? (His emphasis.) No, I will happily presume his sincerity. But by his own account, he believes that he has discretion to advocate whatever “constitutional constructions” advance his conception of the judicial “approach that [he believes] is best “calculated to effectuate the Constitution’s guarantees” (as he understands them). Given the power of motivated reasoning, the line between his own account of judicial engagement and a judicial engagement that is nothing more than camouflage for libertarian judicial activism is thin indeed, if not entirely illusory.

Bernick Leaves Important Questions Unanswered

Like Ed Whelan, I will also attempt to respond concisely to Evan Bernick’s main points addressing my initial comments on his piece:

1. Bernick once again equates judicial deference to judicial restraint. While such deference may be viewed as a form of restraint when used as a technique to scrutinize the constitutionality of laws, the broader form of restraint I and many others urge asks Supreme Court justices to ensure that individual rights are clearly based in the Constitution before enforcing them to trump majoritarian choices in a democracy. Such rights should at least be fairly derived from the text and history of the Constitution, and extended to meet modern conditions solely through the application of neutral, consistent, and reasoned legal principles rather than individual policy preferences.

2. I am certainly not offended by being lumped in with Justice Holmes as to the principle of judicial restraint (save, perhaps, the way I think he misapplied it in Buck v. Bell).

3. I’m not sure where Bernick got that I advocate subjecting “all” constitutional rights (I believe he meant rights when he referred to power) to deferential scrutiny. Alleged infringements of those rights clearly guaranteed by the Constitution do deserve some form of heightened scrutiny. And as I noted previously, a good argument can be made the Court overreacted to the Lochner experience in adopting a “rubber stamp” form of deferential scrutiny to scrutinize alleged infringements of economic liberty rights. Indeed, I do not endorse the Williamson decision itself. The facts reeked of special interest group capture of the legislature in that case, and at least meaningful rational basis scrutiny should have been applied (as the Court does in some other areas of the law where illegitimate government motives are suspected). But the more marginal an asserted right is in terms of being grounded in the Constitution, like a liberty of contract derived from a fair procedures clause, the more deferential the scrutiny should be absent special circumstances of the sort present in Williamson.

4. I agree that my case for judicial restraint is “essentially majoritarian,” save where the American people agreed to place limits on authorized exercises of majoritarian will through rights (or other provisions) they specified in the Constitution. Bernick, by contrast, asserts that “our Constitution is not primarily majoritarian, but, rather, individualist.” While making good libertarian rhetoric, I think this assertion would seem somewhat incomplete to the adopters of that compact. While distrusting and separating government power to safeguard individual liberties, the American people in fact were delegating it in the first place to achieve substantial collective goals such as a robust national economy and defense (“the general welfare” in addition to the “blessings of liberty”). Indeed, it is worth noting the Bill of Rights was not even in the original Constitution—being appended later to fulfill a campaign promise made to get the Constitution past a close ratification vote in some states. In sum, the Constitution is both majoritarian and individualistic, and it will not do to deify the latter feature and demonize the former.

5. Bernick is engaging in a lot of question begging. I have no problem with Hamilton’s theory that judges are protecting the will of the people when they enforce the Constitution over laws passed by Congress that conflict with it. But that just begs the question of what rights the people placed in the Constitution in the first place. To the extent Supreme Court justices go beyond a fair reading of the Constitution based on their own notions of the best constitutional policy rather than the result neutral and reasoned principles would support, to that extent they are imposing their own will rather than that of the people.

6. To suggest judges are applying “independent judgment,” understood to mean applying the law in a neutral and principled way divorced from their own “beliefs and desires” just because they are applying heightened scrutiny to a given law (i.e., demanding more proof of an asserted government interest or how well a law is tailored to achieve it), is to blink reality. For instance, has Bernick ever attempted to find a neutral principle that reconciles the varying interests the Court has found to be, or not to be, compelling or important in different areas of constitutional law when it is applying strict or intermediate scrutiny? Or how and why the Court employs different analytical tools in varying cases to assess the degree of required fit between a law and the asserted interest, such as least restrictive alternatives, over/underinclusivity, effectiveness of the law, etc.? From my attempts to synthesize lines of decisions in various areas of the law for purposes of teaching or scholarship, I can attest it is often extremely difficult.

 7. The modern Court is displaying “systemic bias” by applying deferential rational basis scrutiny to some asserted rights but not others? Really? As noted, all asserted constitutional rights are not equal. Some clearly have a stronger legal basis in the Constitution than others (think “no law abridging the freedom of speech” versus a substantive “liberty of contract” found nowhere in the Constitution). Some are considered core rights grounded in the plain text or history of that document, others more arguable and contestable. And the Court’s way of choosing to apply heightened versus deferential scrutiny to an alleged infringement of a particular right is often a simple and proper acknowledgment of that fact.

8. Bernick concludes that “[c]onsistent judicial engagement … would ensure that no rights secured by the supreme law of the land are disregarded by judges as a matter of course….” Once again, he is ignoring the huge elephant in the room—how we determine what those rights are and the appropriate role of unaccountable judges in this process. Indeed, Bernick offers no response whatsoever to this central objection of my initial commentary. His entire thesis places the cart before the horse. And worse, by urging judges to “secure and enlarge individual freedom” without addressing this key question, Bernick seems to be inviting judges, in the words of Hamilton, to exercise the Will reserved to the people and their representatives rather than the Judgment appropriate for the judiciary.