Libertarian History/Philosophy

Conservatives, Progressives, and Judicial Deference

A reply to National Review's Ramesh Ponnuru.

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On Tuesday I noted a piece in National Review which urges conservatives to reject the "libertarian constitutionalism" described in my new book Overruled: The Long War for Control of the U.S. Supreme Court. According to National Review, "conservative judicial deference" beats libertarian judicial engagement because the conservatives are the ones following in the footsteps of the founding fathers. In response, I observed that today's legal conservatives actually owe much more to the turn-of-the-20th century Progressives than they do to folks like James Madison and John Marshall.

Writing yesterday at National Review, Ramesh Ponnuru took issue with my genealogy. "The concept of judicial restraint goes back much further than to the progressive era," Ponnuru declared.

But I never claimed otherwise. Of course there was a debate over judicial restraint during the founding era (see my reference on Tuesday to the Jefferson-Marshall feud for a small taste of it). There was also a raging debate over judicial restraint during the period immediately following the Civil War and the ratification of the 14th Amendment, as I detail in Overruled's first chapter.

My book's historical argument about genealogy goes like this: The majoritarian version of judicial deference championed by Progressive thinkers and fellow travelers such as James Bradley Thayer, Oliver Wendell Holmes Jr., Felix Frankfurter, Learned Hand, and Hugo Black had a massive and direct influence on the modern conservatives who advocate a similarly majoritarian brand of judicial deference, such as the late Robert Bork.

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According to Ponnuru, "Root argues that judicial restraint, though many conservatives have championed it for decades, actually has progressive roots. I take it that this argument is meant to suggest that conservatives should be suspicious of the idea." Ponnuru must be unaware that Robert Bork himself proudly owned up to the decisive influence that Progressive legal thinking had on his own intellectual development. Among other things, Bork repeatedly credited his fellow Yale law professor Alexander Bickel, with whom Bork co-taught a class on the Bill of Rights, as the thinker who convinced Bork that substantive due process was wrong and that the Supreme Court engaged in heinous judicial activism in Griswold v. Connecticut.

So who was Bickel? He was a former clerk to Progressive Justice Felix Frankfurter and an eloquent and influential proponent of Progressive judicial deference in his own right. In his 1962 book The Least Dangerous Branch, for example, Bickel criticized judicial review as a "deviant institution" that should rarely be used against the democratically accountable branches of government in our majoritarian society. "When the Supreme Court declares unconstitutional a legislative act or the action of an elected executive," Bickel wrote, "it thwarts the will of the representatives of the here and now."

That's stronger stuff than anything that ever came from the pen of Chief Justice Marshall (including Marshall's famous nod to judicial restraint in Fletcher v. Peck). It is, however, precisely the sort of stuff that we find again and again in the judicially deferential writings of Progressive heroes like Holmes and conservative heroes like Bork. But as I said earlier, don't take my word for it. Bork repeatedly acknowledged his own Progressive DNA.

In the introduction to Overruled I write that the debate over the merits of judicial deference is "a contest that cuts across the political spectrum in surprising ways and makes for some unusual bedfellows." Like it or not, the Progressive-conservative legal connection is a clear example of one such coupling.

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  1. The procedural versus substantive due process issue is a very difficult one. Conservatives are right to be skeptical of substantive due process since it has mostly served as an excuse for Progessive judges to enforce progressive policies the public doesn’t want. A lot of what Bork and those like him say is in direct response to the incredible judicial overreach of the 1960s and 70s. Substantive due process is all fun and games until a federal judge takes over the local school system and raises your taxes without your consent.

    On the other hand, however, our commitment to procedural due process over all else has helped to make our criminal law system incredibly unjust. Our entire criminal system is based on procedural protections. Such protections are great and certainly necessary but there is more to justice than procedures. In our system, you can be guilty of the most heinous crime and walk due to a procedural defect in your trial. At the same time you can be completely innocent but have absolutely no recourse if you were convicted using all of the right procedures. Unless you can prove outright criminal misconduct on the part of the prosecutor, fuck you if you are innocent because you are only entitled to procedural protections not justice.

    There is a place for both forms of due process. Judges however tend to use procedural due process as an excuse for ignoring the truth and substantive due process as an excuse for ignoring the law.

    1. Judges however tend to use procedural due process as an excuse for ignoring the truth and substantive due process as an excuse for ignoring the law.

      Yeah, the fundamental problem of putting people in decision making positions is that they are people. There are days when I think I could write a program that would be limited to applying the law as written and prioritizing truth over everything else. But, the same failing applies. People write programs.

  2. I would much rather risk judges using judicial review to strike down good legislation than keep the status quo of judges rubber stamping bad legislation.

    1. The entire 1960s and 70s experience with school desegregation shows the dangers of judges striking down laws too easily. The problem is they don’t just strike down laws. They decide law suits. Striking down the law is just the first half of it. The second half is crafting a remedy for the harm the law allegedly did. And that usually is the judges making his own new laws that no one got to vote on or any input in creating.

  3. The thing that has struck me reading Root’s book, so far, is that, even if conservatives are wrong with regard to restraint, they at least have a coherent view on the issue. Like libertarian constitutionalists, they at least have a consistent argument as to the standards judges should apply. In contrast, the judicial left seems to apply whatever standard they feel like applying based on their policy goals.

    1. Tell me Bill, what is Root’s approach? I can’t seem to find one other than, “people should be free”. That is a great sentiment and all but it is also a vague as hell and leaves all kinds of leeway for judges to do mischief. Moreover, there has to be deference for the will of the voters and the electoral process at some level. We cannot expect judges to strike down every bad law. Even if we could depend on judges to do it, the voters will never tolerate it. If you tell the voters “fuck you, you can’t do that” enough times, the voters will just take away the power of the courts and do it anyway. That would be a horrible result. For that reason, there must be a limit to judicial power. The larger problem with Roots idea is that he doesn’t seem to have a very good idea of what that is. And worse still, he doesn’t seem to understand that it could be a problem. Root never considers that too much judicial activism could backfire and cause the public to just restrict or reject judicial oversight altogether.

      1. What’s your jurisprudence, John?

        1. My view is that the Constitution means whatever its framers intended it to mean. That meaning shouldn’t change based on new circumstances or views of judges. The document was not meant to be a shield against every bad law or as a way for us to avoid our responsibility of defending our Republic by giving judges absolute power.

          1. How does your view play into the doctrines of substantive and procedural due process? Is it some kind of balancing act?

            1. No. The answer is that the scope of what substantive due process is in the document is whatever you can determine was intended by the people who wrote it. Substantive due process may not be in the document. There is nothing that says it has to be. It may be that we have to fix our laws ourselves.

              I don’t see how the Constitution can now be read to prohibit laws that were on the books at the time it was passed. Clearly, those laws are consistent with what the framers intended or the debates and enactment of the Constitution would have made it clear they were not.

              What people like Root don’t get is that standards can go both ways. it sounds fucking great to say the 4th Amendment creates a right to privacy that makes it impossible to ban birth control or sodomy even though the people who wrote it thought sodomy should be a crime. Times change you know, except that they don’t always change for the better. If contemporary standards mean there is a right to sodomy, why can’t the threat of terrorism and the advancement of technology mean the government can’t monitor your email? I mean it only says “reasonable”. I find that idea appalling. But if the Constitution means whatever current standards have evolved to say it means, I don’t see how judges can’t disagree with me.

              1. I think there is much to be said for the amendment process that the Founders created. I think you’re right that judges have corrupted the meaning of the Constitution to suit their policy preferences instead of letting the people amend the Constitution to better reflect changing societal preferences.

                What I have the hardest time accepting is that, despite perhaps being the most libertarian document ever put into practice, the Constitution is decidedly very unlibertarian in a myriad of ways, such as Article II’s open-ended declaration that the President has “the executive power” (there being no real qualifier as to what this is).

                I still want to believe that there are certain individual, human rights that cannot be abridged, even if the vast majority of the country wishes them so. But perhaps my reliance on judges to protect them is misplaced.

                1. The Constitution is a very libertarian document at the federal level. The federal government can’t do shit under the Constitution as it was intended. It is however largely silent on the states. It just says they can’t deprive people of due process and have to maintain a democratic form of government. The whole assumption behind it is that the states have general criminal jurisdiction and can pretty much do whatever the hell they want consistent with democracy and due process.

                  An issue like Sodomy isn’t even contemplated by the constitution. No way in hell would the feds have the power to even speak to such an issue because it is not interstate commerce or under any of the enumerated powers. Unless banning it is inconsistent with due process, the states can do what they want. How exactly does the right to be secure in one’s home from government search mean the state can’t ban sodomy? I don’t see it. Yeah, states shouldn’t ban it. But once we went down the road of torturing the Constitution to keep them from doing it, I think the document was done.

                  Everyone on here rightfully hates how the Courts stretched the Commerce Clause beyond all reason. How then was it doing the same thing to the 4th Amendment any better just because we liked the result?

                  1. So I’m assuming you don’t much care for the incorporation doctrine?

              2. I don’t see how the Constitution can now be read to prohibit laws that were on the books at the time it was passed. Clearly, those laws are consistent with what the framers intended or the debates and enactment of the Constitution would have made it clear they were not.

                Or the framers’ prejudices may not have considered a particular instance of the principles they were embodying in the Constitution.

                1. Sure Bill. They just didn’t understand what it meant. Lets give judges the power to decide what really embodies the “principles of the Constitution”. Good luck with that.

                  I will never for the life of me understand why you guys are so eager to turn your freedoms over to the whims of judges.

                  1. You don’t think our understanding or perception of the world can differ from the framers? You don’t think the 14th Amendment fundamentally changed the implications of the Consititution?

                2. Are you referring to state/local laws, or federal laws? The Constitution does allow for more flexibility at the state level. As far as I’m concerned, laws that punish people for doing things where they don’t harm anyone, are infringing on our freedoms.

      2. Tell me Bill, what is Root’s approach?

        Ultimately, John, I’d say you’d have to consult Root for that. As I’ve noted, I’m in the process of reading it.

        That said, my impression seems to be that his position is that the burden of proof rests on the government to establish constitutionality. To me, that’s not unreasonable. What I’ve read of the Federalist Papers made pretty clear to me that they were a lot more concerned with thwarting the imposition of laws by momentary majorities than they were with allowing those majorities to exercise their will. To say, that the law should bend to popular will because popular will won’t tolerate the law standing in its way risks throwing out constitutional protections entirely.

        1. It sounds reasonable except that it avoids and begs the more important question of “what is Constitutional”? If everyone shared my view of the Constitutional, I would be happy with such a standard. The problem is not everyone does.

          The result of placing the burden on the government is only as good as the judges’ view of the Constitution. If the judge views the Constitution as a living document that is there to be interpreted in whatever way furthers what the judge sees as “social progress”, putting the burden on the government just gives him more power to produce bad results.

          Root seems to ignore the reality that sometimes striking down a law is bad. Some laws protect us. Not every law is an instrument of oppression. It all depends on the law and the circumstances. For example, suppose a state legislator passes a law requiring due process for all students in state colleges accused of misconduct before they are punished. A progressive judge looking at that law would happily put the burden on the government and strike down the law as infringing on the rights of victims.

          Sometimes the government does the right thing and protects someone under attack. Root seems to not understand that always and forever placing the burden on the government makes it easier for ideological judges to stop good things.

          1. If the judge views the Constitution as a living document that is there to be interpreted in whatever way furthers what the judge sees as “social progress”, putting the burden on the government just gives him more power to produce bad results.

            But, that doesn’t particularly seem to be what Root argues (and to be fair, so far in the book, he hasn’t “argued” anything). The assumption that the Constitution does not give the government the authority to infringe on individual liberty unless demonstrated otherwise is pretty value neutral. That is to say, it doesn’t particularly point to any particular direction of “social progress”. It just says you have to show you’re justified pointing a gun at people.

            And the example you cite doesn’t seem to work, at least to me. In that instance, the government is only restricting itself. Unless you want to argue that the government is not allowed to restrict itself, the “victim’s rights” argument falls flat.

            1. The assumption that the Constitution does not give the government the authority to infringe on individual liberty unless demonstrated otherwise is pretty value neutral.

              To you and Root it does. To others it is anything but. One person’s liberty is another person’s oppression.

              And the example you cite doesn’t seem to work, at least to me. In that instance, the government is only restricting itself. Unless you want to argue that the government is not allowed to restrict itself, the “victim’s rights” argument falls flat.

              it doesn’t work for you because you don’t see liberty the way a Progressive does. Ultimately all Root is saying is “I want the courts to be more willing to strike down laws and do so in the name of liberty and use the courts as a way to enact the sort of government I want but the public won’t give me”. That sounds so nice. In practice, once you endorse the idea that it is okay for the courts to enact the kind of government they want over the objection of the public, you have lost he debate. You and Root like liberty and have a very conventional and restrictive view of what Liberty means. Good for you. So do I. Other people don’t view liberty as much of a priority or if they do have pretty nasty definitions of what it means. If it is okay for Root to see his vision enforced by judicial fiat on the public, why is it wrong for them to try and do it with theirs?

              1. One person’s liberty is another person’s oppression.

                Only if that other person is Tony. I never knew you guys were soulmates. 🙂

                In practice, once you endorse the idea that it is okay for the courts to enact the kind of government they want over the objection of the public, you have lost he debate.

                Except the public has endorsed the idea. By assigning the constitutional protection in the first place. That they don’t particularly care for that instance of that law doesn’t invalidate the assignment of that protection.

                1. I don’t think it did. The courts have been largely hated for some of the things they have done. Regardless, who cares if the public did? That doesn’t make it a good idea or any less dangerous of a power to give the courts.

                  1. Regardless, who cares if the public did? That doesn’t make it a good idea or any less dangerous of a power to give the courts.

                    If that’s the case, you might as well endorse mob rule. One of the very points of the law is it’s universality. If the public gets angry that protections they want for themselves gets applied to people they don’t like, that’s not the problem with the law, but with the public.

                2. Only if that other person is Tony. I never knew you guys were soulmates. 🙂

                  You’re only now figuring that out?

        2. “That said, my impression seems to be that his position is that the burden of proof rests on the government to establish constitutionality”

          That is exactly how it should be.

          Every legislator takes an oath to uphold the Constution when they take office. When they pass a law, they are therefore asserting that the Constiuttion authorizes them to do so.

          In any lawsuit defending a particular law or regulation, the government is making an affirmative condition claim – a claim that the Constitution authorizes the government to do what they have legislated it to do. The burden of proof is always on those making the affirmative condition claim. No one is required to prove a negative. The negative prevails by default unless those claiming the affirmative can prove it to be so.

          Try winning a college debate by proposing that the Klingons are hiding somwhere within Saturns’ rings and then proclaiming that you automatically win the argument unless those who disagree can prove you wrong. It does not work that way within any rules of debate and there’s no reason for it to work that way in court either.

          1. Okay Gilbert. So when a legilsture passes a law to protect property rights or due process rights or some other positive thing, you are okay with telling Progressive judges it is okay to give the government the business and strike down the law if they can find a reason to do so?

            I am not.

            And no one is being required to prove a negative. Proving this or that law is outside the powers of government is not proving it a negative. It is just proving it is something not in the list of powers. You don’t have to prove a negative to show that Wickard was decided wrong. The plaintiff didn’t prove their wheat was not interstate commerce, they proved that it was not personal goods not commercial ones. The whole “you can’t prove a negative” thing is a complete fucking red herring.

            1. Property rights are already protected by the 5th Amendment.

              As properly enforced that right is unconditional and absolute against all levels of government in all circumstances.

              “Proving this or that law is outside the powers of government is not proving it a negative.”

              It is putting the burden of proof on the party taking the negative CONDITION side of the argument. The burden of proof is always on those asserting the affirmative CONDITION. There is nothing “red herring” about it.

              The only red herring is you claiming that shift of burden of proof somehow gives judges more leeway to make up stuff up regarding what the meaning of the Constitution is than they already do. They are not the slightest bit impeded from do so regardless of which party arguing before them bears the burden of proof.

              1. Property rights are already protected by the 5th Amendment.

                Not really. They just have to give you due process before they take it. They don’t even have to give you compensation if they call it a fine or a tax.

                And you either can’t or won’t understand what requiring proof of a negative is, so there is no point in trying to make you.

                As far as your last paragraph, you almost understand my point. You are correct, judges often torture the law to get the results and policies they want. That is why giving them more power to strike down laws is a bad idea. It gives them more power. Like Root, you can’t seem to grasp or admit that striking down a law can be just as bad for liberty as upholding one. It all depends on the law.

                1. “And you either can’t or won’t understand what requiring proof of a negative is, so there is no point in trying to make you.”

                  Not agreeing with your characterization of it does not constitute not understanding it.

                2. That is why giving them more power to strike down laws is a bad idea. It gives them more power”

                  No it doesn’t.

                  Any judge can strike down or uphold any law he wishes right now according to his own wishes and Constitutional interpretations regardless of which party is supposed to bear the burden of proof.

                3. Not really. They just have to give you due process before they take it. They don’t even have to give you compensation if they call it a fine or a tax.

                  Gee, John, property rights, the one area of the law that has been governed by judicial restraint since at least the 1930s has made a complete hash of individual liberty and a mockery of the intent of the framers. Yeah, that’s something we should expand to the totality of our jurisprudence!

              2. It is putting the burden of proof on the party taking the negative CONDITION side of the argument. The burden of proof is always on those asserting the affirmative CONDITION.

                John feels that proving something is not authorized by the Constitution is not proving a negative, though proving a negative is by definition proving a not.

                Pointing that out is a guaranteed way to end a conversation with him, because he runs away like a little bitch whenever someone shows the fallacies in his arguments.

          2. That said, my impression seems to be that his position is that the burden of proof rests on the government to establish constitutionality.

            Semper necessitas probandi incumbit ei qui agit

      3. I should also point out that he notes the inconsistency of a lot of post-New Deal jurisprudence in treating some constitutional protections as more equal than others.

  4. “It sounds reasonable except that it avoids and begs the more important question of “what is Constitutional”? ”

    Whatever James Madison had to say about it – he wrote it in the first place. That makes him the primary authority.

    On that basis all that progressive crap about what “general welfare” means would go right out the window.

  5. I don’t believe it’s practical to have a bright-line principle as to judicial restraint. Judicial review needs to be exercised delicately in a republican form of government, but there’s no way to say exactly when it’s appropriate and when it’s not. In that sense, I favor judicial restraint, but not when it’s merely an excuse for letting politics decide constitutional questions.

    Also, it’s important not to conflate judicial review and constitutional interpretation. One can favor judicial restraint while still adhering to a strict constructionist interpretation. That’s where the judicial interventionism of “substantive due process” fails–the term is nonsensical on its face and, even if it wasn’t, it clearly runs afoul of the intent of the drafters of the 5th and 14th Amendments.

  6. Every nominee to the SCOTUS (or any federal court for that matter) should be asked the following question:

    The 9th amendment states “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” Can you name some of those rights?

    I doubt few nominees would actually name any, showing their statist tendencies. Then they should be pressed as to why they cannot name any since our founders clearly believed there are “others retained by the people.”

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