The Volokh Conspiracy
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George Will had a column in yesterday's Washington post on judicial restraint and the Constitution, and another round of the debate over the proper role of judges has ensued. I think my friend Ed Whelan's typically intelligent and thoughtful, if perhaps a bit caustic, reply, George Will's Mistaken Critique of Judicial Restraint, deserves a more extended consideration than is possible on Twitter. His comments are indented; mine are not.
1. I'm also against conservatives being "lazily comfortable with rhetorical boilerplate"-on any topic. But the proposition that some conservatives are "lazily comfortable with rhetorical boilerplate in praise of 'judicial restraint'" itself says nothing about the merits of the concept of judicial restraint.
Of course, this is right, but Will is not talking about Whelan here, who is among the most thoughtful defenders of "judicial restraint" as something other than what he calls "judicial passivism." Historically, "judicial restraint" was typically invoked precisely to urge judicial passivism. Whelan is free to revise, update, and repurpose the phrase "judicial restraint" if he likes. But my own sense is that his distinction is largely unknown to many politicians who invoke judicial restraint (or other bromides like "strict construction" or "not legislating from the bench"). They probably don't know what any of these words mean because they are "lazily" invoking rhetorical boilerplate that does not always, or perhaps even often, mean what Ed Whelan now defines it to mean.
Did Judge J. Harvie Wilkinson intend Whelan's definition of judicial restraint when he criticized the Court's decision in DC v. Heller as "activist" and when he defended the Chief Justice's decision in NFIB v. Sebelius as properly restrained? The necessary implication of this praise was that Justices Kennedy, Scalia, Thomas, and Alito were being activist in finding a judicially-enforceable limit on the Commerce and Necessary and Proper Clause powers of Congress. Is Judge Wilkinson not representative of the "old school" defenders of judicial restraint, who use that term as it once was widely used, and is still used by many? Not only is Wilkenson a distinguished (and charming) appellate court judge, he was on several short lists for the Supreme Court, and is the author of a very recent book defending the "old school" version of judicial restraint, Cosmic Constitutional Theory. So J. Harvie Wilkinson is no slouch, and his views used to be the dominant strain in conservative circles.
I am old enough to remember when Lino Graglia's version of judicial restraint was the wholly dominant vision of the role of judges in the Federalist Society. Although Graglia grudgingly allowed for judicial review in principle, he used to delight in saying that there is no law that Congress would actually pass that would justify judicial negation. He was a mainstay at every national student symposium, and he was no originalist. Wilkinson is of that school. Times have changed, and not just among "libertarians."
It is my sense that NFIB v. Seblius created a great disturbance in the force of the conservative legal movement and in conservative politics generally.
Indeed, I think Whelan's own effort to distinguish "judicial restraint" (good) from "judicial passivity" (bad) is a reaction to this disturbance. In years past when folks like Lino Graglia and Robert Bork ruled the roost, such a distinction would not have been needed. As a result of the change in the intellectual and legal battle space, it surely is today, and it is to Whelan's credit he attempts to provide one. But I can hear Lino saying, "well, that sounds like Brennan to me!"
As I've explained before, most contemporary conservative proponents of judicial restraint are also proponents of originalism and see judicial restraint merely as supplementing originalist methodology when that methodology fails to yield a sufficiently clear answer to a constitutional question. These proponents of originalism and judicial restraint aim, in other words, to have judges enforce the rights, and limits on power, that the Constitution, fairly construed, sets forth, and to prevent judges from inventing rights and powers that are not in the Constitution. I don't see how any conservative could object to that approach (though I of course recognize that there is plenty of disagreement among originalists on what some provisions of the Constitution mean).
This represents the generational shift I was discussing. J. Harvie Wilkinson, Lino Graglia, and even Robert Bork would strongly disagree. Despite professing to be an originalist in his book, Bork was a majoritarian and moral nihilist (the two are related). Repurposing the same term, "judicial restraint" that guys like that injected into post-New Deal conservatism, as Whelan insists on doing, is to invite confusion not clarity.
Frankly, I don't think Whelan's proposed distinction between "judicial restraint" and "judicial passivity" has permeated the legal culture. For most, "judicial restraint" simply equals "judicial passivism," as it has for 60+ years. If that is right, and if judicial passivism is bad as Whelan agrees, then it invites passivism for politicians to seek judges who pledge to be "restrained." Because those judges will be passive (when they care to be).
As Will would surely acknowledge, it's very possible for someone deeply steeped in American history and political theory to be a strong advocate of judicial restraint: to believe, say, that the "zest for judicial decrees to supplement or even supplant legislative policy-making, and [a] corollary contempt for representative institutions," is a mark of "contemporary American authoritarianism"; to recognize that there is an inherent "tension between judicial review-the invalidation of laws enacted by elected representatives-and popular government"; to think it praiseworthy for a court to have "the courage to let [an] injustice stand rather than resort to judicial overreaching …., the courage to be judicial and self-denying rather than political and self-indulgent"; to lament that "many Americans rather like courts sparing them the rigors of democratic responsibility for social policies"; and to decry that "judicial imperialism" means that "democracy is so debilitated that Americans no longer seem to find [rule by judges] irksome."
For all of the quotes above in praise of judicial restraint are from George F. Will himself (see citations in point 1 here)-before, of course, Will in recent years took what Matt Franck has called his "strange turn … toward endorsing judicial activism."
There is much I agree with in those old quotes by George Will, but there is little doubt that he now sees a greater danger than he once did from the judicial passivism that he correctly associates with the term "judicial restraint." After all, he used to use the term himself so he is well aware of its connotation.
That a conservative public intellectual as deep as George Will has changed his mind on this issue is very strong confirmation of my sense that the political and intellectual zeitgeist of the conservative movement has shifted markedly. Will should not have to preface his current stance with some confession of prior error. Franck's derogatory comment remains within the unhelpful restraint/activism dichotomy that the newer thinking is supplanting.
But, in the abstract, I doubt Will's view differs much from Whelan's summary above of what he is calling judicial restraint. By that standard, Franck does not seem to realize that Ed Whelan too has taken a "strange turn" towards judicial activism. For Whelan insists that "judges enforce the rights, and limits on power, that the Constitution, fairly construed, sets forth," and doing this was exactly what Arthur Schlesinger Jr, who coined the term, called "judicial activism."
True, Schlesinger was not necessarily using the term pejoratively when he contrasted the justices he associated with the Yale school of legal realism with those he called the Champions of Restraint, who coincidentally or not were mainly from Harvard. Schlesinger was a Harvard man himself, but above all he was a "court historian" of the New Deal who in this magazine article was kissing the asses of all the New Deal justices about whom he was glowingly writing, as they were about to do battle with a newly-elected Republican Congress. At that moment, judicial restraint did not look so good as it once did, so as is their wont, some Progressives rapidly abandoned it. Those who didn't eventually became the political conservatives' judicial heroes
But judicial activism was clearly a pejorative to those conservatives like Graglia, Bork, and Wilkinson who completely bought into the Progressive vision of the judiciary expounded loudly by Teddy Roosevelt, Woodrow Wilson and TR's favorite judge, Oliver Wendell Holmes, Jr., a Harvard man like his former-colleague James Bradley Thayer who pushed the Progressives to adopt restraint as their tactic. TR had nominated Holmes to the Court when he was president, and praised him by name during his 1912 presidential campaign as the Progressive Party candidate. In that campaign, Roosevelt railed against the "tyranny of the minority" being facilitated by judges who were thwarting the "will of the majority."
So, when Chief Justice Roberts, another Harvard man, reflexively cites Holmes's dissent in Lochner, he is, knowingly or not, invoking a Progressive legacy that rejected our so-called "horse and buggy" Constitution in favor of a "living" one. Yes, the same guys who elevated the "Bakeshop Case" to the level of Dred Scott were the ones who invented the Living Constitution.
It really wasn't until Ed Meese came to Washington that originalism was reinserted into conservative thinking. But Meese's heroic reassertion of originalism introduced a tension between enforcing original meaning and judicial restraint. Over the years, as originalism has assumed an increasingly powerful hold on the legal culture, this tension has increased to the point were one must either reject judicial restraint, or attempt to redefine it so it is compatible with originalism. That is what Whelan is proposing, but at this point, it is more a wish than a reality. Language is stubborn, and the original meaning of judicial restraint is not so easily displaced.
2. Instead of the traditional paradigm of judicial activism versus judicial restraint, Will endorses Barnett's proposed new paradigm of Lockeans (good) versus Hobbesians (bad). (As I understand it, this new paradigm isn't intended as just a relabeling of the traditional categories-though the Washington Post editor who headlined Will's piece "The Problem Is Judicial Restraint" in the print version seems to have missed that point.)
Will explains that Lockeans, in Barnett's paradigm:
(a) "favor rigorous judicial protection of certain individual rights-especially private property and freedom of contract-that define and protect the zone of sovereignty within which people are free to act as they please";
(b) "say the Constitution, properly construed and enforced by the judiciary, circumscribes the majoritarian principle by protecting all rights that are crucial to individual sovereignty";
(c) "say the Constitution codifies the Declaration of Independence, which, in its most neglected word, says governments are instituted to 'secure' natural rights";
(d) "say that our natural rights, only some of which are enumerated in the Constitution (the Ninth Amendment: 'The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people'), place on government the heavy burden of justifying restrictions of these rights" (emphasis in original); and
(e) argue that "a nonpassive, properly engaged judiciary bears the burden of saying when the government has not justified its restrictions as necessary and proper."
So, if I'm understanding correctly: Lockeans believe, under proposition (a), that some nontextual "freedom of contract" deserves "rigorous judicial protection"-indeed, at least in Will's understanding (or so it would seem from the "especially"), even greater protection than rights that are set forth explicitly in the Constitution. Further, under proposition (b), the judiciary has free rein to determine what rights "are crucial to individual sovereignty" and is duty bound to protect such rights-again, whether or not there is any mention of them in the Constitution. If proposition (c) is correct, I guess that would mean that slavery was unconstitutional ab initio. Proposition (d) appears to read (misread, I would contend) the Ninth Amendment as a font of substantive rights. And proposition (e) somehow reads into the Constitution a presumption of unconstitutionality of all governmental action, state or federal.
My point in this (relatively) short post is not to try to argue that all of these propositions are wrong (though I believe they are), but merely to highlight that each is, at the very least, highly contestable.
Whelan is collapsing several different ideas presented cogently by Will, possibly due to a self-imposed time pressure to get some response to Will out the door as soon as possible. There is way too much here to take on in a what is now already an overly long post, but I have offered an extensive evaluation on how the competing theories of the original meaning of the Ninth Amendment line up with the "crucial" available evidence. (See my The Ninth Amendment: It Means What It Says.)
Whelan links to a 2006 blog post where he took issue with a Wall Street Journal article of mine that invoked the Ninth Amendment. In that post he distinguishes between the "libertarian" and "judicial restraint" interpretations of the Ninth Amendment, but this is to commit two category mistakes. (Can you spot them?) What's at issue is simply the original meaning of the text, however that might fall out politically. And, on Whelan's own theory, if my interpretation of that meaning is right, it cannot be judicial activism to give that text of the constitution a legal effect.
Blog posts are longer than Tweets, but there are some things it takes at least a law review article to explain. To date, Whelan has not responded to my examination of the evidence in the Texas Law Review. Yet if Whelan is wrong about the Ninth Amendment, then "securing" the inalienable rights retained by the people is "in the Constitution." And that implication may well be driving his originalist priors on what the Ninth Amendment must mean. It may be revealing that Whelan chose to label his reading "the judicial restraint" interpretation.
Recently, I heard Whelan question the good faith of "libertarians" who profess to be originalists. (I did not take him to be referring to me, by the way, when he said this.) That is always possible. But it is also possible that one can be so wedded to judicial deference—perhaps because of one's deep conviction that certain cases like Roe have been wrongly decided in the past—that one's originalism can be distorted as well. This is not to say that Roe was correct on originalist grounds. It is only to say that "judicial restraint" has been used as an "arrow against all tyrants" that avoids the need to do the hard originalist work by simply saying that judges should defer to the majoritarian legislatures. That is why politicians and pundits love it. It allows them to condemn Supreme Court decisions invalidating a law they like without having to do the hard work of showing why the decision was wrong on the merits. All they need do is point to the fact that unelected judges are thwarting the will of the democratically-accountable legislature. Easy peasy.
But I hasten to add that for nearly 30 years, I have denied that the Ninth Amendment gives "the judiciary . . . free rein to determine what rights" we have. The whole focus on rights trumping power is a post-Caroline Products approach: elevate some rights or "preferred freedoms" over the others and enforce them with "strict scrutiny." Let all other liberty—most particularly economic liberty—go entirely unprotected. But "securing" the inalienable rights retained by the people did not and does not require justices to selectively elevate some rights to the point where they necessarily "trump" legislative power.
Rather, as Will notes, the judiciary should be examining whether laws are both "necessary and proper" (the standard provided in the Constitution's text) to carry into execution the enumerated powers of Congress (and are), or are within the unenumerated police power of the states. From the Founding, these unenumerated powers, though broad, were not considered to be unlimited. The proposition that state legislative power is inherently limited because the people cannot be presumed to have consented to grant legislatures so tyrannical an authority was well explained by Justice Samuel Chase in Calder v. Bull. Later, Thomas Cooley and Christopher Tiedeman sought to examine and identify those limits.
Whelan is free to adopt another view—perhaps that of James Iredell. But this is a long and honorable debate among constitutional conservatives that was not invented by modern day libertarians. If anything, libertarians merely rediscovered and revived the traditional approach that the Progressives had condemned to the dustbin of history. Indeed, this approach had been so thoroughly excised from legal education that it has taken some scholarly work to rediscover it. And some judges who were educated by the Progressives or their students had either never heard of it before or have bought the Progressives' myth that this was all the invention of 19th and 20th century advocates of laissez-faire.
3. I confess that I don't understand what Will expects Republican presidential candidates to do with Barnett's vocabulary. I don't think that we'll see candidates accusing each other of being Hobbesians. And if they try to go deeper into the Lockean propositions, there are lots of traps that await them. Do we want to make it easy for Hillary Clinton, or whoever the Democratic candidate will be, to allege that the Republican candidate will appoint justices who will repeal the New Deal and strike down civil-rights laws? I'd be much happier if Republican candidates instead would simply say that they want justices who will enforce the rights and limits that are in the Constitution and not make up rights and limits that aren't in it.
I think Whelan is reading Will's piece uncharitably. Will was offering an analysis of first principles within the constraints of a newspaper column for which he ought to be praised. He was not providing presidential candidates with a "vocabulary." There was a day, however, when even presidents were well educated enough to know the difference between Locke and Hobbes, and to know which vision of government both the Declaration of Independence and our Constitution embodied.
In my lecture, and the article on which it was based, I say that the Lockean v Hobbesian world views are deeply rooted in today's politics, as I believe them to be. But, though some Straussians may deny it, our founders were Lockeans who believed that "first comes rights and then comes government" and not Hobbesians who believe that "first comes government and then come rights," and our Constitution reflects that. The Declaration, which Will also cites, establishes this.
4. Will closes his piece by contending that "reflexive praise of 'judicial restraint' serves the progressives' Hobbesian project of building an ever-larger Leviathan." I think it far more likely that rhetorical camouflage for liberal judicial activism-which, alas, is what libertarian talk of "judicial engagement" and attacks on judicial restraint furnish-will have that effect. I'm no great fan of the demos, but I place much higher hope in the good sense of the American people than I do in the products of elite American law schools who are all too eager to impose their progressive vision on us.
I close this overly long blog post on a note of complete agreement that "American law schools [are] all too eager to impose their progressive vision on us," and that this needs to be resisted by conservatives and libertarians alike. This is why I am almost always an ally of Ed Whelan and believe he does yeoman's work. Reasonable people can disagree about whether good ideas can be misused. But the hegemony of law school progressives needs no validation from the handful of libertarians like me who have managed to make it through the door. My views on judicial engagement are not seized upon by Progressives to justify their activism. When the Institute for Justice and I were attacked for hatching a "constitution-in-exile" conspiracy they seemed to consider our work a threat to their project.
But judicial restraint in its historic sense of judicial passivism is not a good idea that has been abused. Judicial restraint is a bad idea. It is a bad idea when progressive judges selectively use restraint to uphold statutes that gut the gun rights of Americans. It is a bad idea when conservative judges selectively use restraint to uphold the constitutionality of nationalizing the relationship between Americans and their doctors. And it is this bad idea that George Will and others who advocate judicial engagement are urging Republican presidential candidates to reject.
Update: My Texas Law Review article was, in part, a response to this piece by Professor Kurt Lash. Our debate carried over to the Stanford Law Review, with a piece by Kurt here, and my reply here. I should stress that, for all our disagreement, Professor Lash accepts my conclusion that the "rights . . . retained by the people," included (but in his view was not limited to) the natural rights of individuals and, like me, he too rejects the previous views expressed by Russell Caplan and Thomas McAffee that deny this claim. I respond to both Caplan and McAffee in my Texas piece. So there is much more important agreement between Kurt Lash and me than meets the eye.