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Constitutionalism by Word Association: A Reply to Evan Bernick

At The Huffington Post, Evan Bernick has offered a thoughtful reply to my suggestion that judicial deference to Congress differs categorically from judicial deference to the administrative state, arguing instead that the real problem is deference simply: “Judicial deference of any kind sees judges elevating will over the reasoned judgment that judges who draw their power from Article III must exercise.”

This usefully identifies the core of the issue. If federal judges actually possessed all the power Bernick says Article III assigns them, there would be less constitutional basis for constraining their authority. If they do not, the issue is whether they can commandeer it.

Bernick’s analysis packs immense political and constitutional content into the sparing words of Article III. The only substantive grant of authority in Article III reads, “The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.”

The Article I powers to which Bernick is correctly intent on holding Congress are explicit. Likewise, Article II powers are more specific than what we get in Article III. His analysis, though, appears to extract the fullness of the judge’s authority from a single Article III word—“judicial”—in much the same manner as devotees of inherent presidential power locate it in the mysteries of a single word in Article II’s vesting clause: “executive.”

Call this, then, the unitary judiciary theory. According to it, any constitutional authority arising from the faculty of judgment belongs exclusively to the judiciary (“the reasoned judgment that judges who draw their power from Article III must exercise”). This is constitutionalism by word association: judicial, judge, judgment.

But all three branches are plainly asked to exercise judgment in this sense. That includes, one hopes, constitutional judgment: Congress, when it passes laws; Presidents, when they veto or sign them.

Yet Bernick, hyperlinking his reference to “judgment” to Federalist 78, transforms a limitation into a license. When Alexander Hamilton says the judiciary will exercise judgment, he says merely judgment.” To exercise “neither force nor will but merely judgment,” as Federalist 78 explains, is not, as Bernick suggests, to exercise a superior and somehow uniquely uncorrupted authority—or even an equal one.

Hamilton calls it “incontestabl[e]” that the judiciary is “beyond comparison the weakest of the three departments of power.” It is empowered to exercise a check, but a modest one. According to that essay, judges will overturn only those laws that are found to be at “irreconcilable variance” with the Constitution.

Bernick notes, and I do not dispute, that judges’ authority arises from their impartiality. But as Alan Gibson has shown, Madison aspired to impartiality in Congress too. By contrast, on Bernick’s account, judges seem to derive a higher authority from their (supposed) impartiality, which is to say that legislatures exercise will whereas judges exercise, in his words, “reasoned” judgment.

At what point, precisely, did judges climb into the “womb of the earth” to have this gold poured into their souls? When were they shorn of the human frailties that render legislative deliberation a matter of will while elevating judicial decision to the plane of reason? Was it in law school? After Casey or before?

The reality is that judges are subject to the same temptations of power as the other fragile souls who inhabit this weak and fallen world. In fact, one might suspect judicial temptations to be more intense than others.

For one thing, individual judges can act on will; individual legislators, who are powerless to act by fiat, cannot. For another, as Brutus reminds us, the temptations of power are especially enhanced if the “independence” that Bernick rightly defends is transmogrified, as one suspects he might countenance, into unchecked authority.

Note that on his account “judges cannot be ‘restrained’ without unconstitutionally abdicating their duty to judge.” Imagine this construction applied to any other branch, as in: Legislators cannot be “restrained” without unconstitutionally abdicating their duty to legislate.

This is precisely what is otherwise unacceptable to Bernick. It illustrates what I have elsewhere indicated is the basic problem with the judicial supremacy that he euphemizes as judicial “engagement.” The choplogic thinking goes like this: Because no one can be trusted with unchecked power, judges must be trusted with unchecked power.

Again, note the blanket exemption of judges from all Founding-era assumptions about power as Bernick simply claims that “it is in substantial part because of judicial abdication that we are ruled by federal fiat in wide areas of life.” What should it be called, other than fiat, if judges issue rulings that cannot be restrained? The claim seems to be that judges must rule by fiat so we are not ruled by fiat.

According to this doctrine of judicial engagement, any exercise of legislative power, once challenged in court, must be “affirmatively”—Bernick’s word—justified to judges. Again, imagine this in reverse. Imagine requiring that any exercise of judicial power be affirmatively justified to legislators (which, incidentally, Brutus recommends and Jefferson endorses—at least if “review” and “affirmatively justify” are equivalent—but I digress).

This business of shifting the burden of justification from an individual who challenges a law to the deliberate majority that enacted it is fundamentally hostile to majority rule—Madison: “the vital principle of our free Constitution”—but not only to majority rule. It is hostile to politics itself. Really the idea is not to facilitate the rule of deliberate majorities—which rule being the entire purpose of the constitutional project and the entire failure of the Articles of Confederation—but to empower anyone (aggrieved individuals, judges, inter alia) to inhibit them at any point.

“We the People” do, as Bernick says, place trust in judges. Ultimately, though, we may search in vain for a “people” in his constitutional architecture. What is implied here is a radical separation between the people and their elected representatives, such that we need those we do not elect to protect us from those we do. Thus his regime is comprised of political actors divorced from citizens. On his reading, the only proper stance toward the political actors is obstruction—unless they are judges, in which case the correct attitude is obeisance.

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