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.

Reader Discussion

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on March 29, 2016 at 10:52:06 am

This seems "almost" Hobbesian with the tailored Black Robes replacing the Crown and Sceptre as the "sole source of power."


It seems to mock *politics* properly understood - or perhaps, *politics* is now to be limited to "engaging" discussions between the nine (or eight?) members of the Black Robed Guardians.

I wonder, however, if Mr. Bernick would have come to such a formulation had not the Legislative abandoned its duly delegated Powers in pursuit of assuring continued exercise of such limited power (small "p" intended) as they now possess.

Is Bernick (and others) simply reacting to a quite noticeable failure of the other Branch(es)? Or does he truly view this near total empowering of the Judicial as the "normative" condition?

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Image of gabe
on March 29, 2016 at 12:21:14 pm

In his "The Good Society" Walter Lippmann raises the important concept that, properly (Constitutionally) conducted, "legislating" is essentially an adjudicating process; described as the adjudications among interests and in the selections of the means of advancing them.

Of course we are a long way from that condition in which legislators act as judges of the impacts (good or bad) on the general society of the comparative advancements of conflicting interests and the means for their attainment.

We have instead as legislators, delegates of portions of the electorate; which delegates act as representatives (advocates???) of particular interests and of uses of particular means.

The judicial portion of our legal system, as derived from English precedents, had (past tense) the tasks of determining and identifying (plus enforcing) obligations arising from relationships - determined in their specific circumstances.

At least to the extent that legislation, as now generated, has become determinative of circumstances in which relations occur; or, determinative of delineating the nature of relationships, the judicial functions of the judiciary have come to replace (to some degree) what has been abandoned by the legislators in their representations (and advocacies) of interests and determinations of circumstances.

It might be accepted that where legislators acted in "weighing" conflicting interests and means and their impacts, rather than acting in representation and advocacy of them judicial "deference" in adjudicating resultant obligations would be appropriate. It does not appear that Arcadia obtains.

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Image of R Richard Schweitzer
R Richard Schweitzer
on March 30, 2016 at 11:35:00 am

[…] problem with authority–judicial authority, that is. In an incisive (and often quite amusing) reply to my critique of his recent effort to distinguish between judicial deference to Congress (which he […]

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Image of For Judicial Independence–and Against Elective Despotism: A Further Reply to Greg Weiner – LOOK MY PAGE
For Judicial Independence–and Against Elective Despotism: A Further Reply to Greg Weiner – LOOK MY PAGE
on April 01, 2016 at 19:04:54 pm


Setting aside my disagreement with your characterization of my position for a moment, you raise an important question: Am I advocating judicial engagement because I believe that the people's agents in the legislative and executive branches have abdicated their own constitutional duties or because I believe that the Constitution actually commands judicial engagement?

The answer is... both. I believe that the Constitution actually commands judicial engagement AND that it is necessary at present to ensure that the other branches do not continue to operate outside of limits of the law. It is not a mere constitutional construction--an implementing doctrine that while consistent with the Constitution is not commanded by it and could be discarded if conditions change without violating the Constitution. It is part of our law. My view is not, however, universally shared amongst advocates of judicial engagement.

I reply to Professor Weiner here: http://m.huffpost.com/us/entry/for-judicial-independence_b_9573782.html



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Evan Bernick
on April 01, 2016 at 20:56:06 pm


Thanks for the clarification.

I suspect in an attempt to use shorthand ( and my usual sarcasm) I left out my own basic agreement with you and the result was, as you say, a "certain" characterization. I suspect that a fuller *definition* of "engagement" would be required; perhaps, something along the lines of, or approximation, the notion of *judicial duty* as expressed by Phillip Hamburger. In retrospect, I do now recall reading (somewhere) a piece by you that in fact provided that fuller understanding of "engagement (also, I think Hadley Arkes has similarly written).

In any event, my comment; " *politics* is now to be limited to “engaging” discussions between the nine (or eight?) members of the Black Robed Guardians" was directed not at you but at the Court and what it may very well result from their own particular notion of engagement. In short, I would argue that their notion of engagement would more closely approximate "living constitutionalism.:

My apologies - I did not wish to impute such motives to you!
I will construe "engagement" as duty - a duty to follow the law and assure that other branches do the same.

take care

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Image of gabe
on April 02, 2016 at 14:01:29 pm

OK - got around to reading linked essay:

I concur. In a nutshell, it may simply be that "restraint", motivated as it may be by a desire to limit judicial legislating (or in some instances "de-legislating" of the Legislative), would appear to be a *subset*, if you will, of the several options available to a judicially "engaged" (or more preferably "duty bound") judge.

A Judge engaged in doing his or her duty may, at times, find that the proper constitutional course is to exercise restraint when confronted with an "unwise" yet constitutionally permissible law. Duty would compel the jurist to let it stand. That is a proper option available to the jurist.
Confronted with a "wise" law, (at least in the telling of its proponents) yet constitutionally impermissible law, the jurist may (should) want to strike it down and re-cabin the Legislative or Executive within constitutional limits. This is also a proper option.

The problem arises when the first option becomes the default option of the jurist - when a distinct predisposition to defer becomes discernible. It becomes clear then that the jurist is either unable or unwilling to perform the duty consequent to the office - that is to JUDGE with a clear view of what is permissible under the constituent law - not what is, or may be deemed, desirable.

And it is of no small consequence to the "restrainers" argument that either, or both, Conservatives or Progressives may be at times desirous of exercising restraint / deference. It, too, may be deployed as a weapon in the policy preferring jurists arsenal and may be fired from either the left or the right side of the body politic.

Again, restraint is simply one *tool* to be applied amongst several available judicial tools.
One ought not to so limit the options of the *duty bound* judge.

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Image of gabe
on May 27, 2016 at 21:14:09 pm

[…] when those officials seek to deprive private citizens of what is rightfully theirs? Over the course of several exchanges, it has become apparent that Professor Greg Weiner and I answer that question […]

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Image of The Menace of Arbitrary Power and the Duty of Judicial Engagement: A Further Reply to Greg Weiner | Chicago Black Pride
The Menace of Arbitrary Power and the Duty of Judicial Engagement: A Further Reply to Greg Weiner | Chicago Black Pride

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.


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