Judicial Activism Isn’t the Remedy Publius Prescribed: A Reply to Evan Bernick

philo-publiusTo gauge how carefully they have read Federalist 10, I often ask students on what constitutional institutions Madison relies to solve the problem of majority factions. It’s a trick question, the last refuge of the professor. The answer is none. Madison reaches the end of the essay, proclaiming a “republican remedy for the diseases most incident to republican government,” without mentioning the Constitution, a Bill of Rights or, significantly, the courts.

That has not dissuaded advocates of an assertive judiciary from quoting Madison on the “mischiefs of faction” to support their cause. The most recent is Evan Bernick of the Institute for Justice, who, at the Huffington Post, has taken my post on judicial restraint to pointed task. “Professor: Who Needs Judges?” the headline announces. “Let’s Put Our Constitutional Rights to a Vote.”

Even allowing a wide berth for headlines, this is not what I wrote. More relevant, though, is what the Framers did not write. Bernick characterizes them as follows:

 The Framers were well aware that what James Madison referred to in Federalist 10 as the “mischiefs of faction” could lead overbearing majorities and entrenched special interests to use government power to oppress minorities and further their own, private ends. Thus, Alexander Hamilton argued in Federalist 78 that constitutional limitations “can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void.”

There is a lot stitched together here, including sweeping a diverse group into the generic appellation “the Framers,” then making the sleight-of-hand switch from a Madisonian premise to a Hamiltonian conclusion. If what Bernick means by “the Framers” is “Publius,” this is a fair rhetorical move. It is also a problematic substantive one.

Sixty-eight papers separate Publius’ reference to “faction,” a problem he purports to have solved within the confines of Federalist 10, from his invocation of judicial review. The problem of faction is the problem of majorities oppressing minorities using the apparatus of government as an instrument of abuse—the danger to which Bernick refers in the passage above. Publius says in Federalist 51, however, that a republic presents two problems. They are, he specifies, separate problems: “It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part.”

Put otherwise, one problem is that majorities might oppress minorities; the other is that government might abuse the people. He claims, and repeats the thesis in the second half of Federalist 51, that Federalist 10 has solved this problem. The other problem is to be addressed through the separation of powers.

This is where the judiciary might indeed have a role to play in, as Bernick puts it,

“serv[ing] as an intermediary between the political branches and the people.”

Significantly, the examples Publius cites in Federalist 78 are ones that would otherwise come before the judiciary in the normal course of its duties: rights in criminal cases. But this is entirely different from saying the judiciary exists to stand between the people and each other: i.e., between majorities and minorities.

On Bernick’s account, all these issues are mixed together and, meanwhile, the core of the regime is collapsed into the singularity of individual rights. He opens with some relish:

You may have read somewhere that the Founders of our country rebelled against a government that regarded individual rights as mere privileges. You may have been under the impression that the Framers of our Constitution designed a system of checks and balances to ensure that government in America would protect, rather than pay lip service to, individual rights. You may even have heard that the Framers established an independent judiciary to ensure that the political branches stayed within constitutional limits.

You may indeed have read about rebelling over individual rights somewhere, but not in the Declaration of Independence, whose bill of particulars against King George repeatedly accuses him of violating the principle of popular consent. You may have read this theory about “checks and balances” protecting individual rights, but it is likelier to have been in James MacGregor Burns’ mistaken excoriation of Publius than in The Federalist itself. It was Burns who, misunderstanding Federalist 51 in this way, said the separation of powers was undemocratic since—Federalist 10 having solved the problem of faction—erecting further hurdles before majorities was unnecessary.

And, finally, you may have heard Bernick’s purpose for an independent judiciary, but it was not from Madison, who, commenting on Jefferson’s draft constitution for Virginia, said allowing the judiciary the final say on constitutional questions “was never intended, and can never be proper.” Nor, as Bernick conceives of the judiciary, was it from Hamilton, who said in Federalist 78 the power of judicial review was only to be exercised in cases of “irreconcilable variance” between a law and the Constitution.

This is to say that a law that can be reconciled with the Constitution should stand. It leaves a vastly wider berth for Congress than proponents of judicial engagement would allow. (For his part, Bernick would have the political branches “in every case” be “requir[ed] to demonstrate” constitutional legitimacy to judges.)

This does not entail the view Bernick rhetorically imputes to me, which is that liberties should be put up for a vote. To be sure, that might not be far from Hamilton’s take: “We, the people,” he wrote, referring to the preamble, was “a better recognition of popular rights” than the “aphorisms” that comprised state Bills of Rights. (Note that even in addressing advocates of a Bill of Rights, Hamilton felt he was speaking their language in referring to “popular,” not individual, liberties.)

My point, rather, was that the mechanics of the entire regime, operating under the control of seasoned majorities, act to protect rights. Again, Hamilton: “The truth is, after all the declamations we have heard, that the Constitution is itself, in every rational sense, and to every useful purpose, A BILL OF RIGHTS,” including because it “specif[ies] the political privileges of the citizens in the structure and administration of the government[.]”

All this, to be sure, is not necessarily dispositive. The Framers could well have been wrong in assigning the judiciary a relatively confined role. This appears to be part of, or at least compatible with, Bernick’s case:

The system devised by the Framers contemplated that the states would act as faithful guardians of individuals’ rights. This premise proved to be false, and the failure of the original Constitution to expressly secure individual rights against state encroachment gave rise to brutal majoritarian tyranny.

It is unclear that the Framers made any such stipulation, but Bernick believes their descendants did: Thus the Civil War amendments. And thus the rub. Richard Reinsch initially sparked this debate by seeking, among other things, a standard according to which conservative advocates of judicial engagement could justify protecting, say, economic liberties while simultaneously criticizing judges for discovering rights on social issues.

That standard still eludes. Bernick’s suggestion of a “third way” by which the government must demonstrate it is pursuing a valid end by valid means does not solve Reinsch’s problem. On the contrary, one suspects this third-way test would have given Justice Brennan—who certainly agreed with Bernick that the judiciary was formed to protect individual rights—ample room for mischief.

The underlying difficulty, to be sure, is the detachment of popular from limited government. Absent a generalized ethos of constitutional restraint, several other assumptions of the regime collapse too. Among the results is that popular government becomes less meaningful. Bernick is certainly correct in this regard that changing laws under the modern state is difficult, often insuperably so. So, of course, is litigation.

But a step is being skipped here. It simply does not follow from the diagnosis of a constitutional sickness that judges are the proper specialists to administer a cure. The patient might even walk away—if he does—sicker than before. And in either case, Publius did not prescribe the medicine.