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.

Reader Discussion

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.

on February 25, 2015 at 14:06:05 pm

Mr. Weiner:

It may be even worse than you are here arguing.

" It simply does not follow from the diagnosis of a constitutional sickness that judges are the proper specialists to administer a cure"

In a critique of your essay (perhaps at Volkh?) Prof. Barnett argues that it is ill advised to offer the Legislative Branch as a prescription to our current ills because the Legislative is corrupt, subject to undue influence, etc.

While this may appear to have some facial validity (one can be less than fond of the Legislature given its somewhat depraved current state), it is, to my mind, a far more destructive approach to the problem. It appears that Mr. Barnett is now prepared to dispense with the FORM of the Republic due to inefficiencies of that form while further eliminating the possibility of both a) reform of the Legislative and the concept, if not the practice, of popular consent by arrogating to the Judicial Branch the sole / final power to determine the liberty of the people.

So what are we to make of *libertarians* whose principal prescription is to deny the possibility of popular consent, i.e., liberty and who would have the citizen further removed from self governance by resting all determinative authority in the hands of nine (no, make that five) unaccountable legal *experts* clad in Black Robes?

Barnett and others also fail to consider that other forms of corruption are also possible. Is a Judge who envisions an end state, an objective to be attained, and then consequently "interprets, adjudicates, etc." plain language texts to support that end state not corrupt?
There may very well be corruption of the Legislative - this is not sufficient to overlook the corruption of mind, ideology or ambition of the Judicial.

In short, this nation would more closely approximate what its constitution proposed, were the names of all Supreme court Justices to be unknown to the vast majority of the people. Rock stars should perform in concert halls not the halls of justice!

read full comment
Image of gabe
on February 25, 2015 at 15:27:36 pm

Gabe: Excellent point about the corruption of the judiciary. Madison says in F. 51 that creating a will independent of the community (he means the royal veto, but the Court works here too) wouldn't protect the people because there's no particular reason to believe it would be exercised well. So even accepting every premise -- the legislature is corrupt, etc. -- why does it follow that judges are the solution? That's the step they're skipping.


read full comment
Image of Greg Weiner
Greg Weiner
on February 25, 2015 at 18:38:00 pm

Gosh, Greg and Gabe, your defense of judicial restraint sounds like an excuse for unlimited government.. From your comments one would think that the framers expected the people's representatives in the legislature, not the courts, to act as the "bulwarks of a limited Constitution." I'm not sure whether to advise you to revisit the case for judicial independence in Federalist 78 -- where Hamilton associates judicial independence with protection against "dangerous innovations in the government" -- or to take a closer look at how the framers expected Congress to behave. Is it the theory of limited government inspiring the Constitution you don't like?

read full comment
Image of Brad
on February 25, 2015 at 20:30:08 pm

No, it is the fact that the court, rather than being the *bulwark* against burgeoning government as you suppose, has actually been a principal supporter of the expansion of government (see Supreme court decisions justifying the Administrative State and / or the rather grotesque expansion of the Commerce Clause). Admittedly much of the growth of government was initiated by either the Legislative or Executive but the court far from protecting against this has seen fit to *fashion* for the Administrative Agencies innumerable powers not delegated to the Executive, and consequently not to the Agencies, by the Constitution.

At issue though is something more - that is the *creation* of certain rights by the Judiciary that were neither imagined nor countenanced by either the Framers or even citizens of recent generations. Indeed, the court in many of its ruling has done precisely the opposite of what you are here asserting. Consider same-sex marriage (don't give a hoot what your stance is on it BTW): Has the Court defended Federalism or has it further diminished the notion of State Autonomy? Has it demonstrated a willingness to accept the vote of the people?
Or perhaps a little Commerce Clause jurisprudence is in order: How has it come to be that this great defender of liberty and limited government has seen fit to pronounce as a proper sphere of governmental action the ability to fine an individual farmer for raising a few extra bushels of corn for his own family use? - or that I must under penalty of law engage in a commercial activity offered by a corporation whether I desire to purchase health care or not.
Seems like they have done an admirable job of protecting my liberty and limiting governmental expansion, doesn't it?

One could cite numerous examples of the Court not simply failure to sustain liberty but actually placing their imprimatur on governmental overreach.
And yes, one can also cite examples of the Courts enhancing liberty - i.e., certain civil rights laws sustained by the Courts.

But that is not the point of my critique nor of Mr. Weiner's if I may be so bold as to speak for him. The issue is this:
Why would one assume that five individuals, insular in a certain fashion, protected from popular approval and understanding, would make better decisions than the people's representatives? - especially when many of the matters that with which they engage themselves are clearly political matters (witness certain courts deciding that State legislatures are not spending enough money on education as just another example).

More than this however is the attitude of the Court that it is fitting and proper for the Court and the Court alone to decide on the law. Here is Justice Frankfurter (in Adamson v California) opining that it matters not what the Framer / drafter of the 14th Amendment intended, - no, the Justices should look only to contemporary Court decisions and not the text or the intent of the drafters. what does this say? To me it says that they have arrogated to themselves the singular role of being Lawgivers.

Put another way, I would prefer market pricing for a bag of groceries than that prescribed by a five (or nine) member pricing board. It does seem to work out a little better.

But just for the record, I am not an advocate of Judicial restraint as the overarching principal animating judicial adjudication. There are times when the Court should demonstrate restraint and there are times when the Court must take action to reverse an overzealous Legislature and / or Administrative Agency of the Executive Branch.
Sadly, the court has not exercised this discretion in a fashion that a) limits governmental action, b) enhances liberty and / or c) has used its own philosophical disposition / pretensions to create out of whole cloth a new panoply of rights.

Barnett, Bernick and others in part recognize this problem (as do you) of the Executive and Legislative overreach - unfortunately they propose to place sole responsibility for its resolution in the hands of the most undemocratic of the Branches and do this by advocating an activism for this Branch (an energy level?) that is itself inconsistent with the concept of a limited government and popular consent.

To me, I place my faith in a Judiciary that would do its *DUTY* to do the law under the law (Constitution) - that means understanding that the constitution is to be taken as a whole document - not piecemeal - and, as you say, that means recognizing that it is a prescription for limited government action. In the end this translates sometimes into activism or restraint - but it is never to be the sole determinant of what is the LAW.

Again, one must ask: why would anyone suppose that they alone, and on their own, will do a markedly better job of it?

read full comment
Image of gabe
on February 26, 2015 at 10:17:17 am


Really, that's not my argument, nor Professor Barnett's, nor anyone that I'm aware of who is in favor of judicial engagement. I didn't argue, and don't believe, that courts have a monopoly on constitutional interpretation. I'm of the rather more modest opinion that every branch is obliged to interpret the Constitution, and that the judiciary is simply last in time. Legislators are obliged to consider whether a statute is constitutional before they pass it. Executives are obliged to consider whether a statute is constitutional before they sign it. And judges are obliged to consider whether a statute is constitutional before they apply it in a given case or controversy.

Respecting activity or energy-- judicial engagement stands for the proposition that judges should nullify ("void") unconstitutional statutes, period. That they should independently evaluate those statutes, rather than tipping the scales in favor of what the political branches have decided. Yes, that requires a theory of constitutional interpretation-- but judicial engagement is not itself such a theory. It's an account of how judges ought to approach cases. In every case, they should seek to ensure that the government does not restrict people’s freedom without a legitimate justification based on actual evidence. At present, they do this in only a handful of cases, and the selection of that handful has more to do with Progressive-era priorities and personal preferences than principled constitutionalism.

I'm concerned about the "Justice Brennan problem," too. But I don't think that the answer is a judiciary that abdicates its responsibility to enforce constitutional limits on government power.

read full comment
Image of Evan Bernick
Evan Bernick
on February 26, 2015 at 10:59:10 am

Gabe, I share your frustration over the Court's willingness to sacrifice its independence in order to assume the role Congress has abdicated in the administrative state. But opposition to liberal judicial activism shouldn't tempt us to read out of the Constitution the "peculiarly essential" function of the Court in defending our limited Constitution. I get suspicious when I read arguments like Weiner's that the framers preferred a variety of republican solutions to the problem of majority faction other than relying on the Courts. Again, I get it. Given the Court's behavior these days, its refusal to remain independent, abuse of the Bill of Rights, policymaking, and all that, why put our trust here. But this anything-but-the-courts argument undermines an important feature of our Constitution, if not be motivated by a kind of skepticism of the natural rights principles embodied in it. That was the point of my question at the end..

read full comment
Image of Brad
on February 26, 2015 at 11:04:01 am


Fair enough. Putting aside my rhetoric above, perhaps, we are not far apart, nor perhaps is Mr Weiner (as I understand him). What I left out of my comments is the concern that many, I believe, share: "What are the limits to this (or any) interpretive method?" How do we limit the ability of Judges to impose their own particular preferences on our Constitutional order?"
It is certainly true that the same questions may (must?) be asked of both the executive and the Legislative - yet, as you and Barnett and others answer, and are correct BTW, the courts may serve as the limiting agent.
Yet, we come full circle - again how do we limit the actions of the court? You argue (and I agree) "enforce constitutional limits on government power" - yet, time and again we find the Court not only supporting but actually fostering expansions of government power. And this is done under the cloak of Judicial Power. We find precedent for all these actions / decisions. Soon precedent comes to overpower text. This is, to my mind, the meaning behind Frankfurters assertion in Adamson that the Court MUST look to the Court (precedent, etc) and NOT to the Legislative, nor even to the man (Bingham) universally recognized as the drafter and most influential voice behind the 14th Amendment. In so doing, the Court seems to have posited itself as the sole arbiter of LAW. One can argue that this is a conscious attempt to diminish the standing and authority of the Legislative.
This is what many of us fear and that sense of dread is compounded by the fact that, unlike the Legislative, whose members are at least theoretically subject to recall, the Judicial branch is not.
So perhaps, we are not so much arguing method or approach but rather constitutional theory. Damned if I know what is the correct one, but there certainly appears to be quite a few. This fact only presupposes the need for limits on the "energy" level of the Judicial Branch.

read full comment
Image of gabe
on February 26, 2015 at 11:16:06 am


See my comments above - probably posted while yours were in typing. I know of no one who would eliminate the Courts role in these matters. There is a long history of Judicial engagement going back to British Judges turning out the Star Chamber and other monarchial prerogative apparatus. This is laudable and was, I believe, known to the founders. These Judges, and our early US Judges, did their duty.
Sadly that is no longer the case in many instances and it appears that the constitutionally imposed balance has been eliminated. It needs to be set aright.
I do not see how anything that I or others have argued may be construed as an anti-natural rights approach. You and I may differ as to what is a "right" - not as to whether some such rights exist - and that may be the crux of the problem. courts have in recent decades "divined" all sorts of rights - the right not to be denied government benefits, cuts in benefits, SSM, abortion, etc. What's next: polygamy (same grounds may be used), the right not to be offended (goodness gracious, life itself may be offensive). One seeks only some sense of limit to the "divining" powers of the Judicial Branch (as I do for the Legislative and Executive).
To my mind, no one has as of yet proffered any clear formulation of this limit and how it may be enforced.
Thus, as Mr. Bernick argues above ALL branches must be Constitutional participants. Regrettably, the court has seen fit to seek preeminence.

read full comment
Image of gabe
on February 26, 2015 at 15:57:02 pm

Judges will always have a bias. You can't take bias out of human nature; bias itself is a natural right.

I don't see how bias can be removed from the court, but I can see how it could be used in a positive and corrective way.

One problem with the court, as I've said before in the comments in this blog, is that its members are appointed for their bias. The executives tend to appoint justices who support not only their political bias, but more importantly they tend to appoint justices who support giving greater power to the executive. The legislature creates a similar advantage for itself via its approval of the justices.

Over hundreds of years the selected bias of the justices has introduced excess powers in the executive and legislature, as well as themselves. If this way of doing things continues, the powers of the executive and legislature will continue to grow. That is just the way the system works. That's how its designed. That's the only way it can work.

If the appointment of justices were changed to some other body, over time the imbalance of power would shift to that other body. If religious clerics for example were to suddenly start appointing the justices, political power would shift to the clerics. If the nation's dog catchers were to appoint justices, eventually dog catchers would be running the country. (If the general public were to appoint the justices we would slowly collapse into statism, which was generally a part of Madison's point in Federalist #10.)

Therefore a possible solution to the problem of bias is to change the method of appointment of the justices. And perhaps, not only changing the method one time, but changing it periodically to gain a better balance of powers over the very long run.

For example, let's say that we decided to change the bias from executive power, which has a nationalizing effect, to a bias for state power, which means a federalizing effect. One sensible way to do this would be to have a congress of state governors appoint the justices. Over time the governors and their states would gain power, and the federal executive and legislature would lose power. Over time the governors would gain too much power of course, so the appointment of justices would eventually have to change again. This suggests a cycle of transfer of appointers: One time the federal executive. Another time the state executives. Maybe every ninth time by popular election. Wash. Rinse. Repeat. You get the idea. Over our time frame of tens or hundreds of years the bias would stabilize.

So I think the "sickness" of the judiciary can be cured, but not by panaceas like advocacy for originalism, since such panaceas do not take into account the nature of the design. The design of the system is the cause of the "sickness," the humanity of the justices is healthy. To cure the "sickness," the design must be changed. The problem then is where and how to shift the bias so it corrects the imbalance of power, and how to safely change the design to support that shift. And then there is the much different problem of how to go about making the necessary amendment.

This is a very solvable problem.

read full comment
Image of Scott Amorian
Scott Amorian
on February 26, 2015 at 17:30:46 pm


Remember that in the past there was something anomalous to what you propose re: governors. Prior to the 17th Amendment, US senators were appointed by State Legislatures. This had the intended effect of making the Senator a "States diplomat." In theory (and practice for roughly the 1st century of this Republic) the Senate did act as a protector of State interest. Perhaps, this may to some extent explain the relatively less *activist* Court of our first 100 years or so.

But you hit it on the head with "bias." It is a part of life - not just for judges. I think in some way what most of us are saying, although we may not articulate it this way is: "Damn, I just wish we had some Judges who would do it right." Of course, then we have the issue of *right way." I sometimes think that (bastardizing Bill Buckley here) we would be better judged if we simply picked nine random tailgaters from NFL stadiums - with the exception of deciding on the NFL's non-profit status, I suspect that the "tailgating 9" would do a decent job not having to worry about an intellectual or interpretive bias.

read full comment
Image of gabe
on February 26, 2015 at 17:38:53 pm

Oops!: that should read "something analogous" not "something anomalous."

read full comment
Image of gabe
on February 27, 2015 at 08:24:41 am

Eric Gonchar

Judicial Activism Isn’t the Remedy Publius Prescribed: A Reply to Evan Bernick | Online Library of Law & Liberty

read full comment
Image of Eric Gonchar
Eric Gonchar

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.