What we require is not judicial restraint, but a different sort of judicial engagement that develops the traditions of republican government.
Greg Weiner and Evan Bernick have been conducting an interesting debate in this blog about the virtues of judicial restraint and judicial engagement. Rather than directly confront either position, I would like to raise a methodological point. Doesn’t judicial restraint or judicial engagement need to be rooted in the meaning of the Constitution? In other words, judges’ approach to constitutional interpretation should not be based on policy arguments about how judges should behave but on the original meaning of Constitution itself, just as our interpretation of specific provisions should be fixed by original meaning.
Let me be a little more specific:
- I have suggested that the original meaning of judicial power requires that judges follow a duty of clarity: the Constitution contemplates that judges are to exercise a duty of clarity before declining to follow legislation because it violates the Constitution. That is, they were to exercise the power of judicial review only if the legislation at issue proved to be in manifest contradiction of a constitutional provision. But judges were also expected to use the ample legal methods of clarification available to pin down the Constitution’s precise meaning. Thus, judicial duty is very different from James Thayer’s more radical ideas of judicial restraint. If duty of clarity does flow from the Constitution, that duty would become just another part of judicial constraint rather than restraint.
- Even if one does not agree that the Constitution imposes a duty of clarity, “judicial engagement” must be shown to flow from the Constitution. Thus, one actually needs to show that the Constitution entails a presumption of liberty of some other kind of support for judicial engagement. Or if one believes that judges can invalidate legislation through their power of “construction” rather than interpretation, one would need to show where the Constitution delegates such a non-interpretive power to judges.
- Greg speaks of the dangers of judicial supremacy or judges having the final word on interpreting the Constitution. In my view, the extent of judicial finality is also an issue that needs at least initially to be derived from the Constitution rather than policy considerations. Mike Rappaport has made a very powerful beginning analysis on the subject.
Originalism enjoys a great advantage over other theories of constitutional interpretation in the political battles, precisely because it interprets the Constitution the way ordinary people interpret other documents, particularly those that provide directions on how to act. In a democracy, the staying power of any ideas about the exercise of judicial review are surely related to their popular resonance as well as intellectual coherence. Thus, there are pragmatic as well as theoretical reasons to connect up the method of the exercise of judicial review to original meaning.