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Judicial Restraint is a Question of Constitutional Interpretation

 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:

  1. 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.
  2. 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.
  3. 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.

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on May 27, 2016 at 13:57:41 pm

In other words, the question is whether jurists are subject to a higher authority. To say that the authority is the Constitution itself means, then, that jurists are at least two steps removed from final authority, for what stands yet above even the Constitution is the authority of the people, which James Wilson tagged as the definitive contribution of American republicanism. Neither interpretation nor construction is a trump card in American politics. Both are mere implements in the performance of assigned responsibilities.

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W. B. Allen
on May 27, 2016 at 14:42:49 pm

Professor McGinnis,

I wholeheartedly agree, and you have anticipated me somewhat-- I've been working on a response that addresses the duty of clarity and sketches the contours of an argument for judicial engagement that is grounded in the meaning of specific provisions.

Best,
Evan

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Evan Bernick
on May 27, 2016 at 15:38:40 pm

From the field of semantics we get that "interpretation" is the operation os assigning a meaning to a sign or symbol. The later distinction between "interpretation" and "construction" is not supported by the Constitution, which uses the word "construed" in Art. III Sec 3, and in the 11th and 13th amendments, to mean the semantic term.
The Constitution was written to be accessible to laypersons, but many of its key terms are legal terms of art, mainly accessible to legal scholars, from evidence of historical usage.
Some, like Randy Barnett, prefer the term "presumption of liberty", but that only moves the debate to what "liberty means'. I prefer the more precise expression "presumption of nonauthority"., discussed at http://constitution.org/9ll/schol/pnur.htm where we also find the ancient legal maxims:
Potestas stricte interpretatur. A power is strictly interpreted.
In dubiis, non præsumitur pro potentia. In cases of doubt, the presumption is not in favor of a power.
That should tell judges that they are never to presume some official act is constitutional, but to demand strict proof of constitutionality, just as we require proof of guilt -- beyond a reasonable doubt. That is the proper duty of judges.

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Jon Roland
on May 27, 2016 at 15:48:45 pm

Sorry, in Art. IV Sec 3.

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Jon Roland
on May 27, 2016 at 16:08:24 pm

As the author of the only book specifically about judicial engagement, I'd like to clarify that judicial engagement neither entails nor insists upon a presumption of liberty. Instead, judicial engagement simply calls upon judges to determine the constitutionality of the government's actions by making an honest inquiry into the government's actual ends and the means used to advance them.

Some examples from actual cases include: (1) did Illinois prohibit women from being lawyers because they are in fact too emotional to practice law, or in order to (a) perpetuate patriarchal notions of gender roles, and (b) protect male lawyers from competition; (2) did Pennsylvania outlaw the sale of margarine because it presents serious health concerns, or in order to advance the anti-competitive interests of the politically powerful dairy industry; (3) does Florida prohibit unlicensed interior design in order to protect the public against the dangers of incompetent practitioners, or in order to protect incumbent practitioners from would-be competitors; and (4) did Louisiana prohibit the sale of caskets by non-funeral-directors in order to protect grieving consumers from being exploited, or to confer a monopoly on state-licensed funeral directors?

These are all easy questions that would yield easy answers under any form of heightened scrutiny, where the question is always, "What is the government REALLY up to in this case?" (For a helpful thought exercise, just re-imagine all of the preceding cases as advertising restrictions evaluated under intermediate scrutiny -- they would all be easy cases because the government would be unable to present even a shred of evidence to support its demonstrably false assertions about health, safety, and welfare.) And that's judicial engagement in a nutshell: simply making a genuine effort to identify the government's true ends and determine whether those ends and the means chosen to advance them are constitutionally permissible or constitutionally impermissible -- an inquiry that is to be made by an impartial adjudicator on the basis of facts and evidence as opposed to government-favoring speculation and conjecture.

Does any of this entail -- let alone necessitate -- a presumption of liberty? I don't think so. Regardless of who bears the burdens of production and persuasion, judicial engagement comes down to one thing: will the adjudicator make a genuine, impartial attempt to get at the truth concerning the government's ends and means? If the answer is yes, then that's judicial engagement. If the answer is no, then that's judicial abdication, as exemplified, e.g., by rational basis review. And since the rational basis test is the default setting in constitutional doctrine (including not just economic liberty and property-rights cases, but also federalism/enumerated powers, admin law, etc.), that means the default setting in constitutional litigation today is judicial abdication rather than judicial engagement. That's why the debate over judicial engagement versus judicial abdication is both more practical and (arguably) more important than the debate over a presumption of constitutionality versus a presumption of liberty.

To sum up, whether there is or should be presumption of liberty is an interesting and important question of constitutional theory. But it is distinct from whether judges should seek to determine the government's true ends in all cases (judicial engagement) or merely a select subset of cases (modern constitutional doctrine).

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Clark Neily
on May 27, 2016 at 16:57:54 pm

Also in the 9th Amendment.

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Jon Roland
on May 27, 2016 at 17:08:21 pm

'@Clark Neily
I would argue that in most of those cases the legislature either doesn't have authority to regulate, or that they impair the obligation of contracts, which implies a very libertarian position if strictly construed.
When in doubt, there is no authority to legislate.

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Jon Roland
on May 27, 2016 at 21:04:09 pm

[…] and still less that they are to start with a presumption against certain laws.” Professor John McGinnis, without taking sides in the debate between Weiner and myself, raises the question whether judicial […]

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The Menace of Arbitrary Power and the Duty of Judicial Engagement: A Further Reply to Greg Weiner | KJOZ 880 CALL IN TOLL FREE 1-844-880-5569
on May 27, 2016 at 21:14:38 pm

[…] and still less that they are to start with a presumption against certain laws.” Professor John McGinnis, without taking sides in the debate between Weiner and myself, raises the question whether judicial […]

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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
on May 27, 2016 at 22:44:36 pm

http://constitutionalism.blogspot.com/2016/05/libertarian-judge-candidates.html

Libertarian judge candidates

After reviewing the list of judicial candidates from Trump, I started to try to put together a list of libertarian lawyers and judges that might be proposed by the Libertarian Party nominee. I can't find a list anywhere, and have tried to put one together from general knowledge.
My first candidates would be

Randy Barnett
Roger Pilon
Janice Rogers Brown
Alex Kozinski
William Baude
Larry Becraft
Stephen Calabresi
Elizabeth Price Foley
Michaek Greve
Kurt Lash
Gary Larson
John O. McGinnis
Robert Natelson
Clark Neily
Michael Rappaport
Roger Roots
Lawrence Solum

These are taken from http://constitution.org/cs_peopl.htm , not including some who are social conservative or too old. You might have some more.

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Jon Roland
on May 28, 2016 at 10:48:06 am

Perhaps, it would be fair to say that "the presumption of liberty" is derivative of, and may be "apprehended by, an interpretive (but not a "construction) method such as you describe and one in which the specific institutional strictures upon government are properly considered.

I agree that there is (if I understand a possible undercurrent in your post) a danger of "engagement" slipping into libertarian activism if one begins with an initial predicate of "the presumption of liberty." We may then construe that which we wish to construe. We may call the proper antidote clarity, duty, etc. It is clear that there need be something, some constraint upon jurists such that a document intended to be understood by its ultimate enabling power, The People, ought not to be so *interpreted* and *construed* beyond the ability of that ultimate source of Power to comprehend its rights and limits.

Uncertainty is uncomfortable in a domestic situation. It is no less troublesome in a polity!

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gabe
on May 28, 2016 at 13:25:15 pm

I question the utility--and the soundness--of any list that includes Ramsey Clark, LBJ's Attorney General and a longtime radical lawyer. He visited North Vietnam in 1972, making him the male counterpart of Jane Fonda. He defended Saddam Hussein! he is a leftist kook

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Mark Pulliam
on May 28, 2016 at 17:04:24 pm

Ramsey Clark is not on my list of judicial candidates. He is on our People page for defending some who needed a good lawyer.

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Jon Roland
on May 29, 2016 at 09:11:57 am

On your website (linked above), Ramsey Clark appears on the same list of "Lawyers, law professors, historians, and scholars" that you contend "deviate from the Constitution less than most." This is the list that also contains Randy Barnett, et al. Ramsey Clark is a constitutionalist, in your estimation? I question your judgment.

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Mark Pulliam
on May 29, 2016 at 11:10:24 am

Perhaps, we could add Baude to the questionable list as well.
As I recall, he seems to find "constitutional" support for SSM.
Is this an instance where "engagement leads one to "enhance" text and divine new rights or more properly stated, the imposition of new obligations upon the unwilling. How's that for *liberty*?

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gabe
on May 29, 2016 at 14:09:57 pm

I don't agree with Ramsey on many issues, but he at least seems to understand the Constitution, eve i some of his political positions deviate from it. He is also a personal acquaintance, so I'm a tad biased.

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Jon Roland
on May 29, 2016 at 14:16:59 pm

I also find constitutional support for licensing SSM, which is not the same as engaging in SSM. The problem arises from the licensing, not the practice. The solution is to stop licensing marriage altogether. We don't require licenses for other kinds of partnerships. Just let people contract as they please. Courts don't have to enforce the terms of all contracts.

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Jon Roland
on May 29, 2016 at 20:05:43 pm

Jon:

re: licensing:

Agreed and as I don't give a hoot about people engaging in SSM, let it be written and let it be done (or in this case undone - licenses, that is).

YET, there is still the issue of *rites* about which a Prof. Beckwith wrote on this blog a day or so ago. Rites, rituals do have a historical and a *present* value. They ought to cement a societal understanding of what is, let us say, proper or perhaps optimal behavior. I'll not discuss relative value of one or the other form or marriage; only point out that society may (and ought to) provide some means of recognition of what it deems optimal. This is found in many areas of endeavor / association. It being Memorial Day weekend, I will cite as an example the military practice of publicly awarding commendations for valorous service. Is it good or bad to be a soldier. (I am biased, I was one and rather liked it).

So, I ask you: Assuming that the state would no longer provide licenses for marriage:

1) Ought religious organizations to do continue to provide this "public" recognition of traditional marriage?; w/o any involvement of the State?
(In this instance we simply observe a voluntary affirmation of what that organization deems to be "optimal" and the celebration of that via rites and rituals.)

2) If so, must such organizations recognize / participate in other types of marriage such as SSM? To insist on this would necessarily involve State action / intervention.
(In this instance, we observe the effects of the State purporting to convert a "civic good", traditional marriage, into a public good by broadening the definition of marriage to include SSM. This would be the underlying rationale for State action.)

3) Where does the Constitution assign such a right to the State. I have seen the P&I clause offered as justification for this intervention. Yet, I think Kurt Lash in a recent book has thoroughly countered such a claim for P&I as it was never intended to cover or limit all actions by the States?

Again, we find ourselves being *obligated* by governmental actions / assignments of new rights / privileges.

As you suggest, get government out of it; but do not expect that will be the end of the matter. If not licensing, then there is always the canard of the "mysteries" of life and the "dignity" of the person to be invoked.
Gee, that does sound a little cynical but......

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gabe
on May 29, 2016 at 23:06:01 pm

Traditionally the church was solely responsible for solemnizing marriage (and divorce, property settlement, etc.). The involvement of the state came in the post-civil war period when it was intended to prevent miscegenation, when combined with laws against fornication. So the origin is entirely racist. It is time to repeal all marriage licensing laws, and go back to a common law system.

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Jon Roland

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