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The Constitutional Morality of Restraint

Randy Barnett and Ed Whelan have revived the supremacy debate in the wake of the Chief Justice’s opinions in King and Obergefell, with Barnett arguing most recently that judges should be guided by the “constraint” of the text rather than “deference,” both of which he classifies as forms of restraint. Much commends that notion, and the distinction is analytically useful. But in the course of embracing a particular strain of originalism, it finds itself in tension with the original understanding of the judges’ role.

Barnett’s standard for judicial nominees is a “proven record of willingness to be constrained by the original meaning of the text, whether this means upholding or invalidating a properly enacted law.”  But that is not Federalist 78’s standard for evaluating laws.

Hamilton instead says judges will invalidate laws that stand at “irreconcilable variance” with the Constitution.  The suggestion is that an effort to reconcile them—to interpret charitably—is appropriate. (If one prefers, a law must violate not just the Constitution’s tenor but its “manifest” tenor.) In other words, laws must not be not merely unconstitutional but clearly unconstitutional. That sounds like some degree of deference, not isolated judicial reasoning.

Deference does not have to be either Thayer’s obsequiousness or Holmes’ notorious “puke test.”  It should not be so heroic as to require that statutes be wrenched and contorted into submission, which is what Roberts did in King. The point is that it is not enough to say any law a judge believes to be unconstitutional should be invalidated.  One needs a standard for how clear it must be that the law is unconstitutional, and it is that standard—i.e., the standard of restraint—the confirmation process should test.

But both of Barnett’s conceptions refer to judicial self-restraint. This, too, is commendable. However, it is a myth to say that the American regime of separated powers assumes an all-out, tether-busting debauch of authority in which the only controls on a branch come from the coordinate departments. Presidents thus ought to (but do not) consider themselves bound by a constitutional morality of restraint based on a proper conception of their office.

But neither does Federalist 51 trust any branch with self-restraint alone. All, including the judiciary, are locked in an ongoing constitutional conversation in which each checks the other two. The doctrine of judicial supremacy, by contrast, holds that judges alone, at least once confirmed, stand at the top of the interpretive food chain, exempt from checks and owed the very deference the supremacists excoriate when it is given rather than received.  On the Constitution’s premises about human beings and power, it would be extraordinary if anyone so situated practiced the virtue of self-restraint.

Reader Discussion

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on June 29, 2015 at 13:41:34 pm

Greg--I quite agree with your general sentiments and offer support for some of them in my recent paper, The Duty of Clarity.. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2578318--John

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John O. McGinnis
on June 29, 2015 at 14:24:52 pm

John--

Thanks. Your Duty of Clarity essay is a terrific paper that I wish I had thought to work in here. I hope/trust many readers on this site have already been across it, but I highly commend it to anyone who hasn't yet. It is destined to become mandatory reading in the field. And it sketches the ground on which many people now disagreeing can likely unite.

Greg

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Greg Weiner
on June 29, 2015 at 19:31:01 pm

At some point, one has the opportunity, but certainly not the obligation, to distinguish between a principle and a rationalization. It is not always obvious, and should not be assumed, that the outcome of a particular case is determined by the reasoning and not vice versa. Thus, as nobody.really pointed out in another thread, we see Justice Scalia resort to one analysis in Heller and seemingly the opposite in King. We see Ginsburg lament the judiciary's usurpation of public discourse in informal comments, and vigorously champion such in her judicial opinions. All of the justices look like hypocrites if you read enough of their opinions, and more than a few look like fools.

This state of affairs does not necessarily result from weak character, dull intellect, or ideological vanity, although I suspect that all of these contaminants, and many others eventually find their ways into the United States Reports. A more straightforward explanation, often alluded to by Kennedy and Breyer, is that the Court will stand against individual interests, will constrain minor government excesses, but will do precious little to confront an accelerating <Zeitgeist. It doesn't matter if one prefers originalism, textualism, natural law, deference, political question aversion, or what have you, eventually all will be invoked for the purpose of going with the flow.

The current cultural mood in America is neither progressive, liberal, conservative or any single discrete perspective. The prevailing trend is seen in the right to bear arms, legalize pot, allow gays to have marriages recognized, and be generally tolerant of conduct that is perceived to produce de minimus externalities. This is the megatrend that reconciles a lot of seemingly inconsistent applications of constitutional interpretation. Surely, there are exceptions, but counterexamples do not negate a trend.

What the Zeitgeist seems to disfavor at the moment are those mandates and prohibitions that are concerned with remote harms, or old taboos. The next battle grounds are likely to be assisted suicide, prostitution, and selling of one's own organs.

Another aspect of popular American culture at the moment is that it is emotional and silly. It is prone to hysteria and witch hunts over the confederate battle flag, a phantom campus sex assault epidemic, "hate speech," white privilege, micro-aggressions and any of a number of contrived affronts jockeying to be the next moral panic. These things are the gravity which will cause the pendulum to swing back. They will provide the evidence that emotional indulgence can only be sustained for so long before it starts to devour itself and spread more misery than it relieves. When that happens, the justices will trot out deference, originalism, the living constitution, etc. to indicate that the Court knows which way the wind blows.

This is not cynicism, or even criticism. It is simply an observation of what happens when you give human beings great responsibility.

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z9z99
on June 30, 2015 at 10:33:42 am

Z:

Fair enough and great observations.

"These things are the gravity which will cause the pendulum to swing back. They will provide the evidence that emotional indulgence can only be sustained for so long before it starts to devour itself and spread more misery than it relieves."

You may be far more optimistic than I in this regard. For the pendulum to swing back, there must be a counter-force. I am no longer certain that such a counter exists - or if it still does that it is not beaten and in tattered clothing with a somewhat dazed look in its eyes.

Will someone or something revive it? Don't know - but it does not look promising - especially considering the *upcoming* further assaults upon those existing (or attempting to exist) outside the zeitgeist.

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gabe
on June 30, 2015 at 12:15:56 pm

Adding to this:

And the reason for a LACK of optimism is precisely because these *determinations* are being made by the Court(s) from which, and in the general consensus, there is no recourse. The growth of the Court, in influence and power, has seen a corresponding diminution in both the power of the Legislature AND the citizenry's belief / confidence that it may have a role in determining what the obligations / rights of the people are.

The pendulum is now un-anchored and free-floating through Einsteinian space "warped" by the gravity of the Leftist zeitgeist and the Black Robes determination to make their unique determinations shine with all the brightness of a "burning bush."

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gabe

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