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.