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The Power of Judges, Too, Is “Of an Encroaching Nature”: A Reply to Evan Bernick

Michael Ramsey and Evan Bernick have both posted excellent and challenging ripostes to my argument that conservative judicial engagement is theoretically defenseless against liberal judicial activism. The dispute seems to distill to this question: Can an interpretive theory constrain the courts?

The answer turns largely on attitudes toward power. Those who, with James Madison, believe power is “of an encroaching nature” might look skeptically on a theory that said Presidents will only be constrained by their own views of the proper exercise of their office combined with the threat of impeachment, or that legislators would be curbed only by their own understandings of the limits of Congress plus the potential sanction of removal from office by the electorate.

Yet that is substantially the position in which at least some advocates of judicial engagement would place judges: They should be vetted carefully but, once confirmed to their life-tenured seats, they have the final word on constitutionality subject only (or at least primarily) to the check of impeachment.

This is right insofar as impeachment should be a check. Still, it is and ought to be an ultimate and supremely difficult one. The Court, especially backed as it has come to be by the overwhelming weight of public opinion as to its institutional untouchability, should be subject to political restraints short of that. Not to say that these restraints—jurisdiction-stripping, altering the size of courts, re-passing invalidated laws to provoke ongoing constitutional conversations, confining precedents to the parties to a case, declining to enforce rulings—should be everyday mechanisms. They should be part of a constitutional ecology that the courts take into working consideration.

Another part of that ecology, to be sure, should be judicial review. Especially given the esteem in which courts are held, other constitutional players would likely pay a political price for challenging them, and in recognition of that, would do so sparingly. Another part should be the elected branches’ engaging constitutional questions as they go about their business—in congressional debate, in presidential statements, and the like.

Taken together, this would less resemble an assembly line—Congress passes a law, the President signs it, the judiciary stamps it with the final constitutional word—than an ongoing and multidirectional conversation. The former represents judicial supremacy over constitutional questions, as Bishop Hoadly knew: “Whoever hath an ultimate authority to interpret any written or spoken laws, it is he who is truly the Law-giver to all intents and purposes, and not the person who first wrote or spoke them.” The latter assumes that the separation of powers extends to constitutional questions as well as policy ones.

Ramsey notes, in a reasonable rebuke of what may have been rhetorical excess on my part, that advocates of engagement do not impart mystical powers to the courts, nor do they advocate blind deference. Fair enough, and I agree with Ramsey that Justice Scalia—whom Bernick has respectfully criticized in this space as excessively concerned with majority rule—represents a constructive middle. But advocates of engagement do urge a very great degree of deference, and this deference presumes judges’ superior capacity to correctly decide constitutional questions.

And this brings us to a central point: The model called for here is not judicial self-restraint. It is institutional restraint, just as the other branches are subject to institutional checks. By contrast, the use of an interpretive methodology, including originalism, as a limitation on the courts’ power is judicial self-restraint. It represents the hope that judges will stick to the method and execute it correctly—and won’t abuse the office, or err even with good intent.

To be sure, the originalists’ method is vastly superior to Mark Tushnet’s. I agree largely with Bernick’s critique of Tushnet’s legal theory. The point, however, is that neither Bernick nor Tushnet can explain why the other is institutionally wrong to pursue outcomes in the courts rather than the political branches—if, indeed, either believes the other is institutionally rather than merely interpretively wrong.

Bernick is, of course, correct to note that Tushnet’s ultimate project is not the use but rather the abolition of judicial review. Equally spot-on is Bernick’s observation that proponents of engagement want to restrain legislatures whereas Tushnet wants to unleash them. The distinction is essential, but at the same time, it is unclear that the view of judicial review held by either of them captures the constitutional ethos.

Bernick’s model of judicial engagement, in which duly elected legislatures must go before unelected judges and affirmatively defend restrictions on liberty—or, stated in the converse, in which unelected judges operate on a presumption against laws passed by duly elected legislatures—seems to make of the Constitution a series of locked doors through which majorities must pass to attain an outcome. Judges hold one of the keys.

Yet the constitutional system is designed neither to create barricades to majorities nor to remove them but rather to assure that “the deliberate sense of the community” prevails.

The United States had experience with a system whose purpose was expressly to inhibit majorities. It was called the Articles of Confederation, and the Constitution’s explicit purpose was to overcome that system’s defects. In his pre-convention “Vices” memo, Madison enumerated 12 faults of the pre-constitutional government. The bulk of the first eight pertained to the incapacity of the system to register the sense of deliberate national majorities on national issues. Madison mentioned majoritarian abuses of minorities next to last. Many proponents of judicial engagement argue as if the entire purpose of the constitutional project was to fix that.

Yet Madison—one Founder, to be sure, but one whose originalist credentials are generally respected—never endorsed solutions to the problem of majority abuse that did not ultimately entail deliberate majority rule. (Thus Federalist 10, which endorsed not a single institutional barrier to majority factions, proudly announces that it has discovered a “republican remedy for the diseases most incident to republican government,” with “republican,” defined as a regime “in which the scheme of representation takes place,” clearly referring to deliberate majority rule.) For Madison, “the vital principle of our free Constitution” was majority rule, not individual rights.

That does not mean that whatever majorities say goes. Publius writes that judges are to hold void legislative decisions they find to be at “irreconcilable variance” with the Constitution—interestingly, not because doing so protects individual rights, but because it protects the “intention of the people”: the will of a constitutive majority.

In any case, the modifier “irreconcilable” suggests judges are not simply to deliver decrees reflecting their judgment as to constitutionality, and still less that they are to start with a presumption against certain laws. “Irreconcilable” implies the propriety and even responsibility of an effort to reconcile, which in turn suggests a modest role for the jurist—self-imposed when possible, institutionally enforced when necessary. That is a role constitutional conservatives may, in the years shortly to come, rue having spurned.

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