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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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on May 26, 2016 at 11:10:35 am

"The dispute seems to distill to this question: Can an interpretive theory constrain the courts?"

Agree and disagree!

1) If one were to argue that an interpretive theory, any theory, would be sufficient in and of itself to constrain the Courts, without reference to other elements of political, institutional and / or personal *motivations*, then one would be embarking upon a fools errand. Clearly, it cannot constrain the Courts, nor the Legislature or Executive Branches for that matter.

2) You would appear to advance the proposition, as did Madison, that the structural / institutional arrangements may be sufficient to *constrain* not just the Judicial but also the Executive and Legislative Branches.
So, let us ask: Can a theory of Constitutional governance, even one so well conceived and *structured* such as our own, constrain the Judiciary (and other Branches). Again, clearly, and based upon our present circumstances, the answer if NO.

3) Yet, those negative answers above may not be a reflection of, nor a direct outcome of, any peculiar weakness or insufficiency in the the theory / structure. Rather, it is to the "actors" upon this governing stage that we must turn for an answer as to why republican governance is at risk (if not already in full retreat).

4) We as actors, both political and civil, are *clever* creatures, are we not? We bring with us all manner of distinct AND distinctive motivations. We may seek to mask these ideological, political, personal or ambitious motivations under the cover of some *clever* construal of text(s), precedents, "penumbras and emanations" in order to effect our purpose. No system, no theory, no structure has ever, nor will ever, prevent the deployment of the human capacity / inclination for cleverness in pursuit of certain outcomes. At best, one may hope to "cabin" it.

5) Bernick would appear to recognize this with the acknowledgement that above all, or at least on par with *engagement*, a jurist must be imbued with a sense of, and exercise, judicial "Duty" - that is, an ability and a pronounced inclination to "do the law" free from personal / ideological / political bias; to recognize / accept the limitations IMPOSED by the Law, and to avoid / disavow *clever* constructions / interpretations of the text, precedent and structure of the Law. He is not alone in recognizing this as other "engagers" have also stated on other blogs.

6) You are correct that even a thorough and proper vetting process will never assure a completely sound judiciary (or Legislative,etc) populated by jurists with a deep sense of duty to the Law. And yes, there are structural mechanisms available to counter the actions of errant jurists. Yet, those structures have also, ( and may very well continue to) failed to moderate a somewhat active judiciary.

7 ) What is to be done. As always, I suppose, we ought to "trundle on" with those admittedly insufficiently robust tools we have at our disposal. One such tool is "judicial engagement" defined as jurists actively (yes, actively) engaged in the republican constitutional project via a recognition of the richness of our Constitution and to include an understanding and affirmation of the structural limitations, institutional incentives and personal liberty imposed by, or intended to be sustained by, our constitution. Simply put, that is the DUTY of the jurists. Failure to do so, and it is certain that some jurists will fail, would result in the exercise of the Institutional remedies you suggest.

"Many proponents of judicial engagement argue as if the entire purpose of the constitutional project was to fix that."

Whether they do or do not would seem, to my mind, to be beside the point. There is certainly to be expected a "richness" of views among the proponents of any theory, legal or political, and it strikes me as unfair to offer a view (potentially a minority view) shared by some as a valid critique of the underlying theory. Perhaps, if they exercised their judicial "duty" this position would be nothing more than something they can write about on a blog such as this fine one.

seeya

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gabe
on May 26, 2016 at 12:16:41 pm

Gabe,

Thoughtful as always.

I tell my students never to trust anyone with a power they would not entrust to someone with whom they entirely disagree.

Judicial duty as proponents of engagement conceive it--and for the record, I read Hamburger differently--is not a constraint, as you note. So let me pose this, admittedly by way of provocation: Blackmun thought he was doing his judicial duty by invalidating an abortion statute that, in his judgment, arbitrarily and unjustifiably restricted liberty. Bork knew Blackmun was wrong because the Constitution is silent on that topic and leaves it to legislatures. That is, Bork could make an *institutional* case against use of the judiciary for this purpose. It seems to me proponents of engagement could say Blackmun got the law wrong. But on that model, why was Roe wrong to take the case to the courts, and why was Blackmun wrong to require the state to justify the law? Blackmun, it seems to me, is operating within the same zip code, at least, of legal philosophy as to a judge's authority. He's just applying it incorrectly.

That is, "judicial duty"--understood as a license rather than a limit (I read Hamburger as the latter)--is good for the gander if it's good for the goose.

My point here is that it is not the *failure* of liberal judges to engage that is the problem. It is that they embrace judicial engagement but see it differently. Wrongly, yes. But power has to account for its use by people with whom one disagrees.

As to constraints, you and I seem to agree as to institutional ones. I don't think (though I could be wrong) that Evan and I do, at least on all points. But in any case, I don't think "judicial duty" is an institutional restraint any more than "presidential duty" or "congressional duty" is. These are self-restraints, and Madison for one--see Fed. 48--does not want to rely on them.

Greg

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Greg Weiner
on May 26, 2016 at 12:41:12 pm

Greg:

I also read Hamburger in the "limiting" sense. As you rightly point out, unfortunately, and history has proven this, many jurists do not. Yet, this is inescapable. Jurists, not unlike an ambitious co-worker at the local software corporation, do have motivations.

Judicial duty is NOT an institutional constraint; even were it so, can one reasonably advance the argument that it would serve as a constraint upon jurists by virtue of its "institutional' character. Again, clearly not, as neither the structural nor institutional mechanisms of constraint in our Constitution have achieved this.

My understanding, my preference, if you will, is that *duty* would, should, ought to encompass all of the structural and institutional means / mechanisms for sustaining liberty and thus would *shape* judicial determinations. Clearly, this is an assertion subject to some level of plasticity of application; yet, without some guiding strictures on not only interpretation but personal ambition / bias, we will be assuring that our sole defense against "activism" will be the institutional constraints that have, to this late date, failed to provide the proper limits on government.

As you may suspect, I am not one who offers or accepts panaceas. Duty is only the best that I can offer or foresee. It ain't perfect, and the inculcation in / acceptance by jurists would likely require significantly more time and effort than a simple recourse to the now discarded institutional constraints but it may be our last hope.
If "(jurists) were angels..." - let us hope that at least they are not sinners (rhetorically speaking, of course).

Anyway, don't know your illness, but take care and get well.

gabe

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gabe
on May 26, 2016 at 15:57:38 pm

I'm not so sure that Madison really advocated majority rule, and I would bet that most historians familiar with Madison and the founding would not be so sure either.

Madison advocated respect for the opinions of the majority, but he advocated a separation between the opinion of the majority and government decision makers.

The "republican remedy" referred to was the distribution of opinions amongst diverse groups, as opposed to a small number of groups; a remedy that was poisoned by the growth of the political parties. And the political parties either choose the Supreme Court candidates or at least strongly influence their selection.

The "scheme of representation" refers to the prevention of direct majority rule by selecting capable decision makers who would act on behalf of the voting public. The public influenced the vital (motivating) actions of the representatives who made law. The Senate, the less vital, editorial chamber, and the energetic President were to be kept separate from direct election to prevent those offices from being overly majoritarian. The schemes the Framers architected didn't work out of course, so we fell into majoritarianism.

The "intention of the people" mentioned is puzzling, but not because it doesn't support non-majoritarianism. Rather, it puts the Justices in charge of voiding actions by the government that are contrary to the intention of the people. Think "Obamacare." 'Nuff said.

Perhaps Madison's letter to Jonas Golusha was an after-the-fact apology for the system the Framers created. Or perhaps the word "vital" refers to the fact that the popular House was the origin of legislation. Perhaps Madison was attempting to motivate Vermont using populist language. But I don't think the single letter firmly establishes Madison as a majority rule kind of guy.

More problematic than those issues is the paper by Gilens and Page--"Testing Theories of American Politics: Elites, Interest Groups, and Average Citizens" on the effects of majority opinion on government policy making. Gilens and Page discuss how the opinion of the majority has no correlation to policy decisions, while the opinions of the wealthiest citizens correlate strongly.

Democratic representation does not necessarily imply majoritarianism. For example: Suppose the Senate acted similarly to the Framers during the Constitutional Convention and acted in secret. Vote tallies could be published, but not who voted and how. Discussions could be had, but they could be kept from the ears of the public so that popular reactionary sentiments could not muck up the workings of policy making. That was the practice of policy making endorsed by Madison & Co. in 1787. It was non-majoritarian as far as the public went in directing actions, although it was majoritarian in its final approval. In a Senate operating under such rules (which is probably how the Framers anticipating it would operate) the public could not vote out senators who did not follow the public will (indirectly by selecting state legislators who would act on their behalf) because the public did not know how their senator voted or what editorial proposals the senator made. This system would be democratic and representative, but it would not be majoritarian as far as the public goes. The senators would be chosen or removed based on their character and the general consequences of policy decisions, not on their actions in the Senate.

While I agree with much of this essay, (and I am enjoying this series very much by the way, thank you) I find it difficult to agree with the a couple of the main points.

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Scott Amorian
on May 26, 2016 at 16:08:57 pm

I don’t think any interpretive theory is an institutional check on power (neither judicial deference nor judicial engagement). They either have the power to use as they believe is correct or they do not. Impeachment, altering the size of the court, jurisdiction stripping, and ignoring court opinions are all institutional checks on the power of Supreme Court judges (of those I find altering the size of the court just to change their decisions to be the most distasteful as it was not intended as a check and ignoring of their opinions to be the remedy of last resort when the Court ignores other remedies). I agree that elected representatives can and should pay a political price for improperly exercising these sometimes drastic remedies.

I disagree that the former (Congress passes a law, the President signs it, the judiciary stamps it with the final constitutional word) represents judicial supremacy over constitutional questions. All three branches must agree that something is constitutional before government can truly act; that is a co-equal determination of constitutionality. Just because judges are usually last doesn’t mean they are right or that they are always last. If congress decides tomorrow a statute is unconstitutional it has the authority to repeal that statute. Likewise for the Presidents power to refuse to enforce statutes he believes are unconstitutional or pardon those previously convicted. All three branches have the power at any time to declare a statute unconstitutional. You can call this an “ongoing multi-directional conversation” if you want.

Justice Scalia may have not been at the two extremes but he was always far more in favor of deference to elected branches then someone like Justice Thomas is (although Bork was probably even more so than Justice Scalia). Modern Cheveron deference is almost all the child of Justice Scalia, not even the original authors of Chevron went as far in giving deference on pure questions of law (even Justice Breyer and Stevens weren’t willing to go that far). Merrick Garland is even more so than Justice Scalia was in favor of deference to the elected branches of government (even justice Scalia wasn’t in favor of deference to the elected branches on the 2nd amendment).

I disagree that the “the constitutional system is designed neither to create barricades to majorities nor to remove.” The constitution set up a federal elective majority rule (although one had also existed under the Articles of Confederation so it was more preserving it), but then the rest of the document is setting up limits on that majority rule. The majority cannot act outside of certain limited and enumerated powers, it cannot execute the law it enacts (unlike English government), all of the bill of rights are limitations on the power of the majority, almost everything in the constitution is about limiting majority rule to the most narrow areas possible.

The articles of confederation had the problems of too much was allowed by majorities (state majorities, but majorities none the less). Lets go through some of these 12 vices you speak of: “1. Failure of the States to comply with the Constitutional requisitions.” Too much majority rule in the states at the expense of individual rights. “2. Encroachments by the States on the federal authority.” Too much majority rule by states at the expense of federal power. “3. Violations of the law of nations and of treaties.” Too much majority rule by states at the expense of international relations. “4. Trespasses of the States on the rights of each other.” Too much majority rule by one state at the expense of other states. “11. Injustice of the laws of States.” Can you say too much majority rule?
Ultimately, of course, everything derives its power from the people, but not necessary by direct short term majority rule. Its hard to look at Federalist #!0 speaking about how "measures are too often decided, not according to the rules of justice, and the rights of the minor party, but by the superior force of an interested and overbearing majority.” He speaks of two ways to prevent this kind of tyranny by the majority: “Either the existence of the same passion or interest in a majority, at the same time, must be prevented; or the majority, having such coexistent passion or interest, must be rendered, by their number and local situation, unable to concert and carry into effect schemes of oppression.” The first part is about splitting up the length of time over which a majority can act (longer and split elections for senators, even longer periods to change the judiciary), and the second is about the separation of powers so that a majority in one area of government can be stopped from carrying into effect their schemes of oppression. Judges represent two key parts of that (very long term time horizons for change given their lifetime appointments), and the ability to stop a local temporary majority in congress from becoming oppressive.

Publus didn’t write those words (he didn’t exist), Alexander Hamilton wrote about “irreconcilable variance” in Federalist #78. You have to remember, Alexander Hamilton LOVED majority rule, for him the majority could do almost no wrong. Thank god his views were soundly rejected by the constitutional convention. But lets turn to what he actually said in Federalist #78: “A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.” It is the proper role for judges to decide for themselves what the meaning of the constitution is. Judges, just like legislators are agents of the people, and have just as much authority to make that decision as the legislature. If the meaning of the statute (as interpreted by the judge) does not fit within the meaning of the constitution (as interpreted by the judge), then the statute should be ignored. This is standard agency law, by default one agent (legislators) doesn’t get to determine for another agent (judges) what the principle said.

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Devin Watkins
on May 26, 2016 at 16:51:21 pm

Greg,

I'm enjoying this exchange immensely, and I'm particularly impressed that you were able to describe my model of judicial engagement (in paragraph 11) in a way that I not only find to be fair but can enthusiastically endorse. I may deploy the "series of locked doors" metaphor in the future (with attribution).

That said, I can't resist the provocation (well, I suppose I could, but I won't).

You write:

"Blackmun thought he was doing his judicial duty by invalidating an abortion statute that, in his judgment, arbitrarily and unjustifiably restricted liberty. Bork knew Blackmun was wrong because the Constitution is silent on that topic and leaves it to legislatures."

Bork's conviction that Blackmun was wrong was a byproduct of Bork's own interpretation of the law. That is, it was only because Bork disagreed with Blackmun concerning whether the Constitution *is* silent on the topic of abortion that arrived at the position that the Constitution leaves it to legislatures. Blackmun could have responded, "I may be wrong on the law, but what I'm doing is perfectly institutionally legitimate. I don't think that the Constitution is silent. It's my duty to determine whether this statute is an arbitrary imposition on constitutionally protected If you thought what I thought, you'd do the same thing. You're in my zip code, even if you think I'm interpreting the law incorrectly." And then Bork and Blackmun would have an argument about the law. Such arguments are inescapable.

In the final analysis, defenders of constitutionally limited government--regardless whether they are proponents of restraint or engagement-- need an objective means of interpreting the Constitution, and they need a method through which judges can perform their duty. Describing a particular decision as institutionally illegitimate begs the question that we need to answer in the first instance. Thankfully, we can.

-Evan

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Evan Bernick
on May 26, 2016 at 20:18:14 pm

Devin:

Agreed, re: majority rule & Madison. Clearly, there was an intended check upon majorities. As a simple explanation, the "checkpoint" analogy serves well enough as a institutional counter to the influence of majorities.

Yet:

" If the meaning of the statute (as interpreted by the judge) does not fit within the meaning of the constitution (as interpreted by the judge), then the statute should be ignored."

This brings us full circle to the problem of the influence of a minority (or again even a majority as evidenced by today's PC inspired judiciary). Is is ALL that we may ask of a jurist that he / she uses their own wits / lights to determine what IS constitutional. Bork / Blackmun is a nice example; but IS there anything in the constitution that says that this is a FEDERAL concern? (Don't really care as to the answer for present purposes). Or is there not something in the text and "structure" of the "fundamental" Law which would provide an answer.
My contention is that a jurist, fulfilling his / her judicial duty would observe (and support, one would suppose) that the "richness" of the fundamental Law is not sufficiently rich to allow for the Federal Government to intervene in such matters. In other words, "duty" requires that one observe, accept and adhere to the limitations placed upon the central government BY the fundamental Law.
To allow for the rather varied interpretive methodology, linguistic legerdemain and downright *cleverness* with which we have been entertained for the past 90 years is both disturbing and threatening. One may attempt to limit this judicial plasticity via a comprehensive interpretive theory or methodology - they will all fail without an ingrained sense within the judiciary of the (intended but not observed) structural limitations upon the judiciary, not just the Legislative and the Executive.
Clearly, neither Madison nor Hamilton envisioned a judicial environment wherein some jurist would arrogate to himself the right / privilege to either grant or dispense with a) fundamental rights (see 2nd Amendment and 4 current Scotus Black Robes) or expand government *Commerce* (yep, right - commerce, you say) power (see O-Care or New Deal cases) without so much as a "by your leave" to the fundamental Law and it's institutional limitations.

It ultimately comes down to this:
Does a Jurist have to a duty to abide by the Law - not as he / she claims to see in pursuance of their ideological preference but rather as a barometer of tradition (changeable as it may be).
Does a jurist understand that this "duty" prevents the Court(s) from legislating under the guise of "review."
Does the jurist recognize that it is his / her duty, when appropriate to show no deference whatsoever to any governmental expansion of powers beyond those expressly DELEGATED to it?

I could go on - but the point is that Jurists do have a duty to behave and reason in accordance with acceptable / known principles, methodologies AND non- exotic interpretations of text and words contained within the constitution.

Thus, if a jurist is so far off on any determination, that jurist ought to be impeached for failure to exercise / fulfill judicial duty. True for the right or the left. Of course, all this might be possible had we had a functioning Legislative that took pride in and asserted it's institutional power. In the meantime, all we can ask is that a well paid jurist does his / her duty; after all, we not only expect this but DEMAND of the common foot-soldier.

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gabe
on May 27, 2016 at 07:09:39 am

Evan,

Darnit, I have to be more careful about equipping the other side with metaphors! But I prefer a different one: constitutional mechanisms as speed bumps rather than road blocks.

Fair enough re Bork and question-begging insofar as the way I described it. But there is a step it seems to me you overlook. The question is not merely whether a law is unconstitutional, but rather how unconstitutional it is. Is it, in Hamilton's phrase, at "irreconcilable variance" with the Constitution? That is, Bork's method would not have been simply to judge whether a statute was at variance with the Constitution but rather whether it could be reconciled with the Constitution. This is the institutional argument because it is based on a certain view--a Hamiltonian view--of the place of a judge.

Greg

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Greg Weiner
on May 27, 2016 at 07:24:53 am

Gentlemen:

First, thanks, Gabe, for your kind wishes. I am doing just fine. Second, your arguments, along with Scott's, force me--against my monumental, overweening humility--to flog my own book on this topic, which is Madison's Metronome: The Constitution, Majority Rule and the Tempo of American Politics. It makes the argument, with more evidence than a blog post can muster, for Madison's deliberate majoritarianism, subject to the check of delay to diffuse the passions. There is a conservative pedigree for this, by the way: See, inter alia, Buckley on being ruled by the first 400 people in the Cambridge phone book, replace "Harvard faculty" with "federal bench" and you get my point. See also Madison's ca. 1833 essay "Majority Governments." See the fact that Federalist 10 does not point to a single institutional barrier to majorities. See Madison's 1788 correspondence re: Jefferson's VA constitution: having the judiciary pronounce last on constitutional questions "was never intended and can never be proper." The letter to Galusha is illustrative, not exhaustive.

Greg

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Greg Weiner
on May 27, 2016 at 07:57:09 am

So, the idea is that Bork could say to Blackmun, "Look, you don't have any business holding this statute void simply because you think it's unconstitutional. We may disagree about what the Constitution means, but you can't honestly say that this statute can't be reconciled with the Constitution and you are obliged as a judge to seek to reconcile with the Constotution. So, we're not in the same zip code--this isn't a mere interpretive disagreement. You are doing something that is institutionally illegitimate by striking something down simply because you think it's unconstitutional. Even if I believed what you did, I wouldn't do likewise."

That's a very helpful clarification. I think I'll address that argument in a follow-up piece. I wasn't entirely sure how your discussion of Hamilton's "irreconcilable variance" language fit into the rest of your article (although I certainly agree that he's referring to a presumption of constitutionality--a manifest contradiction rule or, as Professor McGinnis has termed it, a duty of clarity), but now it fits rather nicely.

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Evan Bernick
on May 27, 2016 at 09:46:48 am

Greg:

Let us leave it as follows:

I agree with the concept of "speed bumps" as you say above. I may view these as intended to be somewhat larger speed bumps than what we find in practice. To my mind, this does not mean that Madison was anti-majoritarian but that he held a quite rational fear of the power of the majority to do ill.
I suspect that is also what Scott was asserting with his discussion of the institutional limits such as the *aristocratic* Senate, etc. A majoritarian - yes; but a rather cautious one, I would think.

As for " having the judiciary pronounce last on constitutional questions “was never intended and can never be proper.” _ Agreed. Yet, here we find ourselves in just such a position (and not w/o a fair measure of (ill-founded public support); thus, my insistence that something (judicial duty, a la Hamburger) be employed / deployed to counter the errant course upon which we have embarked.

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gabe

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