Wanted: A republican Judiciary

Professor Greg Weiner’s, The Political Constitution: The Case Against Judicial Supremacy, is a new book in an emerging genre of constitutional literature that champions judicial restraint, the intellectual inheritance of James Bradley Thayer, and the late jurisprudence of Justice Felix Frankfurter.[1] In taking aim at the libertarian school of adjudication now ascendant in originalist constitutional theory, Weiner frames the crucial contest of our day as between partisans of judicial restraint and partisans of “judicial engagement.” While appreciating the contributions of this readable, succinct, and thoughtful book, I want in this review to pick a few friendly fights with it.

The book’s basic argument is that contemporary Americans have lost the sense in which the Constitution is fundamentally a “political” document, by which Weiner means a vehicle for “pursuing human goods through interdependent lives” with “openness to shared ideas of noble ends pursued with common purpose.” The Constitution, he says, embodies a certain kind of politics—republicanism—in which authority is vested in the people, working through their representatives, to take primary responsibility for the “res” of the “res publica” in the pursuit of the “ends we share.” Weiner contrasts this vision with one of individualist constitutionalism, in which all valid political ends are derived from the private choices of individuals, and which is not really a form of politics at all—an “anti-political” (as Weiner puts it) politics of rights maximization without concomitant social responsibilities.

These two models of constitutional politics (or politics and “anti-politics”) correspond, Weiner claims, to two views of the nature and scope of federal judicial power in America: judicial restraint and judicial engagement. Judicial restraint, in Weiner’s view, empowers the people to reclaim what is rightfully theirs as republican citizens from a judiciary that has usurped their sovereignty and enervated their capacity for self-governance in declaring itself the supreme expositor of the Constitution. Judicial engagement—which Weiner associates especially with the work of Professor Randy Barnett and the Cato Institute’s Clark Neily and Roger Pilon, but there are several distinguished scholars in this camp—empowers the judiciary to guard individual liberty against the perpetual encroachments of the government’s other branches while itself perpetually encroaching on the claims of the people qua political entity.

One view favors the claims of the political community as against the individual, asking judges to acquiesce in them; the other, the claims of the individual as against the political community, asking judges to vindicate them. Yet while the cost in abandoning the former may only be the loss of some implausible claims of individual freedom, the cost in forsaking the latter, Weiner says, is nothing less than the American republican soul. Along the way, Weiner enlists James Madison for the republican restraint project, though he recognizes that others disagree about Madison’s commitments. Other familiar figures of the Weiner oeuvre—Edmund Burke and Alexis de Tocqueville, for example—make their appearance, and it must be said that Madison looks rather suspiciously too much like those European thinkers after Weiner is done with him.

But these are minor matters. Weiner has written an elegant work of constitutional theory, one which takes its place honorably alongside his other impressive work of intellectual history. Yet there are several problems internal to his argument, visible even to someone (like me) sympathetically disposed toward it. Indeed, I intend the following not as a hostile assault on the Weinerian citadel, but as a set of intramural worries addressed to a learned friend whose account of politics I admire.

First, there is a lurking empirical question largely sidelined by the book: if federal judges stop superintending American politics at the national and local level in the fashion that Weiner deplores, will we see a revival of popular civic republican constitutional esprit? Weiner argues that judicial restraint will rekindle the virtues of federalism and spark a constitutionalism that “makes local political activity meaningful” and it is probably true that more decisions will be made by actors other than federal courts. Somebody will have to make them. But republican constitutionalism means more for Weiner than a brute shift in the locus of some constitutional decision-making. It means some type of civic revival in which the people work together in state and local communities to achieve common ends. It is not clear why one should assume that federal judicial course-reversal at this point in our history will achieve those ends. It may make things worse. State governments may do more but there is no guarantee that they will do so in the spirit of republican common cause that Weiner advocates; the same acrimonious disagreements one sees at the national level simply may be replicated at the state level. We are a different country in many ways than we were when Madison waxed on about extending the sphere. And what about state courts? Judge Jeffrey Sutton has suggested that state court judges (many of whom are also unelected) often step right in when federal courts retreat.[2] But state courts play no part in Weiner’s book. A bit of data might be helpful to evaluate the cogency of the assumption that less federal judicial involvement means more republicanism.

Second, in light of the problems that Weiner so acutely describes, there is little reason one should expect a republican revival to occur after the judges withdraw. Federalism is not a panacea for social and cultural fragmentation. It may conduce to even more dissolution; indeed, that is in some ways its point. And even if it is true that the twentieth century project of judicial supremacy has atrophied the people’s self-government muscles (one might well wonder which came first, the republican atrophy or the judicial supremacy), the people don’t seem too upset about it. By and large, they like the present arrangement. They have confidence in the courts—more, probably, than they have in other organs of government and even in one another. Weiner is surely right that “genuinely republican constitutionalism requires several other preconditions, including many from which we have fallen away.” Those preconditions—shared cultural assumptions that made republicanism a possibility—are unlikely to reappear merely by tinkering with the scope of judicial power. There is a reason that the Alexander Bickel of The Most Dangerous Branch grew much more pessimistic about the possibility of judicial restraint and the passive virtues only seven years later in The Supreme Court and the Idea of Progress. The past 50 years have not helped either. The problem for republicanism is not the judiciary. The problem is us.

Third, given these deep pathologies in American politics and law—given, that is, that with each passing day it becomes plainer that there is a decreasing sense of an American “we” from which a new republicanism could draw any strength—the question arises whether one should want a republican revival of shared ends in American today. At one point, Weiner ascribes to Clark Neily the view that “we have not merely a government but a people out of control, and thus we need judges not simply to discipline an extraneous object called ‘the government’ but also our neighbors.” Weiner objects to this view for the sensible reason that in a republic, the claims of the community must at some point be honored; they cannot be worth nothing. Yet, the view ascribed to Neily has its own force. The primary threats to the constitutional order today are at least as often “private” as “public.” Universities, the media, professional boards and the licensing requirements they impose, Google, Facebook, Twitter, Amazon, and many other such examples in the private domain suggest that “we” have at least as much to fear from our fellow Americans as from the government. There is a potent strain of the book that presents republicanism as if it were an end in itself—a self-evident good. But it isn’t. Republican government reflects the quality of its ingredients. It is good if the people forming the republic are good. Otherwise, it isn’t so good at all.

The problem that the book sets out to solve is therefore dwarfed by the problem that it actually uncovers. If that problem—the problem of the endurance of “We the People” in America—is to be engaged (I say nothing of solved) from the judicial end of the table in a satisfactory way, it will not be through judicial disengagement and leaving the people to their own devices, as ill-considered and noxious as they may be. It will instead be at least in part by asking courts—carefully and always honoring the limits assigned to them by the Constitution—to engage with American constitutional law in ways that differ substantively from the partisans of “judicial engagement” whom Weiner criticizes.

What we require is not judicial restraint, but a different sort of judicial engagement that supports and helps to develop the substantive traditions that made republicanism an appealing political theory in the first place. If McGowan v. Maryland and Town of Greece v. Galloway, two cases whose results Weiner approves, are good decisions, it is not because they are exemplars of judicial restraint and disengagement. By upholding the Blue Laws and legislative prayer in two local communities, the Court engaged: it defended and promoted these practices. It fostered certain types of traditions by allowing them to endure and acknowledging them, one way or another, as part of the heritage of the American republic. The Court thereby cultivated a distinctive kind of civic republicanism, for good or ill. Hate or love them, those decisions are the products of a constitutionally engaged federal judiciary. The same is true when a federal court invalidates a novel majority-supported policy that destroys an enduring tradition. The court is thereby protecting and fostering a republican tradition from whatever ill-conceived reasons (or “shared ends”) that happen to have moved the majority. This sort of approach is not unvarying judicial deference. It accepts Weiner’s point about the “shared ends” of republicanism, but it is not indifferent to just what those ends might be.

Nothing in these observations should take away from the considerable achievements of this book. And one should have no illusions about the bleak prospects of success in the ongoing contest for shaping the republican sensibilities of the American people today in civically healthy ways. But that is the contest, one about the kind of judicial engagement we should want, not about whether we should want it at all.

[1] See Peter Augustine Lawler & Richard M. Reinsch II, A Constitution in Full: Recovering the Unwritten Foundation of American Liberty (Kansas Press, 2019); Louis Fisher, Reconsidering Judicial Finality: Why the Supreme Court is Not the Last Word on the Constitution (Kansas Press, 2019).

[2] See Jeffrey S. Sutton, 51 Imperfect Solutions: States and the Making of American Constitutional Law (Oxford University Press, 2018).