I enjoyed Greg Weiner’s post on the Judicial Dilemma of Originalism, which has received some attention. Greg does a strong job of describing the conservative case for judicial restraint (as the competitor to conservative originalism). My problem, however, is that I don’t really understand the conservative case for judicial restraint.
It arises from man’s status as a political animal. It elevates to the status of constitutional principle the conservative’s dispositional distaste for whining, which is not to stigmatize all objections to losing positions as whining. Some objections are legitimate. It is, rather, to say that not all losses before legislatures are to be retried before courts, that part of the price of living in a political community is that one must accommodate oneself to the needs, preferences and tastes of others. One wins some battles but also loses others and one is not entitled simply to stomp off the playground—still less to shutter the playground for others—in the latter case.
Here is the problem. Majority rule – especially majority rule at the national level – is not really a conservative principle, unless it is significantly cabined by other principles. But judicial restraint toward Congress by federal courts will allow Congress largely to do as it pleases.
I understand why conservatives reacting to the Warren and Burger Courts would have favored judicial restraint. At a time before originalism had become popular, judicial restraint was a powerful way of criticizing an activist court based on a theory that made sense in a democracy. But the fact that judicial restraint made sense at a particular time for conservatives does not mean it is a principled or long term approach when it comes to constitutional interpretation.
Let’s remember that the New Deal – which was a profoundly unconservative movement – was made possible through judicial restraint. Congress could do it as it pleased, departing from the traditional limitations on the federal government, undermining the role of the states and the rights of individuals. In fact, judicial restraint was advocated by the progressives — by for example Brandeis and Holmes — and I don’t think they were pursuing a conservative constitution. Modern advocates of judicial restraint, like Judge Bork, are ironically the descendants of these progressives.
That majority rule often leads to bad and unconservative results would have been no surprise to traditional conservatives. Aristotle and Burke both understood the dangers of majority rule. Instead, traditional conservative employed majority rule as a portion of a wider set of governing principles.
If one wanted to pursue a conservative constitutional jurisprudence that was distinct from originalism, then it would look much like the following. It would involve limits on the legislature (limits that were stronger than conferring deference on the legislature). It would involve constitutional provisions that incorporated traditional principles, and that changed their meaning only gradually in accordance with popular and customary understandings. It would involve a balance between the federal government and the states, and would employ a significant role for local governments. It would involve an attempt to govern as much as possible through consensus. And finally it would involve majority rule as a part of this wider scheme of governing principles.
Judicial restraint in the United States would not lead to the above arrangement.