Why Thayer is Clearly Mistaken about Judicial Restraint

James Bradley Thayer’s article on judicial review is one of the most renowned pieces of scholarship in American constitutional law. It is famous for the “clear mistake doctrine”—his notion that legislation should be struck down only if it violated what any rational person would believe the Constitution to mean.  “Clear mistake” thus embodies very strong judicial restraint.  My article, The Duty of Clarity, shows why “clear mistake” is itself clearly mistaken.

Thayer’s strongest originalist support for the doctrine comes from the many cases around the time of the Framing that state that judges should  invalidate legislation only when it is in clear or “manifest contradiction” with the Constitution. But Thayer misunderstands these cases because his own premises about law are so different from those of the Framers.  He quotes the words of law without understanding the accompanying jurisprudential music.

First, unlike those in the Framing generation, Thayer believes that constitutional law serves a political function that differs fundamentally from other applications of law.  He describes judicial review thus: “In simple truth, while this is a mere judicial function, it involves, owing to the subject-matter in which it deals, taking a part, a secondary part, in the political conduct of government.” He criticizes as “severe” Marshall’s argument in Marbury v. Madison that judicial review flows from treating the Constitution like other law except that the Constitution controls when the two conflict.”

But as Philip Hamburger has shown, judicial review was rooted in the judicial duty of law application and was not understood as more political than any other application of law.  The notion that the Constitution was law and was to be applied as a matter of ordinary judicial duty was shared by essentially all jurists.  The requirement of clarity did  not stem from the notion that judicial review was a particularly political aspect of law but instead came from a fear that judges needed to show that they made their decisions based on legal rather than policy considerations. That was of the essence of the republican theory of judicial review.  Nothing makes this clearer than Marshall’s embrace of the duty of clarity along with his arguments for judicial review.

Second, Thayer is of the view that constitutional law is open to many interpretations, necessarily giving unfettered discretion to the judge.  Thayer stated: “The Constitution often admits of different interpretations; that there is often a range of choice and judgment; that in such cases the constitution does not impose upon the legislature any one specific opinion, but leaves open this range of choice; and whatever choice is rational is constitutional.” The repetition of the world choice emphasizes his view that judges inhabit a world of discretion and judicial lawmaking.

It is not surprising that Thayer takes this view.  Between the early republic and Thayer’s time, John Austin had become an influential jurisprudential theorist.  Austin, writing under the influence of Jeremy Bentham, believed that judges made law and did not discover it.  For Austin, terms in law often had an “incorrigible indefiniteness” and thus judicial legislation was inevitable. Law in general was the command of some sovereign—either the legislature or the judiciary.

Since James Bradley Thayer embraced Austin’s view that justices were often lawmaking in the interstices of the law where meaning ran out, it is not surprising that he interpreted the comments about the obligation of clarity as a command against judicial lawmaking in such gaps.  Constitutional review did not need to fill in these gaps.  The legislature, Austin’s primary sovereign, could do so instead.

But as I show in my article, the jurisprudence of the Framing and the early republic did not contemplate judicial lawmaking in Austin’s sense. Judges were to elucidate law through legal methods. The reason for the duty of clarity was not that law could not be elucidated in a disciplined way but rather than the all entities within the government, the legislature and the judiciary were trying to discover the true nature of the law and that deference was a check on judicial passion. For Thayer as for Austin, text that was unclear on its face inevitably generated an arbitrary discretion. But for the Framers’ generation the meaning of an unclear text could be discovered or largely elucidated by legal methods.

Reader Discussion

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on March 20, 2015 at 16:08:45 pm

Our needs at the time of the Framing were meaningful, while modern needs are not?

The general problem is that the nation has changed since the time of the Framing and the things we need from a Constitution have changed.

While a certain amount of conservation is useful, so is growth.

Let's consider the Second Amendment.

The amendment forbids the federal government from interfering with the people's use of arms because the ability to bear arms is necessary for freedom. Yet the arms available today that would allow us to engage in a conflict with any government are extremely dangerous. You do not want your crazy neighbor keeping a bunch of high end military hardware in their garage. So the people, the national government, and the states all wisely ignore the literal meaning and intent of the amendment. It's not likely that a private militia could go up against the US military if the US government became abusive. We tried that once during our Civil War. It's also not likely that the US military could fail to go up against a foreign country. We mostly ignore this writing. We keep it within the context of using arms for self-defense, target shooting and hunting because those purposes are useful and generally nondestructive.

That is not theory. That is how government and the Constitution work today. It is less a mechanical code, and more of a gentleman's agreement. We treat it like mechanical code for purposes of civility, but ultimately we have demonstrated an ability to ignore old parts and to imagine new parts of it if we so choose; sometimes for our betterment, and sometimes for the worse. But we definitely do that.

As a computer programmer I recognize the problems with trying to encode systems of rules. Having a set of encoded system of rules creates a sense of personal security, but rules make poor governors. Rule systems lack human context. Rule systems cannot accommodate the unexpected. Rules cannot change as our social and political context, and therefore our needs, change.

Ideally we would keep our rules in sync with our needs, but our experiment in republican government demonstrates that our system of government does not make it easy to do so. Certain parts of it that are not useful remain in place: The Second Amendment continues to give a false sense of security in our ability to use force of arms. The electoral college remains as a direct democracy-by-proxy instead of a vetter of candidates.

The argument of the article as I read it is that judges should choose not to choose, and instead mechanically follow the original intent of the framers as they are best able to determine. The argument itself acknowledges the power of judges to choose, therefore I cannot embrace it. I am, however, concerned with the issue of how to contain that power.

[I don't believe that we should be changing the Constitution willy-nilly through judicial activism. I'm just trying to contrast the reality or our government with the given theory of government.]

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Scott Amorian
on March 20, 2015 at 17:18:19 pm

While it may very well be true that the arms required to effectively contend with a foreign army are dangerous, as are all weapons, the more significant point is that the various governments have seen fit to deny the citizen the right to possess them. so, yes, an ordinary militia would have a hard time indeed contending with a well disciplined modern fighting force.
Yet, we must then ask:
a) Is the alternative (disarming the populace) better. should we become like Britain where some crazed, axe wielding religious fanatic may freely chop up a British soldier knowing full well that no citizen (and most police officers) will not be armed?
b) History is replete with examples of small militia type forces defeating far better equipped armies (see ISIS, American Minutemen, Vietcong, etc). Is this likely to happen - no, but......
c) The defense of freedom referred to in the 2nd Amendment was not intended to defend against foreign armies but rather against an oppressive home grown government. (And no I am NOT a looney toon militiaman).

Simply because conditions have changed does not in itself necessitate a change in the underlying premise of the amendments protections - it may just be more difficult to fulfill it.

Also, I think McGinnis is well aware of the "pick & choose'em" method of adjudication. He is simply attempting to show that one means of minimizing this is to enforce a rule of clarity. If anything, to my mind this is not mechanical as it involves a high level of reasoning and a prudent tempering of *rules.*

Yes, our system does make it hard to change "rules" - as it was intended to do. Yet, Article V still remains. I blame not the system of government, nor its structure, but rather we lazy buggers calling ourselves citizens who allow (encourage) this to happen - by this I mean the unending stream of *judicial lawmaking* emanating from those august figures fidgeting under their Black Robes and conjuring up all sorts of obscene pronouncements and doctrines. If a rule of clarity can get them to remove their busy fingers from beneath their soiled Black Robes, then I am all for it.
But what the heck, our Legislative Branch ain't anything special either and in fact are an equal part of the problem.

take care

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on March 21, 2015 at 14:12:48 pm

I guess I have more faith in the American people than you do, Gabe. Instead of blaming the American people first, I take the more Reagan-esque approach and hold the people up as generally good and noble, and I look at the structure of the system for issues that should be and can be corrected.

Here, McGinnis has honored us by taking the time to write an opinion for our critique, and I have returned the honor by giving my best critique. McGinnis is trying here to come up with a solution to certain problems that will work within the system without having to change it. I am stepping outside that box and arguing for a solution that permits making changes to the system.

As an engineering principle things change when they scale. A log and plank bridge works well enough to carry traffic across a stream. But it is impossible to for a log and plank bridge to span a large river. Even if it impossibly large logs could be found, they would collapse under their own weight. The technology needs change when the scale changes.

The American government has scaled a lot since the time of the Framing. The "Laws of Nature" that govern it are different now, not because the laws changed, but because the political environment has grown. The Constitution is not keeping up with the realities of modern American. Instead of trying to make the legacy Constitution work without having to go through the trauma of having to update it, I argue for (very carefully) fixing the things about it that are broken. The Second Amendment is no longer practical. The electoral college is a waste. The method of appointing justices creates a biased and polarized court. The lack of neutral oversight of the federal government is causing growth of useless government. The partisan political system has the public so polarized that most people can't tell the difference between political propaganda and truth. The US government is very much a bribe-acracy. These are all structural problems, not general public laziness.

I'm glad that scholars like McGinnis and company study concepts such as Original Intent because an understanding of these concepts is useful. But in the long run I don't see those as sufficient for correcting the many problems of government that are structural in nature.


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Scott Amorian
on March 21, 2015 at 14:53:36 pm

The key to understanding the difference between Thayer and Marshall is epistemology. "(W)hatever choice is rational is constitutional" was informed by an understanding of reason that was essentially pragmatic and skeptical-- for Thayer, there was no single "truth" about what the Constitution required in any given context, the text being pervasively indeterminate. Marshall, by contrast, thought truth was ascertainable and that ambiguous text could be rendered clear through scrupulous, disciplined inquiry, even if in a given case it would be difficult to do so.

Thayer lived during a time when the epistemology that informed the framing of the Constitution and the early practice of judicial review was under vigorous attack. And it shows. The language is similar, the meaning, very different.

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Evan Bernick
on March 21, 2015 at 15:41:38 pm

Please reconcile the statements "I guess I have more faith in the American people than you do..." and "[t]he Second Amendment is no longer practical."

How do you suggest the Second Amendment be made more practical?

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on March 21, 2015 at 16:30:56 pm


Ya beat me to it!


We must be careful in what we (wish for) propose. sometimes we get it!!!

Let us take the 2nd Amendmnet and its current non-utility. Granting this assertion can we not also extend it to the 5th? After all, one could argue the reason that we did not want the guvmnt searching us was that it was somewhat disruptive to have a bunch of Hessians kick in our door and rifle through our papers.
Voila, now all we have to do is plant a tracker (key-logger) on your computer and we get what we wanted. No disruption; same with a bug on telephony.
One could also argue that the 1st Amendment should also be tossed. After all, one of the reasons that it was easy to overlook the rantings of the village troublemaker was that it was CONFINED to the village from whence he came. Not so today - heck I could (if I did not despise the founder of) get on Facebook and proceed to inveigh against any and all things. It is out on the internet reaching potentially billions of folks.

In both the 1st and the 5th, one can positively argue that circumstances on the ground have changed just as with the 2nd, wherein the technology of lethality has been markedly improved. Do we eliminate them all?

If so, then I guess that technology is now sufficient cause to amend / abrogate our basic protections?

As for "faith" in the American people, one must remember that Madison, Jefferson, et al presupposed that faith upon a virtuous people AND a natural aristocracy that would impel the people toward virtue. It is sad but true that a people that will not be virtuous, and are not lead by virtuous leaders, can not in any real sense said to be virtuous (or well informed for that matter).

That being said, my critique is directed at the totality of the current "Common Mind" - the people are only one single element of (and contributor to) the problem. I, too, am one of the people.
And as you know I have a special place reserved for the Black Robes.

take care

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on March 21, 2015 at 16:36:11 pm


Great point on the epistemological differences re: rationality.
For Marshall to use rational is something quite different from the current vogue in the Judiciary for a "rational" basis test.
Whereas the former was informed (predicated upon) a sense of virtue expected from government, the latter appears to mean "whatever some clever lawyer can convince another lawyer of."

We've come a long way, baby! Oops, that is from an old cigarette commercial. Hope Reinsch doesn't get fined for allowing such speech on this site! I wonder would that be "rational?"

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on March 21, 2015 at 21:46:40 pm

Judge Jeanine Pirro Opening Statement - Signing Any Deal With Iran Is Bad For America


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Image of Steve
on March 22, 2015 at 11:44:44 am

[…] Why Thayer is Clearly Mistaken about Judicial Restraint […]

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Elizabeth Warren’s World, and Mine - Freedom's Floodgates
on March 23, 2015 at 04:01:20 am

Excellent comment to an excellent article.

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David Upham
on March 23, 2015 at 05:00:48 am

"So the people, the national government, and the states all wisely ignore the literal meaning and intent of the amendment. It’s not likely that a private militia could go up against the US military if the US government became abusive. We tried that once during our Civil War."

No, actually we don't ignore the original intent. Firearms are still "necessary to the security of a free state." The first thing that tyrannical governments do, even today, is disarm their citizens, regardless of the chances that the citizens can successfully throw off those tyrants. An armed populace presents a price that potential tyrants, from within or without, would prefer not to pay, regardless of the likelihood of success. Millions of people would still rather die for freedom than live as slaves.

When computer program code no longer suits our purpose we don't pretend that it is unchangeable, we change the code. It is not true that "we have demonstrated an ability to ignore old parts and to imagine new parts of it if we so choose." We don't do the choosing; non-elected lifetime judges do the choosing. Judges who "ignore old parts," but who instead create their own "living Constitution" are non-elected tyrants. Just as we can change computer programs, we can change the Constitution through the amendment process as we have 27 times.

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Ali Bertarian
on March 26, 2015 at 10:14:40 am

[…] Why Thayer is Clearly Mistaken about Judicial Restraint […]

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Image of The Common Law Roots of the Duty of Clarity - Freedom's Floodgates
The Common Law Roots of the Duty of Clarity - Freedom's Floodgates

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