Over at the Huffington Post, the Institute for Justices Evan Bernick jumps into an ongoing debate about the proper exercise of the judicial power. On one side, libertarian constitutionalists (like Bernick and Damon Root) disparage judicial deference and encourage judicial activism on behalf of (what they think are) constitutional rights. On the other side, conservatives (like me and Ramesh Ponnuru) contend that judicial deference or restraint is appropriate because it is the kind of exercise of the judicial power that the American founders endorsed.
Bernicks defense of Roots position adds a potentially helpful clarification of the issues. At the same time, however, I would say that his argument in the end simply adds more evidence that conservatives should reject the libertarian constitutionalists judicial activism as inconsistent with the Founders Constitution.
To review the argument: Root contends that the judicial deference championed by modern judicial conservatives can be traced to the Progressives of about 100 years ago, who also defended judicial deference. I, on the other hand, contend that judicial deference can in fact be traced to the Founders and can be seen, for example, in the great opinions written for the Supreme Court by Chief Justice John Marshall.
Bernick argues in defense of Root by way of a distinction. According to him, the specific kind of deference defended by conservative jurists (like Robert Bork) is actually rooted in the thought of Progressives like James Bradley Thayer, and not in the jurisprudence of John Marshall. Thayer held that the Constitution is often unclear, and that where it is unclear the Legislature has a right to adopt whatever interpretation it wants, so long as it is rational. In contrast, Marshall believed that the Courts job was to try to render the Constitution clear through the standard tools of judicial interpretation.
This is a potentially helpful distinction because it may well be that the kind of judicial review advocated by Thayer is excessively deferential to the Legislature. Certainly I would agree with the idea that contemporary conservatives should take their understanding of the proper use of the judicial power from Marshall, and the founders more generally, rather than from the restatements of it (and perhaps reinterpretations of it) offered by later commentators like Thayer.
Nevertheless, this distinction does not take us as far as Bernick would like. In the first place, his argument still does not show the invalidity of a certain kind of judicial deference, properly understood. If Thayer argued for an excessive deference, it does not follow that there is not an appropriate kind of judicial deference or judicial restraint, such as is found in the work of John Marshall.
Bernick tries to discredit my claim that judicial deference can be traced to Marshall by noting that the same claim was made by Thayer. But even if Thayer did not understand Marshall as precisely as he should have, it is still the case that Thayer could make this claim precisely because there is evidence to support it. As I noted, and as Bernick notes in summarizing my argument, Marshall, in Fletcher v. Peck, said for the Court that judges should seldom if ever declare a law to be unconstitutional in a doubtful case. This is undoubtedly an endorsement of judicial deference, and Bernick does not even bother to deny it. In this passage, Marshall says that there will be doubtful cases, cases in which it may not be possible to render the Constitution perfectly clear, and that in such cases the Court should seldom if ever declare a law unconstitutional which is as much as to say that the Court should defer to the interpretation of the Constitution on which the Legislature acted when it made the law unless there is a clear argument for doing otherwise.
Moreover, we should also keep in view that the libertarian constitutionalists are not merely criticizing judicial restraint but advancing an alternative: judicial activism in defense of a libertarian understanding of rights. This activism, they say, should be guided not by a presumption of constitutionality the traditional approach associated with judicial deference but instead by a presumption of liberty. But even if we were to grant that the progressives took a too narrow view of the judicial power, this would not do anything to justify the sweeping power for Courts that the libertarian constitutionalists want to unleash by positing a presumption of liberty. Every law impedes somebodys liberty. Therefore, beginning from a presumption of liberty is the same thing as beginning from a presumption of unconstitutionality for every law that is passed.
I can see why, as a policy matter, libertarian constitutionalists would advocate this presumption of liberty. They want as little government as possible, and it would be hard to think of a better tool for accomplishing this than a presumption of liberty in the hands of judges. Ill even agree that it would be good for legislators to keep this presumption in mind. They often seem to want to legislate just for the sake of being able to claim some political accomplishment. They should instead start from a presumption of liberty and ask whether society really needs the laws that they are often itching to write.
This is very different, however, from saying that courts should start from a presumption of liberty when judging the constitutionality of laws that have been enacted. Their job, in constitutional cases, is simply to give force to the Constitution. And the Constitution is not designed to guarantee that libertarian policy preferences will prevail.
Read the original here: