Barry McDonald and Ed Whelan have both responded to my call for judicial engagement with thoughtful defenses of “judicial restraint,” understood as judicial deference to assertions of government power when those assertions are challenged in court—albeit restraint of different kinds, supported by different justifications. Doing each justice will require separate responses.
McDonald advocates a form of judicial restraint that bears a striking resemblance to that championed by Harvard Professor James Bradley Thayer in the late nineteenth century, embraced by legal progressives, and introduced into American constitutional law through the pen of Justice Oliver Wendell Holmes, Jr. As I noted in my essay, Thayer argued that judges should only strike down congressional statutes if their unconstitutionality is “so clear that it is not open to rational question.” Compare the following passages. The first is from Justice Holmes’ now-canonical dissent in Lochner v. New York (1905), the second, from McDonald’s response to my essay:
Holmes:
I think that the word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law.
McDonald:
If claims of constitutional right are open to honest debate by fair and reasonable people, deference to majoritarian resolutions of those issues in the give and take of the political process is the most appropriate course.
It is no surprise, then, that McDonald approves of the Supreme Court’s decision in Williamson v. Lee Optical (1955), in which the Court transformed the default standard of constitutional review—the rational-basis test—from a deferential but not toothless standard into the equivalent of judicial rubber-stamp. Instead of allowing constitutional challengers to rebut the presumption of constitutionality that attached to legislative action by adducing evidence that the government’s actions did not serve any public-oriented end that the government claimed to be pursuing, the Court would in Lee Optical and subsequent rational-basis cases uphold legislation by hypothesizing justifications for the government’s actions that had no basis in the record, thus creating a well-nigh irrebuttable presumption of constitutionality. Today, those rights that have not been identified by the Court as “fundamental” (on the basis of vague criteria that have changed over time), and thus receive rational-basis review, are rarely vindicated. McDonald would subject all assertions of government power to this form of review.
McDonald’s case for judicial restraint is essentially majoritarian. McDonald believes that the Constitution establishes a “self-governing democracy” that is primarily committed to resolving “debatable and contestable value judgments” through majoritarian politics. The judiciary, in this view, is a suspect institution precisely because it is (at least at the federal level) relatively insulated from majoritarian politics. For McDonald, judicial restraint is a means of keeping judges in their place—as he puts it, “making sure that when they foist their will on over 300 million Americans, the exercise of that power is clearly authorized by the Constitution and the rule of law.”
McDonald’s description of the judicial nullification of unconstitutional government enactments—judges “foisting their will” on the rest of us—betrays a misunderstanding of the nature and purpose of the government established by the Constitution and the constitutional role of the judiciary. The Constitution is, as Professors Gary Lawson, Guy Seidman, and Robert Natelson have shown, a particular kind of legal instrument that creates a particular kind of legal relationship—a fiduciary relationship in which government officials are entrusted with power for stated purposes and authorized to carry out those purposes through specified means. Like other eighteenth-century fiduciary documents, the Constitution begins with a preamble that states its purposes. It then delegates power to government actors and institutions. The Constitution refers to “public trust” and to public offices “of trust”; Congress is empowered to enact measures that are “necessary and proper” for carrying delegated powers into execution, and to “lay and collect taxes, duties, imposts, and excises” in order to “provide for the … general welfare”; and the President is required to “take care that the laws be faithfully executed.” All of this language, writes Natelson, discloses a “purpose … to erect a government in which public officials would be bound by fiduciary duties to honor the law, exercise reasonable care, remain loyal to the public interest, exercise their power in a reasonably impartial fashion, and account for violations of these duties”
Judges who draw their power from Article III are entrusted with that power only after making a public promise to “support this Constitution.” With judicial power comes fiduciary duties—central among them, ensuring that the people’s agents in the other branches adhere to their fiduciary duties. In giving effect to the law of the land, even in the teeth of legislative majorities—as Alexander Hamilton explained in Federalist 78—judges act as representatives of the will of the people; they do not impose their own will. Thus Hamilton: “[W]here the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former.”
How could this possibly be right? How could Hamilton have believed—and why should we believe—that a handful of unelected lawyers could represent the will of the people? The answer is that the will of the people embodied in the Constitution is not mere majoritarian might. The Constitution, no less than the Declaration of Independence, presents popular consent (thus, “We the People”) as the source of all government power—but, as in the Declaration, popular consent is bounded by individual rights. We cannot, after all, delegate power that we do not rightfully possess—and none of us rightfully possesses the arbitrary power to deprive other rational moral agents of their freedom on the basis of mere will. The democratic processes authorized by the Constitution are a means to the end of protecting individual rights—in the words of the Preamble, “secur[ing] the blessings of liberty.” Although reconciling judicial review with majority rule has long been a scholarly obsession, no counter-majoritarian difficulty is presented by unelected judges who, in giving effect to the Constitution, set aside the will of contemporary majorities—our Constitution is not primarily majoritarian, but, rather, individualist. McDonald’s case for restraint fails because it rests upon a false premise.
McDonald also offers some specific criticisms of my case for judicial engagement. I have contended that judges have a constitutional duty to exercise independent judgment—understood as judgment in accordance with the law, without deference to the beliefs or desires of government officials, or to judges’ own beliefs and desires that have no foundation in the law. I have also explained that heightened scrutiny—whether intermediate or strict—has all the hallmarks of judicial engagement, in that it sees judges seeking to ascertain whether the government’s actions are actually (rather than hypothetically, as under modern rational-basis review) calculated to achieve constitutionally proper ends by scrutinizing evidence in the record and evaluating the fit between the government’s purported ends and its choice of means; and that engagement equips judges to discharge their duty of independent judgment. McDonald avers that judges are capable of exercising independent judgment “no matter what degree of scrutiny they apply to a challenged law”—the idea apparently being that so long as judges are faithfully applying that level of scrutiny, they are judging in accordance with the law. Thus, he contends that “[w]hat Bernick is really complaining about is which rights the Court has chosen to apply heightened scrutiny to, and those it has judged to be worthy of only minimal judicial review.”
Not so. I am really complaining that a number of doctrines fashioned by the Supreme Court have been interpreted to require judges to do things that are incompatible with their constitutional duties and, indeed, require them to violate the constitutional rights of those challenging assertions of government power. Independent judgment does not consist solely in applying previously formulated legal rules. If those previously formulated rules require judges to assist one party—the party asserting power over the other in the first instance—by creating justifications for legislation that have no foundation in the record, judges are not exercising independent judgment but, rather, are working to support a judgment that has already been reached. They are to that extent deferring to government officials’ beliefs that the challenged actions are constitutional. They are also depriving litigants of due process of law, which guarantees (among other things) impartial adjudication, free from bias. That the bias in question is the product of doctrine rather than the proclivities of individual judges does not make it any less troubling. Indeed, systematic bias is more damaging than individual bias, as it affects outcomes in entire classes of cases and undermines the legitimacy of the judiciary as an institution—an institution the authority of which depends upon its independence and impartiality. Given that the doctrines I have identified were created by (as McDonald describes them) “particular individuals wearing black robes,” I am surprised that McDonald is untroubled by them.
And I am complaining about all the above because the rule of law that the Constitution is designed to establish is of surpassing value. The Constitution is, as Frederick Douglass described it, a “glorious liberty document.” As a blueprint for a government that is designed to secure and enlarge individual freedom, it has been extraordinarily successful. I fear that McDonald’s approach would deprive Americans of even more of the blessings of liberty that have been placed out of reach as a consequence of judicial abdication—few (if any) consequential constitutional questions do not involve “debatable and contestable judgments.” Consistent judicial engagement, by contrast, would ensure that no rights secured by the supreme law of the land are disregarded by judges as a matter of course, even if they are disregarded by the people’s agents in the legislative and executive branch. Article III promises a place of redress for individuals who are unable to persuade their agents not to betray their trust, and judges promise to exercise their own discretion consistently with the instructions given them by We the People. Judicial engagement is a means of ensuring that these promises are kept.